Last spring the Aetna insurance company made headlines when it confirmed that in the antebellum era it sold policies to slave owners insuring the lives of their human chattels. The company duly issued an apology but declined to make any added financial gesture, pointing out that it already gives millions annually to black charities. That failed to satisfy a young New York lawyer named Deadria Farmer-Paellmann, who had called to public attention the ignoble episode in the company’s history; she said the firm had received "unjust enrichment" from the slave policies and should "share those ill gotten gains."
Farmer-Paellmann is vowing to build the factual basis for lawsuits demanding such restitution from many businesses whose long-ago predecessors in some way benefited from the slave economy. The list may include banks, railroads, and mining companies. She says she hasn’t ruled out going after individuals, either, presumably over their inheritance or purchase of plantation land and similarly tainted property. Conveniently, she herself plans to establish a trust to administer restitution payments on behalf of American blacks. "Just because slavery ended over 100 years ago doesn’t excuse them," she told Mother Jones.
That legal claims over misconduct in the 1850s are beginning to get a respectful hearing is just one more manifestation of a trend in American law that deserves more scrutiny than it has received: the persistent erosion of statutes of limitation and the principles behind them. The tradition of jurisprudence long held that among the law’s most important aims is to make an end to strife, that to do that it’s necessary to require that most claims not pressed with some promptness be extinguished forever, and that the harshness of arbitrary time limits must be balanced against the harshness of leaving people forever insecure in their property, having at any moment to fend off attacks on their title based on events of long ago.
Statutes of limitation and of repose, and their parallel doctrines in other branches of the law, have been around for a very long time. Thus time deadlines combined with adverse possession to help lay to rest uncertainty over land rights. Claims arising under the old system of equity (which grew up alongside common law) had to be pressed diligently or would be subject to the defense of "laches." And a "doctrine of acquiescence" meant that incorrectly drawn political boundaries could be rendered correct by the peaceful passage of time. "The best interests of society require that causes of action should not be deferred an unreasonable time," explained a court in 1871. "This remark is peculiarly applicable to land titles. Nothing so much retards the growth and prosperity of a country as insecurity of titles to real estate. Labor is paralyzed where the enjoyment of its fruits is uncertain; and litigation without limit produces ruinous consequences to individuals."
By the 1960s and ’70s, however, some legal reformers were growing impatient with repose as a primary legal goal. It seemed a formalistic impediment to full justice. Since then, with encouragement from liberal legal academics, time limits on suing have been relaxed or skirted in area after area, to the point where some major sectors of litigation–asbestos and Su-perfund, for example–are now based in no small part on scrutinizing actions defendants took back in the 1930s, ’40s, and ’50s. In contemporary product liability law, when a World War I—vintage machine is involved, it’s not unheard of for courts to go back 80 or 90 years in quest of business guilt. Given that, it doesn’t seem much of a stretch to go back a further 50 or 60 years and haul them to the bar for misdeeds their predecessors committed before the Emancipation Proclamation. And if you’re worried that our courts will slide down the slippery slope until they begin hearing claims dating back to the first years of the Republic, you’re too late: Indian tribes already have succeeded in reviving huge pending land claims that originated in 1795, during the administration of George Washington.
One obvious problem with claims related to the slavery era is that it was perfectly lawful at the time for Aetna to sell the kind of insurance it did. Even if such actions are construed as a "crime against humanity" for which the usual rules of legality are suspended (such as prosecutions of totalitarian officials after the fall of their regimes), the fact remains that the American Civil War was followed by a comprehensive, fundamentally political settlement of who would and would not face confiscation or other legal penalties based on antebellum conduct.
You can see, however, why black reparations activists might get the idea that such political settlements, no matter how secure and final they looked at the time, are subject to perpetual reconsideration: They’ve been watching the stunningly successful campaign over World War II—era reparations. After the end of that war, American policy makers concluded treaties with the former Axis powers intended to resolve with finality questions of who owed what and to cut off the prospect of debilitating litigation. For about 50 years they thought they’d succeeded, until American lawyer-activists suddenly appeared on the front pages demanding separate, added reparations. (Claims against the Swiss were a special case, having in many cases never been settled by treaty.)
