The Myth of Ashby v. White
Mitchell Hamline School of Law
University of St. Thomas Law Journal, Vol. 8, No. 4, 2011
William Mitchell Legal Studies Research Paper No. 2011-07
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.
Number of Pages in PDF File: 21
Keywords: Ashby v. White, ubi jus, rights, remedies
Date posted: August 18, 2011 ; Last revised: November 11, 2011