Posts tagged as:

statutes of limitations

Huge win for justice and good sense: facing a mounting public furor, “The Social Security Administration announced Monday that it will immediately cease efforts to collect on taxpayers’ debts to the government that are more than 10 years old.” [WaPo] Credit goes above all to the Washington Post and its reporter Marc Fisher for exposing the most outrageous features of the IRS’s refund-interception program last week, as recounted in this space; I like to think I helped as well by beating the drum early and repeatedly since then with Cato’s help. Overlawyered’s Facebook post on the subject has been seen by more than 60,000 people and shared more than 700 times in the past few days. (Have you liked us yet?)

The next step should be to establish for the public record how the provision in question got slipped into the farm bill, and at whose behest. Congress’s refusal to be forthcoming on this topic speaks volumes about its lack of a felt sense of responsibility toward the people it represents.

And a theme I’ve been repeating for almost as long as I’ve been writing about law: statutes of limitations developed in civilized legal systems for a reason. They protect us not only from cost, uncertainty, and the misery of legal process, but from injustice of a hundred other kinds, and they protect society itself from spiraling into a legal war of all against all. Stop trying to abolish them!

More: Ed Morrissey, Megan McArdle. And here’s a Cato podcast just out on the subject in which Caleb Brown interviews me on the topic:

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Banking and finance roundup

by Walter Olson on September 17, 2013

  • “You can’t prove that favoritism influenced FDIC” in going easy on brass at Chicago bank [Kevin Funnell]
  • Securities and Exchange Commission won’t give up bid for more power in stale cases despite 9-0 SCOTUS loss [my new Cato Institute]
  • Is JP Morgan paying an enforcement price for Dimon’s outspoken criticism of regulators? [Prof. Bainbridge; WSJ (reporting claims that "it took Mr. Dimon too long to shed a combative stance with regulators... In April the bank's two top regulators told Mr. Dimon and his board that they had lost trust in management.")] More on Standard & Poor’s claims that it was targeted for retaliation by federal government [Peter Henning, NYT DealBook, earlier]
  • Judge rules against law passed by Chicago on bank-owned vacant buildings [Chicago Real Estate Daily]
  • Post-merger derivative claims: “Delaware refuses to feed the sharks” [Bainbridge]
  • Payday lending fight pits New York regulator against some Indian tribes [Funnell, Native American Financial Service Association]
  • Stay on the line to learn more about the Verizon/Vodafone deal, or just press the star key to sue now [Daniel Fisher, Forbes]

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June 28 roundup

by Walter Olson on June 28, 2013

  • Record-setting tenure of bullying Rep. John Dingell (D-Mich.) “nothing to celebrate” [Dan Calabrese, Detroit News] Compare: “How to shut down a restaurant in Mexico” [Rob Beschizza]
  • How far does discrimination law go? Bill Baldwin interviews John Donohue [Forbes, and thanks for further-reading link]
  • Claim: bonding company responsible for actions of criminal after tracking failed [Insurance Journal, S.C.]
  • Memo to California legislature: don’t abolish statute of limitation on abuse claims [Prof. Bainbridge]
  • Here Come the Other “Happy Birthday” Lawsuits [Lowering the Bar, earlier]
  • SCOTUS story someone should cover: Christian-right legal groups backed “right to advocate prostitution” brief in AID case [Volokh, earlier]
  • “A TSA employee spotted [the beautiful jeweled lighter] and I swear his eyes lit up.” [David Henderson]

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If you’re the federal government, one thing it’s good for is to turn a losing claim — losing because filed too late — into a possible winner. It works through something called the Wartime Suspension of Limitations Act (WSLA), enacted by Congress in 1942 as the U.S. entered World War Two, and I explain it in this guest column for Jurist.

I’ve now done a second post in Common Good’s symposium on education and fear of liability. Among the topics I discuss: assumption of risk, statutes of limitations, sovereign immunity, and the need for some more organized way of advocating the interests of public service entities against excessive or impractical liability demands. You can read it here.

In the Harrisburg Patriot-News, Ivey DeJesus trumpets the views of a “leading legal expert,” specifically “one of the country’s leading church and state scholars” who says, contrary to a state lawmaker’s assertions, that there’s no constitutional problem with reopening lapsed statutes of limitations so as to enable child-abuse lawsuits by now-grown-up complainants. Prof. Marci Hamilton is indeed a well-known church-state scholar, and there is indeed precedent for the (perhaps strange) idea that courts will not necessarily strike down retroactive legislation as unconstitutional so long as its impacts are civil rather than criminal. But it’s not until paragraph 18 that DeJesus, after introducing the expert at length by way of her academic affiliations, bothers to add a perhaps equally relevant element of her biography: she has “represented scores of victims in the Philadelphia Archdiocese clergy sex abuse case.” Why bring that up?

