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8 U. St. Thomas L.J. 40 (2010-2011)
The Myth of Ashby v. White

handle is hein.journals/usthomlj8 and id is 48 raw text is: ARTICLE THE MYTH OF ASHBY v. WHITE TED SAMPSELL-JONES* I. INTRODUCTION Ashby v. White, the eighteenth century voting rights case, is said to have established the principle that for every right, there must be a remedy. That principle, often rendered in portentous Latin-ubi jus, ibi remedium- has played an important role in Anglo-American legal rhetoric. Commenta- tors since Blackstone have argued that the ubi jus principle is fundamental to the rule of law. Marbury v. Madison applied the ubi jus principle when laying the foundation of judicial review, and courts since have similarly relied on it in a variety of contexts. Some have even argued that the Due Process Clause mandates adherence to ubi jus. As the supposed progenitor, Ashby v. White has been hailed as a centrally important case in the develop- ment of the Anglo-American conception of remedial justice. But contrary to common misconception, Ashbv v. White did not estab- lish the principle that every right must have a remedy. Although the histori- cal record resists any easy characterization of the holding of Ashby, the ultimate resolution of the case implicitly rejected the ubi jus principle. Both English and American courts of the time understood Ashby as holding that only some deprivations of rights resulted in judicially enforceable remedies. Modern commentators (or at least modern American commentators) have misrepresented the holding of Ashby because they have relied on the most incomplete case reports. These incomplete reports give the misimpression that the outcome in AshbN rested on a simple adherence to the grand princi- ple that every right necessarily has a remedy. A close reading of other his- torical sources and more complete reports, however, reveals that Ashby's holding is both more complex and more nuanced than modem American commentators have recognized. The ubi jus principle may or may not merit the devotion it has received from American jurists and scholars. I suspect the ubi jus principle is tauto- logical and hence meaningless since the contents of rights can always be * Associate Professor of Law, William Mitchell College of Law. J.D., Yale Law School: B.A., Dartmouth College. Thanks to Tom Gallanis and Hamilton Bryson for their comments. Thanks to Jenna Yauch for her research assistance. 40

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