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The Dormant Commerce Clause Doctrine, Swift v. Tyson, Uniform State Commercial Laws, and Federal Common Law: Ships That Passed in the Night, 8 Constitutional Commentary 87 (1991)


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."

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