  • “Once your life is inside a federal investigation, there is no space outside of it.” [Quinn Norton, The Atlantic]
  • “Cops Detain 6-year-old for Walking Around Neighborhood (And It Gets Worse)” [Free-Range Kids] “Stop Criminalizing Parents who Let Their Kids Wait in the Car” [same]
  • Time to rethink the continued erosion of statutes of limitations [Joel Cohen, Law.com; our post the other day on Gabelli v. SEC]
  • “Are big-bank prosecutions following in the troubled footsteps of FCPA enforcement?” [Isaac Gorodetski, PoL]
  • The “‘professional’ press approach to the criminal justice system serves police and prosecutors very well. They favor reporters who hew to it.” [Ken at Popehat]
  • Scott Greenfield dissents from some common prescriptions on overcriminalization [Simple Justice]
  • Anti-catnip educational video might be a parody [YouTube via Radley Balko]
  • “Too Many Restrictions on Sex Offenders, or Too Few?” [NYT "Room for Debate"]
  • Kyle Graham on overcharging [Non Curat Lex] “The Policeman’s Legal Digest / A Walk Through the Penal Laws of New York (1934)” [Graham, ConcurOp]
  • “D.C. Council Proposes Pretty Decent Asset Forfeiture Reform” [John Ross, Reason] And the Institute for Justice reports on forfeiture controversies in Minnesota and Georgia.
  • Does prison privatization entrench a pro-incarceration lobby? [Sasha Volokh, more]

Yesterday by a 9-0 vote the Supreme Court agreed with a Cato amicus brief that the Securities and Exchange Commission has no power to seek fines or penalties after the statute of limitations has expired on challenged conduct by arguing that it did not discover the conduct until recently. I’ve got a discussion at Cato at Liberty. (& SCOTUSBlog, which also hosts this opinion analysis by Jonathan Macey)

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  • “‘Stand Your Ground’ task force offers no big changes to Florida law” [Orlando Sentinel, Tampa Bay Times]
  • “Statutes of Limitations Apply Especially to Government Agencies” [Ilya Shapiro on Cato Institute amicus brief in Gabelli/SEC case] “The rule of lenity is violated when people go to prison for breaking ambiguous laws/regulations.” [Roger Marzulla, Federalist Society "Engage"]
  • Sen. Rand Paul on the Missouri rabbit breeder case [Daily Caller]
  • Mondale Act of 1974 (CAPTA) laid down basis for child abuse witch hunts [William Anderson, Agitator]
  • Sententiousness vs. due process, plus a window into comments moderation at BoingBoing [Popehat] Background on State v. Fourtin [Gideon's Trumpet first, second post]
  • Massachusetts: “State’s Chemist Admits ‘Testing’ Drug Samples by Looking at Them” [Lowering the Bar]
  • Plea bargaining: For Scott Greenfield, a showdown for justice at high noon turns into one of life’s little compromises [Simple Justice]

The French town of Angers might be 500 or so years too late, though. It asks a bit hopefully for the British crown jewels as compensation. [Lowering the Bar]

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July 14 roundup

by Walter Olson on July 14, 2012

  • Does new Obama directive gut 1996 welfare reform law? [Mickey Kaus ("in 2008, Barack Obama didn’t dare suggest that he wanted to do what he has done today"), Bader]
  • Ringling Bros. v. animal rights activists: court throws out champerty claim, allows racketeering claim to proceed [BLT]
  • Iqbal, Twombly, and Lance Armstrong [DeadSpin, Howard Wasserman/Prawfs and more]
  • Abuse claims: “Retain the statute of limitations” [New Jersey Law Journal editorial] Insurance costs squeeze NYC social services working with kids, elderly [NYDN]
  • Court upholds sanctions vs. “staggering chutzpah” copyright lawyer Evan Stone [Paul Alan Levy, Eugene Volokh, earlier here and here]
  • Court says board members of NYC apartment co-ops can be sued personally over alleged bias [Reuters]
  • “FASB retreats from disastrous litigation disclosure requirement proposal” [Alison Frankel, Reuters via PoL, earlier]

December 30 roundup

by Walter Olson on December 30, 2011

After we passed along a recent report that Beaumont, Texas lawyers had filed 59 lawsuits the day before the state’s new “loser-pays” package of litigation reforms was to take effect, Texas attorney Brooks Schuelke responded on Twitter as follows (re-formatted and edited for clarity), saying that the issue wasn’t the loser-pays provision, but a separate “responsible third party” provision that set a malpractice trap for lawyers that delayed: “The responsible third party provisions allowed a defendant to name a party, and then plaintiff could join them even if the statute of limitations had expired. The law was changed to remove the ability to sue regardless of the statute of limitations. But defendant can’t name a party not disclosed in discovery. The amendment means we have to file suit long before the statute of limitations expires to send discovery asking defendant to name who it might name. So many cases nearing the statute of limitations had to be filed before the effective date of the change or else they could be victim to the amendment.”

