Frederic Bloom - The Law's Clock

University of Colorado Law School
Colorado Law Scholarly Commons
Articles Colorado Law Faculty Scholarship
2015
The Law's Clock

Frederic Bloom
University of Colorado Law School
Follow this and additional works at: https://scholar.law.colorado.edu/faculty-articles
Part of the Civil Procedure Commons, and the Supreme Court of the United States Commons
Citation Information
Frederic Bloom, The Law's Clock, 104 GEO. L.J. 1 (2015), available at https://scholar.law.colorado.edu/
faculty-articles/36.
Copyright Statement
Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and
Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is
required.
This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law
Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law
Scholarly Commons. For more information, please contact [email protected].
+(,121/,1(
Citation: 104 Geo. L.J. 1 2015-2016
Provided by:
William A. Wise Law Library
Content downloaded/printed from HeinOnline
Sun Feb 12 14:00:57 2017
-- Your use of this HeinOnline PDF indicates your acceptance

of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from

uncorrected OCR text.
-- To obtain permission to use this article beyond the scope

of your HeinOnline license, please use:
Copyright Information
ARTICLES
The Law's Clock
FREDERIC BLOOM*
Time is everywhere in law. It shapes doctrines as disparate as ripeness and

retroactivity,and it impacts litigants of every status and type-the eager plain-
tiff who brings her case too early, the death-row inmate who seeks his stay too
late. Yet legal time is still scarcely studied, and it remains poorly understood.
This Article makes new and better sense of that time. It begins with an original
account of time as a tool of institutionalpower, tracking the relocation of that
power from the first western cathedrals to the earliest Supreme Court. It then
links time's revealing past to our messy doctrinalpresent-first by compiling an
initial doctrinal tally, then by sorting the doctrine into a novel time typology.
This typology splits into three core categories-alltime, some time, and broken
time-and it brings analytical coherence to a concept too-long ignored. Even
more, it sketches a blueprintfor worthwhile reform. This Article proposesfour
such reforms-to Hicks v. Miranda, to mootness and desuetude, to retroactivity
doctrine, and to Federal Rule of Civil Procedure 60(b)-and it rethinks the
courts' most enduring time commitments. It also builds the foundationfor what
is to come, opening a discussion about time as a legal technology, arguingfor a
more critical investigationof the law's clock.
TABLE OF CONTENTS
INTRODUCTION .......................................... 2
1. TIME PAST, TIME POWER ............................... 8

A. FROM CHURCH TO CHAMBERS ......................... 8
B. THE EARLY COURT ................................ 11
II. TIME PRESENT ...................................... 14

A. A TALLY ....................................... 14
B. A TYPOLOGY .................................... 18
* Professor of Law, University of Colorado. © 2015, Frederic Bloom. I thank Jon Michaels, Nelson
Tebbe, Alison LaCroix, William Boyd, Chris Serkin, Pierre Schlag, Kristen Carpenter, Ahmed White,
Melissa Jacoby, Erik Gerding, Sharon Jacobs, Paul Ohm, Michael Cahill, George Fisher, Rebecca
Kysar, and Gregg Macey for helpful comments and conversations. I am grateful to Dani Zylberberg,
Cristopher Willis, Jennifer Karinen, and their colleagues at The Georgetown Law Journal for terrifically
thoughtful, thorough, and generous editorial guidance.
2 THE GEORGETOWN LAW JOURNAL [Vol. 104:1
1. A ll Tim e ................................... 19
2. Som e Time ................................. 23
3. Broken Tim e ................................ 33
4. Four Faces Resorted, a Caution, and a Question ......... 36
III. TiME CHANGE ....................................... 40
A. IDEAS AND ILLUSTRATIONS ........................... 41
1. H icks ..................................... 41
2. Mootness & Desuetude ........................ 43
3. Retroactivity ................................ 47
4. Rule 60(b) .................................. 51
B. TIME' S POWER RETOLD ............................. 53

C ONCLUSION ............................................ 55
INTRODUCTION
Courts keep the law's clock. In cases big and little, on questions large and
small, judges mark the law's minutes and tend legal time. Doctrines shift with
passing days or decades. 1 Decisions turn on hours squandered and deadlines
ignored.2 More than courtroom managers or conflict mediators, 3 judges are
courthouse chronographers-firm in their temporal supremacy, largely forgotten
in their hold on legal time.
This Article is about those judges and that time. It examines the forms and
functions of contemporary legal horology-its unappreciated patterns, its self-
interested limits, its most consequential turns-and sets out the first full account
of how legal time now works. My claim is not that we have been completely
time-oblivious, bumping into the law's clock only by accident, eyes forever
closed. Some courts and a few careful scholars have spotted time in particular
doctrines and spoken powerfully of its significance there.4 But legal time is still
1. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 343 (2003) ("We expect that 25 years from now, the
use of racial preferences will no longer be necessary to further the interest approved today.").
2. See, e.g., Bowles v. Russell, 551 U.S. 205, 215 (2007) ("The District Court told... Bowles that
his notice of appeal was due on February 27 .... He filed a notice of appeal on February 26, only to be
told that he was too late .... ").
3. See Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 376-413 (1982) (describing the
new, growing managerial duties of judges).
4. See, e.g., CAROL J. GREENHOUSE, A MOMENT'S NOTICE: TIME POLITICS ACROSS CULTURES (1996);
Perry Dane, Sad Time: Thoughts on Jurisdictionality,the Legal Imagination, and Bowles v. Russell,
102 Nw. U. L. REV. COLLOQUY 164 (2008); Alison LaCroix, Temporal Imperialism, 158 U. PA. L. REV.
1329 (2010). Todd Rakoff has written powerfully about the intersection of time and law as well,
exploring the many deep effects of law on time. TODD D. RAKOFF, A TIME FOR EVERY PURPOSE: LAW AND
2015] THE LAW'S CLOCK
a subject whose significance has not saved it from going mostly ignored. This
Article aims to mend that omission. It shows first and foremost how time works
as a tool of institutional power-yet still sits unstudied as a lever of judicial
control. It argues for an improved understanding of contemporary judicial
chronography, 6 outlining a new and provocative perspective on the many
themes and threads of time in modern doctrine. It calls for legal time to be
lifted, directly and deliberately, to the doctrinal surface. And it connects timekeep-
ing's old sectarian past to its messy legal present, providing the first sustained
account of the many phases of courthouse chronology and the moving faces of
the law's clock.
Those faces tell a mix of stories. One tells of Michael Richard, a Texas death
row inmate executed when his request for a stay came after-just after-the
clerk's office had closed. Had that request been heard, it may well have been
granted: on the morning of Richard's execution, the Supreme Court granted cert
in Baze v. Rees, a case challenging the very death penalty protocol to be used in
Texas that night.8 But for reasons of clumsiness or coincidence, Richard's
attorneys could not meet the clerk's 5:00 p.m. deadline-and their postclosing
pleas were all tersely denied. 9 Richard was executed less than four hours later.
A second face tells of something different-not of capital punishment, but of
civil procedure. It tells of Rhonda Willis, a human resources director fired when
her employer decided she did not merit medical leave.1 0 Willis maintained that
this decision was improper, and she soon filed suit under federal law. But
THE BALANCE OF LIFE 7 (2002). My aim is different, almost inverse-not to study the effect of law on
time but to understand the effect of time on law. Cf CHARLES F. WILKINSON, AMERICAN INDIANS, TIME,
AND THE LAw: NATIVE SOCIETIES IN A MODERN CONSTITUTIONAL DEMOCRACY 5 (1987).
5. DAVID S. LANDES, REVOLUTION IN TIME: CLOCKS AND THE MAKING OF THE MODERN WORLD XXi (2000).
6. This judicial focus is intentional, important, and distinctive. It isolates time in and around the
courts as an object of independent examination, and it sets this project apart from the compelling work
done by others-notably Jacob Gerson-in the administrative and legislative realms. See, e.g., Jacob E.
Gersen & Anne Joseph O'Connell, Deadlines in Administrative Law, 156 U. PA. L. REV. 923, 925
(2008) (expertly assessing the "doctrinal, theoretical, and empirical" implications of "deadlines in
administrative law"); Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 HARV.
L. REv. 543, 545 (2007) (articulating a compelling "theory of timing rules" that "explor[es] both the
optimal timing of legislative action and the implications for attempts to constrain legislative action"). It
also explains my occasional use of the term "judicial time" in the place of "legal time."
7. Special Master's Findings of Fact at 7, In re Hon. Sharon Keller Presiding Judge of the Tex. Court
of Crim. App., Inquiry Concerning Judge, No. 96 (Tex. State Comm'n on Jud. Conduct Jan. 20, 2010),
available at http://www.scjc.state.tx.us/pdf/skeller/MastersFindings.pdf.
8. 553 U.S. 35, 46 (2008). Richard was not alone in seeking a stay-though he may have been
uniquely unsuccessful. Professor David Dow, one of Richard's attorneys, notes that "approximately one
death row inmate per week [] had his execution stayed or his execution date withdrawn" as a result of
Baze's cert grant-but not Richard. David R. Dow, The Last Execution: Rethinking the Fundamentals
of Death Penalty Law, 45 HOuS. L. REV. 963, 989 (2008). But then Baze lost at the Court too, Baze, 553
U.S. at 41 ("[P]etitioners have not carried their burden of showing.., cruel and unusual punishment."),
and executions resumed.
9. Special Master's Findings of Fact, supra note 7 (noting that Richard's counsel was told "not to
bother coming over to the court, as the clerk's office (or the court) was closed").
10. See Willis v. Legal Aid Defender Ass'n, Inc., No. 11-11384, 2012 WL 246293, at *2, *4 (E.D.
Mich. Jan. 26, 2012).
THE GEORGETOWN LAW JOURNAL [Vol. 104:1
Willis's attempts to assemble useful evidence quickly fell apart: her depositions
spilled past the permitted "[one] day of seven hours," 1 and her complaints
about dilatory responses failed in light of her attorneys' own neglect-their late
arrivals, their redundant questions, their "excessive breaks. 12 Willis's request
for court intervention was refused almost summarily. She lost her case the same
day. 13
A third face tells of something still different-not of mismanaged discovery,
but of unhurried courts. It tells of Barbara Grutter, an applicant denied admis-
sion to the University of Michigan Law School. 14 Grutter believed that denial
both unfair and misguided, informed by factors-of race, of "critical mass"-
incompatible with modern law. 15 Even more, she claimed that the Court's
contrary case law was outmoded and stale. But if Grutter aimed to update
longstanding doctrine, she had simply arrived too soon. Twenty-five years later,
the Court predicted, the world would be different and Grutter's claim would
prevail. 16 But for now race and "mass" were permissible factors-and Grutter
was out of Michigan Law School.
And yet a fourth face tells of something still different-not of affirmative
action, but of federal-court abstention and X-rated films. It tells of Vincent
Miranda, a California theater owner hoping to show Deep Throat. Local offi-
cials wished to keep that film from rolling, and they threatened prosecution
under state obscenity law. 17 Miranda promptly asked a federal court to declare
that law unenforceable, and prevailing First Amendment doctrine may have
pointed his way.18 But if Miranda hoped to avoid prosecution, he had already
waited too long. State prosecutors charged him only one day later-soon
enough, the Court determined, to displace his federal suit.1 9 Miranda may have
won his "race to the [federal] courthouse" 20 -but a state court would still hear
his case first.
These four stories are by most accounts quite disparate. One describes the last
harried scramble of a death row inmate, another the banal legal missteps of a
(maybe) malingering litigant. One shows a strong-minded plaintiff pushing for
change in Supreme Court doctrine, another a would-be defendant seeking relief
11. FED. R. Civ. P. 30(d)(1).

12. Willis, 2012 WL 246293, at *1.
13. Id. at *12.
14. Grutter v. Bollinger, 539 U.S. 306, 316 (2003).
15. Id. (internal quotation marks omitted).
16. Id. at 343 ("We expect that 25 years from now, the use of racial preferences will no longer be
necessary to further the interest approved today.").
17. Hicks v. Miranda, 422 U.S. 332, 335 (1975) ("[A]n eight-count criminal misdemeanor charge
was [even] filed ... against two employees .... ").
18. Id. at 340 ("[T]he three-judge [district] court issued its judgment and opinion declaring the
California obscenity statute to be unconstitutional .... ").
19. Id. at 338-39 ("Service of the [federal] complaint was completed on January 14 .... Mean-
while, on January 15, the criminal complaint pending in the [state] [c]ourt had been amended by
naming [Miranda] .... " (footnote omitted)).
20. Id. at 354 (Stewart, J., concurring).
under established Supreme Court law. Richard, Willis, Grutter, and Miranda are
thus distinct as cases and disconnected as characters. They seem to stand alone.
But on one key ground these four stories come together: They are defined by
legal time. Richard lost his life when a clerk's office closed before his papers
were ready; Willis lost her case when discovery ended before her best evidence
emerged. Grutter appeared in federal court too soon to spur a doctrinal rethink-
ing; Miranda arrived too late to have his suit heard there at all. On stakes and on
substance, these cases run in divergent directions. But in the end they lead to a
single, long-overlooked spot. They all lead to the law's clock.
One goal of this Article is to pry that clock open. It sets out the core
components of modern judicial chronography-its unstated frameworks, its
primary pieces, and its pre-Court past. Others have explored a few of legal
time's more salient features. They have weighed the proper timing of constitu-
tional adjudication,2 1 tracked the law's transitions between doctrines new and
old, 22 traced the course of rights through moments of military conflict, 23 and 24
profiled our "continuous" Supreme Court within a world of discontinuous law.
This Article does something different, something more integrative and eclectic.
It studies a wider array of legal doctrines-some as familiar as mootness and
ripeness, others as arcane as desuetude-and outlines the chief advantages of
simultaneous study. It sets out that important space shared by concepts long-
thought entirely separate-like mootness and desuetude, say, or Article III
tenure and life sentences. It links two critical but still disconnected narratives-
one about time as an instrument of institutional authority, the other about power
in and around federal courts. And it builds a novel 25
analytical framework, a new
(and importantly provisional) legal time typology.
A second goal of this Article, then, is to consider why the law's clock now
works as it does. Individual doctrines tend to hint at their own explanations:
ripeness ensures that courts hear only live cases and controversies; 26 judicial
prospectivity provides fair notice of the law's intermittent "update[s]"; 2 7 judi-
cial sunsets soften the hard bite of doctrinal missteps; 2 and equitable tolling
21. See, e.g., Henry P Monaghan, ConstitutionalAdjudication: The Who and When, 82 YALE L.J.
1363 (1973); Evan Tsen Lee, DeconstitutionalizingJusticiability: The Example of Mootness, 105 HARV.
L. REv. 603 (1992).
22. See, e.g., Toby J. Heytens, Managing TransitionalMoments in Criminal Cases, 115 YALE L.J.
922 (2006).
23. See, e.g., MARY L. DUDZIAK, WAR TIME: AN IDEA, ITS HISTORY, ITS CONSEQUENCES (2012).
24. LaCroix, supra note 4.
25. As I have elsewhere, I use the term typology, not taxonomy, because this is a conceptual effort,
not an exhaustive empirical one. See Frederic M. Bloom, Information Lost and Found, 100 CALIF. L.
REv. 635, 670 n.219 (2012) (citing KENNETH D. BAILEY, TYPOLOGIES AND TAXONOMIES: AN INTRODUCTION
TO CLASSIFICATION TECHNIQUES 4-6 (1994)).
26. See, e.g., Kremens v.Bartley, 431 U.S. 119, 136 (1977).
27. See Frederic Bloom & Christopher Serkin, Suing Courts, 79 U. CHI. L. REv. 553, 560, 620-21
(2012) (proposing a "nuanced kind of judicial prospectivity," one that gives "courts the ability to
announce a new rule but not apply it").
28. See Neal Katyal, Sunsetting Judicial Opinions, 79 NOTRE DAME L. REv. 1237, 1245 (2004).
tempers the high costs of procedural delay. 29 Yet this Article reveals something
these discrete accounts do not. It reveals an enduring commitment to the courts'
chronological power-a sustained if unsteady devotion to judicial self-interest
and a desire, from the beginning, to establish the courts' temporal control. This
Article uncovers where and why.
It also makes sense of how. By itself, the idea that courts promote their own
power carries a stodgy whiff of the obvious. Readers of Marbury, Hay-
burn's,31 and Cooper32 might even think it trite. But those famous cases, and
their enormous attendant literatures,3 3 frame an institutional power question in
only the bluntest of terms: they ask about the scope of interpretive supremacy
and the reach of judicial review. I argue here for a subtler, original, finer-grained
look at one of the courts' self-aggrandizing tools. In particular, I argue that
modern judicial power is sometimes advanced, not by brash assertions of
interpretive priority, but by something quieter and less conspicuous: the disci-
pline of legal chronography and court control of the law's clock.
Quiet or not, that clock casts a long shadow. It reaches sensational cases and
pedestrian squabbles, life-or-death matters, and soon-forgotten quarrels. It also
reaches both civil and criminal law. In the last few decades, civil and criminal
doctrine have become almost incomparably different-like "tangerines and
socket wrenches ' 34 or fountain pens and mountain goats. With few exceptions
they are now practiced by different lawyers and studied by different groups.
This Article hopes to bring the two together, assembling a detailed map of time
in modern doctrine and uncovering a point of analytical contact between two
divergent worlds. That point of contact is necessarily tentative-an early bridge
that only stretches so far. But it joins civil and criminal law in the same way it
links Richard to Willis and Grutter to Miranda: as telling examples of judicial
horology and critical elements of the law's clock.
This Article examines that clock in three steps. Part I traces the clock's often
tangled beginnings. It reaches back briefly to the world's first-known
timepieces-those revolutionary instruments of measurement and order-and
assesses these inventions, not just as groundbreaking cultural artifacts, but as
mechanisms of immense social and political power.35 It then tracks the (re)loca-
tion of that power, both literally and symbolically, as it migrated outside
29. Cf Special Master's Findings of Fact, supra note 7 (outlining the fatal consequences of Michael
Richard's tardy request for a stay of execution).
30. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
31. Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792).
32. Cooper v. Aaron, 358 U.S. 1 (1958).
33. See Adrian Vermeule, The JudicialPower in the State (and Federal) Courts, 2000 Sup. CT.REV.
357, 358 (2000) (noting the "mountain of scholarship" that exists atop just one piece of this "power"
story-"legislative encroachment on judicial prerogatives").
34. David A. Sklansky & Stephen E. Yeazell, Comparative Law Without Leaving Home: What Civil
Procedure Can Teach Criminal Procedure,and Vice Versa, 94 GEO. L.J. 683, 684 (2006).
35. See E. P Thompson, Time, Work-Discipline, and Industrial Capitalism, 38 PAST & PRESENT 56
(1967).
cathedral walls-first to fledgling townhalls and then later, in some places, to

