A Study in the Choice of Form: Statutes of Limitation and the Doctrine of Laches

Pity the poor statute of limitations. Throughout its long history, its invocation has often been regarded by the public and sometimes even by courts as somehow hypertechnical or downright unfair. A defendant who invokes its protection has sometimes been perceived as pulling a fast one on the hapless plaintiff. This does not mean that these courts believe that no limitation whatsoever should be placed upon the time period allowed for a plaintiff to bring a lawsuit. Hardly anyone is foolish enough to suggest such a thing.(1) Rather, these judicial critics of the statute of limitations regard it as an overly rigid and mechanical method for determining which cases, in good conscience, ought to be time barred and which ought not.(2) Contrast the statute of limitations with the doctrine of laches, that golden girl of equity jurisdiction. Little dissatisfaction is expressed by courts applying it. Instead, they wax poetic about its virtues. According to one, " L!aches is not a hidebound rule like a statute of limitations...but is a creature of courts of equity, founded upon common sense and natural justice."(3) Such a description carries with it the peculiar suggestion that, in contrast, the statute of limitations is founded upon something other than common sense and natural justice. Laches, such courts have commented, "cannot be used to...defeat justice"(4) and "cannot be used as an instrument of oppression."(5) Again, the reader is left to wonder whether the statute of limitations can be used to defeat justice or to work oppression. Of course, the popularity of the laches doctrine among courts is hardly proof of its superiority over the statute of limitations. Instead, it may simply suggest that our legal literature, dominated as it is by a seemingly inexhaustible supply of judicial opinions, has a bias in favor of doctrines that vest power in the hands of the judiciary. Courts like them; hence, the legal system likes them. Insofar as the two approaches can be seen as alternative positions in a struggle for power and influence between lawmakers (such as legislatures and appellate courts) and law administrators (such as trial courts), the laches approach represents a victory for the administrators--but not necessarily for the community. Courts would be the last to express reservations about laches because it vests them with nearly full discretion to dismiss a claim they believe ought to be time barred. If laches is wrongheaded, it is wrongheaded precisely because it vests too much power and discretion in the hands of the courts. Cries of foul are thus more likely to come from (1) dissatisfied litigants who object to a particular court's judgment pursuant to the laches doctrine and (2) potential litigants who object to the difficulty they have in planning their future behavior given the uncertainties of laches. These litigants have fewer opportunities to register their objections publicly; thus, it is not surprising that we see so little criticism of the laches approach in the legal literature. It would be serious error, however, to interpret this silence as approval of courts' sentimental and self-serving view of laches. The laches doctrine tends to take its licks only indirectly, in the form of occasional general warnings about the dangers of vesting too much discretion in the hands of judges. One of the most dramatic warnings was voiced by Lord Camden:(6) The discretion of a judge is the law of tyrants: It is always unknown: It is different in different men: It is casual, and depends upon constitution, temper and passion.--In the best it is often times caprice: In the worst it is every vice, folly, and passion, to which human nature can be liable.(7) The criticisms of both approaches seem eminently sensible, at least to anyone not fully jaded by the view that it is impossible to constrain the discretion of judges by imposing rules upon them.(8) Indeed, the statute of limitations does sometimes produce results that seem hypertechnical in view of its underlying policy concerns. …