“Wilson found the judicial outlook of Louis D. Brandeis, Harvard Law School professor, highly congenial. Brandeis was the author of the historic ‘Brandeis Brief,’ which ushered in a whole new phase of constitutional law based more on sociological than legal interpretation.” (1)

Florence Kelley, founder National Consumers League.

Josephine Goldmark.

Brandeis home at 6 Otis Place.

Overlooking the Charles River from the Brandeis home, Boston.

Brandeis and the National Consumer’s League

The Brandeis Brief was submitted to Judge Brewer during the landmark 1908 Supreme Court case, Muller v. Oregon, where the court was considering the constitutionality of limiting women’s working hours. Brandeis hired by the National Consumers League to counsel in behalf of the State of Oregon. Brandeis was hired personally by two of its most influential leaders, the NCL’s chairman of publications committee Josephine Goldmark, and its executive director and co-founder, Florence Kelley. Josephine happens to be the sister of Brandeis’ wife Alice, which under normal circumstances makes her his sister-in-law, except Alice, Josephine and Louis were all second cousins.

Kelley along with Jane Addams and Josephine Lowell created the League to correct through acts of reform legislation the unsatisfactory working conditions inherent to unregulated industry. What they were really doing was establishing the framework to a new international system of manufacturing and trade.  

“The National Consumers League was founded in 1899 by Jane Addams [ and Florence Kelley, and Josephine Lowell ] as a social reform movement concerned with the conditions under which goods were manufactured and distributed … The League promoted the creation of administrative agencies to enforce protective legislation and played a major role in defending reform measures in court.” (emphasis added) National Consumers’ League Records, Library of Congress, Washington D.C.

Brandeis famously introduced to the courtroom an as-of-yet-never-before-seen technique in arguing case law giving birth to a revolutionary new sociological jurisprudence covered in more depth in a later, two-part article we named, Brandeis Part 6: the Science and Philosophy of Law. Simply put, it was the combining of sociology, “the science of social order and progress”, with law, “the most specialized engine of social control.” The insertion of the scientific expert.

The law an underappreciated aspect to the social control of society despite it being the most obvious. Having already spoken of Brandeis’ influence on Wilson and the executive branch of the US government in, Brandeis Part 1: Architect of the New Freedom, we now tell of the events that led to Brandeis’ transformation of the judicial and legislative branches, first as a nationally known radical reform attorney and then as a confirmed member of the highest legal seat in America, the US Supreme Court.

The meeting at Brandeis’ Boston home between he and the founders of the NCL marks the beginning of a legislative altering relationship that would last at least another decade. Once Brandeis was confirmed as a justice of the supreme court, his responsibilities as legal counsel to the NCL were taken over by his young protege Felix Frankfurter.

Josephine Goldmark describes the nascent moments of the Brandeis brief:

“On November 14, 1907, Florence Kelley and I were actors in a little scene which, though of course we did not realize it then, marked a turning point in American social and legal history. We had come to Boston to see my brother-in-law, Louis D. Brandeis, then a practicing attorney in Boston, and we sat in the back library of his home on a little street called Otis Place. We had come to ask Mr. Brandeis to appear in the Supreme Court of the United States to defend the Oregon ten-hour law for women, attacked as unconstitutional under the Fourteenth Amendment.” Brandeis, looked thoughtfully out over the Charles River and accepted, “thus began a collaboration between Mr. Brandeis and the Consumers League which gave a revolutionary new direction to judicial thinking, indeed to the judicial process itself.”(2)

“He [Brandeis] then outlined what he would need for a brief: namely facts, published by anyone with expert knowledge of industry in its relation to women’s hours of labor, such as factory inspectors, physicians, trade unions, economists, social workers. If I could return to Boston within a fortnight with such printed matter, sufficiently authoritative to pass muster, we would then work up the material in the form of a brief.” (3)

 “Josephine Goldmark’s work as a reformer in the Progressive Era did much to redesign the American social contract.” (4)

The Brandeis Brief set the method of argument for other landmark minimum hour cases in 1909, 1912, and 1914, as well as minimum wage cases in 1913 and 1914, Brandeis was assisted greatly in the collection of material by Josephine Goldmark and the NCL, and the entire scheme heavily funded by Dorothy Paine Whitney, the Russell Sage Foundation, and the Fabian Society. The series of groundbreaking cases in which Brandeis was counsel, won by way of scientific expert opinion, set the foundation for a new scientific philosophy of law for the 20th century.