opportunistic courts. As Part I explains, this move to courts was at once slow
and scattered-more halting slog than hasty sprint. But if the process was in
some ways fitful, it started early all the same. Part I identifies that early start in
American doctrine, recalling the Supreme Court's 36
first considerations of legal
time and its initial claims of temporal supremacy.
Part II draws this crucial history into the complicated present. It offers first a
kind of basic doctrinal accounting-a careful, if still partial, tally of modern
doctrines shaped by legal time. The aim of this preliminary index is not to dive
headlong into doctrinal detail. It hopes instead to underscore a range of relevant
doctrines, to connect unlikely partners, and to show the considerable scale of
the law's current clock. Part II then organizes these seemingly far-flung doc-
trines into three novel categories: one, all time, which treats legal time as
everlasting and nonlinear; another, some time, which treats legal time as finite
and generally fixed; and still another, broken time, which treats legal time as
open to disruption and surprisingly negotiable. These time paradigms give shape
to a coherent typology, a framework that allows legal time to be studied more
systematically. They permit Richard, Willis, Grutter, and Miranda to be sorted
more instructively. And they encourage a substantial legal rethinking, a more
normative reassessment of the policies animating particular doctrines and of the
courts' underlying time strategies-the subtle accumulation of institutional
muscle, say, or unstated assumption of judicial influence.
Part III begins that rethinking. With Part II's typology as a guide, it reconsid-
ers an eclectic group of doctrines-Hicks v. Miranda, mootness and desuetude,
judicial retroactivity, and Federal Rule of Civil Procedure 60(b)-and proposes
some targeted ideas for legal reform. Part III then reassesses the policies
ostensibly behind our current time doctrines, arguing that these motivations,
even when convincing, tell only part of a larger story. Often left out, I argue, is a
thread most visible when considered from a novel perspective. Often left out,
that is, is a concerted commitment to judicial control. Part III brings that
commitment into clearer relief, connecting it to fuzzier notions of institutional
self-dealing and linking it to more familiar accounts of judicial power.
A short conclusion then calls for more. It highlights the need to make legal
time more visible, evident, and debated-not hidden, neglected, and natural-
ized. It emphasizes the need for doctrinal study more sensitive to the knotty,
often occluded world of legal chronology. And it reminds that many of the
arguments I make here are deliberately open and adaptable-more hopeful
attempts to spur fresh dialogue than rigid prescriptions for legal reform. For this
Article aims to be a start and not a finish-an eager call for overdue attention to,
and engaged inspection of, the law's clock.
36. LaCroix, supra note 4, at 1348 (calling this "judicial supremacy for assessing questions of
time").
I. TIME PAST, TIME POWER
The oldest Western clocks belonged mostly to the church. Built by curious
abbots and clever artisans,37 these trailblazing timepieces measured passing
hours, tracked celestial patterns, and filled cathedral halls. 38 The location was
not accidental. Early clocks were extremely expensive, both to construct and to
maintain.39 Churches were among the few who could afford them.
But church money bought more than a costly contraption. It bought a promise
of power-power to schedule prayer and service, to direct local custom, and to
signal a long day's end. In time this power would find a more secular home,
trading monks and papal councils for mayors and city boards. Once there,
time's power would refocus, fixing less on scheduling worship than on prescrib-
ing social order.40 And it would relocate too, shifting in important segments-as
I will argue-to ready and resourceful courts.
This Part tracks that bumpy path from church to chambers-from the aisles
of Salisbury Cathedral to the opinions of the Supreme Court. It begins with a
necessary but condensed study of the slow, unsteady transition from church
time to judicial chronography. It then turns to the roots of that chronography in
American doctrine and the early opinions of the Supreme Court. This brief
historical preface may at first seem elliptical, even digressive-two steps re-
moved from my claims about American courts. But context here is crucial.
Understanding time's power now requires some awareness of time's potency
then-a rooted sense, if not more, of the chronological legacy our courts have
come in part to inherit. This Part starts there.
A. FROM CHURCH TO CHAMBERS
We have no sure record of the world's first clock. Historians long assumed
the first clockmaker to be Gerbert, a technical savant better remembered as Pope
Sylvester 11.41 But Gerbert's supposed tenth-century device-a kind of auto-
mated, armillary globe-left no confirming traces, 4 2 and a pair of non-Western
alternatives may have predated it still. 43 Like so much from the Middle Ages,
then, the first clock remains unknown.
37. One such artisan was Richard of Wallingford, whose "complicated astronomical mecha-
nism... [was] initiated at St Albans around 1330." See LANDES, supra note 5, at 48.
38. Id.; see also CARLO M. CIPOLLA, CLOCKS AND CULTURE: 1300-1700, 33 (1978) ("In 1335 ... the
church of St. Gothard in Milan had 'a wonderful clock .... ').
39. CIPOLLA, supra note 38, at 34, 44 ("[M]echanical timekeepers were very expensive ......
LANDES, supra note 5, at 82 ("The early turret clocks were very expensive, even when simple.").
40. LANDES, supra note 5, at 81 ("The introduction of equal hours and the habituation of urban
populations to public time announcements had profound consequences for the European mentality.").
41. Id. at 48.
42. Id. at 49.
43. Id. at 15.
The clocks of the early fourteenth century were famous by comparison. 44

Roger Stoke's 1325 tower clock at Norwich Cathedral, like Richard of Walling-
ford's later marvel at St Albans, were physically prominent, carefully chronicled,
and open to the eye and ear.45 These were mechanical sensations, and these
46
mechanical sensations were "news. In those who saw and heard them, they
stirred both conversation and admiration-a kind of proud, if tentative, aware-
ness of time.47
That awareness was not entirely unprecedented. Popular custom was sensi-
tive to time long before Stoke even started to build.48 But almost everyone then
lived on the land, subject to "agrarian rhythms, free of haste .... unconcerned
by productivity., 49
Very few followed the less organic patterns of the city.
Fewer still maintained an enduring interest in the quirks of complex chronology.
And almost none appeared invested in a more orderly, more mechanical type of
clock. But there was one: the Christian Church. 0
The church was a house of "temporal discipline., 5 1 Unlike the mosque or the
synagogue, it prescribed fixed times for worship-windows for prayer unlinked 52
from looser, more natural increments like "before sunset" or "after dark.",
Cistercian monks in particular drove this early focus on time specificity, match-
ing a passion for punctuality with a strict sense of hierarchy. 5 3 But there was
more to this enterprise than firm monastic duty. Monasteries were often hubs of
learning and calculation, home to early libraries and the source of sophisticated
"tables, charts, discussion and diagrams"-often about measurement, occasion-
ally about time. 4
The inquiry was not purely academic. Clocks and chronology offered a new
way to express institutional power-to convey authority, to dictate behavior,
and to exert liturgical influence. To set the clock was to control the congrega-
44. By this time, Landes explains, we were three or four "generation[s]" past the elusive first clock,
if not more. Id. at 52.
45. Id. at 51 ("[T]he new clocks and their associated bells were often sited in high places-the better
to hear them.").
46. Id.
47. Id. at 52 ("These great clocks were, like computers today, the technological sensation of their
time.").
48. Id. at 53.
49. JACQUES LE GOFF, TIME, WORK, & CULTURE IN THE MIDDLE AGES 44 (Arthur Goldhammer trans.,
1980).
50. LANDES, supra note 5, at 53.
51. Id. As Landes uses it here, temporal may carry a clever double meaning: It may mean both
different than the spiritual-that divine, otherworldly realm so central to religious devotion-and
relating to more quotidian matters of time. If nothing else, the first would nicely accentuate the secular
character of the second. But whether or not Landes intended this play on the secular-spiritual
distinction, he surely meant to speak about chronography and time measurement. Ild. ("It is worth
pausing a moment to consider this temporal discipline of Christianity ... which distinguishes it sharply
from the other monotheistic religions ... .
52. Id. at 54.
53. Id. at 57-59.
54. Id. at 60.
tion, taming more natural instincts and instilling, in some, a sense of obligation
and awe. Then as now, time meant power, clout, and control.
For generations, this sectarian power swelled beyond cathedral walls. Church
time was city time, and civil authority typically heeded the church clock's
call. But sectarian dominance ultimately faded as two other things grew. One
was secular wealth-and royal wealth in particular.5 6 As years passed and
fortunes accrued, European "elites" acquired their own conspicuous timepieces,
extravagant-seeming luxuries that publicly marked their owners' "high author-
ity."'5 7 The other was population-especially in urban centers. As villages
expanded and markets spread, clocks became essential tools of industry, mechani-
cal devices that both encouraged and enforced "productive activity. 5 8s Together,
wealth and population raised the demand for timepieces even as they refined the
meaning of accurate time. They also helped displace the church's temporal
dominion-recasting clocks 59
as symbols, not of holy influence, but of "secular
dignity and [civil] power.",
This realignment was slow, unsteady, and ultimately incomplete. Shadows
from the old church tower color our clocks even now. 60 But well before 1800 a
transformation took hold. Time became a matter of public currency,6 1 not
churchly catechism. In fits and starts the state "borrowed the temporality of
heaven ... and [then] claimed it for itself.",62 City hall supplanted the cathedral.
Civil servants unseated Cistercian monks.
And work replaced worship at time's motivating core. Where once the clock
served to schedule prayer and observance, it now stood to organize and disci-
pline labor-to coordinate effort, to evaluate output, and to measure production
with "bourgeois exactitude., 63 Workers came to toil from shift to shift, listening
for the whistle, subject to a clock-driven work-discipline.64 Employers came to
55. A few examples:

[T]he Parlement of Paris met at the hour of the first Mass in Sainte-Chapelle and remained
until the bell for none. In Bruges, court cases ran until noon, and appeals until vespers....
The millers of Paris ceased work on Sunday from the announcement of the holy water in the
chapel of Saint-Leufroy to the ringing of vespers.
Id.at 79-80.
56. Id. at 74.
57. Id.at 75.
58. Id. at 74.
59. Id.at 75.
60. GREENHOUSE, supra note 4, at 19-20.
61. Thompson, supra note 35, at 61, 87.
62. GREENHOUSE, supra note 4, at 19.
63. Thompson, supra note 35, at 56; see also FREDERICK WINSLOW TAYLOR, THE PRINCIPLES OF
SCIENTIFIC MANAGEMENT (1911) (outlining the tenets of Taylorism, an efficiency-focused manner of
assembly that divided production into discrete and repetitive tasks); DANIEL NELSON, FREDERICK W.
TAYLOR AND THE RISE OF SCIENTIFIC MANAGEMENT (1980) (elaborating Taylor's advocacy of division of
labor and structured control over task performance).
64. See Thompson, supra note 35, at 56; cf. LANDES, supra note 5, at 101 ("One is reminded of the
liberating effect of the clock on the medieval worker: it set off the time that was his from the time that
was his employer's.").
levy increasingly specific time demands-and to deploy evermore specialized

timekeeping tools. 65 And civic leaders came to see all too plainly the allure,
influence, and self-interest of chronological control.66 Industrialized society
may still evoke images of factories, steam engines, and smokestacks. But it
likely owes its existence, as much as anything, to the mechanical clock.6 7
In this, industry was not alone. Military tactics, transportation practice, and
international affairs followed the clock more carefully as well, evolving from
looser, less time-specific matters into tighter, more time-precise events. 68 Clock-
makers noted this trend, substantially increasing both the number and the
nuance of their mechanical output. And people in (or aspiring to) power noted it
too. 6 9 To them, clocks were both signposts of status and scaffolds of authority.
They announced the possession of influence and allowed the construction of
it-on the battlefield and the factory floor, at the train station and, importantly,
in court.70
B. THE EARLY COURT
Judges were never blind to this truth. Time shaped the law, as written and as
practiced, from the very start. It informed the accelerated criminal process of
postindustrial Manchester71 and the Speedy Trial Clause of the Sixth Amend-
ment, 72 the drawn-out acquittal of alleged traitor Aaron Burr 7 3 and the quick-
65. See CIPOLLA, supra note 38, at 74.

66. See id.
67. See LEwis MUMFORD, TECHNICS AND CIVILIZATION 14 (1934) ("The clock, not the steam-engine, is
the key-machine of the modem industrial age.").
68. See LANDES, supra note 5, at 98-101. The link between time and power is nowhere tighter,
perhaps, than with the military, where sharp temporal awareness and close chronological coordination
often spelled martial success. But still the "clock/watch changed military tactics [rather] slowly," id. at
98, for generals were long hampered by unreliable timepieces and limited quantities for distribution
among the ranks. Only when soldiers in the field could themselves know and tell time could military
practice truly reform. So "not until reasonably accurate and dependable watches could be mass
produced-that is, not until the American Civil War-" was there tactical change "on the company
level." Id. at 100.
69. See CIPOLLA, supra note 38, at 75 ("The idea of developing a clock and watch industry appealed
to the tastes and inclinations of the enlightened rulers .... ").
70. See, e.g., J.W. GOETHE, ITALIAN JOURNEY: 1786-1788 (W.H. Auden & Elizabeth Mayer trans.,
Penguin Books 1970) (1962). Early in his travels, Goethe happened upon a trial in Venice. He found the
spectacle "amusing, informal"-and he was struck by the clerk's hourglass:
So long as the clerk is reading, the time is not counted, but if [an] advocate wishes to interrupt
the reading, he is granted only a limited time.... As soon as the advocate opens his mouth,
the hourglass is raised; as soon as he stops talking, it is laid down again.
Id. at 84-85.
71. See George Fisher, The Birth of the PrisonRetold, 104 YALE L.J. 1235, 1263 (1995).
72. See U.S. CONST. amend. VI.
73. See R. KENT NEWMYER, THE TREASON TRIAL OF AARON BURR: LAW, POLITICS, AND THE CHARACTER
WARS OF THE NEW NATION 7-9 (2012) (laying a timeline of Burr's acquittal and the events surrounding
strike conviction of abolitionist John Brown.7 4 But the judicial role in most of
these settings was to administer, not acquire. Courts applied or enforced some-
one else's temporal power rather than accruing their own. They steadied the
hourglass during the "amusing" trial Goethe watched in Venice.75 They76 sched-
uled special hearings when Presidents demanded instant judicial review.
But gradually, unobtrusively, American courts assembled a temporal power
all their own. They did not amass this power in the way civic leaders once
did-by way of wealth, royal heritage, or conspicuous display. Instead they
made use of more familiar judicial tools: doctrine and rhetoric, patience and the
pen. Yet if these means were different-and if the process was far from
plain-the incentives were much the same. Time in court was not a trifling legal
matter or a neutral public fact. It was a point of occasional conflict and a potent
lever of institutional control.
Hard chronological questions reached the Supreme Court almost at the
outset.77 Calder v. Bull, a case construing the Ex Post Facto Clause, was
decided in 1798. 78 Ogden v. Saunders, a case interpreting the Contracts Clause,
was announced in 1827. 7 9 Both Calderand Ogden explore the "temporal scope"
of legislative acts-a Connecticut resolution requiring new probate trials in one,
a New York statute discharging insolvent debtors in the other.80 Both splinter
into multiple opinions. But if these cases show a Court divided at the chronolog-
ical margins, they still capture a Court united at the temporal core: every Justice
in Calder and Ogden assumed the Court's chronological primacy0 -'a kind of
institutional time priority-and wrote as if that would not change.
In Calder that assumption went more or less unstated. The Justices did not
speak about judicial power or chronological authority in grand or insistent
terms. They wrote instead about the narrow limits that the Ex Post Facto Clause
imposed on a single Connecticut law.8 2 And there they spoke plainly, without
dissent: the clause imposed no pertinent ex post limit, not because the state law
focused solely on future conduct, but because it was entirely civil in scope. "
74. See TONY HoRwiTz, MIDNIGHT RISING: JOHN BROWN AND THE RAID THAT SPARKED THE CIVIL WAR 207
(2012).
75. GOETHE, supra note 70, at 84; GREENHOUSE, supra note 4, at 19 (emphasizing a "core" "social
fact" in Goethe's story: "when the state 'speaks,' time stops").
76. See, e.g., Exparte Quirin, 317 U.S. 1, 19 (1942) ("[W]e directed that petitioners' applications be
set down for full oral argument at a special term of this Court .... ").
77. See LaCroix, supra note 4, at 1334 (discussing "a pair of cases from the early Republic in which
the Court grappled with the question of the temporal effect of legislative acts").
78. 3 U.S. (3 Dall.) 386 (1798).
79. 25 U.S. (12 Wheat.) 213 (1827).
80. LaCroix, supra note 4, at 1335.
81. See id. at 1348. Other things were still changing in Calder One was the bar on ex post facto
legislation, a limit Calder held applicable only to criminal laws. Calder, 3 U.S. (3 Dall.) at 396.
Another was the meaning of judicial review in a pre-Marbury and pre-Marshall Court world. See
LaCroix, supra note 4, at 1337-38.
82. Calder, 3 U.S. (3 Dall.) at 387.
83. See id. at 387, 399; LaCroix, supra note 4, at 1337-39.
The Ex Post Facto Clause, then as now, applied only to criminal laws.84
This was not Calder's only distinction. The Court also split legislative acts
from judicial ones, separating those prospective declarations permitted to legisla-
tures from the retroactive duties performed by courts. Questions about retroac-
tivity (judicial and otherwise) would puzzle courts long after Calder, evolving
and eventually hardening in the decades to come-as I will argue below. But
even then, in 1798, the seeds of a debate were planted, initiating stubborn
arguments about how far a judicial decision could go. And even then, at the
founding, the Court made its claim for chronological control. It bridged old
practice with new, meshing colonial custom with constitutional
87
edict.8 6 And it
cast itself unanimously as the keeper of the law's clock.
Ogden reprised that key role. But if Ogden brought the story three decades
forward, the case still seems more dated and strange to modern eyes. For one,
Ogden addressed the validity of a state law under the Contracts Clause, a
constitutional prohibition long since drained of impact. 88 It also featured Chief
Justice Marshall's only dissent in a constitutional case, a vigorous disagreement
partly presaging two of the time paradigms outlined in the pages below.89 Yet
Ogden, like Calder,reveals less about particular state regulation than about the
Court's quiet accumulation of chronological power. Like Calder, Ogden as-
sessed the permissible backward reach of state legislation-here about insolvent
debtors-and expressed a preference for state laws that looked only forward,
not back. Like Calder, it still upheld the pertinent state law. And like Calder,
Ogden thoroughly, if quietly, embraced the Court's chronological preeminence,
uniting the Justices-if nowhere else-on the question of who would keep the
law's clock. By 1827, then, key parts of an old church power had moved to
chambers. And by 1827 all of the Justices "shared a deep belief in judicial
supremacy for assessing questions of time." 90
That unity carried forward. In the days and decades that followed, the Court
expressed and expanded its temporal authority-sometimes quite knowingly,
84. See, e.g., Peugh v. United States, 133 S. Ct. 2072, 2081 (2013) (reiterating this targeted
application).
86. See id.at 1341-42 (noting Calder's "deference to custom and usage"-particularly to a practice
in which "provincial assemblies ...exercised what would now be considered judicial power"); THOMAS
M. ALLEN, A REPUBLIC IN TIME: TEMPORALITY & SOCIAL IMAGINATION IN NINETEENTH-CENTURY AMERICA 17
(2008) ("[T]he true affiliation of Americans is to the future ....).
87. See LaCroix, supra note 4, at 1332. Congress still laid claim to some chronological power here
too, of course. If nothing else, Calderleft room for retroactive civil laws. See Calder, 3 U.S. (3 Dall.) at
387. But legislation even in that space was subject to a superior (if coordinate) authority-a judicial
prerogative on questions of legal time.
88. Bloom & Serkin, supra note 27, at 617 ("And the Contract Clause... may be a constitutional
dead letter....").
89. See infra Part II. By way of preview, Ogden's majority fell squarely into what I will call some
time, for it treated legal time as fixed and linear, a progression easy enough to plot. See Ogden v.
Saunders, 25 U.S. (12 Wheat.) 213, 269 (1827) (Washington, J.). Chief Justice Marshall chose instead a
kind of all time perspective, "a less distinctly chronological view." LaCroix, supra note 4, at 1347.
sometimes (it appears) without much deliberate thought. Calder and Ogden
might seem unlikely catalysts for this doctrinal proliferation, rooted as they are
in interpretive settings both outdated and ignored. But there, in those odd and
early cases, lay the seeds of things to come: opinions built on quiet claims of
institutional power, doctrines developed against a chronological backdrop, and a
Court well-aware of time's expansive influence and sometimes assertive in its
temporal control. Part II examines where that judicial energy now focuses, why
it matters, and how the Court moved from then to now.
II. TiME PRESENT

The path was far from smooth. It wobbled and wandered, full of half-stops
and false starts, until it arrived-perhaps unexpectedly-at the law's current
clock. Yet what started in Calderas an inconspicuous whisper grew all the same
into more vigorous Court shouts. Old statements about legislative retroactivity
spread into firm mandates about common law meaning and "new" criminal
procedures. 91 Efforts to balance constitutional text with customary practice
evolved into stern warnings about institutional function and judicial finality. 92
This Part makes sense of that vibrant legal terrain. It begins with a kind of
quick doctrinal tally, an intentionally condensed catalog of those modern doc-
trines shaped significantly (if not exclusively) by time. By its terms, this index
is both preliminary and provisional. It does not pretend to include every
doctrine informed by legal chronology, nor does it aim to study any entry in
comprehensive detail. It hopes instead to sketch a new map's fundamental
outlines, displaying both the depth and the breadth of the law's current clock.
Part II then builds this doctrinal variety into a novel time typology. It constructs
three creative time paradigms-alltime, some time, and broken time-and uses
those paradigms to sort, scrutinize, and synthesize existing doctrine more
convincingly. It also revisits the four faces-Richard and Willis, Grutter and
Miranda-first outlined in the pages above.
A. A TALLY
But time's doctrinal tally should not start with those four. It should start
instead with Calder, the Court's original clock-keeping moment, and the persis-
tent puzzle of retroactive rules. A small part of that puzzle now turns on
categories Calder never considered-namely old and new criminal rules. Even
more depends on a characterization Calder made (between legislative and
91. See Teague v. Lane, 489 U.S. 288, 303-06 (1989).

