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54 U. Louisville L. Rev. 437 (2016)
Statutes of Limitations: The Underlying Policies

handle is hein.journals/branlaj54 and id is 455 raw text is: 





     STATUTES OF LIMITATIONS: THE UNDERLYING
                               POLICIES


                             David Crump*


                             I. INTRODUCTION


    Upon first thought, statutes of limitation may seem a pedestrian subject.
But in real litigation, statutes of limitations are a far more frequent issue
than one might imagine. An electronic search of the phrase, statute of
limitations or statute of limitation, produces far too many decisions to
consider in detail.' The importance of the subject, therefore, is greater than
it might appear. To the many litigants whose rights depend upon it, of
course, the limitations period is intensely interesting.
    The literature has not, however, covered the issue in proportion to its
importance.2 And in fact, there are more intellectual twists and turns in the
governing doctrines than initially meet the eye. This article is an effort to
explore the policies underlying the lengths of limitations periods and to
relate them to the legislation and interpretation that govern them.
    The first section of this article considers the impact of evidentiary
considerations on the length of the relevant time limit, and it thus covers
what are probably the most salient reasons for shortening the limitations
period. Here, the article explores issues of memory, document retrieval,
and similar questions of evidence availability. The second section follows
with more of the policies supporting limitations cutoffs by exploring the
interest of the procedural system in promoting peace and an end to potential
litigation, as well as considerations relating to the suggestion that delay in
commencing litigation furnishes an indirect indication of lack of merit.
    The third section of the article considers countervailing considerations
furnished by the need for awareness of the facts giving rise to the claim on
the part of the plaintiff, as well as by conduct of the defendant that conceals
the claim and the general need for a time within which the plaintiff can


   * A.B. Harvard College; J.D., University of Texas School of Law. John B. Neibel Professor of Law,
University of Houston Law Center.
     The search nominally produced 10,000 items, but it must have been curtailed.
   2 Most of the articles do not deal with statutes of limitation generally but instead are about specific
types of claims. E.g., Suzette M. Malveaux, Statutes of Limitations: A Policy Analysis in the Context of
Reparations Litigation, 74 GEO. WASH. L. REV. 68, 74 (2005); Note, The Fairness and Constitutionality
of Statutes of Limitations for Toxic Tort Suits, 96 HARV. L. REV. 1683, 1684 (1983).

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