Writs to Rights: 'Navigability' and the Transformation of the Common Law in the Nineteenth Century

Abstract

This Article argues that nationalist jurists in the early nineteenth century attempted to replace the dominant procedural conception of the common law with a substantive one. Their purpose was to ameliorate the effects of legal federalism. They hoped that the creation of a national body of private law in treatises and judicial reports would encourage legal uniformity among the states. The re-orientation of waterway law around the keyword “navigability” offers one example. As this example demonstrates, the project of forging a national jurisprudence was not entirely successful. But it did, indirectly, generate a way for the Supreme Court to extend its admiralty jurisdiction beyond tidewater and onto the nation’s navigable fresh waters, thereby subjecting many commercial cases to a uniform and notionally transnational body of maritime law.