92. See Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 240 (1995) ("We know of no previous instance
in which Congress has enacted retroactive legislation requiring an Article III court to set aside a final
judgment, and for good reason. The Constitution's separation of legislative and judicial powers denies it
the authority to do so.").
judicial acts) 9 3 and a distinction Calder drew (between civil and criminal law).
But every part of this puzzle still centers, even now, on two blunt but inevitable
questions: What happens when law changes? 94 Who must follow the new
rules-and who must adhere to the old?
I study these difficult questions, and their strange doctrinal answers, at length
in the Parts that follow. But what matters for now is where else those questions
emerge. They also emerge in the law of "transitional moments"-those acutely
disruptive interludes in which the law changes between trial and appeal.95
Contemporary retroactivity doctrine would seem to hold a clear solution to
these transitions, requiring courts to apply new law on direct review.96 But
practice has been unpredictable, muddled by anxious judges ready to deploy
harsh "forfeiture" rules.97 Many who should follow the new law, then, stay
strangely bound to the old.
For litigants caught in the middle, the choice could hardly be more signifi-
cant. Substituting new law for old could turn a straightforward legal victory into
a certain courthouse loss. But this is just one chronological question among
many-for retroactivity and transitional moments are only two of the myriad
doctrines that time fundamentally informs. Other doctrines likewise reflect the
clock's powerful influence-some in ways that set the timing of individual
cases, others in ways that mirror the lifespan of the judge; some in texts as
formal as the Federal Rules of Civil Procedure, others in pockets as nebulous as
the court's inherent power.
Consider three to start: declaratory judgments, equitable tolling, and desue-
tude. The first of these permits a kind of accelerated legal beginning: declara-
tory judgments provide for some civil litigation with an early courthouse start. 9 8
The second and third, in turn, recognize that some things must eventually come
to a stop: Equitable tolling stops the clock in specific litigation. 99 Desuetude
93. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 395 (1798) ("For if the power, thus exercised, comes
more properly within the description of a judicial than of a legislative power .. "). According to
Calder, "legislative" acts were presumptively prospective while "judicial" acts were at least potentially
retroactive. Id. at 396.
94. See Kermit Roosevelt III, A Little Theory Is a Dangerous Thing: The Myth of Adjudicative
Retroactivity, 31 CONN. L. REv. 1075, 1075 (1999) ("The question of retroactivity is what to do when
the law changes.").
95. Heytens, supra note 22, at 924, 928.
96. See Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97 (1993) (applying this rule in the civil
context); Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (applying this rule in the criminal context).
97. Heytens, supra note 22, at 942, 955; see also id. at 943 (noting the important difference between
forfeiture and waiver).
98. See Steffel v. Thompson, 415 U.S. 452, 475 (1974) (noting that requests for declaratory relief do
not warrant federal court abstention when there is no parallel pending state prosecution).
99. See, e.g., McQuiggin v. Perkins, 133 S. Ct. 1924, 1941 (2013) (Scalia, J., dissenting) (defining
equitable tolling as "extending the deadline for a filing because of an event or circumstance that
deprives the filer, through no fault of his own, of the full period accorded by statute").
stops an obsolete law from remaining in force.1 0 0 I examine all three of

these devices at greater length in the Parts that follow. But note, for now,
precisely how and where they converge: all three dip deep into the well of
judicial discretion, exchanging the threat of doctrinal anachronism for the risk
of judicial whim.10 1 All three prefer substantial judicial authority to legal
process that is, somehow, out-of-time. And all three cast courts as apt and able
chronographers-taking shape, like Calder, in the long shadow of the law's
clock. 102
Other doctrines tie that clock straight to Article III. Ripeness, mootness, and
the bar on advisory opinions all reflect the Constitution's demand for real
"Cases" and "Controversies"-live and actual disputes focused on true and
lasting injuries. 10 3 Life tenure, in turn, links judicial service to brute mortality. It
guarantees federal judges terms for life on the bench, dressing them in the dark
robes "of (medieval) clerics,"
' 10 4
insulating them from improper influence. 105
Assuming 6"good Behaviour"-and personal preference-they can serve until
10
they die.
These Article III doctrines thus make a law of time and a time for law. They
link legal outcomes to time's passage and put litigation (to paraphrase Henry
Monaghan) within a chronological frame. 107 But some doctrines still resist that
framing. Judicial precedent and the common law, for example, can seem the
very opposite of time-bounded. They can seem almost mystically timeless 0 s-
moving both forward and backward, drawing the present into the future while
keeping it anchored in the past.10 9 A judicial opinion can set the law of today
100. See, e.g., Note, Desuetude, 119 HARV. L. REv. 2209, 2210 (2006) ("[D]esuetude describes the
doctrine by which a legislative enactment is judicially abrogated following a long period of intentional
nonenforcement and notorious disregard.").
101. See id. at 2214 ("[D]esuetude permits the judiciary to encroach on powers reserved.., to the
legislature."); see also Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude,
Sexuality, and Marriage,2003 SuP.CT.REv. 27, 49-50 ("According to [desuetude], laws that are hardly
ever enforced are said, by courts, to have lapsed, simply because they lack public support.").
102. Of the three, though, only desuetude focuses on legal change, here by way of inaction.
103. See U.S. CONST. art. III, § 2,cl.1; Lee, supra note 21.
104. Carol J. Greenhouse, Just in Time: Temporality and the Cultural Legitimation of Law, 98 YALE
L.J. 1631, 1644 (1989) ("The metaphor is perhaps at the heart of the matter: in the United States, the
judiciary is the only robed branch. The robes ... are those of (medieval) clerics.").
105. See WALTER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY 16 (1964) (assessing judges' "priestly
duty" and deeming our Constitution "that holy writ").
106. See U.S. CONST. art. III, § 1.
107. Monaghan, supra note 21, at 1384.
108. See Greenhouse, supra note 104, at 1643 (discussing how the law's "special time" is "self-
totalizing, reversible, and boundless"); cf Anthony T.Kronman, Precedent and Tradition, 99 YALE L.J.
1029, 1033 (1990) (deeming philosophy-and not law-a "condition in which the temporal distinctions
between past, present, and future are annulled").
109. Professor Schauer made the point elegantly almost thirty years ago:
An argument from precedent seems at first to look backward. The traditional perspective on
precedent, both inside and outside of law, has therefore focused on the use of yesterday's
precedents in today's decisions. But in an equally if not more important way, an argument
from precedent looks forward as well, asking us to view today's decision as a precedent for
and of tomorrow-and perhaps of yesterday too. 1 o This fact does more than
breed judicial authority, giving otherwise ephemeral legal moments a kind of
long-lived legal force. It empowers first-moving judges, entrenches particular
positions,"' and acclimates courts to "the temporal scope of adjudicative legal
1
12
change." 113
That scope is not always abided. Some courts ignore controlling precedent.
Some misread opinions. 114 Some distinguish decisions into "practical
oblivion." 1 15 And some set their own precedential endpoints, scheduling judicial
sunsets days or decades in advance.1 16 These sunsets test the outer limits of
judicial authority, raising questions of judicial capacity, court adventurism, and
institutional structure-as I outline at some length below. But these sunsets may
still appear, even in big cases, denoting not just when opinions will issue but
when their influence will end. Grutter, for example, envisions its own expira-
tion after twenty-five years.1 17 Like discovery calendars and prison sentences,
then, these sunsets proceed in plain chronological increments: fleeting hours,
passing months, drawn-out decades. And like mootness and ripeness, they
express a kind of time-based legal power, making and measuring doctrine
against the law's clock.
That same power also reaches more prosaic judicial questions-to hear cases
or to end them, to reopen decisions or to keep them closed. Appellate jurisdic-
tion, for one, regulates the timing of superior-court intervention, divesting the
tomorrow's decisionmakers. Today is not only yesterday's tomorrow; it is also tomorrow's

yesterday. A system of precedent therefore involves the special responsibility accompanying
the power to commit the future before we get there.
Frederick Schauer, Precedent, 39 STAN. L. REv. 571, 572-73 (1987) (citation omitted).
110. See id.
111. On entrenchment in the law more generally, see Julian N. Eule, Temporal Limits on the
Legislative Mandate: Entrenchment and Retroactivity, 1987 AM. B. FOUND. RES. J. 379; Rebecca M.
Kysar, Lasting Legislation, 159 U. PA. L. REv. 1007 (2011); Jon D. Michaels, Privatization'sPreten-
sions, 77 U. CHI. L. REv. 717, 739-44 (2010); Christopher Serkin, Public Entrenchment Through
PrivateLaw: Binding Local Governments, 78 U. CHI. L. REv. 879 (2011).
112. Jill E. Fisch, The Implications of Transition Theory for Stare Decisis, 13 J. CONTEMP. LEGAL
ISSUES 93, 95 (2003).
113. See Frederic M. Bloom, State Courts Unbound, 93 CORNELL L. REv. 501, 503 (2008).
114. See Jonathan S. Masur & Lisa Larrimore Ouellette, Deference Mistakes, 82 U. CHI. L. REv.
(forthcoming 2015) (manuscript at 13).
115. Bloom, supra note 113, at 511 (internal quotation marks omitted).
116. Some in this instance may mean only one: Grutter. See Grutter v. Bollinger, 539 U.S. 306, 343
(2006). My discussion of sunsets generally, then, may be more a study of a single illustration than an
examination of a manifold trend. But these sunsets should not be elided simply because they appear, for
now, infrequently. They connect, for one, to other prominent episodes of judicial self-limitation. See,
e.g., Bush v. Gore, 531 U.S. 98, 109 (2000) (per curiam) ("Our consideration is limited to the present
circumstances . . . ."); Guido Calabresi, In Partial (but Not Partisan)Praise of Principle, in BUSH V.
GORE: THE QUESTION OF LEGITIMACY 67, 80 (2002) ("Will history hail the courage-the willingness to
risk obloquy of Justices O'Connor and Kennedy in writing an opinion that was designed to self-
destruct?"). And their existence recalls an interesting legislative sibling too. See Tom Ginsburg et al.,
LibertarianPaternalism,Path Dependence, and Temporary Law, 81 U. CHI. L. REv. 291, 294 (2014)
("imagining" and examining "regulations that include an expiration date").
117. See Grutter,539 U.S. at 343.
higher court of authority if an appeal arrives too late or too soon.118 Finality
doctrine dictates when cases are completed,11 9 keeping all others from reopen-
ing court decisions once judges have deemed them closed. 120 And Federal Rule
of Civil Procedure 60(b) grants courts a power no other branch 12can share: to
"relieve a party... from final judgment" and start litigation anew. 1
In the pages ahead I examine many of these doctrines in greater detail. I
survey how these familiar and far-flung pieces sometimes fit together, how they
occasionally fall into conflict, how they fail at times on their own terms, and
how they mesh with still other "time" elements-statutes of limitation, the
default "computing" processes of Federal Rule of Civil Procedure 6,122 or the
"relation back" provision of Federal Rule of Civil Procedure 15(c). 12 3 I also
propose some targeted places for productive reform.
But this initial tally is still as critical as it is quick and incomplete. It helps
outline the expansive scope and scale of contemporary judicial horology. And it
anchors the important analytical steps that follow, beginning with the move
from eclectic tabulation to arranged typology.
B. A TYPOLOGY
The roots of this typology are not exclusively legal. They grow too from
cultural history and contemporary anthropology, work-based sociology, and
western ethnography. 124 More than contemporary legal scholarship, these social-
science disciplines engage and examine the clock-assessing the inevitable
"conflict" between "public" and "private" chronologies, 125 discussing the elu-
sive "paradox" of time as both fixed and "negotiable," 126 conceptualizing "time
118. See Bowles v. Russell, 551 U.S. 205, 215 (2007); 28 U.S.C. § 1291 (2012).
119. See Paul M. Bator, Finality in Criminal Law and FederalHabeas Corpus for State Prisoners,
76 HARV. L. REv. 441, 443 (1963) (asking not just when a case is done, but when "justice" has been
done); William B. Rubenstein, Finality in Class Action Litigation: Lessons from Habeas, 82 N.Y.U. L.
REv. 790, 792 (2007) ("The litigation finality question is ... but one manifestation of an even more
general, recurring, and nearly rhetorical inquiry: When are we prepared to accept that anything-a
sentence, a law review article, our reading of a law review article-is done?").
120. See Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 240 (1995); see also Vermeule, supra note
33, at 418 ("Plaut established the flat rule that legislation may never require courts to reopen damages
judgments that had previously become final under then-obtaining statutory rules of finality.").
121. FED. R. Civ. P 60(b).
122. FED. R. Civ. P 6(a) ("The following rules apply in computing any time period .... ); FED. R.
Civ. P 6(b)(i) ("[T]he court may, for good cause, extend the time .... ").
123. FED. R. Civ. P 15(c)(1) ("An amendment to a pleading relates back to the date of the original
pleading when .... ").
124. See, e.g., ANDREW ABBOTT, TIME MATTERS: ON THEORY AND METHOD 295 (2001) ("[T]he notion of
time as a series of overlapping presents of various sizes ... provides a foundation for further argu-
ment."); BARBARA ADAM, TIME AND SOCIAL THEORY 4 (1990) ("Social science.., has a long tradition of
explaining on an either/or basis and the focus on time forms no exception."); GREENHOUSE, supra note 4;
Umberto Eco, Times, in THE STORY OF TIME 11 (2000) ("The fact is that we can measure time, but this
gives us no guarantee that we understand what time is .... ").
125. STEPHEN KERN, THE CULTURE OF TIME AND SPACE: 1880-1918, at 16, 33 (2003).
126. GREENHOUSE, supra note 4, at 24, 175.
Table 1: A (Partial) Tally

Appellate Jurisdiction
FRCP 60(b)
Finality
Prison Sentences
Discovery Calendars
Judicial Sunsets
Judicial Precedent
The Common Law
Lifetime Tenure
Ban on Advisory Opinions
Mootness
Ripeness
Declaratory Judgments
Equitable Tolling
Statutes of Limitation
FRCP 6
FRCP 15(c)
Desuetude
Transitional Moments
Retroactivity and Prospectivity
as a series of overlapping presents," 127 and asking ' how 128

"past and future can
exist if the past is no longer and the future is not yet."
The typology I build here is neither so metaphysical nor so grand. It delves
into the muck and mess of modern doctrine and peers through the sometimes-
occluding fog of judicial strategy. But these other disciplines still provide an
indispensible anchor, an instructive theoretical mooring for a new perspective
on (and a budding conversation about) law, time, and time's typology.
That typology divides into three parts: all time, some time, and broken time.
Each of these categories holds particular normative commitments, institutional
convictions, and baseline conceptions of judicial authority. Each asks its own
open questions. And each captures some of the doctrines surveyed above and
studied below.
1. All Time
The first category-all time-is the most ethereal. It treats law as timeless,
immanent, holistic, and nonlinear. It tells a legal story, not of inexorable
progress, but of unflagging endurance-a sort of static teleology in which law is
now as it has always been. Laws are not made here, but found.
127. ABBOTT, supra note 124, at 295.

128. Eco, supra note 124, at 11.
At the heart of this all time paradigm is a kind of temporal unity. True "law"
in all time is the same today as it was yesterday and will be tomorrow-an
ageless certainty resting on an "ideal plane." 129 What parties do and courts say
might reach this ideal; they might not. But the law itself remains a "timeless 130
constant," an "apotheosized immutable" in which "old" and "new" converge.
Past, present, and future join here as one.
Courts in all time thus neither make law nor improve it. They merely seek out
a clearer vision of what law has always been. Judges are not "delegated to
pronounce a new law," in Blackstone's famous adage, "but [simply] to maintain
and expound the old one." 131 They are discoverers and sometimes declarers, but
never creators.
This "declaratory"132 role reflects an odd institutional perspective. It connotes
in part a kind of judicial vanity: a sense that judges can decipher the law's
"brooding omnipresence" and explain away legal change. 133 Yet it also suggests
a sort of judicial humility: a sense that judges are merely excavators and that the
law transcends all courts. What courts tell us about law is-in Justice Story's
familiar phrasing-simply evidence of law, not true law itself. 134 Opinions may
splinter; interpretations may sway. But in all time the law, normatively if not
descriptively, remains unchanged.
In practice much of all time faded when Swift v. Tyson fell. 135 In its day, Swift
endorsed a kind of judicial independence, a federal-court freedom to reinterpret
substantial portions of state common law. 136 Acting here as "living oracles"-as
profits of some pure and perfect legal substance-federal courts could find law
anew, unconcerned about institutional limit, unbothered by conflicting state-
court precedent. And so they did, greatly expanding key pockets of federal
129. See James Gleick, Time Regained!, N.Y. REV. BOOKS, Jun. 6, 2013, at 48 (reviewing LEE
SMOLIN, TIME REBORN: FROM THE CRISIS IN PHYSICS TO THE FUTURE OF THE UNIVERSE (2013)) ("Three
weeks before his death, in 1955, Einstein wrote, 'People like us, who believe in physics, know that the
distinction between past, present, and future is only a stubbornly persistent illusion."').
130. Roosevelt, supra note 94, at 1083. This description suggests that there may also be a
counter-category, a kind of nihilist response to all time's apotheosis: no time. Here there would be no
timeless ideal or universal template. There would be nothing-no truth, no objectivity, no law. Far from
being unified, past, present, and future would not exist at all. Cf Gleick, supra note 129, at 48 ("[]f
nothing changes, time has no meaning."). I leave this no time notion to the side here, not least because,
if true, it would make everything (and not just this typology) both futile and meaningless.
131. 1 SIR WILLIAM BLACKSTONE, KNT., COMMENTARIES ON THE LAWS OF ENGLAND IN FOUR BOOKS 69
(1893); see also Harry Shulman, Retroactive Legislation, in 13 ENCYCLOPEDIA OF THE SOCIAL SCIENCES
355, 356 (Edwin R. A. Seligman & Alvin Johnson eds., 1954) (calling decisions that overrule old
decisions "not... new law but an application of what is, and therefore had been, the true law").
132. Roosevelt, supra note 94, at 1082.
133. Id. at 1083.
134. See Swift v. Tyson, 41 U.S. 1, 18 (1842).
135. See Erie R. Co. v. Tompkins, 304 U.S. 64, 79 (1938) ("Thus the doctrine of Swift v. Tyson
is... 'an unconstitutional assumption of powers .... ').
136. See id. at 71 (noting that Swift left federal courts "free to exercise an independent judgment as
to what the common law of [a] state is-or should be").
common law and, in turn, their own prerogative. 137 Yet perceptions of Swift
would eventually deteriorate. After close to a century, in fact, the case came to
signify something heretical: a "Blackstonian" understanding of legal doctrine
and a judicial commitment to natural law. 138 In 1938, then, Erie dismantled
Swift at this core. It declared Swift not just wrong but unconstitutional-an
affront to judicial federalism and a threat to separation of powers. 139 Even more,
Erie signaled the arrival of a reordered philosophical agenda-an explicit
commitment to legal positivism in place of natural law. 140 This positivist
commitment understood law as the proclamations made by government sover-
eigns, not the phantoms found by privileged courts. 141 And so it treated Swift,
and all time with it, as fundamentally wrong.
Yet some hints of all time still carry on. Some hints appear in "Neo-
Blackstonian" (or "Dworkinian") conceptions of the common law-those ambi-
tious modern accounts treating legal decisions as simply enforcing "pre-existing
rights." 142 In those tellings, judicial opinions do not make new laws or change
the old. They simply provide "the best reading" 14 3 of the law as it already was.
And still more hints appear in retroactivity doctrine, that resilient legal riddle
reaching all they way back to Calder. The central question of retroactivity,
again, is one of chronological reach: How far back should a judicial decision
go? All time seemed to say that the decision should go back to the very start. A
decision finding law should apply to all conduct-events after the decision and
before it, too-not because courts are infallible, but because in all time the law
does not change. When judges make new (even conflicting) decisions, they do
not alter the law in its pertinent form. They merely bring "the doctrine into line"
with what was already and forever true.144 Opinions may still vary, but the law
remains unchanged. It would thus make no sense not to apply new decisions
both prospectively and retroactively in all time-both all the way forward and
all the way back. The law is always the same.
But this is far from present practice. Retroactivity doctrine today is not
categorical but selective, allowing backward application only in some places
137. See Frederic M. Bloom, UnconstitutionalCourses, 83 WASH. U. L. Q. 1679, 1696-97 (2005).