Consisting of over one hundred pages of sociological data, Brandeis’ brief devoted only two pages to legal argument.  Largely due to the efforts of Brandeis, working with Goldmark, Kelley and the National Consumer’s League at the height of the Progressive Era, we see the pioneering moments of arguing US case law using facts and statistics – two things susceptible to a wide array of subjective opinion.

By getting law to change with a progressive society they created a new living law steered by social science research data, turning the feedback loop into a social reform perpetual motion machine. This shaping of society using critical observation and applied scientific experimentation  the primary method and meaning of social sciences from its inception.

The opinion of soft social science experts now presided over the court room just as in the oval office, traditional legal precedent and the US Constitution were deemed out-of-date and promptly tossed out of court. Just as Brandeis used Harvard social scientists to infiltrate the executive branch of the US government, he did the same to the judicial and legislative branches. 

“Miss [Josephine] Goldmark states: “The Brandeis Brief in the Muller case, reprinted together with Judge Brewer’s opinion, was in great demand from law schools and universities as well as from labor unions and libraries .. Gone was the deadening weight of legal precedent.” (5)

Judge Brewer stating in his final assessment, “before examining the Constitutional question, to notice the course of legislation as well as expressions of opinions from other than judicial sources … the brief filed by Mr. Louis D. Brandeis … is a very copious collection of these matters”, but in regards to the facts found within the brief, Brewer admitted, “may not be, technically speaking, authorities, and in them there is little or no discussion of the constitutional question.” (6)

Brewer admitting rightfully that facts aren’t the truth, and quantitative evidence is not necessarily qualitative.

In the “new precedent”, the judge himself becomes witness to the settling of law through “copious” collections of facts and statistics, Brewer noting they were not “technically speaking, authorities” in themselves, adding for the record that there was “little or no discussion” to the negative effect the attorney’s radical method might have on the US constitution.

According to David Bernstein, law professor at George Mason University School of Law, much of the information found in the brief was of a dubious nature, calling the collection of facts “nonsensical” and “miscellany” and “hardly definitive”.

Owen Fiss, Sterling Professor Emeritus of Law, Yale University and author of The Troubled Beginnings of the Modern State in 1993 concluded Goldmark’s collection of evidence as a “hodgepodge” pg. 175.

In 1914 Goldmark was sponsored by the Russell Sage Foundation to write, Fatigue and Efficiency, once again demonstrating the direct involvement of Skull and Bones. Both The New Republic and the Russell Sage Foundation donated both manpower and money to many NCL causes during this time. Dorothy Paine Whitney, the wife of JP Morgan financier Willard Straight, “paid in full all the cost of printing all the briefs” dating back to the very first, the Brandeis Brief in 1908.

Massive amounts of private money poured into the progressive legislative reform effort, thousands of copies of a thousand reports were published and circulated through the necessary intellectual channels while editor friends of Brandeis sympathetic to the progressive cause, like Norman Hapgood, editor of Harper’s Weekly, wrote a thousand stories in a thousands newspapers, magazines, and journals advocating both Brandeis and his progressive ideals.  

Remembering here that Whitney and Straight funded the founding of The New Republic in 1914 with Brandeis, Walter Lippmann, Herbert Croly, and Felix Frankfurter. Other progressive magazines were: American Magazine, Collier’s, Cosmopolitan, McClure’s, Munsey’s, and the Independent. “These magazines sold for ten or fifteen cents a copy, instead of the twenty-five and thirty-five cents charged by the older magazines.” pg. 32, The AFL in the Progressive Era, 1910-1915, Philip S. Foner.

Once they could get constitutional law to change with the times it no longer possessed its timeless, inherent value. The foundational nature of the US Constitution being its most enduring and important quality, was the largest deterrent for the authors of all forms of social control and here we see the onset of a deliberate undermining of the foundation of America. Judge Brewer felt it necessary to state officially for the record in his court’s opinion, that it is the “value of a written constitution that it places in unchanging form limitations upon legislative action, and thus gives a permanence and stability to popular government” yet Brewer still ruled in Brandeis’ favour, and the sociological school of thought first put into practice by Brandeis, spread across the country eventually evolving into the dominant philosophy of law in America for the remainder of the 20th century.

Goldmark would continue her legislative activism mostly with Frankfurter following Brandeis’ election to the Supreme Court in 1916 but by then Brandeis had established much of the foundational framework, much of our modern day social contract, from the hours we work, to how we work, to where we work, all formed, not surprisingly, during these critical peak Progressive Era years.

Frederick Winslow Taylor

1911 edition, only distributed to engineers and shop managers. Note the fasces on the front cover.

