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The Myth of Ashby v. White

21 Pages Posted: 18 Aug 2011 Last revised: 11 Nov 2011

Ted Sampsell-Jones

Mitchell Hamline School of Law

Abstract

Ashby v. White is widely believed to have established the principle that “for every right, there must be a remedy,” sometimes known as the “ubi jus” principle. The ubi jus principle has played an important role in American law - it is frequently cited by both courts and scholars. Perhaps most famously, it was a central part of the rationale of Chief Justice Marshall’s opinion in Marbury v. Madison, establishing the foundations of judicial review. As the supposed progenitor of the ubi jus principle, Ashby has been praised as one of the most important cases is Anglo-American legal history.

In this article, I demonstrate that the accepted account of Ashby's holding is wrong. By relying on previously ignored historical sources and case reports, I demonstrate that if anything, Ashby actually rejected the ubi jus principle. Even more fundamentally, a close reading of Ashby demonstrates how conceptually hollow the ubi jus principle is.

Keywords: Ashby v. White, ubi jus, rights, remedies

Suggested Citation

Sampsell-Jones, Ted, The Myth of Ashby v. White. University of St. Thomas Law Journal, Vol. 8, No. 4, 2011; William Mitchell Legal Studies Research Paper No. 2011-07. Available at SSRN: https://ssrn.com/abstract=1911360

Ted Sampsell-Jones (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
St. Paul, MN 55105-3076
United States

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