138. Roosevelt, supra note 94, at 1083 ("The Blackstonian model, in its full metaphysical glory, is
something of a legal unicorn. Its transcendently brooding common law does not exist now, and never
really did, although there are still rare reported sightings ....
");cf William A. Fletcher, The General
Common Law and Section 34 of the JudiciaryAct of 1789: The Example of Marine Insurance,97 HARV.
L. REv. 1513 (1984) (arguing that Swift was hardly as anomalous as generally believed).
139. See Bloom, supra note 137, at 1699-700.
140. See id.at 1694 ("To many, Swift represents the apotheosis of an utterly misguided conception of
law, a sophism of legal thought."); id.at 1698 ("In Erie, Swift's supposed philosophical 'fallacy' was
exposed ....As the Erie Court understood it, Swift's very existence depended on a profound misconcep-
tion of the way law is spoken and understood.").
141. See id.
142. See Roosevelt, supra note 94, at 1104; RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 81-85
(1978).
143. See Roosevelt, supra note 94, at 1105.
and in some ways. A kind of retroactive application persists, for example, for
the parties themselves in most modern litigation, 145 because "it is the basic role
' 14 6
of courts," Paul Mishkin has noted, "to decide disputes after they have arisen."
When a court decides that a particular statement is not libelous, for example, it
does so only after the relevant statement was made. 147
And a kind of retroactivity persists too in civil and criminal precedent, though
with less traction today than perhaps before. Until the late 1960s, "the [Su-
preme] Court adhered to a general rule of adjudicative retroactivity." 148 It
understood its decisions to apply in both directions simultaneously, reaching
conduct that occurred both before and after the court ruled. 149 A judicial
revision of felony-murder doctrine, say, would apply to events that postdated
the judicial revision and to events that preceded it too. Until the late 1960s,
then, the Court's retroactivity doctrine tracked a strong version of all time.
But as the administrative state expanded and the "Warren Court revolu-
tion" 150 took form, deep misgivings about this approach to retroactivity emerged.
Some worried that new rules, like the "search and seizure" mandate of Mapp v.
Ohio, 15 1 would prove unwieldy in retroactive application. 152 Others feared that
anxiety about rule administration might discourage tentative judges from updat-
ing the law, nudging them against bold action and thereby stifling the develop-
ment of substantive rules. In both the civil and criminal contexts, then, the Court
pulled back. It fashioned rules, not of "maximum" retroactivity, but of "selective
prospectivity"-doctrines that applied new decisions to conduct in the future but not
always from the past.153 It retreated to a kind of modified all time.
The retreat was neither graceful nor unanimous. 154 It might still be unfinished
too.15 5 But in fits and starts, over sometimes-stinging dissent, 15 6 a different
145. One exception is declaratory judgment suits, in which parties seek a proactive declaration of
their rights and obligations, not a retrospective consideration of an injury already sustained. See Steffel
v. Thompson, 415 U.S. 452, 478 (1974) (Rehnquist, J., concurring) ("[T]he legislative history of the
Declaratory Judgment Act of 1934 suggests that its primary purpose was to enable persons to obtain a
definition of their rights before an actual injury ...occurred....").
146. Paul J. Mishkin, The Supreme Court 1964 Term: Foreword: The High Court, the Great Writ,
and the Due Process of Time and Law, 79 HARV. L. REv. 56, 60 (1965).
147. See, e.g., N.Y. Times, Co. v. Sullivan, 376 U.S. 254 (1964).
148. LaCroix, supra note 4, at 1355; see also Roosevelt, supra note 94, at 1089 ("[]t was not until
the late 1960s ....that the question of retroactivity truly emerged.").
150. Akhil Reed Amar, American Constitutionalism-Written,Unwritten, and Living, 126 HARV. L.
REv. E 195, 203 (2013).
151. 367 U.S. 643, 654-55 (1961) (overruling Wolf v. Colorado, 338 U.S. 25 (1949)).
152. See LaCroix, supra note 4, at 1357.
153. Id.at 1352 (discussing "a maximalist version of retroactivity" in which a new decision does not
displace an old one so much as bring the doctrine "close[r] to a transcendent body of law").
154. Nor did it mirror the default rule for legislative prospectivity. Legislation was and is assumed to
be prospective only. See Martin v. Hadix, 527 U.S. 343, 357 (1999) (noting "the usual rule that
legislation is deemed to be prospective").
155. See, e.g., Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (discussing Teague and
retroactivity once again).
retroactivity approach has emerged. In criminal cases, judicial decisions apply

retroactively only if the "new" rule is applied in the case that announced it-and
even then only in other cases already "pending on direct review." 157 In civil
cases, the approach is quite similar, 158 though with understandably less empha-
sis on questions of collateral review. 159 And in both, the Court's decisions can
thus reach forward and reach backward-but not always or without limit.
These, then, are the rules of contemporary adjudicative retroactivity. Critics
have called them confused and inconsistent, marked by a kind of "intellectual
poverty." 160 Others have found them too slippery and uncertain, readily side-
stepped by judges equipped with "strict forfeiture rules." 16 1 I will contend that
they have grown unnecessarily complex and cumbersome-and propose some
revisions in the pages below. 162 But if the doctrine remains at once pliable and
perplexing, it sketches all time just the same. In some doctrinal spaces, courts
treat law as timeless and nonlinear-a place where past, present, and future
occasionally merge as one. Here they view law as eternal and static. Here they
blend a sense of judicial grandeur with a strange dose of judicial modesty. And
here they assert the "power to define the boundaries of law in time"163
something they do in a second category, some time, too.
2. Some Time
This second category is by far the most familiar. It treats law as dynamic,
adaptable, evolving, synthetic. It tells a legal story, not of unwavering stability,
but of sometimes-clumsy change-a process of quick starts, brusque stops, and
conspicuously ticking clocks.
Unlike all time, some time does not fuse present with past or future. It splits
time instead into segments, dividing now from later as well as from before.
What the law required yesterday may mean little today, at least in some
cases-and what it says today may mean even less tomorrow. 16 4 Law here can
156. See, e.g., Teague v. Lane, 489 U.S. 288, 327 (1989) (Brennan, J., dissenting) ("I cannot
acquiesce in this unprecedented curtailment of the reach of the Great Writ . .
157. Griffith v. Kentucky, 479 U.S. 314, 326 (1987).
158. See Harper v. Va. Dep't of Taxation, 509 U.S. 86, 97 (1993).
159. Teague, 489 U.S. at 301. There is something recursive about this patch of doctrine. To
understand the newer cases, one must read the older. But to make sense of those older cases-and to
see, in particular, how even these older cases themselves have seemed to change over time-one must
also read the newer. There is no obvious place to start or to finish, but rather a kind of self-complicating
loop. See LaCroix, supra note 4, at 1366 ("Circularity replaces rectilinearity as the temporal relation-
ships between cases double back and overlap each other."). And this circularity is only odder-and
perhaps a shade ironic-for coming in cases that mean to clarify how the law operates.
160. Jill E. Fisch, Retroactivity and Legal Change: An Equilibrium Approach, 110 HARV. L. REv.
1055, 1058 (1997).
161. Heytens, supra note 22, at 991.
162. See infra Part III.
164. See, e.g., Schauer, supra note 109, at 573-74; see also Bush v. Gore, 531 U.S. 98, 109 (2000)
("Our consideration is limited to the present circumstances .... "); Samuel Issacharoff, Political
Table 2: All Time

Conception of Law Timeless
Nonlinear
Unified
Unchanging
Judicial Authority Potent But Not Creative
Law External to Courts
Doctrinal Illustrations Retroactivity (in Part)
Natural Law (Swift)
The Common Law
(Blackstonian & Neo-Blackstonian)
adapt, adjust, improve-separating then from now and old from new. 165 Identi-
cal litigants can be treated differently simply by "quirk" of legal timing. 166 The
law can shift between one day and the next. And legal change can appear both
inevitable and personal, subject to the politics and the preferences of an
ever-shifting bench. Here the law moves-and when the court "changes its
7 16
mind, the law changes with it."
Courts in some time are thus more than mere declarers. They are updaters and
creators. Judges in some time do not purport to draw the law ever closer to some
grand and otherworldly template. They make law themselves, dramatically or
"interstitially," 16 8 crafting operational rules and imposing enforceable demands.
In this sense, then, judicial opinions are just like statutes and executive orders:
commands of a powerful sovereign. And so they are, in the words of John
169
Austin, "law simply and strictly so called."
One core feature of some time is this confidence in institutional power. Here
the Supreme Court sets its own hours, protects its own decisions, 170 directs the
law's chronology, and controls the clock. With little doubt or debate-and often
without even stray comment-courts in some time assert a bold chronological
17 1
authority. They carve out common law exceptions to legislative mandates
Judgments, 68 U. CHI. L. REV. 637, 650 (2001) (deeming Bush v. Gore "the classic 'good for this train,
and this train only' offer").
165. See Bloom & Serkin, supra note 27, 554.
166. City of Richmond v. United States, 422 U.S. 358, 384 n.12 (1975). See, e.g., Hicks v. Miranda,
422 U.S. 332, 354 (1975) (Stewart, J., dissenting) ("There is, to be sure, something unseemly about
having the applicability of the Younger doctrine turn solely on the outcome of a race to the court-
house.").
167. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 550 (1991) (O'Connor, J., dissenting).
168. Linkletter v. Walker, 381 U.S. 618, 624 (1965).
169. JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 378 (1832).
170. See, e.g., Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 211 (1995).
171. See 28 U.S.C. § 1291 (2012); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)
(crafting collateral-order doctrine).
and schedule their dockets to advance institutional self-protection. 172 They

count or excuse "intermediate" weekends as they see fit under Federal Rule of
Civil Procedure 6,173 and they control both the substance and the timing of
constitutional meaning in Grutter-announcing a decision and then predicting,
at their whim, when that decision should come to an end. 17 4 This is the essence
of some time, an unapologetic (and sometimes unconscious) sense of the courts'
chronological power. And like church power centuries before it, it is an expres-
sion of institutional control.
But courts exhibit a certain modesty here too. They accept that the law can be
fickle, not fixed, shifting along with an ever-changing judicial mind. 175 And
they admit the enduring power of the personal (and the personnel) in legal
process, conceding that no judge serves "forever" and that court composition
makes a real difference. 176 Where all time envisions impersonal stasis, some
time acknowledges interpersonal change-a 177
belief that the law can get better (or
worse) and that it matters who judges are.
In modern doctrine, some time now stretches remarkably far. It covers many
of the doctrines listed in the tally above and examined at greater length in the
pages below. It reaches rules anchored in far-flung statutes, in the Constitution,
and in the common law. It focuses on litigation mechanics, human biology, and
the subtle tools of judicial self-aggrandizement. And it addresses three different
some time durations-lifetimes, other times, and later times-as the sections
that follow will show.
a. Lifetimes. In some places some time follows lifetimes. Here the law's clock
draws unlikely connections, linking hardened criminals to the very federal judges that
(sometimes) sentence them. And here the law mirrors mortality, tuned to a measure of
full lifespans, not fixed years: Article III allows federal judges to serve for life,
assuming "good Behaviour"; 178 life sentences condemn certain felons to prison until
they die. In both places time moves forward, deliberately and relentlessly, inching
ever-closer to an inexorable end. But that end is variable,
179
personal, idiosyncratic-the
law's clock set to biology and modem medicine.
172. Cf ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF
POLITICS 111-98 (1962) (outlining the "passive virtues" of not deciding particular questions).
173. FED. R. Civ. P 6(a). The choice to excuse "intermediate" weekends may also hint at broken
time, a category outlined infra Part II.B.3.
175. "How to inform the judicial mind," Justice Frankfurter once said, "is one of the most
complicated problems." Transcript of Oral Argument, Brown v. Bd. of Educ., 347 U.S. 483 (1954),
reprinted in ARGUMENT: THE ORAL ARGUMENT BEFORE THE SUPREME COURT IN BROWN V BOARD OF
EDUCATION OF TOPEKA, 1952-55, at 63 (Leon Friedman ed., 1969).
176. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 943 (1992) (Blackmun, J., concurring in
part, dissenting in part) ("I am 83 years old. I cannot remain on this Court forever . .
177. See id.
178. U.S. CONST. art. III, § 1.
179. Note here the faint echo of a more natural, less regimented notion of time-of periods
measured by organic rhythms, not mechanical minutes. In this, at least, lifetimes recall part of a
There are good arguments for this "lifetime" approach. Life sentences help to
rein in our most dangerous offenders, protecting future victims and deterring
future crime. 18 o Life tenure helps to insulate federal judges, blunting majoritar-
ian prejudice and muting popular whim.1" 1 Behind both there is a worry of
something pernicious, so in both lifetimes act as a kind of shield: Were our
worst offenders released from prison, they would harm more innocents, and so
we incarcerate them indefinitely. Were federal judges worried about election or
reappointment, they would seek out political favor, and so we remove them
from brute politics. Lifetimes here are a social cure.
But this chronological cure may also have its costs. 1s 2 Life sentences can
impose heavy financial and logistical burdens-and levy hard psychological
tolls. 81 3 Life tenure can make federal judges aloof and unaccountable, distorting
the judicial enterprise and deforming appointment strategy. 1 4 The best re-
sponse, some say, is thus to limit the former and eliminate the latter-to mete
out life sentences very rarely and to replace Article III's life tenure with a fixed
term of, say, eighteen years.18 5 Some say the best response, that is, is to
constrain the use of lifetimes in law.
But if this response is understandable, it does not capture current doctrine.
Now as ever, life sentences are possible but unusual, yet still more common
than sentences of death. 18 6 And now as ever, federal judges serve for indefinite
periods, dying in office or resigning when they choose. This is some time linked
pre-Stoke, preclock world. See supra Part I.A. But lifetimes here are neither incoherent nor incalcu-
lable: Like all of some time, in fact, they depend on a sharp sense of chronological order-of pasts
preceding presents and presents postdating pasts. And though they stake out periods not always easily
measured ex ante, they turn on periods that are ultimately measurable all the same.
180. See Harmelin v. Michigan, 501 U.S. 957, 1003 (1991) ("[T]he ...Legislature could with
reason conclude that the threat posed to the individual and society ...is momentous enough to warrant
the deterrence and retribution of a life sentence without parole.").
181. THE FEDERALIST No. 78 THE JUDICIARY DEPARTMENT: INDEPENDENT JOURNAL, SATURDAY, JUNE 14,
1788 [Alexander Hamilton] 395 (arguing, inter alia, that a "temporary duration in office" would make
impossible the "arduous ...duty" of upholding the law and "discourage" those most able from joining
the bench).
182. Cf.Seana Valentine Shiffrin, Essay, Inducing Moral Deliberation:On the Occasional Virtues of
Fog, 123 HARV. L. REV. 1214, 1214 (2010) (showing that legal standard's familiar costs-lack of clarity,
lack of predictability-are also potential benefits).
183. See, e.g., GRESHAM M. SYKES, THE SOCIETY OF CAPTIVES: A STUDY OF A MAXIMUM SECURITY
PRISON 63 (1958).
184. See, e.g., Steven G. Calabresi & James Lindgren, Term Limits for the Supreme Court: Life
Tenure Reconsidered, 29 HARV. J.L. & PUB. POL'Y 769, 771-72 (2006) (arguing that life tenure today
decreases the number of Court vacancies, limiting "the efficacy of the democratic check that the
appointment process provides" and increasing the intensity of the few appointment battles that occur).
185. See id. at773.
186. Unusual still, but increasing. See THE SENTENCING PROJECT, LIFE GOES ON: THE HISTORIC RISE IN
LIFE SENTENCES IN AMERICA 1 (2013), availableat http://sentencingproject.org/doc/publications/inc-Life%
20Goes%200n%202013.pdf ("As of 2012, there were 159,520 people serving life sentences, an 11.8%
increase since 2008."); cf David R. Dow, Life Without Parole:A Different Death Penalty, THE NATION
(Oct. 26, 2012), http://www.thenation.com/article/170852/life-without-parole-different-death-penalty
("[I]n 2011 American juries sent seventy-eight people to death row, the first time since 1976 that new
arrivals on death row dipped below 100.").
to lifetimes-a strange point of convergence between federal judges and our

