56 Pages Posted: 14 May 2008
The "continuing violations doctrine" provides that in certain contexts, continuing misconduct by a defendant will justify the aggregation or parsing of its misbehavior, with the effect of rescuing a plaintiff's claim or claims from the relevant statute of limitations. Application of this doctrine has been complicated by the fact that courts and litigants have struggled to distinguish continuing misconduct from claims governed by other timeliness rules. This confusion owes in part to a failure to comprehensively examine the conceptual foundations, prevailing explanations, and common applications of the doctrine. In undertaking this review, this article first explains that the continuing violations doctrine, rather than embracing a single approach toward limitations issues, in fact encompasses two distinct theories. The first form of the doctrine aggregates claims, while the second branch of the theory dissects them. After assessing the existing explanations of the doctrine and finding them wanting, this article reviews when and how the doctrine has been applied to claims alleging false imprisonment, seduction, malpractice, employment discrimination, intentional or negligent infliction of emotional distress, nuisance, trespass, and some antitrust and civil rights claims. This survey yields the insight that that the branch of the doctrine that accumulates harms serves essentially equitable ends, whereas the second sort of continuing violation, by parsing a cause of action into multiple claims, promotes the efficient invocation of the judicial process. Application of the doctrine, the author concludes, should be guided by these insights, with courts considering whether treating a given claim as "continuing" would promote the equitable and/or efficiency interests identified in the text.
Keywords: civil procedure, torts, antitrust, civil rights, statutes of limitations
JEL Classification: K11, K13, K21, K41
Suggested Citation: Suggested Citation
Graham, Kyle, The Continuing Violations Doctrine. Copyright Gonzaga Law Review, Vol. 43, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1133232