Prof. Mark Tunick tunick@fau.edu

Below is a sample of a brief of a court case. Briefs will often be longer, but they should be concise. Typically they will be one page, two at the most. A brief should contain the essential information but without distracting details--get to the point. You should explain the reasoning behind all the opinions. If there were concurring opinions, explain why the concurring Justices wrote separately. If there are dissents, explain why the dissenters disagreed with the majority.

Gibbons v. Ogden 22 U.S. 1 (1824)

1. Facts: A NY statute grants Livingston/Fulton a monopoly on steamboat use in state waters. They license Ogden to run a ferry between NY and NJ ports. Gibbons, a former partner of Ogden, runs a ferry between NY and NJ ports even though Ogden has an exclusive license from the NY statute. Gibbons claims he is licensed by a 1793 Congressional Coasting Vessel Act. Ogden obtains an injunction preventing Gibbons from running ferry.
2. Issues: Does the NY Statute that grants Ogden exclusive rights to run the ferry violate the Commerce Clause?
3. Decision: NY Statute held invalid (7-0)
4. Reasons (C.J. Marshall)
1. The New York statute conflicts with a valid federal law (Congress's 1793 Act), and the federal law overrules the state law by virtue of the supremacy clause (see p. 143: "[Congress's power to regulate commerce] has been exercised")
• Congress has the authority to regulate navigation through its power to regulate commerce. Navigation is part of 'commerce'. Art I, Sec. 9, clause 6: "no preference shall be given by any regulation of commerce to the ports of one state over those of another." Hence commerce refers to navigation too (191).
• Congress’s power to regulate is substantial: "It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power [i]s complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."
2. Even absent the Congressional law, the New York law violates the dormant commerce clause.
• It is a regulation of commerce "among the states" and thus a usurpation of the commerce clause, which says only Congress may regulate interstate commerce. The New York statute regulates activity on the waters within New York State. But these waters reach to other states; and to be able to trade with another state or foreign nation, one must be able to go to where the trade is, including the waters within New York (195-6).
• Dicta: Commerce which is completely internal is not covered by the commerce clause: "The completely internal commerce of a state, then, may be considered as reserved for the state itself." (But in this case, since the vessels reached NJ ports, the activity was not seen as completely internal to New York)
5. Johnson's Concurrence
1. Does not regard the 1793 Coasting Vessel Act as the foundation of Gibbons' claim (p. 146)
2. Appeals to Art I Sec. 10 to support the 'negative implication' of commerce clause: even if Congress didn't enact legislation, New York's law violates the 'dormant' commerce clause. A state can't regulate commerce that is interstate--the commerce clause prevents this.