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56 B.U. L. Rev. 181 (1976)
The Application of the Doctrine of Laches in Public Interest Litigation

handle is hein.journals/bulr56 and id is 191 raw text is: THE APPLICATION OF THE DOCTRINE OF LACHES
The doctrine of laches is the equitable counterpart of statutes of limita-
tions.' The doctrine permits a court of equity to cut off a right of action
when the plaintiff has delayed unreasonably and inexcusably in instituting
litigation and thereby has prejudiced the defendant significantly.2 Appli-
cation of the doctrine is highly flexible3-actions have been barred after
delays of less than eight months4 yet have been allowed after delays of
more than thirty years.5 However, judicial discretion in the application of
the laches doctrine is not unlimited. In deciding whether a suit may
proceed, courts traditionally have considered the length and reasonable-
ness of the plaintiff's delay,6 circumstances excusing all or part of the
I Both statutes of limitations and the doctrine of laches serve to bar the litigation of stale
claims. The former generally apply to actions at law whereas the latter applies only to suits in
equity. When an equitable action resembles an action at law for which a statute of limitations
exists, the limitation period may be applied in equity by analogy. Shell v. Strong, 151 F.2d
909, 911 (10th Cir. 1945); 2 J. Pomeroy, Equity Jurisprudence § 419a, at 172 (5th ed. 1941).
Sometimes statutes of limitations are used by courts of equity to create presumptions in favor
of or against upholding a laches defense. See, e.g., Larios v. Victory Carriers, Inc., 316 F.2d
63, 66 (2d Cir. 1963) ([w]hen the suit has been brought after the expiration of the state
limitation period, a court applying maritime law asks why the case should be allowed to
proceed; when the suit, although perhaps long delayed, has nevertheless been brought
within the state limitation period, the court asks why it should not be); Connor v. Highway
Truck Drivers Local 107, 378 F. Supp. 1069, 1072 (E.D. Pa. 1974). Occasionally, application
of a statute of limitations in an equitable action is obligatory. 2 J. Pomeroy, supra § 419b; 3 J.
Story, Equity Jurisprudence § 1972 (14th ed. 1918). For further discussion of the relation-
ship of statutes of limitations to laches see Russell v. Todd, 309 U.S. 280, 287-89 (1940);
Developments in the Law-Statutes of Limitations, 63 Harv. L. Rev. 1177, 1183-85 (1950).
Laches is generally raised in the pleadings by the defendant as an affirmative defense. See
Fed. R. Civ. P. 8(c). However, it may also be raised by a plaintiff in a declaratory judgment
action, see, e.g., First Nat'l Bank v. Roeland Park State Bank & Trust Co., 357 F. Supp. 708
(D. Kan. 1973) (defendant banks foreclosed from seeking judicial review of decision by
Comptroller of Currency approving plaintiff bank's application for national banking char-
ter), by a defendant against an impleaded party, see, e.g., Evans v. Caddo River Lumber Co.,
196 Ark. 1178, 120 S.W.2d 578 (1938), or by a court on its own motion, see, e.g., Turner v.
Guy, 1974 Mass. Adv. Sh. 623, 311 N.E.2d 921.
See Galliher v. Cadwell, 145 U.S. 368, 372 (1892); Hoehn v. Crews, 144 F.2d 665, 670-71
(10th Cir. 1944), aff'd sub nom. Garber v. Crews, 324 U.S. 200 (1945).
Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946); see Burnett v. New York Cent. R.R.,
380 U.S. 424, 435 (1965); First Nat'l Bank v. McGuire, 181 F.2d 620, 626 (7th Cir. 1950).
' E.g., Smith v. Schlesinger, 371 F. Supp. 559 (C.D. Cal. 1974) (suit to enjoin military
project barred because of plaintiffs 7 1/2-month delay in filing suit and resulting prejudice
to national defense); First Nat'l Bank v. Roeland Park State Bank & Trust Co.,357 F. Supp.
708 (D. Kan. 1973) (six-month delay by bank seeking judicial review of Comptroller of
Currency's grant of national banking charter to rival bank held excessive due to rival bank's
expenditures in reliance on Comptroller's decision).
5 E.g., Michoud v. Girod, 45 U.S. (4 How.) 502 (1846) (fraudulent conveyances set aside
after thirty-three years); Kuhn v. Shreeve, 141 W. Va. 170, 89 S.E.2d 685 (1955) (debt held
enforceable after forty years).
8 The delay that the defense of laches--or of the statute of limitations-contemplates is
not delay in bringing a claim to the attention of a defendant, but delay in instituting
litigation on the claim. Boris v. Moore, 152 F. Supp. 602, 604 (E.D. Wis. 1957), quoting

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