Moral and Evidentiary Statutes of Limitations

Abstract

It is unremarkable that the future depends upon the past. Thought precedes action; cause precedes effect; for a time, the elder serves the younger. True spontaneity is exceptional and noteworthy, whereas the forward-march of time is commonplace and habituated. What is remarkable about time is its contingent nature. The length between thought and action reveals much about a person’s faculties; the temporal distance between a cause and its effect discloses facts about the nature of their relationship; and for how long the elder serves the younger provides perspective on the moral character of a society. In law, the right to bring a claim is made contingent upon time with statutes of limitations, but the meaning of their length is difficult to discern. While the length of a day follows the sun; a month, the moon; and a year, the earth, the interval for possessing the right to take legal action is calibrated to both physical and social worlds; that is to say, its length draws on the evidentiary and moral features of human experience and comprehension.

The optimal length for a limitation’s period can be readily identified in the abstract. Shorter periods provide fewer deterrence benefits, but longer periods generate higher error rates and litigation costs (Posner 1973). Despite the apparent simplicity of the model, limitation periods exhibit variety across states. This may be because the general theory presents gaps, and law makes uneven empirical guesses to fill them in. Alternatively, something systematic might be consistently taking place, and its identification could further refine and sharpen the general theory. This Chapter considers two possibilities. The first, which is less of a refinement and more of an empirical guess, is that moments periodically arise that present lawmakers with an opportunity to capture deterrence benefits at low rates of error. Lawmakers take advantage of these opportunities by granting temporary exceptions to limitation periods. This irregularity recently occurred in the wake of the #MeToo movement, which provoked lawmakers to reopen a window for asserting claims about past misdeeds. As discussed below, this exception, in all likelihood, generated efficient deterrence because error rates were comparatively low given that wrongdoers as a group were easily identifiable.

The second possibility, which is more a refinement to the standard model and less a statement about the contingent magnitudes of its parameters, is that the behavior underlying some types of claims can be more easily monitored, which suggests regular variation in the levels of deterrence benefits, error rates, and litigation costs. This regularity, I suggest, can be observed in the monitoring carried out by modern systems of property recording and tax administration, and explains a relatively consistent pattern in the possession periods required for adverse takings. The Chapter also considers monitoring and limitation periods within the context of tort, contract, and criminal causes of action and draws some tentative conclusions. Normatively, the analysis works toward the idea that considerations related to the efficiency of monitoring can and should be used to calibrate the length of limitation periods. The Chapter begins by presenting the standard model; it then analyzes the role of monitoring; and finally closes with a discussion on variety and uniformity of limitations periods across jurisdictions and claim types.

Keywords: statutes of limitations, optimal length, exceptions, #MeToo