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Suzette M. Malveaux
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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.
* * * *
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. |
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