The Taylor Society

“Scientific Management demands preparedness. The results attained through scientific management depend on universal preparedness. The same preparedness is invoked for industry which is secured to Prussia in her victory over France.” Louis Brandeis, Scientific Management and the Railroads.

This idea of a scientifically governed society not original to our modern times but Brandeis an undeniable central figure in its modern incarnation. Brandeis most responsible with coining the term ‘scientific management’  and popularizing “what many argue today is the most important ‘ism’ of the twentieth century”, Frederick Winslow Taylor’s, The Principles of Scientific Management. (7)

“The whole country at once recognized the importance of conserving our material resources and a large movement has been started which will be effective in accomplishing this object. As yet, however, we have but vaguely appreciated the importance of “the larger question of increasing our national efficiency.” Introduction, The Principles of Scientific Management.

Taylor’s major contribution towards our present day industrial democracy largely goes unnoticed by a disinterested public until now.

Taylorism, as it is known today, was a revolutionary new approach to workshop efficiency. Taylorism driving the Efficiency movement that introduced to the world entirely new concepts like: organized labor, industrial management, industrial relations, and scientific management.  

“By the election of 1912, Brandeis counted some of the nation’s leading engineers (such as Frederick Taylor, Henry Gantt, Harrington Emerson, and F. Lincoln Hutchins) among his most trusted advisers.” Pg. 47, Louis Brandeis: The Making of Regulated Competition, Berk

Brandeis took a very hands on approach, “marshalling publicity” by exploiting his many very influential contacts within the political circles and press clubs of New York, Boston, and Washington, Brandeis organizing the meetings with the leaders of the newly formed Taylor Society, writing out the method of argument for everyone to follow, coordinating, collecting and coaching witnesses.  Here again we see Brandeis gaining influence over a group of important people possessing important technology.

“In October, Brandeis met at Gantt’s apartment in New York with Frank Gilbreth, Jim Dodge, and others.” (8)

Other management pioneers such as Henry Gantt, known for his Gantt Chart, and Frank Gilbreth, known for his motion studies, Morris Llewellyn Cooke for rural electrification, Carl George Barth for his speed-and-feed compound slide rule, all collaborated with Brandeis in bringing scientific management to life. Brandeis even writing the foreword to Gilbreths, Primer of Scientific Management in 1914. They would famously combine Gilbreth’s motion studies with Taylor’s time studies forming an entirely new discipline, time-motion study. This collection of men early pioneers of the cybernetic, eugenic and later technocracy movements.

Brandeis described scientific management as “a revolution in industry comparable only to that effected in the transition from hand labor to machinery.” (9)

Henry Gantt
Frank Gilbreth

Taylor to Brandeis “Please let me congratulate you most warmly upon the masterly way in which you marshalled your forces and presented your testimony, and also upon the publicity which your testimony has received and the interest by the papers all over the country.” (10)

The large stumbling block was presenting to the labor unions an agreement the workers would accept. Nearly to a man, labor revolted at the thought of being scientifically micro-managed.

“Labor was readily able to understand and agree with Brandeis that employers would, without involving large capital expenditure, gain greater productivity from labor, reduced labor costs, more efficient use of plant and equipment, lower interest and  taxes, lesser depreciation charges, reduced stock of raw and process materials, and lessened strain on credit. However, they could not understand or agree with Brandeis as to what employees would gain from scientific management.” (11)

“In studying the resistance of organized labor to scientific management, Valentine came to see that the objection lay not so much in the thing itself as in the fact that it was introduced by the employer and for his own advantage.” (11) 

“The substitute of machinery for unaided human labor was the great industrial achievement of the nineteenth century. The new achievement to which Dr. Taylor points the way consists in elevating human labor itself to a higher plane of efficiency and of earning power.” Henry R. Towne, president American Society of Mechanical Engineers, foreword to Taylor’s, Shop Management (1910). 

The Protocol of Peace

“he [Brandeis] described the protocol system as “a large step toward industrial democracy.” (12)

Eventually came the Protocol of Peace, a revolutionary new industry-wide labor standard, bringing together Valentine’s industrial relations with Taylor’s principles of scientific management, forming Sidney Webb’s industrial democracy. It was the long anticipated partnership between capital and labour, a sort of syndicalism of shared responsibility and shared compensation. The labor unions and their leaders were the scientific entering wedge between man and his own labor. New York City, the center of American industry, was the proving ground, and the Lower East Side became their laboratory. It was in many ways the domestication of the human being. And once standards and protocols were established in NYC, they quickly spread across the entire country and adopted industry wide.