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Delayed action

by Walter Olson on February 9, 2011

White Coat sums up a recent jury verdict: “Obstetrician ordered to pay $3 million to patient born with cerebral palsy … 18 years ago.” The doctor, from Glens Falls, N.Y., “has $2 million in insurance coverage and may have to cover $1 million of the verdict himself,” according to the story. Statutes of limitations in medical malpractice actions are often “tolled” (suspended) until a child reaches the age of majority, so that it is by no means unheard-of for families to file suit a decade and a half after a medical occurrence.

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There’s no statute of limitations on child support, and Rosemary Douglas says she’s still owed the money for the birth of a son during the Truman Administration. [Houston Chronicle]

Correction/update: Commenter Patrick points out that this is an enforcement-of-judgment matter rather than a suit, and offers a reading of Texas law likely to be of interest to the alleged dad in the case.

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May 18 roundup

by Walter Olson on May 18, 2009

  • Historic preservation and habitat preservation laws can backfire in similar ways [Dubner, Freakonomics]
  • Serious points about wacky warnings [Bob Dorigo Jones, Detroit News]
  • Texas solons consider lengthening statute of limitations to save Yearning for Zion prosecutions [The Common Room]
  • A call for law bloggers to unite against content-swiping site [Scott Greenfield]
  • Drawbacks of CFC-free pulmonary inhalers leave asthma sufferers gasping [McArdle, Atlantic]
  • Try, try again: yet another academic proposal for charging gunmakers with costs of crime [Eggen/Culhane, SSRN, via Robinette/TortsProf] More/correction: not a new paper, just new to SSRN; see comments.
  • California businesses paid $17 million last year in bounty-hunting suits under Prop 65 [Cal Biz Lit]
  • Trial lawyer lobby AAJ puts out all-points bulletin to members: send us your horror stories so we can parade ‘em in the media! [ShopFloor]

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Asbestos litigation has been around a long time. Early on, nothing like modern product liability law existed (see Richard Epstein’s discussion here); lawsuits resided in workplace injury law when filed in the 1920s and 30s, and were soon subsumed in workers compensation reforms.

Modern asbestos litigation began after the Selikoff study was published in 1964. In December 1965, Texas attorney Ward Stephenson filed a case on behalf of Claude Tomplait, who had worked as an asbestos insulator. Four years later, Stephenson extracted a settlement for $75,000 from seven defendants.

Notwithstanding this meager beginning, Stephenson persisted in asbestos litigation and won a major victory in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (1973), in which the Fifth Circuit Court of Appeals found asbestos manufacturers strictly liable for their workers’ injuries. The Borel court rejected statute of limitations, contributory negligence, and assumption of risk defenses; and modern asbestos product liability litigation was born.

The litigation got another shot in the arm when New Jersey attorney Karl Asch uncovered the “Sumner-Simpson papers,” which “described in great detail the efforts of Raybestos, Johns-Manville, and other manufacturers to find out about the hazards of asbestos, develop strategies to deal with them, and–most important–to keep that knowledge from the public and workers.” These documents were put to great effect by South Carolina lawyer Ron Motley, who actually used the papers to convince a South Carolina circuit judge to grant a new trial after a jury had ruled in favor of asbestos defendants. Motley of course went on to become an asbestos super-lawyer and an architect of the multibillion-dollar multistate tobacco settlement; his antics are well-known to long-time readers of this site.

Two more foundational cases are worthy of mention. In 1981, the D.C. Circuit ruled that insurers who had written asbestos policies were liable for the maximum insured between exposure and diagnosis, rather than only in the year of diagnosis. See Keene Corp. v Insurance Co. of North America, 667 F.2d 1034 (D.C. Cir. 1981). Given the long latency between asbestos exposure and ultimate illness, the level of insurance exposure was suddenly massive. Circuit Judge Patricia Wald warned that the court’s decision “requires a leap of logic from existing precedent, for it concerns diseases about which there is no medical certainty as to precisely how or when they occur.”

In 1982, the New Jersey Supreme Court threw out the “state of the art” defense for asbestos manufacturers, in essence holding that it mattered not whether business practice was the best available to the industry at the time the injury occurred. See Beshada v. Johns-Manville Products Corp., 442 A.2d 539 (N.J. 1982). The court opined, “The burden of illness from dangerous products such as asbestos should be placed upon those who profit from its production and, more generally, upon society at large which reaps the benefits of the various products our economy manufactures. ”

Thus, in less than a decade, the law was radically shifted, and asbestos litigation was born: “The decade after Borel saw 25,000 asbestos cases filed. By 1981, more than 200 companies and insurers had been sued; by 1982, defendants’ costs had topped $1 billion.” But these early years were just the beginning…

Titanic sinking

by Walter Olson on April 17, 2008

A new book contends that subpar rivets and riveting might have materially contributed to the disaster. Given the erosion of statutes of limitations, might that give rise to lawsuits, even after all this time? (Childs, Apr. 15).

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