Stale Claims.

• Author: Olson, Walter
• Position: Actions for which statute of limitations have passed are being questioned

How long should the law nurse old grievances?

Last spring the Aetna insurance company made headlines when it confirmed that in the antebellum era it sold policies to slave owners insuring the lives of their human chattels. The company duly issued an apology but declined to make any added financial gesture, pointing out that it already gives millions annually to black charities. That failed to satisfy a young New York lawyer named Deadria Farmer-Paellmann, who had called to public attention the ignoble episode in the company's history; she said the firm had received "unjust enrichment" from the slave policies and should "share those ill gotten gains."

Farmer-Paellmann is vowing to build the factual basis for lawsuits demanding such restitution from many businesses whose long-ago predecessors in some way benefited from the slave economy. The list may include banks, railroads, and mining companies. She says she hasn't ruled out going after individuals, either, presumably over their inheritance or purchase of plantation land and similarly tainted property. Conveniently, she herself plans to establish a trust to administer restitution payments on behalf of American blacks. "Just because slavery ended over 100 years ago doesn't excuse them," she told Mother Jones.

That legal claims over misconduct in the 1850s are beginning to get a respectful hearing is just one more manifestation of a trend in American law that deserves more scrutiny than it has received: the persistent erosion of statutes of limitation and the principles behind them. The tradition of jurisprudence long held that among the law's most important aims is to make an end to strife, that to do that it's necessary to require that most claims not pressed with some promptness be extinguished forever, and that the harshness of arbitrary time limits must be balanced against the harshness of leaving people forever insecure in their property, having at any moment to fend off attacks on their title based on events of long ago.

Statutes of limitation and of repose, and their parallel doctrines in other branches of the law, have been around for a very long time. Thus time deadlines combined with adverse possession to help lay to rest uncertainty over land rights. Claims arising under the old system of equity (which grew up alongside common law) had to be pressed diligently or would be subject to the defense of "laches." And a "doctrine of acquiescence" meant that incorrectly drawn political boundaries could be rendered correct by the peaceful passage of time. "The best interests of society require that causes of action should not be deferred an unreasonable time," explained a court in 1871. "This remark is peculiarly applicable to land titles. Nothing so much retards the growth and prosperity of a country as insecurity of titles to real estate. Labor is paralyzed where the enjoyment of its fruits is uncertain; and litigation without limit produces ruinous consequences to individuals."

By the 1960s and '70s, however, some legal reformers were growing impatient with repose as a...