most egregious prisoners, and an enduring if neglected facet of the law's clock.
It is also quite different from those doctrines, studied next, that are hitched to
other lengths and terms.
b. Other Times. The majority of some time doctrines track these other lengths
and terms. Some are longer, others shorter. Some are connected to the Constitu-
tion, others to statute, common law, or federal rule. But here, in these "other
time" contexts, some time submits more fully to judicial control.18 7 Here the
law's clock follows judicial pronouncement, not biological fact. Many of these
other time doctrines concern judicial mechanics-the "when" and "what kind"
of modern litigation.188 And two grow out of Article III.189 Ripeness, for one,
assures that federal cases and controversies do not arrive too early-that federal
courts do not entangle themselves in disputes too "abstract" and "remote" for
judicial intervention.1 90 Mootness, for another, assures that cases and controver-
sies do not stay too late-that federal parties (and especially plaintiffs) maintain
a "personal stake" in their disputes for the duration of the case.191 Only parties
with real and ripe conflicts will have the incentive to litigate vigorously, and
only parties with "live" and nonmooted interests will pursue those incentives to
the end. 192 Only ripe and nonmooted cases, then, present courts with the best
arguments, made by the most eager adversaries, built on the most pertinent
facts. 19 3 So only ripe and nonmooted cases fulfill these complementary require-
ments of "when."
Yet as the tally above suggested, ripeness and mootness are not completely
alone. Other doctrines likewise set litigation in a "time frame," 19 4 sometimes by
statute, others by common law or rule. Consider three to start: statutes of
limitations, of course, place a kind of expiration date on certain types of claims
or cases, declaring those late-filed actions legally time-barred. 195 Rules about
187. Not all other time doctrines defer adjudication to some other point or place, though many (like
mootness and ripeness) do. Cf Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S.Ct. 1421, 1434 (2012)
(Sotomayor, J., concurring) (discussing "many longstanding doctrines under which considerations of
justiciability or comity lead the courts to abstain deciding questions whose initial resolution is better
suited to another time").
188. Lee, supra note 21, at 606.
189. Some say, at least. See DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam) (holding
that the "inability of... federal [courts] 'to review moot cases derives from the requirement of Art.
III"). But others disagree, as I do at length below. See infra Part III.A.2.
190. See Kenneth Culp Davis, Ripeness of Government Action for Judicial Review, 68 HARV. L. REv.
1122, 1122 (1955); see also Gene R. Nichol Jr., Ripeness and the Constitution, 54 U. CHI. L. REv. 153,
161 (1987) ("The basic rationale of the ripeness requirement is to prevent courts, through the avoidance
of premature adjudication, from entangling themselves in abstract disagreements .... (internal quota-
tion marks omitted)).
191. Lee, supra note 21, at 611, 623.
192. See id.
193. See Nichol, supra note 190, at 161.
194. Monaghan, supra note 21, at 1384.
195. As Justice Jackson wrote some seventy years ago:
appellate timing, in turn, dictate precisely when cases can move from one court
to the next. 196 And the doctrine of desuetude permits courts to declare laws
unduly anachronistic, so "hopelessly out of touch" with prevailing cultural
convictions that they should no longer be enforced. 197 West Virginia once had a
prohibition, for example, on displaying red flags.1 98
These devices still differ at the margins. Rules of appellate timing are
expressly jurisdictional-and thus sometimes "merciless," "rigid," "manda-
tory," even "sad." 1 99 Desuetude, by contrast, is discretionary, nebulous, and
often ignored.20 0 Statutes of limitation tend to grow out of legislation.20 1
Desuetude is largely, and perhaps troublingly, 20 2 court-made. But like ripeness
and mootness before them, these doctrines are at once some time illustrations
and other time examples-legal instruments set to particular time terms. And
like ripeness and mootness before them, they share an anchor in legal chronol-
ogy and a commitment to judicial control.
Finality shares these traits too. But instead of addressing matters of appeal or
late filings, it asks when litigation ends: when may witnesses scrub their
20 3
memories, litigants focus elsewhere, and courts declare litigation done?
These "nearly rhetorical ' 20 4 inquiries may seem simple enough to answer-
when a trial ends, say, or when appeals are through. But they have in fact
produced uneven and complex responses. Judicial decisions are deemed final in
Statutes of limitations, like the equitable doctrine of laches,... are designed to promote
justice by preventing surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and witnesses have disappeared.
The theory is ... that the right to be free of stale claims in time comes to prevail over the right
to prosecute them.
Order of R.R. Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49 (1944).
196. See, e.g., 28 U.S.C. §§ 1291, 1292 (2012); Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949) (outlining collateral order doctrine).
197. Sunstein, supra note 101, at 27.
198. See WEST VA. CODE § 61-1-6 (2005) (repealed 2010) ("It shall be unlawful for any person to
have in his possession or to display any red or black flag ... .
199. Dane, supra note 4, at 167, 175.
200. See Note, supra note 100, at 2209 ("[D]esuetude is a concept that occasionally appears in the
criminal law literature but usually remains dormant.").
201. By name, of course, statutes of limitations would seem to have more than a tendency to be
legislative. They would seem to be legislative by very definition. But there are real, if subtle,
complications here-narrow gaps for the occasional assertion of judicial prerogative. To note: Federal
courts sometimes need to pick among competing statutes of limitation or craft their own. See, e.g.,
Donna A. Boswell, The Parameters of Federal Common Law: The Case of Time Limits on Federal
Causes of Action, 136 U. PA. L. REv. 1447, 1468 (1988) (discussing "when federal courts borrow from a
general statute of limitations to impose a time limitation on a federal cause of action").
202. See Note, supra note 100, at 2213-14 (discussing a separation-of-powers objection to desuetude-
namely that it allows courts to usurp a legislative function). I discuss, and criticize, this objection infra
Part III.A.2.
203. See Bator, supra note 119, at 441 (assessing when courts inscribe that "irrevocable finis");
Rubenstein, supra note 119, at 792 (noting that the measure cannot be perfect justice, for then a case
would never be done).
204. Rubenstein, supra note 119, at 792.
some places and not in others; relitigation is forbidden in one case but allowed
in the next. In the class litigation context, for example, the law remains
intractably unsettled-some courts permitting almost wholesale reassessment,
others adhering to strict finality rules.205 In the criminal context, by contrast, the
law is resolved but unsparing: a court's decision is deemed final upon verdict
and sentencing but then can be subject to a narrow version of collateral
review. 20 6 When a case is "done," then, often varies by court and by circum-
stance-and 0finality can seem as much a "normative conclusion" as an "objec-
2 7
tive reality.
But some things about finality are nonetheless clear. One is that finality is
about more than litigation management. It is also about relations between
judges. Finality defines the rights of litigants, discourages serial filings, and
delimits the lifespan of claims. But it also regulates judicial interaction: shaping
rules of appellate timing, reinforcing legal hierarchies and institutional struc-
tures, and allocating "political authority" within and between the courts.20 8
Finality's focus is not merely if a court will resolve a particular dispute, but also
when and which one. In this it is both an assertion and a division of court
power.
Yet finality splits power in another way too: it apportions political authority
between Congress and the courts. Part of this allocation comes by way of
jurisdictional statutes, particularly the appellate directive of 28 U.S.C. § 1291.
There, in two plain sentences, Congress regulates judicial behavior, allowing
courts of appeal to hear cases only after a "final decision" from the court
below. 20 9 But section 1291 also omits as much as it includes: it nowhere defines
the crucial final decision phrase, and it says nothing about common-law excep-
tions, broad or narrow. Such gaps may be unexceptional, even inevitable, in a
tersely written statute. But they still leave space for self-interested interpreta-
tion, judicial intervention, and doctrinal invention.2 10
The Court's finality case law occupies that space with confidence. It holds,
among other things, that Congress may not require federal courts to reopen
already-final damage judgments.2 1 1 Courts themselves may revisit those deci-
sions as the pages ahead will show. But for reasons of history and "prophylac-
tic" separation of powers, the Court in Plaut v. Spendthrift announced a "flat,"
205. Id.at 794 & n.8, 819.

206. See Bloom, supra note 113, at 541 (arguing that modern habeas doctrine "creates space for
state courts to disregard binding Supreme Court precedent... [and] to [get decisions] wrong").
207. Judith Resnik, PrecludingAppeals, 70 CORNELL L. REv. 603, 615 (1985).
208. Id.
209. See 28 U.S.C. § 1291 (2012).
210. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
211. Plant v.Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995); Vermuele, supra note 33, at 418. See
also Neil M. Richards, Clio and the Court: A Reassessment of the Supreme Court's Uses of History, 13
J.L. & PoL'Y 809, 876-77 (1997) (noting that Plaut presented an "important" debate about a "core
constitutional concept[]"-here the scope of Article III's judicial power-and provided an occasion as
well to examine the Supreme Court's "turn to history" (internal quotation marks omitted)).
"sweeping," and perhaps "overprotective" finality rule: once a judicial decision

is final, Congress may not force courts to consider it again.2 12 This is institu-
tional territorialism. It is also a form of other time within some time-a
particularized expression of the Court's chronological control. Plaut carves out
a space of complete judicial authority, linking court power directly to the law's
clock. To define finality, Plaut says, is to set the law's clock and to exercise
judicial power. That is the courts' role alone.
But this same power can do more than prioritize courts or displace Congress.
It can also appear to pare back doctrinal influence, recasting judicial opinions as
consequential only in a particular time. Consider here, again, judicial sunsets.
These sunsets stamp end-dates on judicial decisions, prospectively declaring
that certain opinions will "lapse as binding precedent., 2 13 Affirmative action
may be constitutional now, but not (perhaps) in twenty-five years. 14 Equal
protection may demand one thing in 2000 but something else in 2003.215
Judicial sunsets make court decisions finite, expiring. They make the doctrine of
2 16
today deliberately not the law of tomorrow.
And in some cases that may be good. Judicial sunsets may help limit the costs
of judicial blunders, keeping court errors from being frozen into law. 2 17 They
may smooth otherwise unsettling transitions, cushioning the bumps of dramatic
legal change. 2 18 And they may encourage healthy reassessment, demanding
occasional reevaluation of particular doctrines. 219 Facts change; social prefer-
ences shift. Sunsets may provide occasion for courts to rethink old decisions in
newer light.
But they may invite judicial "adventurism" too, promoting unwise doctrinal
experimentation because the costs seem low. 220 They may destabilize legal
precedent, increasing doctrinal uncertainty and unsteadying the rule of law. And
they may conflict with the general outlines of judicial retroactivity-the rules
governing when court decisions look forward and when they look back.221 For
all the good judicial sunsets may do, then, they may still come at too high a
cost.
212. See Vermeule, supra note 33, at 418, 423 (noting that this is an institutional prohibition that
applies even where no "specific harm, or risk of specific harm, can be identified"-and so it seems
overprotective and potentially distorting (internal quotation mark omitted)).
213. Katyal, supra note 28, at 1237.
214. See Grutter v. Bollinger, 539 U.S. 306, 343 (2003).
215. See Bush v. Gore, 531 U.S. 98, 109 (2000).
216. See Calabresi, supra note 116, at 80 (describing the justices as having written "an opinion that
was designed to self-destruct").
217. See Katyal, supra note 28, at 1245-47. This explanation assumes some judicial attention to, or
at least awareness of, the potential costs of a legal blunder.
218. See Vikram David Amar & Evan Caminker, Constitutional Sunsetting?: Justice O'Connor's
Closing Comments in Grutter, 30 HASTINGS CONsT.L.Q. 541, 550 (2002).
219. See Katyal, supra note 28, at 1246.
220. Id.at 1248; cf Bloom & Serkin, supra note 27, at 556 (proposing "civil suits against the courts
when the costs of legal change are too high").
221. See Katyal, supra note 28, at 1251.
But judicial sunsets, good or bad, are not subtle expressions of judicial
humility. They are not modest admissions of institutional limitation or selfless
concessions of authority to later generations. They are, in fact, emphatic asser-
tions of contemporary control. Judicial sunsets dictate both constitutional mean-
ing and doctrinal timing. They tell us, not just what the law is now, but how
long that law will stand. They tell us what the Fourteenth Amendment says now
about affirmative action, for example, and when it may say something differ-
ent. 2222 Like finality doctrine, then, judicial sunsets are an example of some time
conveyed through "other times"-chronological power hitched to fixed and
finite terms. And they are, like so many some time doctrines, a sign of "temporal
imperialism" 223-a proof of court power before a case, during it, and long after
it too. In some time courts do not simply make law or make schedules. They
make both.
c. Later Time. Two more doctrines-declaratory judgments and the bar on

advisory opinions-shape both law and time too. But these two doctrines shift
out of "other time" and into "later time"-into events and disputes that may not
have happened yet. At their core, these doctrines still position courts at the
center of the law's chronological story, expressing and occasionally advancing
the courts' temporal control. But here the timing is changed: it is not passive or
reactive but prospective and anticipatory, focused by definition on what lies
ahead.
Hints of this later time idea can be seen in other places. Judicial sunsets, for
one, influence litigation that may not begin for decades-and thus, like declara-
tory judgments, train the law's eye on what is yet to come. Ripeness, for
another, dictates that some disputes are not yet ready for court review-and
thus, like the bar on advisory opinions, requires judicial intervention to come
later (if at all).
It is no surprise, then, that the bar on advisory opinions echoes much of what
ripeness says: federal courts will not resolve conjectural or hypothetical griev-
ances, issuing opinions that may have no impact in the world.2 24 Those courts
will resolve only real, live, and adversarial disputes-actual cases and controver-
sies under Article III. Both ripeness and the bar on advisory opinions thus work
as judicial prohibitions, keeping underdeveloped conflicts out of federal court.
Both claim a constitutional anchor, draw on established doctrine, and rely on an
approving Court too. 225 But the two doctrines are still different: where ripeness
focuses on parties and concreteness, the bar on advisory opinions concentrates
on judges and effect. That is, where ripeness looks to party injury and griev-
ance, the bar on advisory opinions considers judicial consequence. Ripeness
asks if the parties' dispute is adequately joined. The bar on advisory opinions
222. See Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

224. See, e.g., Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792).
225. See id.; Davis, supra note 190, at 1122; Nichol, supra note 190, at 161.
asks if a judicial decision will have sufficient impact. It stays the courts' hand,
not because the parties are unready, but because court opinions are meant to
have some real-world effect. An opinion dispensing only advice may have no
real effect at all.
Declaratory judgments do have real effect, though in an atypical way. They
define rights and obligations in the world, the "status and other legal relations"
of the parties to a case.2 26 And they "afford relief' to litigants, much as more
conventional court decisions do.227 But here the court speaks early, prospec-
tively, before the occurrence of an actual injury. And here the court deploys a
"milder" remedy, an unusual half-step between judicial inaction and full-fledged
injunctive relief.228 Proponents argue that this half-step has noble potential to
conserve resources, to protect litigants, and to reduce legal uncertainty, all while
averting incipient disputes. 229 But even these proponents admit this half-step
has its costs. For one, it risks reorienting the role of American judges, position-
ing them, not as reactive problem-solvers, but as proactive problem-avoiders-
preemptive law-enforcers stopping harms before they start. 230 For another, it
raises hard questions about preclusion and the effect of judgments. Do these
half-step declaratory judgments have full res judicata impact, precluding related
follow-on litigation? Or are they mere suggestions, there to be abided or
ignored? 23 1 Some say the former, others the latter. Some say, that is, that
declaratory judgments allow federal courts to give guidance and suggestions-
advice for events that may follow. 232 So some say, inevitably, that these
judgments sit in tension with ripeness, the bar on advisory opinions, and the
supposed demands of Article 111.233
In practice, the Court has mostly sidestepped this tension. It has required
declaratory judgment suits to present "actual controversies" consistent with
Article jjj234 and has thus brought declaratory judgments superficially in line
with more traditional federal suits. That requirement may be entirely hortatory,
226. Unif.Declaratory Judgments Act § 12, 12 U.L.A. 595 (1968).

227. Id.
228. Perez v. Ledesma, 401 U.S. 82, 111 (1970) (Brennan, J., concurring in part, dissenting in part).
229. Id.
230. Cf Neal Devins & Saikrishna B. Prakash, Essay, Reverse Advisory Opinions, 80 U. CHI. L. REv.
859 (2013) (discussing courts seeking advice, not giving it).
231. Compare Steffel v. Thompson, 415 U.S. 452, 477 (1974) (White, J., concurring) ("I would
anticipate that a final declaratory judgment ...should be accorded res judicata effect .. "),with id.at
482 (Rehnquist, J., concurring) ("A declaratory judgment is simply a statement of rights, not a binding
order .... ").
232. Id.at 482.
233. See, e.g., Note, Judicial Determinations in Nonadversary Proceedings, 72 HARV. L. REv. 723,
729 (1959) ("The problem of ripeness is more acute since the declaratory judgment confers a right of
action before the controversy would have been held ripe for adjudication under the common-law
tests.").
234. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239-40 (1937) ("The Declaratory Judgment
Act of 1934, in its limitation to 'cases of actual controversy,' manifestly has regard to the constitutional
provision and is operative only in respect to controversies which are such in the constitutional sense.").
a toothless demand skirted by judges whenever they wish.2 35 But it reveals

something broader and more instructive all the same: declaratory judgments
may be creatures of statute, a legislative solution to a perceived problem in
court. But they function now as chronological exceptions and exercises of
judicial muscle. Here the courts decide what issues are ready for judicial
engagement. Here the courts filter some time through later time, controlling
what happens now as well as what happens next. And here some time begins to
blend with something different, a strange world of disrupted chronology and
diluted court clocks-the category of broken time.
Table 3: Some Time

Conception of Law Fixed
Often Positivist
Finite
Adaptive
Forward-looking
Judicial Authority Substantial and Established
Law Made by Courts
Doctrinal Illustrations Lifetime
Article III Tenure
Life Sentences
Other Time
FRCP 6
Mootness
Ripeness
Appellate Jurisdiction
Finality
Judicial Sunsets
Later Time
Bar on Advisory Opinions
Declaratory Judgments
3. Broken Time
This third and final category is the most elusive, unconventional, and doctrin-
ally obscure. It treats law as both nonlinear and nonuniversal-neither Austin's
sovereign edicts nor Blackstone's otherworldly commands. It tells a legal
tale, not of pristine truth or plodding improvement, but of lapses, blips, and
235. See Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-FederalistApproach,
81 CORNELL L. REv. 393, 465 n.352 (1996) ("Although the Burger and Rehnquist Courts have never
officially endorsed Bickel's [passive virtues] thesis, as a practical matter they have followed his
approach by developing malleable justiciability doctrines that enable the Court to exercise or decline
jurisdiction based largely on unarticulated pragmatic considerations.").
inversions-an erratic chronology of frozen minutes, sporadic change, and

broken time.
At the core of this broken time concept is an essential flexibility. Law here is
pliable, lithe, elastic-a technology courts can manipulate and mold. Doctrines
expressly invite judicial intervention; rules permit courts to act for "any ... rea-
son that justifies relief", 236 As in some time, then, the law in broken time
changes, mutates, even grows. But here the shifts are irregular, awkward, and
often deeply fact-bound.
The result is an odd legal power. Courts in broken time can ignore missed
deadlines, excuse lost weekends, or reset status quo antes-resetting the law's
clock case-by-case. And they can do all of this at their discretion, guided less by
established legal precedent than by nuance, instinct, or whim. Federal Rule of
Civil Procedure 6(b) allows courts to "extend ... time" for whatever they deem
"good cause.",237 Federal Rule of Civil Procedure 15(c) allows courts to "relate"
time-barred claims back to timely filed ones-and thus to evade applicable
statutes of limitations-whenever the court says, at its discretion, that the two
are connected enough. 2 38 This flexibility may permit a close attention to detail,
leaving space for judges to accommodate the fine distinctions between one case
or claim and the next. But it has proven unpredictable and inconsistent in
practice-and it works, without exception, to burnish the courts' chronological
control. Here courts do more than replace past with present or trade then for
now. They decide when and where to break linear time-and how. Broken time
may thus hint at a kind of judicial modesty, a sense that legal rules can be
imperfect and that the clock must sometimes yield. But it gestures more broadly
at a brand of court vanity, a belief that judges hold a near-exclusive 239 right to
regulate legal chronology, to bend particular doctrines, and to set certain things
aright. Fairness may demand particular outcomes. Justice may call for relief.
But here, almost always, it is the courts' call alone.
But still most broken time doctrines remain neglected or ignored. Equitable
tolling, Federal Rule of Civil Procedure 15(c), and Federal Rule of Civil
Procedure 60(b)(6) are deployed haphazardly and debated even less. One
reason, perhaps, is their explicit doctrinal reticence-their careful, built-in
warnings against their own (over)use. Equitable tolling, for example, allows
courts to manage or manipulate time-to bypass statutes of limitations and to
236. FED. R. Civ. P. 60(b)(6).