“INDUSTRIAL DEMOCRACY was a term that before 1909 had significant relevance only for reformers and intellectuals. Events in Progressive Era New York grounded this abstract theory into the streets of the Lower East Side. The conflicts of the ladies’ garment industry provided a ready-made laboratory. The Protocol of Peace, a radical trade agreement in New York City’s ladies’ garment industry, ushered in a new experiment with industrial democracy.” (13)

When the Protocol of Peace was signed on September 2, 1910 it “ushered in a new era of industrial labor relations.” American Jewish archives, Protocol of Peace.

“The strikes …. set the stage and organized both workers and owners into powerful groups necessary for an industry-wide agreement. Industrial democrats used this canvas as provided by workers to paint a new picture. Men ….such as Louis Brandeis … and others marshaled the power of social science and used their influence to broker deals to gain a seat at the industrial relations table.” (14)

“Industrial Democracy provides an important lens through which to view IR during the Progressive Era. Industrial democracy was one of the handful of ideas that defined Progressive Era reformers. It signaled a new scientific approach to labor in America as well as a fundamental recommitment to democratic principles.” (15)

“The Protocol of Peace fashioned by Brandeis to settle the second strike, was a unique and revolutionary institution. It gave workers collective bargaining and brought about improved conditions, better wages and hours, safer and cleaner work places, and a host of other important reforms.” (16)

“The Cloakmakers’ Strike of 1910, to use Samuel Gompers’s apt phrase, was ‘more than a strike, [it was] … an industrial revolution’ because it created a new system of IR, finishing what started in 1909. ‘The signing of the Protocol,’ as the contract that ended the strike was called, as historian Louis Levine has noted, ‘ushered in a new period of constructive experimentation in collective bargaining.’ Benjamin Stolberg, another earlier historian of the union, believed that ‘the Protocol of Peace marked a decisive turning point [in part because] … its basic idea was later copied by the other needle trades …. And in time its influence spread throughout American industry.” (17)

The Haymarket Affair of 1886, the Homestead Strike of 1892, the Uprising of Twenty Thousand of 1909, the Triangle Shirtwaist Fire of 1911, the Cloakmakers’ Strike of 1910, the 1913 Phelps Dodge Mining Explosion, the 1914 Ludlow Massacre, were just some among many high profile labor wars that erupted out of the industrial revolution, all served as a catalyst for a radical reform of industry relations that led to a complete overhaul of American life. A separation of history into a before and after. These labour wars part of the Great Revolt in the US that coincided with the Great Unrest in Britain and the Great Labour Revolt in Canada.

As you could imagine, labour revolted at the idea of such control measures we find normal today, the workers saw no advantage for them in their being managed scientifically, they saw only in the scheme what we witness as undeniably true today, that the worker was never meant to share in neither profit nor leisure. The manufactory exploited the human being to its own advantage and today we bare witness to a system ridding itself of labour entirely, as was the plan from the beginning. Brandeis helped force into reality an entirely new promise of American life. The Progressive plan pushed through sparing no expense, we see the breaking of the old American spirit, the first staggered steps of the rugged individual. And just as today (perhaps the most reformatory period since the Progressive Era), change, and moving forward are all done in the name of efficiency and preparedness.

Footnotes:

  1. pg. 150, The Fabian Freeway.
  2. pg. 143, The Impatient Crusader, Josephine Goldmark.
  3. pg. 155, Josephine Goldmark, Impatient Crusader: Florence Kelley’s Life Story.
  4. Jewish Women’s Archive, Josephine Goldmark, https://jwa.org/encyclopedia/article/goldmark-josephine-clara
  5. pg. 150, The Fabian Freeway
  6. pg. 218, Brandeis: A Life, Urofsky.
  7. Peter Jennings, ABC Nightly News, The Century, Taylorism.
  8. pg. 431, One Best Way, Robert Kanigel 
  9. pg. 43, Brandeis Beyond Progressivism
  10. pg. 434, One Best Way, Robert Kanigel.
  11. pg. 57, Publications of the American Jewish Historical Society, Volume 41, No. 1, September, 1951, pg. 41-60, Brandeis and Scientific Management, Oscar Kraines. Johns Hopkins University Press.
  12. Citation needed.
  13. pg. 40, Brandeis, Beyond Progressivism
  14. pg. 23, Triangle Shirtwaist, the Protocols of Peace, and Industrial Democracy in Progressive Era New York, Richard A. Greenwald. Greenwald professor of history and Dean of the College of Arts and Sciences at Fairfield University, Connecticut, on the board of the Journal of Planning History.
  15. pg. 23, 24, Triangle Shirtwaist.
  16. pg. 10, The Triangle Shirtwaist.
  17. Citation needed.
  18. Citation needed.