Friday, October 9, 2009

A Brandeis Appeal

It is always interesting, and sometimes fascinating, to see the legal work a United States Supreme Court Justice did before he went on the Court. I was, therefore, pleased to recently come upon an appeal Louis D. Brandeis handled during his many years as a very successful Boston attorney.

In Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N.E. 929 (1887), the firm of Warren & Brandeis represented the appellee paper companies which objected to a regulation of the Boston board of health which required that rags which entered the city to be used in the manufacture of paper had to be disinfected. Apparently the companies objected that the Boston Disinfecting Company was granted a monopoly to do the disinfection. They also objected that the rags arriving in Boston harbor had already been disinfected elsewhere, so the disinfection by the Boston Disinfecting Company was unnecessary and costly to the paper companies.

While the paper companies were successful in the trial court, on appeal Brandeis did not prevail: the appellate court concluded that under the city charter the city council could delegate to the board of health the authority to make regulations necessary for the public health.

What makes the appeal interesting is that Brandeis raised the sort of claims on behalf of the paper companies which were to take on greater constitutional meaning in the 20th century: that the health regulation interfered with interstate commerce and violated due process of law. Brandeis' later well known opposition to business monopolies is also a subtext here.

Brandeis' partner Samuel Warren was the co-author with Brandeis of the 1890 Harvard Law Review article, "The Right of Privacy," which many maintain is the single most influential law review article ever written.

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