The campaign encountered at best mixed success in court. Last year, for example, a federal judge dismissed four class actions against German companies, pointing out in a 78-page opinion that to reopen questions long deemed settled by agreement "would be to express the ultimate lack of respect" for the work of Truman-era U.S. policy makers.
But even rulings like that seemed to make little difference. Armed with the power to impose punishing and one-sided publicity, with threats of sanctions issuing from state and local governments, and with the slender but highly menacing possibility that some judge might allow one of the gigantic class action cases to get to a jury, the reparations movement within a few short years had sprung from obscurity to extract billions from European governments and businesses.
Meanwhile, a California law enacted last year and sponsored by California state Sen. Tom Hayden (D—Los Angeles) extended to 2010 the statute of limitations for suing Japanese and other defendants over World War II misdeeds. U.S. Ambassador to Japan Tom Foley has warned that such legal actions are undercutting American foreign policy and generating a backlash in the island country: "The peace treaty put aside all claims against Japan."
Retroactivity is a frequent evil when courts are invited to look far back in time to establish culpability, since laws change and the actions of a former day will tend to be judged by the standards of the present. In product liability, a field of law which expanded so drastically between 1965 and 1980 that it could almost be said to have been invented from scratch, tobacco companies and many others are being punished for conduct that was plainly lawful by the standards of its era. Paint companies voluntarily discontinued the use of lead-based paint for interior use in the 1950s; not until 1978 did the federal government ban the product. Now the companies are facing massive litigation anyway.
According to industry lawyer Marc Whitehead, quoted in a trade magazine, "Most of the allegations concern conduct in the first quarter or first third of the 20th century." In Massachusetts, state Rep. Marie St. Fleur (D-Boston) has introduced legislation that would expand such litigation yet further by lifting the statute of limitations that requires lawsuits over lead exposure to be filed within a certain number of years of the alleged injury. A similar bill is pending in Rhode Island, where the state government has already filed suit against paint makers and thus is a highly interested party.
Even before the recent liberalizing trends, the law had been peculiarly generous toward the interests of children, commonly suspending the statute of limitations on a youngster’s right to sue until he or she reaches the age of majority, despite the suspense to which this subjects everyone else’s rights. In the late 1980s, however, victim advocates, with help from feminist groups and trial lawyers, began claiming this rule was not liberal enough in cases of alleged child sex abuse. They argued that it was unfair to start running the clock on such a claim even after a victim reached legal adulthood; instead, they maintained, the key moment should be when the victim discovered the offense or its harmful impact. Between 1989 and 1997, more than half the states adopted new rules opening the courthouse doors to child abuse offenses belatedly discovered by victims. As the Bergen County Record reported after New Jersey passed one such law, the change "is meant to help people assaulted as young children, but who repress the memory until they are adults."
The results became a national scandal: Some genuine abuse claims were facilitated, but so were a shocking number of purely imaginary ones. The changes in law had followed close on the heels of a fad among psychotherapists that had helped elicit from thousands of patients false memories of long-ago abuse at the hands of family members, teachers, or complete strangers. These patients would now be given legal encouragement to turn these memories into court cases, though after a lapse of decades it might be hard to prove either way whether Mom, Dad, and Aunt Bev had indeed engaged in multiple rape, Satanic ritual abuse, or midnight animal sacrifice in the town square. Readers of books like Richard Ofshe and Ethan Watters’ Making Monsters (1995) need no further description of the hell such legal proceedings inflicted on innocent parents, condemned not only to estrangement from grown children but to devastating publicity, ruinous legal costs, and not infrequently the threat of actual imprisonment. It’s an episode our legal system will be living down for decades, if not centuries, to come.
As illustrated by the child abuse cases, one of the prime reasons for the disapproval of stale actions had always been the realization that their evidentiary basis will commonly be far less reliable than that of fresh actions. Aside from the drift and fading of memories, written records will often have been discarded, personal witnesses scattered or dead. Then, too, there’s the nagging question of whether the original bad person or entity is still in some sense around to punish. Despite the law’s eagerness to entertain notions of "successor liability," many of us will share Victor Hugo’s doubts, as embodied in the character of Jean Valjean, as to whether the repentant 70-year-old is really the same person for purposes of punishment as the culpable 20-year-old he once was. And when property has been inherited or changed hands many times since the original misdeed–the former slave plantation now turned into a subdivision in suburban Atlanta–the trail of guilt is more attenuated still.