home *** CD-ROM | disk | FTP | other *** search
- Subject: 90-333 -- CONCUR, LAMPF v. GILBERTSON
-
-
-
-
-
- SUPREME COURT OF THE UNITED STATES
-
-
- No. 90-333
-
-
-
- LAMPF, PLEVA, LIPKIND, PRUPIS & PETIGROW, PETITIONER v. JOHN GILBERTSON et
- al.
-
- on writ of certiorari to the united states court of appeals for the ninth
- circuit
-
- [June 20, 1991]
-
-
-
- Justice Scalia, concurring in part and concurring in the judgment.
-
- Although I accept the stare decisis effect of decisions we have made
- with respect to the statutes of limitations applicable to particular
- federal causes of action, I continue to disagree with the methodology the
- Court has very recently adopted for purposes of making those decisions. In
- my view, absent a congressionally created limitations period state periods
- govern, or, if they are inconsistent with the purposes of the federal act,
- no limitations period exists. See Agency Holding Corp. v. Malley-Duff &
- Associates, Inc., 483 U. S. 143, 157-170 (1987) (Justice Scalia, concurring
- in judgment), see also Reed v. United Transportation Union, 488 U. S. 319,
- 334 (1989) (Justice Scalia, concurring in judgment).
- The present case presents a distinctive difficulty because it involves
- one of those so-called "implied" causes of action that, for several
- decades, this Court was prone to discover in -- or, more accurately, create
- in reliance upon -- federal legislation. See Thompson v. Thompson, 484 U.
- S. 174, 190 (1988) (Justice Scalia, concurring in judgment). Raising up
- causes of action where a statute has not created them may be a proper
- function for common-law courts, but not for federal tribunals. See id., at
- 191-192; Cannon v. University of Chicago, 441 U. S. 677, 730-749 (1979)
- (Powell, J., dissenting). We have done so, however, and thus the question
- arises what statute of limitations applies to such a suit. Congress has
- not had the opportunity (since it did not itself create the cause of
- action) to consider whether it is content with the state limitations or
- would prefer to craft its own rule. That lack of opportunity is
- particularly apparent in the present case, since Congress did create
- special limitations periods for the Securities Exchange Act causes of
- actions that it actually enacted. See 15 U. S. C. 15 78p(b), 78i(e),
- 78r(c); see also MDRV 77m.
- When confronted with this situation, the only thing to be said for
- applying my ordinary (and the Court's pre-1983 traditional) rule is that
- the unintended and possibly irrational results will certainly deter
- judicial invention of causes of action. That is not an unworthy goal, but
- to pursue it in that fashion would be highly unjust to those who must
- litigate past inventions. An alternative approach would be to say that
- since we "implied" the cause of action we ought to "imply" an appropriate
- statute of limitations as well. That is just enough, but too lawless to be
- imagined. It seems to me the most responsible approach, where the
- enactment that has been the occasion for our creation of a cause of action
- contains a limitations period for an analogous cause of action, is to use
- that. We are imagining here. And I agree with the Court that "[w]e can
- imagine no clearer indication of how Congress would have balanced the
- policy considerations implicit in any limitations provision than the
- balance struck by the same Congress in limiting similar and related
- protections." Ante, at 8.
- I join the judgment of the Court, and all except Part IIA of the
- Court's opinion.
- ------------------------------------------------------------------------------