237. FED. R. Civ. P. 6(b).
238. FED. R. Civ. P 15(c). Both Rule 15 and Rule 6 were promulgated pursuant to 28 U.S.C. § 2072,
the so-called Rules Enabling Act. That Act gives the Supreme Court the "power to prescribe general
rules of practice and procedure," id.-and, as it does, it lends congressional sanction to some court
control of legal time.
239. Pardons and other forms of executive clemency may be the exception. See Harold J. Krent,
Conditioning the President's ConditionalPardon Power, 89 CALIF. L. REv. 1665, 1666 (2001) (arguing
that courts may participate in some pardon decisions too).
extend time-windows when "fundamental fairness" ' 240 so requires. But it cau-
tions judges to use this power "only sparingly," at most to meet extraordinary
circumstances or to combat evident fraud.24 1 Judges have still found these
circumstances in disparate places, applying equitable tolling in habeas cases and
Title VII suits, Truth-In-Lending-Act filings, and immigration claims.2 42 But
even there the courts have been uneven and perhaps unprincipled, sparking
circuit splits, 243 spurring angry dissents, and sowing the seeds of doctrinal
confusion-both about what should count as extraordinary and about when the
law's clock should stop or start. 24
In this, at least, equitable tolling is not alone. At least three other doctrines
also leave the bending and breaking of time to the wide discretion of courts:
Federal Rule of Civil Procedure 60(b)(6) permits federal courts, and only
federal courts, to upset standard legal chronology, reopening final judgments
and hearing old matters anew. 245 Federal Rule of Civil Procedure 15(c), in turn,
allows federal courts to resurrect time-barred claims, breathing new life into
expired causes of action-so long as they "relate back" to a claim filed on
time.24 6 And the writ of coram nobis permits judges to retrofit criminal verdicts,
conforming the "judgments of courts.., to the judgments of history" long after
the fact.247 Like equitable tolling, these doctrines all grow from a sense of
injustice-of civil judgments inappropriately entered, of civil claims unnecessar-
ily barred, of criminal defendants (like Fred Korematsu 248 ) unfairly sentenced
and accused. Like equitable tolling, these three erect deeply daunting barriers to
240. See, e.g., Morris v. Gov't Dev. Bank of PR., 27 E3d 746, 750 (1st Cir. 1994). Equitable tolling
first appeared at the Court in Bailey v. Glover, an 1875 case about the Bankruptcy Act of 1867. 88 U.S.
(21 Wall.) 342 (1874). Since then, the doctrine has only grown-and the Court has "read [it] into every
federal statute of limitation." Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946).
241. See, e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (rejecting an equitable
tolling argument built on "a garden variety claim of excusable neglect").
242. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (Title VII); Valverde v.
Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (habeas); Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999)
(immigration); Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 708 (11th Cir. 1998) (TILA).
243. See David Zhou, Making Up for Lost Time: A Bright-Line Rule for Equitable Tolling in
Immigration Cases, 118 YALE L.J. 1245, 1247 (2009) ("The courts of appeals are split over when and
how to apply equitable tolling.")
244. See, e.g., Carey v. Saffold, 536 U.S. 214, 219 (2002) ("California's reading of the word
'pending' ... is not consistent with the word's ordinary meaning.").
245. See FED R. Civ. P.60(b).
246. FED. R. Civ. P.15(c).
247. Hirabayashi v. United States, 828 F.2d 591, 593 (9th Cir. 1987); see also United States v.
Denedo, 556 U.S. 904, 911 (2009) (finding that "a writ of coram nobis can issue to redress a
fundamental error" in criminal convictions, though only if no "alternative remedies, such as habeas
corpus, are available").
248. See Korematsu v. United States, 584 F. Supp. 1406, 1419 (N.D. Cal. 1984) ("[The writ] is
available to correct errors that result in a complete miscarriage of justice and where there are
exceptional circumstances."). But cf David Wolitz, The Stigma of Conviction: Coram Nobis, Civil
Disabilities, and the Right to Clear One's Name, 2009 BYU L. REv. 1277, 1279 (arguing that "those
convictions would still be on the books today had [Hirabayashi and Korematsu] faced the restrictive
coram nobis jurisprudence favored by a majority of federal courts").
relief.249 And like equitable tolling, these three feature case law that is frustrat-
ing, foggy, and hard to rationalize. 250 But here, in these strange and scattered
doctrines, are the outlines of a category very different from those sketched
above. Here both linear and universal time can be forgotten or forsaken. Here
judges can suspend, invert, and distort chronology. And here courts can rewrite
history, replacing past with present, breaking legal time.
Not all broken time examples are quite this dramatic. Some depend, not on
revived claims or retrofitted judgments, but on rarefied judicial opinions and
unconventionally defined terms. These latter illustrations may at first seem
marginal, even trivial-esoteric blips in dusty corners of the law. But for some,
like Vincent Miranda, they make all the difference, and they build chronological
context for broken time overall. The pages ahead thus reconsider Vincent
Miranda's story-as well as the very different stories of Barbara Grutter,
Michael Richard, and Rhonda Willis. These stories flesh out crucial pieces of
our all time, some time, and broken time paradigms. They provide real-world
examples of time-pinched litigants, fateful chronological choices, and sometimes-
morbid ends. And they shed bright and early light on where my time typology
works seamlessly, clumsily, or perhaps not at all.
Table 4: Broken Time

Conception of Law Pliable
Elastic
Sporadically Changing
Judicial Authority Significant But Subtle
Time Manipulated by
Courts
Doctrinal Illustrations Equitable Tolling
FRCP 60(b)(6)
Coram Nobis
FRCP 15(c)
4. Four Faces Resorted, a Caution, and a Question

So recall Vincent Miranda-one face, I will argue, of broken time. His
story started with all the sordid elements of 1970s pulp noir: a seedy movie
theater, a vague state statute, aggressive law enforcement, and a porno-
graphic film. Miranda wanted to show Deep Throat to paying audiences in
his San Diego theater; California authorities wanted to ban the film as
249. See, e.g., Ackermann v. United States, 340 U.S. 193, 199-202 (1950) ("Neither the circum-
stances of petitioner nor his excuse for not appealing is so extraordinary as to bring him within... Rule
60(b)(6).").
250. See Nichol, supra note 190, at 156 ("[The] marriage of ripeness and Article III is flawed.");
Wolitz, supra note 248, at 1280-81 (critiquing "the majority approach to coram nobis").
obscene. In the years to come these authorities would give up their enforce-
ment efforts and obscenity prosecutions would drift out of view. But Mi-
randa, like two of his employees, still landed in court. And his fate there
turned on something neither squalid nor pornographic, but doctrinally ab-
struse: it turned on Younger v. Harris,251 a 1971 Supreme Court decision
requiring abstention in some cases by federal courts.
Younger's rule may at first sound simple. It instructs federal judges to refrain
from hearing particular requests for injunctive relief, even when the court has
jurisdiction, when those requests might interfere with a pending state criminal
case. 252 Younger's rule may also sound prudent. It finds support in two vener-
able legal sources: ancient maxims of equity jurisdiction and the basic tenets of
"Our Federalism" -that powerful, if peculiar, construct of American govern-
ment.25 3 But Younger's rule, simple and prudent, still has its problems. One is
that it hinges entirely on the meaning of a single word: pending.
One plausible definition of pending turns on the order of filing: a state case is
only pending under Younger if it is actually filed first. In those state-first cases,
the related federal action simply arrives too late. A valid and adequate state case
is already underway, so opening a federal suit could only cause equitable and
federalist strain. Here and only here, then, the federal court must abstain: it must
defer to the pending state action, even if doing so simply encourages strategic
federal plaintiffs to race to file first.
A second definition, by contrast, turns on something different-not on the
order of filing, but on "proceedings of substance" 254 in federal court. A state
case is pending under Younger when it is filed first and when it is filed second,
so long the federal court has not yet done much work. A federal court must
abstain, that is, when a state action precedes it and when a state action postdates
it, so long as the state case starts before proceedings of substance in federal
court have occurred. A state prosecutor can thus preempt a federal action by
filing charges first in state court. Or she can displace the federal action, even
after it is filed, by bringing charges prior to any federal proceedings of
substance-a phrase still undefined by the Court. Here one elusive term would
pile on top of another, the meaning of pending pinned to proceedings of
substance. Here the race to the courthouse would swerve but does not stop-for
states could now "leave the mark later, run a shorter course, and [still] arrive
first at the finish line. 255 Yet here, in Hicks v. Miranda, the Supreme Court
found its choice.
Hicks reads pending to include both first-filed and second-filed state cases.
Some federal cases start too late, then, even when they start before anything else
does. This curious definition may acknowledge litigation reality-a concern
251. 401 U.S. 37 (1971).

252. Id. at 46.
253. Id. at 44 (internal quotation marks omitted).
254. Hicks v. Miranda, 422 U.S. 332, 349 (1975).
255. Id. at 354 (Stewart, J., dissenting).
about opportunistic plaintiffs, say, or a sense that some cases sit fallow for long
stretches, months or years, after they are filed. But Hicks's interpretation also
does more than that. It alters institutional structure, tilting the doctrine in favor
of state court litigation, criminal prosecution, and the prerogatives of state
prosecutors-for it allows these prosecutors to relocate filed cases from federal
to state courts. It limits litigant strategy, eliminating access for some would-be
plaintiffs to lower federal tribunals. And it warps legal chronology, quietly
resequencing one pocket of legal time. Under Hicks, linear order can be
inverted: first can be second; second can be first. A case can be pending on
Monday even when it was filed on Wednesday. Under Hicks, that is, federal
courts can-and apparently must-break time. They must declare something
pending when it chronologically and commonsensically is not. So while Vincent
Miranda may simply have wanted to screen an adult movie, his case says less
about 1970s pornography than it does about the law's clock. He gives a face to
broken time.2 56
Barbara Grutter, Michael Richard, and Rhonda Willis are different. They are
faces of some time, not broken time-deliberate clocks, not inverted ones. And
of the three, Barbara Grutter is the most familiar. In 1997, recall, Grutter sued
the University of Michigan, arguing that its law school admission program
violated the Equal Protection Clause.2 57 She claimed, more particularly, that
Michigan's version of affirmative action worked an unconstitutional discrimina-
tion against her on the basis of race. Were it not for the University's race-
conscious admissions policies, Grutter asserted, her application would have
fared better. Were it not for the University's affirmative action program, that is,
she would have been accepted to Michigan's Law School.
The Court did not agree. It held, by slim majority, that Michigan's admissions
program was permissible if imperfect-no affront to the Fourteenth Amend-
ment, at least for now. 258 But then the Court added something curious. It
suggested, at the end, that Grutter's claim might eventually be valid-but that it
had simply come too soon.25 9 Programs like Michigan's were lawful, perhaps
even essential, in 2003. But in twenty-five years, the Court predicted, these
programs would be just the opposite: "no longer.., necessary" and perhaps no
longer legal. 260 At that point Grutter's decision could and would sunset.
In one crucial way, then, Barbara Grutter resembles Vincent Miranda. Both
found federal courts unable (or at least unwilling) to offer relief. But in many
other ways the two are fundamentally different. In terms of access, context, and
chronological category, in fact, the two look almost nothing alike. Where Hicks
declared district courts off-limits now and later, Grutter said merely that the
right time had not yet come. Where Hicks assumed a static legal setting, Grutter
256. I will argue more directly that Hicks should be overruled in the pages below, infra Part III.A. 1.
258. See id. at 343.
259. See id. at 341-42 ("[R]ace-conscious admissions policies must be limited in time.").
260. Id. at 343.
presumed that real-world facts would change. And where Hicks broke time and
bent the definition of pending, Grutter counseled patience and counted decades,
believing time would inch us slowly toward a better world. Much as Hicks
shows broken time, then, Grutter shows some time-even if the Court believed
that she brought her case too soon.
Rhonda Willis and Michael Richard are faces of some time too. But while
Grutter reveals the perils of reaching court too early, Willis and Richard display
the risks (petty and dire) of doing things too slowly or too late: Willis ignored
time limits set by the Federal Rules of Civil Procedure-and lost her case
almost immediately; her depositions spilled over the allotted seven hours, and
the district court punished these dilatory tactics. Richard missed a deadline for
filing a request to stay his execution-and lost his life that night; his papers
arrived just after the clerk office's closing, and the state court refused to hear
any unpunctual request. These results share little in terms of gravity or perma-
nence. But they share one central theme and unite at one chronological place:
They are stories, like Grutter, of some time-of legal time as linear, forward-
moving, and sometimes implacable.
They also knit two broader threads together. Willis and Richard connect
theory to practice-categorical constructs to on-the-ground facts. Like Miranda
and Grutter, they give practical shape to novel concepts like some time or
broken time. They make the law's clock real, personal, applied-adding dis-
tinctly human substance to the bare bones of taxonomic abstraction.
But there are two pieces these stories still miss. One is a real-world face for
all time. None of the four faces studied above show law as timeless, unified, and
nonlinear. But others do. The parties in Swift v. Tyson,26 1 for example, were all
time litigants. They found a Court committed to a vision of law as universal and
ideal-a seamless "brooding omnipresence" simply waiting to be found.2 62
What courts said under Swift did not make law but discovered it-and this
rightful law was, by Justice Story's measure, always and forever true.26 3 It was
law in and for all time. Before Erie's "revolution,, 264 in fact, countless judges
operated in this all time realm-sure of the existence of an eternal legal order,
confident in their ability to find everlasting law. 2 6 5 In these courts, law was
multidirectional and temporally unified-the same yesterday as tomorrow. In
261. 41 U.S. 1 (1842).

262. S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).
263. See Swift, 41 U.S. at 18 (contending that judicial decisions are not laws but "only evidence of
what the laws are").
264. Stephen B. Burbank, Semtek, Forum Shopping, and Federal Common Law, 77 NOTRE DAME L.
REv. 1027, 1030 (2002).
265. More recently too, criminal defendants persuaded judges to apply Atkins v. Virginia, 536 U.S.
304 (2002), retroactively, extending the Court's ban on executing mentally retarded offenders both
forward and back. See, e.g., Pickens v. Oklahoma, 74 P.3d 601, 603 (Okla. Crim. App. 2003); see also
Cara H. Drinan, Graham on the Ground, 87 WASH. L. REv. 51, 55 (2012) (arguing that Graham v.
Florida, 560 U.S. 48 (2010), "is retroactively applicable to all inmates who received a life-without-
parole sentence for a non-homicide juvenile crime").
these courts, then, were the real-world faces of all time.

A second piece is more cautionary. It is a warning against typological
overconfidence. The chronological categories I develop here are meant to keep
like things together and pull unlike things apart, uncovering fruitful connections
unaddressed until now. 266 They are also meant to be separate and independent,
each defined distinctly and deployed differently by courts. At the margins,
though, these categories inevitably 267 drift together-some time overlapping
with broken time, retroactivity touching on finality, Barbara Grutter looking a
bit like Vincent Miranda. Intersections like these do not undermine my tentative
time categories but rather accentuate them, setting the distinctions between (say)
all time and some time in even sharper relief. They also signal the need for
more-more sustained academic attention, more systematic study.
They also prompt a question: What next? The categories of all time, some
time, and broken time do much that is useful already: They bring order to a
flood of doctrinal messiness, inviting coordinated and systematic thinking about
doctrines as disparate as mootness and retroactivity. They challenge, clarify, and
concentrate our legal-chronological thinking, raising pointed questions about
doctrinal intersection and court commitments. They show time as a ready
implement of judicial power, highlighting an institutional tool at once impres-
sively potent and mostly ignored. And they shed sharp light on themes and
theories too-long elided, recalling debates that reach back to the Court's very
start. Without these all time, some time, and broken time categories, legal time
was at once incoherent and invisible, both jumbled and unseen. With them,
perhaps, it can be the opposite: intelligible and apparent, studied and understood.
But might these categories also move us forward practically? Might they help
us identify areas and avenues for productive legal reform?
In the pages ahead I offer an early, optimistic answer to these questions.
Using my time typology as guide, I rethink a number of modern doctrines-
some familiar, some elusive-and propose some preliminary ideas for doctrinal
change. As a part of that rethinking, I also reconnect the end to the beginning,
revisiting the courts' most enduring time strategy: their quiet commitment to
chronological control. That commitment marks much of our muddy doctrinal
present, as the pages above have illustrated. But it also links our uncertain
doctrinal future to our persistent legal past, drawing the long thread of legal
time out of yesterday, through today, and well into tomorrow.
III. TIME CHANGE
This thread reaches back to our doctrinal beginnings-to Calder, to Ogden,

and to a nascent Supreme Court. There, in two early and splintered cases, the
Court first asserted its chronological prominence, taking as indisputable its
266. Cf BAILEY, supra note 25, at 1 (discussing classification).

267. See KERN, supra note 125, at 3 ("[T]he division of the flux of time into three discrete parts
distorted its essentially fluid nature .... ").
priority on matters of legal horology. And there, almost without recognition, a

compelling chronological story both extended and took root, adding a new
chapter to the history of time as social power, planting itself resolutely inside
American courts. In the centuries since then, legal time has only expanded. It
has shaped doctrines as seemingly disparate as retroactivity and life sentences,
and it has informed the fates of litigants as ostensibly diverse as Michael
Richard, Rhonda Willis, Vincent Miranda, and Barbara Grutter. It also played its
part in some enduring mistakes.
This Part aims to repair a number of those blunders. It returns first to the
muddy doctrinal trenches, proposing some targeted ideas for practical reform. It
then connects those ideas to a larger, often-heated discussion about judicial
authority, reorienting the courts' chronological commitments within a broader
frame of institutional self-interest. My proposals here are intentionally varied
and eclectic, designed to reinforce both the unappreciated depth and remarkable
breadth of legal chronology. But they do not pretend to be comprehensive or
perfect. Nor do they aim in all cases to strip or to enhance the courts'
chronological power-for that power is not, in any normative sense, uniformly
good or bad. My ideas here aim instead to call attention to time's power and to
its use-to rethink overcomplicated doctrines, to bring matters of legal time to
the surface, to encourage judicial transparency, and to align doctrines that
should chart more compatible paths. My ideas also hope to prompt additional
discussion, stirring meaningful reassessment and more disciplined engagement
with the law's clock overall.
A. IDEAS AND ILLUSTRATIONS
The pages above attempted to anchor that discussion. They sketched a unique
map of time's doctrinal territory, built an original time typology, and coined a
new legal vocabulary-a new way of talking about time in the law. In part those
pages hoped to instill a different mindset, updating and improving our ways of
thinking about legal time. But they also hoped to carve out meaningful space in
the dirt, clearing out room for worthwhile change on the ground-as the four
proposals below will show.
1. Hicks
The first proposal can be stated bluntly: Hicks v. Miranda should be over-
ruled. Pending should be defined, not according to some amorphous phrase like
"proceedings of substance" (as Hicks now has it), but according to something
simpler and more concrete: a state case should only be pending if it is actually
filed first.
There are good reasons why. For one, this redefinition would give pending a
more neutral and natural connotation, 2 68 a meaning free of Hicks's state-friendly
268. And conventional too. Before Hicks, courts read pending to mean filed-first for almost one
hundred years. See, e.g., Belle Terre v. Boraas, 416 U.S. 1, 3 n.1 (1974); Cline v. Frink Dairy Co., 274
"double standard., 269 Pending in the Younger context would have the same
meaning it has in common parlance: already in process, not already in process
for a sufficient duration. And it would entail the same thing for plaintiffs that it
does for state-defendants. Overruling Hicks would thus rebalance the race to the
courthouse, ensuring that all parties start in the same spot, run the same
distance, and finish in the same place. Even more, it would reduce a batch of
bad incentives, thwarting the ability of state prosecutors to use criminal indict-
ments as tools of forum-shopping. State prosecutors could no longer charge
(perhaps even overcharge) federal plaintiffs merely to remove particular cases
to state court. 2700 State parties could no longer arrive in federal court second but
still finish first. And federal courts would no longer be required to break time.
There is also good reason to act now. Hicks's doctrinal foundation is more
precarious than ever-the weight it bears getting heavier, the collateral support
it depends on almost shrinking out of view. In the four decades since Hicks was
decided, Younger doctrine has expanded, reaching out to require federal-court
abstention in more cases and more contexts-including some in which the
pending state action was a civil (not a criminal) suit. 2 71 At the same time habeas
corpus has shriveled, scaling back to a place of severely restricted collateral
review. 272 The first of these changes only increases a state's ability to disrupt
and displace ongoing federal litigation, thereby adding to the weight that Hicks
now shoulders. The second only decreases the possibility and intensity of any
other federal court intervention, thereby diluting the strength of any ancillary
support. Yet Hicks, now more than ever, only exacerbates this tension. It makes
state disruption easier while shuttering scarce avenues for federal review. A
plaintiff today could file a federal suit before any state action had started and
still spend no time litigating in federal court-because the state filed a civil or
criminal case in state court sometime later, because the federal court abstained
under Hicks and Younger, and because there were no available avenues for
federal review. A change in the definition of pending would put an end to this
U.S. 445, 453 (1927); In re Sawyer, 124 U.S. 200, 211 (1888); see also Carey v. Saffold, 536 U.S. 214,
219 (2002) ("California's reading of the word 'pending,' ... is not consistent with the word's ordinary
meaning.").
269. Aviam Soifer & H. C. Macgill, The Younger Doctrine: Reconstructing Reconstruction, 55 TEx.
L. REv. 1141, 1195 (1977). The double standard is this: If a state files a case first-in state court or, in
theory, in federal court too-the case is pending and must stay there. If a would-be state defendant files
a case first in federal court, by contrast, the case may well not be pending and may still be moved
elsewhere.
270. To be precise, this is not formal removal. In fact, it relocates a case in the opposite direction of
formal removal-not from state court to federal, but from federal court to state. See 28 U.S.C. § 1441
(2012) (regulating removal from state to federal court). But the underlying dynamic is otherwise
identical, for it allows a defendant to second-guess a plaintiff's forum selection. And it may create a
perverse incentive of its own-to charge (or overcharge) state defendants that might not be charged
otherwise.
271. See, e.g., Juidice v. Vail, 430 U.S. 327, 337 (1977) (applying Younger in civil contempt
context).
272. See Bloom, supra note 113.
doctrinal peculiarity. And it would recognize the need to act soon.

