The Dormant Commerce Clause Doctrine, Swift v. Tyson, Uniform State Commercial Laws, and Federal Common Law: Ships That Passed in the Night

Abstract

In Gibbons v. Ogden, Chief Justice Marshall described the power of Congress to "regulate" commerce as "the power... to prescribe the rule by which commerce is to be governed." At first blush, this definition seems to contemplate that the legal principles governing the conduct of interstate commerce-e.g., whether negotiations for the sale of goods to be shipped from one state to another have culminated in a binding agreement; what counts as a breach of such a contract; how a breach should be remedied; and the rights of third parties, like lenders, who participate in the transaction-are to be promulgated by Congress, not by the states. Federal sovereignty over the legal framework of interstate commerce seems not only to follow from Marshall's definitional remarks, but to be confirmed by an abundance of later judicial assertions: for example, that interstate commerce "comprehends all the component parts of commercial intercourse between different states," including "every negotiation, contract, trade and dealing between citizens of different states" as well as "the obligation to pay and the right to recover the amount due."