Winter 1975] DESEGREGATION LITIGATION ing a maximum hour law for women, in which Louis Brandeis filed a 113-page brief in support of the law's constitutionality, drawing upon such sources as surveys, government statistics, factory reports, and the opinions of doctors, employers, and employees. 6 The so-called "Brandeis Brief" was cited with approval by the Court. 7 Since then, the courts have frequently resorted to nonlegal research to support legal conclusions. Trademark and antitrust litigation, for example, have been areas long dominated by empirical social science evidence. Empirical social science data and research also have been cited in cases involving the death penalty, 8 six-man juries," legal insanity rules, 1 0 and the use of test scores and education credentials for employment. I t Social science data 6. Brief on behalf of the people, prepared by Louis D. Brandeis and Josephine Goldmark, Muller v. Oregon, 208 U.S. 412 (1908). 7. 208 U.S. at 419-20 n. 1. Professor Paul Freund would distinguish the "Brandeis Brief" from the use of psychological and sociological research in Brown on the ground that the Brandeis Brief was used to support legislation-and thus was in line with the usual presumption of constitutionality. In Brown, however, extra-legal evidence was used to attack legislation. P. FREUND, THE SUPREME COURT OF "tHE UNirED STArES 152 (1961). 8. Furman v. Georgia, 408 U.S. 238 (1972). 9. In Williams v. Florida, 399 U.S. 78 (1970), Justice White, writing for the majority, noted that "[w]hat few experiments have occurred. .. indicate that there is no discernible difference between the results reached by the two different-sized [6-man and 12-man] juries," id. at 101, citing six sources which were not based on empirical research by social scientists but on the experience of lawyers and judges in reduced jury jurisdictions. Justice White continued in Williams: "In short, neither currently available evidence nor theory suggests that the 12-man jury is necessarily more advantageous to the defendant than a jury composed of fewer members." Id. at 101-02. As an 1 Would not have the constitutional rights of Negroes-or of other Americans-rest on any such flimsy foundation as some of the scientific demonstrations in these records. .. . [S]ince the behavioral sciences are so Very young, imprecise, and changeful, their findings have an uncertain expectancy of life. Today's sanguine asseveration may be cancelled by tomorrow s new revelation-or new technical fad.
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