How to Write a Brief

Go to example--Marbury v. Madison

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Resources: "Why and How to Brief a Case" in Albert P. Melone, Researching Constitutional Law, pgs. 55-64.
The purpose of briefing cases is to train you to sift through the material you read and condense it to a manageable size.  Since you will be required to discuss these cases in class, how you prepare your briefs will be critical to your effective participation.  The most common errors in briefing cases are "overbriefing" (writing too many nitty-gritty details) and "underbriefing" (being so skimpy that you can't even recall what the case was about based on your brief.)  A rule of thumb:  one sheet of notebook paper filled on one side should be quite enough if used resourcefully (no skipped lines,etc.).

Caution: You MUST read the case in order to write the brief.  You simply can't fake this assignment.  I strongly recommend that you read and brief the case at one sitting.  Do not put off writing it up as you are likely to forget essential elements.

Each student is responsible for briefing all assigned cases on their own.  For this reason, I will only accept briefs that are HANDWRITTEN.  Do not type or print your briefs using a computer.  Use lined notebook paper and purchase a 1" 3-ring binder to maintain your briefs.  This will facilitate submitting the briefs for grading and adding to your collection over time.

I will collect your briefs at least twice during the semester (and possibly more often).  They will be turned in at the beginning of class.  I may NOT collect the entire classes briefs on the same day, but do a random selection process (all students whose last name starts with K through T; social security number, etc.) or I may collect them all!  Do not assume that you know my pattern of selection; you may turn in two briefs before someone else has even turned in one!  Be prepared!!!!

If you are absent the day the briefs are collected, you will receive a 0.  If you do not have your briefs prepared the day I collect them you will receive a 0.  HOWEVER, all briefs requested for submission must still be turned in not later than the last lecture day of class.  Failure to do so will result in a grade of D- or less.  Let me restate:  late briefs (any not submitted at the beginning of class when requested) will not be graded and you will receive 0 points toward your final grade—but you MUST turn them in anyway unless you want a final grade of D- or less in the course.  If you are absent, I suggest that you either submit your briefs in advance or have another student bring them to class if you are absent.


CASE NAME (always underlined, short version)   

I.  FACTS This section should be of sufficient length to spark your memory of the case.  You should also note whether this is a state or federal case, on appeal or original jurisdiction, and who each of the parties are in the case. Do not get overwrapped in the details here–simply the essentials to jog your memory.

II.  ISSUES  This section is best written succinctly in question format and must note which law/laws (statutes) or constitutional issues are being challenged.  The questions should be posed so that they elicit a "yes" or "no" (or maybe!) response.  This section is very brief.  Focus only on those issues that we are examining in this course.  (If the topic of the day is pregnancy and the case also includes a tort liability matter, ignore the irrelevant issue and focus only on the topic at hand.)

III.  DECISION AND ACTION Simply put, answer each of the questions posed in II, and note what the justices ordered (reversed; affirmed; reversed and remanded, etc.)  Also note the decision alignment (6-3; 5-4).  This section is very brief.

IV.  RATIONALE OF MAJORITY DECISION Start with the author's name.  This section is very important and should be a significant intellectual exercise.  You must discuss the basis or justification used by the majority to reach its decision.  Focus on the logic of the main arguments at issue in our course.  Note especially the espousal of new doctrines, application of existing precedent or the Court's outright reversal of previous holdings.

V.  OTHER OPINIONS  If there are any concurring or dissenting opinions, you should note which justice(s) wrote separately and summarize his/her arguments in no more than two sentences per opinion.  Ask yourself why they disagreed with the majority or in the case of concurring opinions, what they had to say that was different from the majority.

VI.  SUMMARY Note here the distinguishing characteristics of the case and why it is important to our line of reasoning in the area under study.  This is not an easy task as it requires you to think beyond the case and to put the case in the context of American politics, government, rights and law.

VII.  MISCELLANEOUS COMMENTS OR QUESTIONS You can note here any questions you may have regarding the case.  Also, leave enough blank space to add further information during class.


Marbury v. Madison 
Dr. Salokar
5 U.S. (1 Cr.) 137 (1803)    
April 24, 2016


I.  FACTS Marbury and others had been appted to offices (DC justice of peace) by outgoing Pres. J. Adams, but never rec'd their commissions as the new Pres. (Jefferson) and his secy of state (Madison) refused to deliver.  Marbury brought his case directly to the Sup.Ct. under the Judiciary Act of 1789, which allowed the Sup. Ct. to issue writs (orders) of mandamus to federal officials, asking for his apptmt.  Party politics at work due to pres. transition.  And Marshall, who had been secy of state under Adams, now was Chief Justice of Sup. Ct.

1.  Does Marbury have a right to his commission/appt?
2.  If he has such a right that has not been provided, is there a legal remedy available?
3.  Is that legal remedy a mandamus issued by the Sup. Ct.?

1.  Yes, Marbury has right to commission.
2.  Yes, remedy available is found in Judiciary Act of 1789.
3.  No, mandamus as found in Judiciary Act of 1789 is unconstitutional grant of power.

Unanimous, 4-0:  "Rule...discharged" (Marbury loses)

C.J. Marshall:  Addresses each of the 3 issues sequentially.  In #1, he determines that because the commission was issued, signed by the Pres. and sealed by the Secy of State, it is a valid document and that Marbury was duly appted as justice of peace for a period of 5 years.  This aspect of the decision was purely mechanical in nature in that Marshall strictly looked for certain rqmts. to have been met (logical exercise).

As to #2, since Marbury has a right, our laws must provide him with a remedy (great quotes:  "The very essence of civil liberty certainly consists in the right of every indiv. to claim the protection of the laws, whenever he receives an injury." and "The govt. of the US has been emphatically termed a govt. of laws, and not of men.  It will certainly cease to deserve this high appellation, if the laws furnish no rememdy for the violation of a vested legal right...).  Marshall discusses the political powers of the Pres. in appts. and then goes on to argue that "the question whether a right has vested or not, in its nature, judicial and must be tried by the judicial authority."  Therefore, he claims that the Court is the proper venue for seeking relief.

On issue #3, Marshall first explores the history of the mandamus (looks to England and early case in US-1792) and finds that mandamus is appropriate tool for remedy, but goes further and asks whether the US Sup. Ct. may issue it.  Congress in Judiciary Act of 1789 provides that Court may issue a mandamus under its original jurisdiction, but Marshall determines that Congress has no such power to outline original jurisdiction of the Court under the Constitution through a careful examination of Art. III.

He next examines whether a law that is unconstitutional can take effect and determines not, using the argument that the supremacy and permanency of the Constitution cannot be undermined by legislation. Therefore, "an act of the legislature, repugnant to the Constitution, is void."  And, he argues, that "it is the province and duty of the judicial department to say what the law is,"  and thereby claims the power of judicial review for the courts.


VI.  SUMMARY Marshall outlines the judicial power, establishes the right of judicial review and lays claim to the role of the court in declaring other branches' actions to be in violation of the Constitution.  He also claims that it is the Court whose province is to interpret the Constitution.  In doing so, he avoids a political confrontation that could have seriously undermined the power of the Court and places the Court squarely in the constellation of governmental powers.

VII.  MISCELLANEOUS COMMENTS OR QUESTIONS Mandamus:  An court order requiring or forbidding an action.   In class, we talked about the reading of the Constitution as text, for meaning of the words, original intent, and literalism.  We also discussed the doctrinal developments that emanate from Sup. Ct. cases.