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57 UMKC L. Rev. 681 (1988-1989)
Borrowing Statutes, Statutes of Limitations and Modern Choice of Law

handle is hein.journals/umkc57 and id is 683 raw text is: BORROWING STATUTES, STATUTES OF LIMITATIONS AND MODERN CHOICE OF LAW Ibrahim J. Wani* Conflicts among statutes of limitations are fairly common and yet the issue gets little attention in conflict of laws discourse. Courts generally deal with such conflicts in a deceptively simple manner and conflicts scholars give them only passing reference. Typically, statutes of limitations are characterized as procedural rules and the forum always applies its statute of limitation irrespective of the degree of contact between the forum and the parties or the dispute. Although the procedural characterization is based on highly debatable ra- tionales, it was consistent with jurisprudential notions prevalent at the time of its origination. First, it represents a formalistic approach to legal problem solving. The designation of the statute of limitation as procedural was all that was necessary to resolve the apparent conflict, and there was no inquiry into the equity of the result reached, the parties' expectations, or the other state's interests in the outcome of the case, for example. Second, abstract symbols of character- ization were often used. It is not apparent why a statute of limitation should be regarded as a procedural rule, and it is generally conceded that the characterization lacks concrete meaning.' Third, conceptions of territorial sovereignty underlie this approach. The forum applies its statute of limitation because, of course, it has the power-authority to control what happens in its courts or within its territorial boundaries.2 Traditional conflict of laws focused on disputes over substantive legal issues while questions involving procedural rules were generally not regarded as raising conflict of laws issues. The substance/procedure dichotomy represents a number of popular legal ideas. In terms of styles of legal reasoning, it was conceptual and formalistic. The first task of judicial decision making was to label or characterize the issue-i.e., whether substantive or procedural. Characterization was highly abstract and largely ad hoc. Once the issue is characterized, the result or conclusion then followed in a syllogistic manner. In other words, characteri- * Assistant Professor of Law, University of Missouri-Kansas City School of Law; LL.B., 1975, Markerere University-Uganda; LL.M., 1981, University of Virginia. The author wishes to thank Nancy Levit for her comments and suggestions on an earlier draft of this paper. 1. See, e.g., Sun Oil Co. v. Worfman, - U.S. -, 108 S.Ct. 2117, 2124 (1988); and Guarantee Trust Co. v. York, 326 U.S. 99, 108 (1945). 2. See J. STORY, COMMINTARMS ON THE CONFLICT OF LAWS, § 18 (2nd ed. 1841). For further discussion of the traditional approach see infra note 59 and accompanying text.

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