But it would not necessarily empower federal courts. It would allow those
courts to retain particular cases, like Vincent Miranda's, and so it may grant
them a slim measure of increased authority. But overruling Hicks might help to
discipline those courts too. It might steer them away from self-serving interpreta-
tion, making this pocket of legal time more predictable as well.
At its core Hicks hinges on a slippery phrase: "proceedings of substance. 27 3
The phrase is meant to square federalist deference with judicial investment-to
balance respect for state process against active engagement by federal courts. If
there has been no such engagement, no proceedings of substance, then Younger
abstention applies "in full force"--or so Hicks's logic goes.27 4 But Hicks's key
phrase does more than strike this balance. It leaves a subtle space for self-
dealing, a narrow gap that allows federal courts to sidestep substantive ques-
tions and to skirt jurisdictional directives-all while shunning good-faith
litigants.2 75 A federal court could use Hicks to duck a thorny First Amendment
conflict, for example, and to dismiss a case within its federal-question jurisdiction-
all while dodging a theater owner it may well think uncouth. That may be a
foreseeable (if severe) response to an overcrowded docket. But it is not Young-
er's equitable restraint or federalist respect for state process. It is instead a kind
of self-interested chronological mischief, a separation-of-powers problem as
well as a chronological pretense. It lets courts dictate their own jurisdictional
boundaries, even at the expense of sharp congressional mandate. And it sacrifices
some time's linear coherence for broken time's erratic turns. 27 6 Sacrifices of that kind
may be defensible elsewhere, as I attempt to show below. But they are not defensible 277
here. Here both hard fact and time typology argue for a cleaner, less "cavalier
understanding of pending. They argue for Hicks to be overruled.
2. Mootness & Desuetude

A second proposal argues for coordination, not overruling. It argues for a
union-both practical and conceptual-of mootness and desuetude.
The pairing is not obvious. Mootness is a well-known justiciability doctrine,
a limit on federal litigation ostensibly anchored in Article 111.278 Desuetude is an
273. Hicks v. Miranda, 422 U.S. 332, 349 (1975).

274. Id. at 349.
275. Cf Frederic M. Bloom, Jurisdiction'sNoble Lie, 61 STAN. L. REv. 971, 974 (2009) (noting that
misleading jurisdictional doctrines "may focus adjudicative energy, encourage judicial caution, con-
strain jurisdictional discretion, and ease inter-branch tension").
276. See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821) ("We have no more right to
decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the
other would be treason to the constitution."); Martin H. Redish, Abstention, Separation of Powers, and
the Limits of the Judicial Function, 94 YALE L.J. 71, 89-90 (1984) (condemning judicial restraint of this
type in the face of congressional disagreement).
277. Soifer & Macgill, supra note 269, at 1194.
278. See Lee, supra note 21, at 611 ("The marriage of Article III to mootness doctrine was
remarkably casual."); Nichol, supra note 190, at 156 ("[The] marriage of ripeness and Article III is
flawed.").
obscure tool of judicial abrogation, an unusual stopgap rooted (most likely) in

Roman law. 2 7 9 Mootness has sharp critics and avid defenders. 28 0 Desuetude has
few interested observers at all. 281 But if mootness and desuetude differ in both
source and attention, they still connect at their chronological cores: both depend
on the idea of something being too late-mootness on disputes that reach courts
too late for adjudication, desuetude on regulation that grows too late (or old) to
fit cultural demands. In this, if not more, mootness and desuetude are more than
proper partners-and so they should be drawn together analytically too.
One way to draw them together could be through Article III. Mootness
is already thought an extension of that Article's "case or controversy"
language-a phrase read to require legal disputes to remain "live" for the
duration of a suit. 28 2 If a dispute somehow evaporates after filing-because a
law student graduates, 28 3 say, or because a law gets changed-there is nothing
left for a court to consider, no case or controversy for that court to resolve.
Judicial intervention might once have been appropriate, but now it is too late.
The case is moot.
Desuetude could fit this Article III logic too. It depends, like mootness, on
changed or changing circumstances-shifts in social fact that make judicial
intervention inappropriate. And it turns, like mootness, on the absence of a
now-justiciable claim-a sense that it might once have been appropriate to
apply certain laws (criminal prohibitions on collecting seaweed, say, or bans on
displaying black or red flags),284 but now it is too late. Facts have changed; the
law is obsolete. Desuetude could thus follow mootness, linking up to Article III,
tracking the language and the logic of case or controversy.
But there is a problem with this solution: Article III hardly fits as an anchor
for mootness, let alone for desuetude. In part it fits poorly because of constitu-
tional text and history. The link between mootness and Article III relies on
strained textual analysis, saddling the brisk and malleable case or controversy
language with a debatable chronological burden-a timing requirement no-
where found in Article III. The link also calls on dubious history, embracing an
unnecessarily crabbed understanding of mootness's prior use-an understanding
279. See Note, supra note 100, at 2211 ("The legal foundation of desuetude begins with the Roman
jurist Julian .... "); see also State v. Donley, 607 S.E.2d 474, 480 (W. Va. 2004) (noting that desuetude
"is founded on the constitutional concept of fairness embodied in federal and state constitutional due
process and equal protection clauses" (internal quotation marks omitted)).
280. See, e.g., Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or
Controversy" Requirement, 93 HARV. L. REv. 297, 298 (1979) (arguing that Article III's "doctrines are
unified by purposes which have not previously been well understood"); Lee, supra note 21.
281. There are some notable exceptions. See, e.g., BicKEL, supra note 172, at 148-56; GuIDo
CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 17-30 (1982); William J. Stuntz, The Uneasy
Relationship Between Criminal Procedure and CriminalJustice, 107 YALE L.J. 1, 67-68 (1997).
282. See Powell v. McCormack, 395 U.S. 486, 496 (1969) (internal quotation marks omitted).
283. See DeFunis v. Odegaard, 416 U.S. 312 (1974).
284. See N.H. REv. STAT. ANN. § 207:48 (1973); W. VA. CODE § 61-1-6 ("It shall be unlawful for any
person to have in his possession or to display any red or black flag .... ") (repealed 2010).
that is simultaneously too narrow and too wide.28 5 Even more, the link between
mootness and Article III has proven "arcane" and "pointless" in practice, ' 28 6
erecting a screen of "legalistic nonsense" that excuses judicial "dissembling
and masks true court motives. In practice and in theory, mootness and Article III
are at best an awkward fit. Instead of attaching more to Article III, then, perhaps
it would be wiser to attach less-to detach both mootness and desuetude
altogether from this constitutional root.
I believe it would. Mootness should be untethered from Article III, and
desuetude should remain that way. Both should be understood as purely pruden-
tial doctrines, judicial tools "plucked of [any] constitutional plumage"2 87 -and
then deployed and defended as such. Mootness should exchange its shaky case
or controversy explanation for a sturdier pragmatic one. And desuetude should
expand into more frequent usage-both criminal and civil-trading its current
doctrinal anonymity for a more active and provocative role.
For mootness this change would mean three things at least: preserved judicial
flexibility, revamped requirements of judicial argumentation, and increased
possibilities of legislative reply. 288 Courts could still declare cases moot-
because a business closed, say, or because a teacher retired-but they would
need to express more clearly the pragmatic and prudential reasons why. They
would need to explain why a mootness dismissal is appropriate, not because the
Constitution mandates it, but because it conserves scarce judicial capital, for
example, or because it advances the ideals of adversarial process. And even then
Congress could assert its jurisdictional prerogatives in response. It could, if it
wished, pass a statute and change mootness law.
For desuetude this change would mean three things too: expanded judicial
engagement, increased legal predictability, and comparable levels of legislative
control. Courts could invoke desuetude more frequently, if not quite regularly-
because a law's moral underpinnings had grown "hopelessly anachronistic," or
because a law lacked sufficient cultural support. 28 9 And they would need to
make clear their reasons here too. They would need to explain that a law
banning seaweed collection, say, had lost its social backing-and that judicial
285. Professor Brilmayer surveys this incomplete understanding:

English practice at the time the Constitution was framed included resolution of some abstract
disputes; in addition, the law of declaratory judgments has developed to permit adjudication of
some disputes that would not then have been heard. The practice at the time the Constitution
was written was therefore both more restrictive and more lenient than at present.
Brilmayer, supra note 280, at 300-01 (citations omitted); see also Lee, supra note 21, at 639 ("Like so
much history, [the sources here] really say quite little about how present arrangements should be
made.").
286. See Brilmayer, supra note 280, at 299-301 ("The charge is that the doctrines are being used as
a convenient opportunity to avoid both implementation of past decisions of the Warren Court and
resolution of new and controversial social issues.").
287. Lee, supra note 21, at 654.
288. See id.at 634.
289. Sunstein, supra note 101, at 31.
invalidation, not legislative intervention, was particularly appropriate. This shift

would make the law more predictable-for parties could rely on clear patterns
of nonenforcement and escape dead hand law problems, thereby getting "fair[er]
notice ' 290 of what laws actually apply. And still legislatures could participate
too. If a court made a desuetude blunder, it could be reversed by statute.
I do not claim this proposal is perfect. Courts may apply these revamped
mootness and desuetude doctrines oddly or unevenly, hiding their true motives
as they do. They may also overstep institutional boundaries, encroaching on
legislative power and undercutting majoritarian will. But my proposal, at its
best, could even make a benefit out of these lurking costs. Consider desuetude
first: an invigorated desuetude doctrine may seem to allow judicial overreach-
ing, excusing if not inviting sustained court encroachment on the legislative
role. But what may seem like a separation-of-powers imbalance could in fact be
an interbranch solution. Far from enabling a judicial power-grab, my proposal
could instead curtail an executive one, keeping executive actors from relegislat-
ing by way of selective and unexpected enforcement. Even more, my proposal
could inspire healthy government (re)deliberation, encouraging legislatures to
rethink rigid mandates and to revise archaic but unrepealed laws. 291 Legisla-
tures may well be involved more here, not less.
Now consider desuetude and mootness both: a full turn to judicial prudence
may seem to trade political accountability for judicial penchant, leaving key
social decisions up to unelected courts. But what may seem like a democratic
deficiency could in fact be a majoritarian boon. Far from inviting countermajori-
tarian activism, my proposal could instead promote democratic self-correction.
It could (again) inspire useful dialogue, both within and among the branches.
And it could recognize courts as agents, not of countermajoritarian resistance,
but of promajoritarian change. Judges are not always counterdemocratic impedi-
ments. They can be, and often are, implements of majority preference.29 2 This is
true on hot-button social issues like school desegregation and same-sex rights.2 93
And it is especially likely to be true here, where a case or a law is truly
out-of-date. Courts would not buck popular preference here but advance it,
perhaps more quickly and more carefully than any other branch.
Mootness and desuetude should thus be united and updated, released from all
constitutional mooring and revamped as applied. They should be recognized
and improved as real partners in some time.
290. Id.at 27-28; see id.at 50 (noting that desuetude may help relieve the grip of dead hand
problems).
291. See Shiffrin, supra note 182, at 1225-26.
292. See, e.g., Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89
CALI. L. REv. 1721, 1750 (2001) ("On only a relative handful of occasions has the Court interpreted the
Constitution in ways opposed by a clear majority of the nation."); Thomas R. Marshall, Public Opinion,
Representation, andthe Modern Supreme Court, 16 AM. POL. Q. 296, 297-98 (1988).
293. See, e.g., Corinna Barrett Lain, Upside-Down Judicial Review, 101 GEO. L.J. 113, 117 (2012)
(presenting Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), as an example of the Court
abiding, not resisting, "majoritarian proclivities").
3. Retroactivity
A third proposal brings new clarity to old clutter. It argues for retroactivity
doctrine to adopt a single, simpler, "time of decision" rule. Courts should apply
the law as it exists at the moment of judicial intervention-at the time of
decision.294 Selective retroactivity should give way to this "straightforward '2 95
substitute-and the doctrine's half-hearted commitment to all time should cede
to some time in full.
The alternative is prolonged confusion. Current retroactivity doctrine seems
almost designed to perplex. It applies judicial decisions forward almost always
and backward on occasion, though seldom with clear reasons why. 296 It breaks
"primary" from "secondary" retroactivity-the first concerning rules that "change
what was the law in the past," the second about "nominally prospective rules
with retroactive effects"-but never explains the meaning of the split.297 And it
labors, even today, under a kind of Warren Court anxiety: an institutional unease
with Court influence that mixes faith in judicial action with a fear of overexten-
sion and political backlash. 298 The result is not chronologically moderated
courts or carefully calibrated case law. The result is a doctrine part right, part
wrong, and befuddled the whole way through.
A time of decision rule would leave these right parts intact. It would preserve
Griffith v. Kentucky, the case that makes judicial decisions retroactive in crimi-
nal cases still pending on direct review. 299 And it would uphold Harper v.
Virginia Department of Taxation, the opinion that extends Griffith into the civil
realm. 300 Both Griffith and Harperallow courts to apply the law as it exists at
the time of court engagement. So both already conform to a time of decision
rule.
But three other things would change. First, a time of decision rule would
streamline the basic question, turning an elliptical inquiry about "conflict of
laws in time" 30 1 into a targeted study of contemporary doctrine: What is the law
now? Here courts need not worry about selective retroactivity, new-but-
inapplicable case law, or modified (Neo-Blackstonian) incarnations of all time.
They simply need to apply the law as it then exists-the "best current understand-
ing of the law. ' ,30 2 Put in the language of the figure below, that is, courts need
not attempt to recover the state of the law at Time or to root out the retroactive

295. Id. at 1118.
296. See Fisch, supra note 160, at 1058. If legislative retroactivity is better explained, it is not better
explained by much. That doctrine, too, is confused, and the root of that confusion may reach back to the
same spot. As Professor Eule puts it pithily: "Blame it all on Calder." Eule, supra note 111, at 427.
297. Fisch, supra note 160, at 1068 (internal quotation marks omitted).
298. See, e.g., Roosevelt, supra note 94, at 1091.
299. 479 U.S. 314, 328 (1987).
300. 509 U.S. 86, 90 (1993).
301. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING
AND APPLICATION OF LAw 616 (1994).
effects of the legal change at Time2. They simply need to apply the law as it
exists at Time3 .
Figure 1: Three Times

