The Brandeis Temporary in Patent Instances

by Dennis Crouch

Louis D. Brandeis was a well-known lawyer lengthy earlier than turning into a Supreme Court docket Justice. Within the 1908 case of Muller v. Oregon, Brandeis represented the State of Oregon defending the state’s rule limiting the variety of hours that ladies might work in sure industries.  In protection of the regulation, Brandeis filed a quick that introduced social science analysis and empirical proof to assist the argument that lengthy working hours had damaging results on girls’s well being and household life.  That proof helped sway the courtroom and in addition spawned the “Brandeis temporary” — an strategy that proceed to be a well-liked mechanism for trying to affect the Supreme Court docket. Brandeis briefs sometimes embody a lot of details and claims about how the world works and ask the courtroom to make use of these details in its interpretation of the regulation.  One key downside with this strategy is that it doesn’t comply with the standard guidelines of proof required for factual findings.  And, when the Supreme Court docket adopts the findings, then the details all of the sudden grow to be the regulation and binding precedent.  Thus, Muller v. Oregon, the Supreme Court docket precedentially concluded that it was uniquely dangerous for ladies to work lengthy hours and that their pure caregiver function can be improperly disrupted.  Right this moment, we’d acknowledge that these conclusions included inherent cultural biases relatively than stemming from the character of girls.

A serious downside with this form of evidentiary submission on to the Supreme Court docket is that it’s unchecked and admittedly biased — these are despatched to the courtroom in briefs advocating a specific viewpoint and with out the atypical judicial evidentiary course of.  However, proponents of Brandeis briefs argue that the principles don’t apply to those “legislative details” as a result of the proof is getting used to interpret the regulation relatively than make case-specific factual conclusions.  That is a lot the identical strategy because the Court docket makes use of to find out historic details for originalist selections.  However, many historians would agree that historical past as outlined in Supreme Court docket circumstances seems to be cherry-picked with a purpose to obtain a specific outcomes.

In patent circumstances, we regularly have Brandeis briefs on the coverage affect of sure decisions.  As well as, we additionally repeatedly see makes an attempt to elucidate the science to the justices in ways in which assist make them a specific conclusion.  In Amgen, as an illustration, Nobel Prize winner Gregory Winter submitted a quick explaining that antibody design is extraordinarily unpredictable and, due to that, broad practical claims shouldn’t be allowed.   Amgen contended that a few of the proof Winter relied upon had been excluded by the trial courtroom, and thus shouldn’t be reintroduced to the Court docket. However, the observe is prone to persist.