Suzette M. Malveaux
Abstract: Suzette M. Malveaux, Statutes of Limitations: a Policy Analysis in the Context of Reparations Litigation, 74 George Washington Law Review 68-122, 69-73, 122 (November, 2005) (338 Footnotes omitted)
Over three-quarters of a century ago, one of the worst race riots in the United States took place. On May 31, 1921, up to three hundred African-Americans were killed, thousands were left homeless, and the predominantly Black Greenwood community was burnt to the ground by a white mob, deputized by the City of Tulsa and aided by the State of Oklahoma. Many riot victims--traumatized and homeless--could not pursue legal recourse. Those who did were stymied by a judicial system infected by the Ku Klux Klan and undermined by local and state government that hid evidence and promised restitution that never came. The truth about the government's complicity in the riot did not surface until roughly eighty years later, with the historic publication of the Tulsa Commission Report ("Commission Report"). Although the government conceded moral culpability, it refused to provide reparations to riot victims or their descendents, prompting them to file suit in the U.S. District Court for the Northern District of Oklahoma on February 24, 2003, for violation of their constitutional and federal civil rights. The district court dismissed the case, concluding that the plaintiffs were barred by the expiration of the statute of limitations.
The Tulsa case is not unique. Unfortunately, this pattern of racial violence, and the concomitant denial of a legal remedy, has repeated itself in communities throughout the United States. The Tulsa case is just one example of government-sanctioned collective violence going unpunished because of a procedural hurdle--the statute of limitations. Japanese Americans interned during World War II and Jewish survivors of the Holocaust have also struggled to clear this hurdle.
Despite the history of government-sanctioned violence, courts reject reparations claims; and many Americans support these decisions. People are incredulous and unsympathetic to the notion that African-Americans could present claims and seek relief for events that took place decades ago, if not longer. The courts--expressed recently in the Tulsa case--routinely dismiss such claims despite the ability to exercise their discretion otherwise.
Reparations litigation is at a critical juncture; the viability of a reparations lawsuit has once again become the focus of intense and serious debate. There is no dearth of scholarship on the broad issue of reparations, but little has been written on the narrow but essential question of whether, as a matter of current public policy, it is legitimate to apply outmoded notions of the statute of limitations to such litigation while simultaneously refusing to consider modern bases for expanding permissible exceptions to the application of statutes of limitations. This Article fills that void, focusing on the limitations issues within the reparations debate.
Some limited work has been done on both sides. Proponents argue that reparations claims should survive limitations periods and be adjudicated on the merits because they fall within commonly recognized exceptions or fall completely outside of law governed by temporal restrictions. At the heart of arguments for the adjudication of claims so remote in time is the principle of restorative justice. Proponents assert that government has a duty to do justice and give restitution to victims of racial violence for their losses. Opponents argue that reparations claims should be time-barred because their age complicates the identification of the parties, causation, and remedies; compromises deterrence; undermines repose; and does not warrantequitable treatment.
This Article argues that time-barring reparations claims is against public policy for several reasons. First, under existing policy rationales for statutes of limitations and their exemptions, such claims could survive. Second, the courts should exercise their equitable powers more broadly to permit reparations claims to be heard on the merits. Third, some of the values underlying statutes of limitations upon which the courts rely are outmoded and inapplicable in the context of reparations litigation. The Tulsa case is illustrative: the district court interpreted plaintiffs' injuries and their causation in an overly simplified and ahistorical manner, inappropriately held plaintiffs to a far greater standard than due diligence, and permitted defendants to avoid liability through deception.
Part II of this Article describes the underlying policy rationales for Anglo-American statutes of limitations. Part III illustrates the underlying rationales for exceptions to the limitations period and the doctrine used to implement such exceptions. Using the Tulsa case as an exemplar, Parts IV and V analyze the propriety of courts' dismissal of reparations as time-barred. Specifically, Part IV critiques the application of doctrine commonly used to exempt the limitations period, and Part V critiques the underlying limitations policies and whether they are served by barring reparations claims.
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In the context of reparations claims, it is time for the courts to take a different approach to the equitable tolling doctrines of statutes of limitations. Reparations claims push the concepts of statutes of limitations and equitable tolling doctrine to their outer edge. Where the claims are so horrendous they cry out for equitable relief and yet so remote in time they seem insurmountable, the legal system must reexamine the underlying policies of statutes of limitations and recognize when they are not being served.