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Legal Brief

Sample Brief—Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803)

FACTS:  William Marbury was one of President Adams’ “midnight appointments.” All of the necessary paperwork and procedures were completed to secure his appointment as a justice of the peace for Washington, D.C., but Secretary of State John Marshall – himself a midnight appointee to a somewhat more exhalted judicial position – failed to deliver his commission.  Upon assuming the presidency, Jefferson ordered his Secretary of State – James Madison – not to deliver the commission.  Under authority of the Judiciary Act of 1789, Marbury sued to ask the Supreme Court to issue a writ of mandamus to force Madison to deliver the commission.

ISSUES: 1) Does Marbury have a right to this commission?  2) If he has a right, is there a remedy at law to realize it?  3) If there is a remedy, is it one that can issue from the Supreme Court? 

HELD:  1) Yes.  2) Yes. 3) No.

REASONING  (Marshall for a 6-0 Court):

To 1.  Because Marbury’s commission was signed by the President and sealed by the Secretary of State, he has a legal right to the commission.

To 2.  Because the signing and sealing completed the appointment process, denial of the commission is a violation of the law.  In a government of laws, a violation of the law creates a governmental responsibility to remedy the violation.  A writ of mandamus is such a remedy.

To 3. The Constitution is the “supreme law of the land” (Art. VI).  As such, it is “superior” and  “fundamental and paramount.”  It establishes “certain limits” on the power of the government it creates.  This includes the Congress.  Without such limits, “it would be giving to the legislature a practical and real omnipotence.”  Thus, “a legislative act contrary to the Constitution is not law.”

            “It is emphatically the province and duty of the judicial department to say what the law is.”  When a case comes to the Supreme Court, the Court must decide that case according to the law.  If “ordinary” (statutory) legislation conflicts with the limits imposed on government by the Constitution, the fundamental law must govern the ordinary.   If the legislature passed an act that the Constitution forbids – like a tax on interstate sales, an ex post facto law, or a treason conviction based on something other than two witnesses or a confession in court – the courts would have to strike it down.  Otherwise, the Constitution would not limit government.  Courts have this power because they decide cases under law; judges take an oath to uphold the Constitution, and this is part of that function.

            Following these principles, Marbury cannot receive a mandamus from the Court.  The Constitution creates two categories of jurisdiction for the Supreme Court – original and appellate.  Congress, under Article III, has the power to regulate appellate jurisdiction; no such power, however, is given for the regulation of original jurisdiction.  The latter is completely and exclusively defined by Article III – it cannot be added to or taken away from.  The provision of the Judiciary Act of 1789 which added matters of mandamus to the original jurisdiction of the Court, therefore, is beyond the power given to Congress by the people in the Constitution.  Having no legitimate jurisdiction over this matter, the Court cannot provide Marbury with the remedy he seeks.

DECISION:  Dismiss for want of jurisdiction.

DISSENTS:  None 

SIGNIFICANCE:  Marshall, relying heavily on “logical reasoning” and little constitutional text, read the power of judicial review over acts of the national government into American constitutional law.  This power was extended over the actions of state governments in Martin v. Hunter’s Lessee (1816) and state courts in Cohens v. Virginia (1819), and is 1) the source of most of the authority the Court has come to know, and 2) the focal point of the ultimate debate about the Court’s proper constitutional role: should it exercise this power frequently (activism) or sparingly (restraints).

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Introduction

I. INTRODUCTION

       The ability to write a clear and persuasive brief is one of the most important weapons in a lawyer's armory; this is especially true for appellate practitioners. Although oral advocacy skills are important, a litigant's briefs are reviewed long before oral argument, when judicial law clerks are drafting their bench memoranda and judges are deciding how to approach oral argument and decide a case. Briefs are often reviewed a second (or third, fourth, or fifth) time after oral argument-when judges and their clerks are crafting the court's decision and revisiting the issues that the court must decide. For these reasons, a clear and persuasive brief often has a greater impact than even the most inspired oral argument. Moreover, it is becoming increasingly common for courts to decide cases without oral argument. In those instances, a compelling brief is critical to a litigant's success, and the only way to make an impact on the court.

       The ability to write and recognize a persuasive brief is important to lawyers throughout their careers. Junior attorneys are often responsible for initially writing a brief. Senior attorneys often review those briefs *418 and either rewrite or edit them (as circumstances require). In-house counsel may then review the briefs once more, providing additional edits and comments and addressing concerns. Wherever you happen to be in your career, it is important to know how to write, rewrite, edit, recognize, and review an effective brief. This Article offers a number of guidelines for crafting such briefs and provides a number of practical pointers to help lawyers along the way from writing through final review.

       More specifically, this Article offers seven general guidelines for writing persuasive briefs. Those guidelines, each of which is discussed in Part II, are as follows: (1) begin your brief with a compelling recitation of the relevant facts; (2) acknowledge the applicable legal standard and use it to your benefit; (3) carefully pick your strongest arguments; (4) present your arguments logically; (5) present your arguments simply and concisely; (6) be accurate, fair, and even-handed; and (7) follow the court's rules and sweat the details. Finally, although the discussion of these guidelines is focused primarily on appellate briefs, it is important to note that almost everything we write here applies equally to trial court briefing. After all, a good brief is a good brief.

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Termination Letter

Dear

Further to our meeting of (date) I (regretfully) confirm that your employment with us is terminated with effect from (date)/with immediate effect.

As stated at our meeting the reason(s) for terminating your employment with us is/are as follows:

• (Employer must clearly state reasons - transgressions and relevant policies if applicable)
• (Employer must clearly state previous warnings, informal, formal, written etc., and circumstances and person's response and subsequent behaviour/performance for each warning.)

(Clearly state requirements regarding return of documentation, equipment, car, submission of final expenses claims, and any other leaving administration issues.)

(Clearly state actual leaving date, requirement or otherwise to serve period of notice, holiday pay, and other pay and pension details.)

(Clearly state the position regarding the employee's right of appeal, and state the appeal process and timescales.)

(Optional sign-off, for example: Thank you for your past efforts and all the best for your future endeavours.)

Yours, etc.

name and position

(Optionally and recommended: attach, at the foot of the letter refer to, a copy of your written disciplinary process, and also attach and refer to copies of written/printed evidence gathered during the employee's case. This enables employees to understand clearly the case against them, and also the process and their rights during the disciplinary process, which are central to the principles of the employment dispute regulations.)

(Optional section at foot of letter, requiring person to sign, confirming receipt of the letter and any attachment(s), by way of returning a signed copy of this letter.)

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Indemnification