Writs to Rights: 'Navigability' and the Transformation of the Common Law in the Nineteenth Century
56 Pages Posted: 11 Jul 2016
Date Written: July 11, 2016
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.
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