“A Little Bit of Laches Goes a Long Way”

My colleague Sam Bray is a remedies scholar, which makes him a rarity these days — and he is a remedies scholar who thinks the distinctions between legal remedies and equitable remedies are important and should in large measure be maintained, which makes him doubly rare. He now has a very interesting new paper on the forthcoming Petrella v. MGM case, and I thought I’d pass it along. Here’s the Introduction (paragraph break added):

The famous Martin Scorsese movie Raging Bull, and ancient doctrines of equity, will make a joint appearance later this month at the U.S. Supreme Court. On January 21st, 2014, the Court will be hearing arguments in Petrella v. Metro-Goldwyn-Mayer, Inc. The case involves copyright infringement claims about the movie, and about the extent to which those claims are barred by the doctrine of laches.

Laches is a defense that was developed by courts of equity, and it is typically raised in cases where a plaintiff has delayed her suit without good reason. Petrella raises two big questions about how laches fits into contemporary American law. One is whether it applies to all remedies or only to equitable remedies. The other is how it is affected by a federal statute of limitations. Is laches displaced, on the theory that Congress has spoken by enacting the statute of limitations, and that it would violate separation of powers for a court to substitute its own equitable doctrines? Or does laches remain and coexist with the statute of limitations, on the theory that Congress legislates against the background of traditional equitable principles?

The parties in Petrella offer diametrically opposite answers to these questions. The petitioner, who lost below because the lower courts invoked laches, has argued that laches is entirely precluded because Congress enacted a statute of limitations. On the other hand, the respondents are defending the Ninth Circuit position that in copyright cases the defense of laches applies to all remedies, no matter whether they are legal or equitable. Between these extremes of laches for no remedies and laches for all remedies lies a better course.

This essay examines the doctrine, history, and theory of laches. It reaches two conclusions. First, laches is and should be limited to equitable remedies. Second, the defense of 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 laches, but apply it only to equitable remedies.