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A Little Bit of Laches Goes a Long Way: Notes on Petrella v. Metro,Goldwyn,Mayer, Inc.
Samuel L. Bray* I. II. III. VI. V. INTRODUCTION ...................................................................... 1! LACHES IS AND SHOULD BE AN EQUITABLE DEFENSE ............ 2! LACHES IN AN AGE OF STATUTES OF LIMITATION ................... 8! A MIDDLE COURSE IN PETRELLA ......................................... 17! CONCLUSION ....................................................................... 18! I. INTRODUCTION The famous Martin Scorsese movie Raging Bull and an ancient doctrine of equity will make a joint appearance later this month at the U.S. Supreme Court. On January 21, 2014, the Court ...view middle of the document...

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VANDERBILT LAW REVIEW EN BANC

[Vol. 67:1

The parties in Petrella offer diametrically opposite answers to these questions. The petitioner, who lost below because the lower courts invoked laches, argues that laches is entirely precluded because Congress enacted a statute of limitations.3 On the other hand, the respondents are defending the Ninth Circuit s position that in copyright cases the defense of laches applies no matter whether the remedy sought is legal or equitable.4 Between these extremes of laches for no remedies and laches for all remedies lies a better course.5 This essay examines the doctrine, history, and theory of laches. It reaches two conclusions. First, laches is and should remain an equitable defense. Second, laches is available unless Congress makes a clear statement abrogating it, and the mere enactment of a statute of limitations is not a clear statement of abrogation. Given these conclusions, the Court should take a middle course in Petrella: retain the defense of laches but apply it only to claims for equitable remedies. II. LACHES IS AND SHOULD BE AN EQUITABLE DEFENSE Laches is a defense that can be invoked when the plaintiff has delayed in bringing a suit. But laches is not concerned merely with the fact of delay. It matters why the plaintiff delayed bringing the claim and what effect that delay had on the defendant. In doctrinal terms, the delay must be unreasonable and cause prejudice. 6 It is this focus on considerations other than the mere passage of time that strongly distinguishes laches from statutes of limitations.7 Laches is an equitable defense, controlled by equitable considerations. 8 Indeed, this has been said so many times that it would hardly seem to be in doubt. Nevertheless, for nearly a century, American scholars have vigorously championed the removal of all

3. Brief for Petitioner, Petrella v. Metro[Goldwyn[Mayer, Inc., No. 12[1315 (U.S. Nov. 15, 2013). 4. Brief for Respondents, Petrella v. Metro[Goldwyn[Mayer, Inc., No. 12[1315 (U.S. Dec. 16, 2013). 5. An intermediate position is also urged by the amicus brief of three leading remedies scholars. See Brief of Douglas Laycock, Mark P. Gergen, & Doug Rendleman as Amicus Curiae in Support of Neither Side, Petrella v. Metro[Goldwyn[Mayer, Inc., No. 12[1315 (U.S. Nov. 22, 2013). This essay diverges from that brief by arguing that laches is and should remain an equitable defense. 6. 1 DAN B. DOBBS, LAW OF REMEDIES: DAMAGES EQUITY RESTITUTION 103 (2d ed. 1993). 7. See Galliher v. Cadwell, 145 U.S. 368, 373 (1892). 8. Halstead v. Grinnan, 152 U.S. 412, 417 (1894). This essay describes the restriction of laches to equity as the traditional rule. It takes no position on when in the history of equity that traditional rule developed.

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A LITTLE BIT OF LACHES

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distinctions between law and equity,9 including the traditional restriction of equitable defenses to equitable claims.10 Over time, that restriction has frayed at...

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