Time1 Time 2 Time 3
Time of Event/Transaction Time of Change in Law Time of Decision
Example: Arrest for Owning Example: Court Deems Example: Direct Appeal
Pornographic Film Pornography Protected of Criminal Conviction
by the First Amendment
Second, a time of decision rule would reorient modern limits on collateral

review. These limits matter very little in the civil context, where res judicata
tends to preclude relitigation without more.30 3 But these limits may matter
significantly in the criminal context, where petitions for writ of habeas corpus
permit a second strand of judicial review. In this criminal setting, a time of
decision rule might appear to invite a flood of habeas petitions and to encourage
an expansion of habeas relief. A person in custody need only wait for a
favorable change in law (Time 2), file a petition, and then remind the habeas
court to apply the law at the time of this new suit. Quick habeas relief would
seem likely, even obligatory-required by the terms of a time of decision rule.
But this fear-of-floodgates logic forgets habeas's central question. It asks not
is the original decision legitimate by today's standards, but was the original
decision legitimate at the time it was rendered-that is, at the time of its own
decision. It asks not whether the original decision would be right today, but
whether it was right then, in its own time. Rather than rejecting this question, a
time of decision rule would reiterate it. It would refocus the judicial eye in
habeas on the original court decision, clearing away unnecessary complications
of retroactivity too. It would do nothing to expand current habeas review.
Nor would it reject the two longstanding exceptions of Teague v. Lane.30 4
Teague's core rule is by now familiar. It holds that new rules of criminal
procedure do not apply on habeas review. A 2002 decision that revamps jury
sentencing, for example, does not apply to a conviction entered and last
appealed in 1989. But there are also two exceptions. The first concentrates on
substance: it permits use of a new rule during collateral review when that new
rule places "certain kinds of primary, private individual conduct beyond the
303. See, e.g., Kremer v. Chem. Constr. Corp., 456 U.S. 461, 466 n.6 (1982) ("[T]his Court
has consistently emphasized the importance of the related doctrines of res judicata and collateral
estoppel in fulfilling the purpose for which civil courts had been established, the conclusive resolution
of disputes ... ").
304. 489 U.S. 288 (1989).
power of the criminal law-making authority to proscribe" 305 -when, say, the
Court extends First Amendment protection to the possession of pornography.
The second exception looks at process: it allows use of a new rule in habeas
when that new rule "alter[s] our understanding of []bedrock procedural ele-
30 6
ments," enhancing the accuracy as well as the fairness of criminal litigation
when, say, the Court requires defense counsel in criminal trials. Neither Teague
exception applies often, if at all.30 7 But both still send important signals about
the role of justice in collateral jurisdiction, even in today's cramped habeas
universe. They suggest, obliquely, that some convictions should not stand, no
matter when they were won.
And both exceptions also find solid, even better, footing in a time of decision
rule. As they now stand, Teague's exceptions perpetuate the fiction that a
decision in August can change the law in May-that a shift at Time2 may
rework the law at Time1 . They proceed, that is, on a kind of all time ground. But
they need not, and they should not. Teague's exceptions should instead admit
that some criminal detention is impermissible, not because of faint-hearted
commitments to all time's brooding omnipresence, but because of the law's
evolution and justice's most basic terms. Sometimes the law changes. And
sometimes those legal changes prove fundamental enough to merit immediate
reaction-an acknowledgement that some criminal detention is inappropriate
now. Teague's exceptions can and should stand on this some time logic alone.
Third, and finally, a time of decision rule would require a doctrinal correc-
tion. It would force the belated retirement of Linkletter
30 9
v. Walker308 -an opinion
Professor Roosevelt has called a "serious mistake.,
Linkletter was a case about evidence. It concerned a Louisiana burglary
conviction secured, at least in part, by way of improperly seized items: Linklet-
ter's home and office were searched without a warrant. 310 But the real question
in Linkletter was largely one of scope: How far back would a new constitutional
rule go? Four years before, in 1961, the Court announced a new rule in Mapp v.
Ohio, holding that the Fourth Amendment prohibits the use of unconstitution-
ally seized evidence in state court.3 11 In 1963, the Court held that Mapp would
apply to cases still pending on direct review. 312 But Linkletter's direct appeals
were already finished, so his case presented a question about the one thing that
was left: How should courts treat convictions already final by the date of
305. Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in part, dissenting in
part).
306. Id.at 693-94.
307. See, e.g., Beard v. Banks, 542 U.S. 406, 417 (2004) ("We have repeatedly emphasized the
limited scope of the second Teague exception . .
308. 381 U.S. 618 (1965).
309. Kermit Roosevelt III, A Retroactivity Retrospective, with Thoughts for the Future: What the
Supreme CourtLearnedfrom Paul Mishkin, and What It Might, 95 CALIF. L. REv. 1677, 1677 (2007).
310. 381 U.S. at 621.
311. 367 U.S. 643, 655 (1961).
312. Ker v. California, 374 U.S. 23, 25 (1963).
Mapp's decision but still inconsistent with Mapp's constitutional rule? How,
that is, should courts handle Mapp on habeas review?
The Court's answer was to draw a line. It declared Mapp only partly
retroactive-retroactive on direct but not on collateral review. 31 3 Defendants
whose cases were still pending on direct appeal could advance Mapp argu-
ments. But defendants, like Linkletter, whose cases had already gone final could
not. It did not matter if the evidence was seized unconstitutionally. It did not
matter if the case was final because of bad timing, bad luck, or bad lawyering.
And it did not matter if a direct and a collateral defendant were convicted in the
same jurisdiction, by the same prosecutor, using the same evidence, for the
exact same crime. 31 4 This was a rule about timing. Linkletter's line was firm.
And it was not drawn at random. It was, for one, a self-conscious attempt to
be pragmatic, to limit the wave of habeas petitions filed in Mapp's wake-and
thus to control the effects of the Warren Court's criminal procedure revolu-
tion. 31 5 It was also a nod toward Austinian positivism-a belief, again, that the
courts do not declare law but actually make it. 3 16 In Linkletter, in fact, the Court
tried to do two things simultaneously: it hoped to exercise power and to restrain
it-to change the law substantially and to tailor the consequences of that bold
change.
But Linkletter's line still broke. It strayed from relevant precedent.31 7 And it
charted a path lacking in foundation or coherence. The problem was not just
that Linkletter was wrong on its chronological facts, because the pertinent
Fourth Amendment violation-the unlawful search of Linkletter's property-
occurred after the events in Mapp, events to which Mapp certainly applied.3 18
The problem was that Linkletter pulled the Court unnecessarily into the murky
realm of selective retroactivity-of deciding for itself whether "the interest[s] of
justice" made one of its new rules retroactive or not. 31 9 Linkletter may have
believed those interests sufficiently apparent. And the Court may have hoped to
cabin its own influence. But in the end Linkletter simply shifted Court power
313. See Linkletter, 381 U.S. at 639-40 ("[T]hough the error complained of might be fundamental it
is not of the nature requiring us to overturn all final convictions based upon it.").
315. See Paul J. Mishkin, Foreword: The High Court, the Great Writ, and the Due Process of Time
and Law, 79 HARV. L. REv. 56, 71 (1965) ("To whatever extent... that the Court is influenced by
possible professional and public reaction, it must anticipate heightened reactions because its actions are
retroactive. This, in turn, is likely to have some effect in the direction of greater restraint.").
316. See Roosevelt, supra note 94, at 1680-81.
318. See Linkletter, 381 U.S. at 641-42 (Black, J., dissenting).
319. Id. at628.
from one place to another-from its authority to interpret the Fourth Amend-
ment to its authority to keep legal time.
Linkletter's line should thus be redrawn. Its interests-of-justice approach may
be the wise doctrinal hook elsewhere, as I attempt to show below. But here it
adds costs without true benefit. It turns pragmatic aspiration into doctrinal
confusion-a swirl of "distinction [s] without a difference" (say, between direct
and collateral review) and "differences without distinctions ' 320 (say, between
judicial and legislative retroactivity). And it asks a question that need not be
answered, posing a riddle about selective retroactivity where a simpler approach
would do. Linkletter was wrong in 1965, and it is wrong today. Selective
retroactivity should be abandoned. It should be replaced, in practice and in
theory, with a time of decision rule.32 1
4. Rule 60(b)
A fourth (and final) proposal cuts very differently. It argues not to eliminate
an interests-of-justice-type standard but to highlight one-to erase all but the
final, catch-all basis for reopening judgments under Federal Rule of Civil
Procedure 60(b). Rule 60(b)'s first five entries should be excised from the text,
reframed as illustrations, and eliminated as independent categories. 322 Section
(6) should stand on its own-and courts should focus the doctrine's develop-
ment there.
Rule 60(b) now recognizes six "grounds for [r]elief from a [f]inal [j]udgment,
[o]rder, or [p]roceeding... :
(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial... ;
(3) fraud (whether previously called intrinsic or extrinsic), misrepresenta-
tion, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
323
(6) any other reason that justifies relief.,

321. This rule might resolve some transitional moment difficulties too. A time of decision rule would
help close the transition window, making it clearer what law applies in any particular instance-even if
the law changed during litigation.
322. Cf Gideon Parchomovsky & Alex Stein, Essay, Catalogs, 115 COLUM. L. REv. 165, 168-69
(2015) (defining legal catalogs as legal commands comprising specific enumerations of behaviors or
prohibitions that share a common denominator and a residual category that allows courts to add
unenumerated instances). Rule 60's structure does not quite fit this definition perfectly, though in
makeup and operation it appears rather close.
323. FED. R. Civ. P 60(b).
All of these grounds permit a court, and only a court, to do something

unusual: to reopen a final decision and consider a case anew.
There are good reasons for this too. Rule 60(b) aims in part to protect parties
from the harsh consequences of understandable blunders-for missing an early
deadline, say, because of a "transition in [office] staffing. ' ,324 It attempts too to
keep adversaries from profiting from their own misconduct-from winning a
judgment, for example, by way of doctored documents.325 And it hopes to
prevent courts from basing their decisions on inappropriate things-reversed
judgments, incomplete evidence, or litigant fraud.326 At the heart of Rule 60(b),
then, is a kind of broken time compromise: it empowers courts to break
time-treating past as present, then as now-but only rarely. And it sets 327
broad
concerns about fairness and integrity against a strong interest in finality.
There is nothing wrong with this idea. Rule 60(b) commands respect for court
decisions, even incorrect court decisions, while carving out useful space for
judicious reassessment. But the rule itself might actually do more with less. It
might function better with a single basis for reopening-a flexible,328 reworded
Rule 60(b)(6) left standing alone. Rule 60(b) should permit courts to offer relief
from a final judgment, order, or proceeding when extraordinary circumstances
and the interests of justice so require. And it should say just that.
The change would be small but important. It would bring together dispersed-
but-related doctrines, connecting Rule 60(b) to analogous extraordinary circum-
stances devices discussed above-the writ of coram nobis, for example, and the
doctrine of equitable tolling. 329 These rare but powerful tools also allow courts
to break time-to ignore missed deadlines, to treat then as now. And they
already have plain extraordinary circumstances thresholds for granting relief. It
makes sense to join Rule 60(b) directly to them in style and form.
It also makes sense to reorganize this disorganized rule. Rule 60(b) was not
promulgated all as one. The first version, adopted in 1938, included much of
today's edition-but not section (6). That piece was added later, in the late
1940s, in the hope of increasing judicial flexibility and reducing haphazard prior
practice. 330 Then as now, (b)(6) was meant to be separate-"mutually exclu-
sive" of sections (1)-(5) in both timing and coverage.3 31 But it makes little
324. J & J Sports Prods., Inc. v. Looney, No. C 11-2093 CW, 2011 WL 6306660, at *1 (N.D. Cal.
Dec. 16,2011).
325. MMAR Grp., Inc. v. Dow Jones & Co., 187 F.R.D. 282, 292 (S.D. Tex. 1999).
326. See FED. R. Civ. P. 60(b). In a way, section (5) operates as a time of decision rule in an
individual case. The idea in section (5) is to apply the best law at the time of judicial intervention-with
an eye toward justice overall. This echoes much of the time of decision rule I outline here, and I hope
the spirit of section (5) persists, even as I argue that its text should be subsumed in a revamped rule.
327. See James Wm.Moore & Elizabeth B. A. Rogers, Federal Relief from Civil Judgments, 55
YALE L.J. 623, 623 (1946).
328. See Klapprott v. United States, 335 U.S. 601, 614-15 (1949).
329. See supra Part II.
330. See FED. R. Civ. P 60 advisory committee's note.
331. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n.l (1988).
sense to treat it that way. Rule 60(b)(6) does more than fill the gaps left by the
grounds that come before it. It makes those grounds unnecessary. 332 By itself
Rule 60(b)(6) invests courts with ample discretion to reopen judgments when
necessary-too much discretion for some, perhaps, 33 3 but more than enough to
make sections (1)-(5) superfluous. By itself, for example, Rule 60(b)(6) allows
courts to reopen judgments procured by fraud-and not need section (1) or (3)
to do it. 334 It should stand alone. At the very least this would simplify future
case law.
And it would improve judicial practice. Rewriting Rule 60(b) would focus
the courts' attention on a single reopening source, not on an array of prudent-but-
redundant entries. It would also promote greater deliberative engagement, not in
spite of Rule 60(b)'s open-textured standard, but because of it. This single
extraordinary circumstances approach would stir a healthy public discourse, a
richer judicial conversation about when and why to reopen final judgments
overall.335 Even more, it could help channel and air that discourse, inducing
courts to "render decisions that make the adjudicator accountable and transpar-
ently responsible., 336 Courts could still break time under Rule 60(b), reopening
judgments when an attorney betrays his client, say, or when spoliated evidence
emerges after the fact. 3 37 But judges would need to be clear and candid about
what these broken time decisions actually are: assertions of institutional influ-
ence, manipulations of legal chronology, and modern expressions of a power
courts have claimed so many times before.
B. TIME'S POWER RETOLD
Very few of those expressions have been loud or conspicuous. From Calder
until now they have tended to be guarded and discreet-overshadowed by other
matters, understated by an otherwise-divided Court.338 Only rarely has the
Court placed legal time at the analytical center-in Linkletter, say, and in
Plaut-yet even there it has treated the issue as abnormal, segmented, and
narrow. Far more often the Court has spoken about time quietly, treating its
expressions of chronological power as unremarkable and incidental.
But these expressions were not accidental. The Court's earliest considerations
of legal time were deeply sensitive to historical context, part of a careful but
332. It would also obviate the need for separate rules regarding the time parties have to file. See FED.
R. Civ. P. 60(c) (requiring that all Rule 60 motions be made "within a reasonable time," but excluding
all motions "for reasons (1), (2), and (3)" if filed "more than a year after the entry of the judgment").
333. See 12 JAMES WM. MOORE, MOORE's FEDERAL PRACTICE § 60.48[1] (3d ed. 2014) (deeming (b)(6)
a grand reservoir of equitable power" (internal quotation mark omitted)).
334. Cf, e.g., Oparaji v. N.Y. Dep't of Educ., No. 1:00CV05953 ENVVVP, 1:02CV03900
ENVVVP, 2006 WL 2220836, at *2 (E.D.N.Y. July 20, 2006) ("Plainly, as plaintiff's arguments go
toward 'excusable neglect' under [Rule] 60(b)(1), he cannot seek relief under [Rule] 60(b)(6).").
335. See Shiffrin, supra note 182, at 1217.
336. ld.
337. See Bloom, supra note 25, at 644.
338. See supra Part I.B.
deliberate attempt to "legitimize [a] new [national] regime., 339 They were also
cleverly imperial, veiled but unambiguous claims to unparalleled chronological
authority.34 0 This imperialist impulse did not dissipate in the days and decades
that came later. Instead the impulse endured, galvanized, spread-weaving its
way through new Justices and new doctrines; through all time, some time, and
broken time; through Hicks, mootness and desuetude, retroactivity, and Rule
60(b); and through Miranda, Grutter, Richard, and Willis too. To be sure, these
modern faces appear to capture something other than the courts' chronological
supremacy, at least at first. They concern pornography and affirmative action,
the death penalty and discovery abuse. 341 But like Calder and Ogden before
them, they also reveal an image in the background-a picture of the courts as
the keepers of the law's clock.
A fuller version of that picture is sketched out in the pages above. Those
pages show the court's chronological power as it runs through the full lifespan
of a lawsuit: at the beginning of litigation, in ripeness and equitable tolling; at
the end of litigation, in Rule 60 and judicial sunsets; and during and between
litigation too, in mootness and transitional moments. Even more, those pages
capture a kind of powerful push-pull. They capture courts advancing their own
time authority in Hicks and Linkletter, and courts restricting the ability of others
(like Congress) to intervene in Plaut.They witness courts treating time as strict
and inflexible for Michael Richard and Rhonda Willis, and courts treating time
as pliable and indulgent for the prosecutors charging Vincent Miranda.
Through it all, the judges in these settings have tended to rest their decisions
on particular (and particularly plausible) foundations. They rely on finality in
Plaut and Rule 60, on maxims of equity and our federalism in Hicks and
Younger, on changed circumstances in mootness and desuetude, and on docket
worries in Linkletter. They rest on tardy process in Richard and Willis, on
respect for state courts in Miranda, and on social context in Grutter. And these
342
judges, here as elsewhere, likely mean what they say.
But there is more to this picture than these surface accounts. There is also a
strong undercurrent of power and time, a slightly subterranean thread of institu-
tional authority and the law's clock. That thread parallels a more vivid and more
prominent strand of "creeping judicial imperialism," a tale at the very heart of
"American constitutional history." 34 3 In that tale, iconic cases like Marbury,
Lochner, and Brown confirm the Court's "imperialist impulses" and ensure our
abiding interest.34 4 And in that tale, the shape of judicial power takes center
stage.

340. ld. at 1348.
341. See supra Introduction.
342. Cf. Bloom, supra note 275.
343. Michael J. Klarman, MajoritarianJudicial Review: The Entrenchment Problem, 85 GEO. L.J.
491,544, 550 (1997).
344. Id. at551.
The story of legal time-this story-has no iconic cases. And so, perhaps, it
has claimed no enduring interest. But this subtler story is just as much about
institutional power. And with its esoteric case law and far-flung applications, it
merits sustained attention too. Like the more familiar (Marbury-based)court-
power narrative, the story of legal time reaches back to the nation's beginning.
It influences doctrines of all stripes and substance. And it sketches a vital line of
structural authority, of institutional self-assurance, and, at its core, of judicial
power. This is the line that this Article aims to bring to the surface. This is the
story of the law's clock.
CONCLUSION
Some fifteen-hundred years ago, in his Confessions in Thirteen Books, Saint

Augustine gave voice to a stubborn paradox of time. "Ifno one asks me, I know
what [time] is," he reflected, but if "I wish to explain it to him who asks me, I
do not know [how]." 34 5
Since Augustine's day, we have only kept trying to explain it. Our fascination
with chronology has only intensified; our horological studies have only bur-
geoned in complexity and scope. What once concerned clever artisans and
Cistercian monks now connects nineteenth-century philosophers 34 6 to twenty-
first-century polymaths, 347 groundbreaking social historians 348 to insightful cul-
tural anthropologists. 349 And yet, as our clocks get even sharper 350 and our lives
get quicker still, 351 Augustine's core question remains unsettled: How do we
make sense of time?
This Article offers one part of a legal answer. It studies legal time as a
doctrinal feature, a varied concept, a unifying theme, and a tool of institutional
power in and around the law. My claim is not that time explains the law fully or
absolutely-as if, within our far-flung doctrine, we can root out some singular
court commitment or some supreme legal design. My claim is instead more
prudent and provable: I argue that time is an overlooked but essential element in
modern law-a tool of power, punishment, and progress-and so we must take
a more time-sensitive point of view.
This Article aims to anchor that new perspective. It surveys a wide swath of
doctrinal territory, crafts a novel time typology, and offers some early sugges-
tions for doctrinal reform. Here we see litigants like Michael Richard and
Vincent Miranda, categories like all time and some time, proposals like rethink-
ing desuetude and rewriting Rule 60(b). Here too we see courts at once attentive
345. KERN, supra note 125, at 33 (internal quotation marks omitted).

346. See id.
347. See, e.g., Eco, supra note 124, at 11 ("The fact is that we can measure time, but this gives us no
guarantee that we understand what time is ... .
348. See, e.g., Thompson, supra note 35.
349. See, e.g., Greenhouse, supra note 104.
350. See LANDES, supra note 5.
351. See JAMES GLEICK, FASTER: THE ACCELERATION OF JUST ABOUT EVERYTHING (2000).
56 THE GEORGETOWN LAW JOURNAL [Vol. 104:1
and inattentive to legal chronology, courts both creating and alleviating time
pressure, aware and unaware of their immense chronological power. These
points of study are meaningful, even essential-if still sadly underappreciated.
But they are not the only ones. The aim of this Article is thus much broader and
more hopeful than creative examination. The aim is to map new legal terrain, to
open new lines of legal dialogue, and to recognize courts as our most powerful
and persistent legal timekeepers. It is to call attention, at long last, to the vital
phases and changing faces of the law's clock.

Frederic Bloom - The Law's Clock

Uploaded by

Copyright:

Available Formats

Frederic Bloom - The Law's Clock

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Frederic Bloom - The Law's Clock

Uploaded by

Copyright:

Available Formats

University of Colorado Law School

Colorado Law Scholarly Commons

Articles Colorado Law Faculty Scholarship

The Law's Clock

Follow this and additional works at: https://scholar.law.colorado.edu/faculty-articles

Content downloaded/printed from HeinOnline

Sun Feb 12 14:00:57 2017

-- Your use of this HeinOnline PDF indicates your acceptance

-- The search text of this PDF is generated from

-- To obtain permission to use this article beyond the scope

The Law's Clock

Time is everywhere in law. It shapes doctrines as disparate as ripeness and

1. TIME PAST, TIME POWER ............................... 8

B. THE EARLY COURT ................................ 11

II. TIME PRESENT ...................................... 14

III. TiME CHANGE ....................................... 40

A. IDEAS AND ILLUSTRATIONS ........................... 41

B. TIME' S POWER RETOLD ............................. 53

11. FED. R. Civ. P. 30(d)(1).

cathedral walls-first to fledgling townhalls and then later, in some places, to

I. TIME PAST, TIME POWER

A. FROM CHURCH TO CHAMBERS

The clocks of the early fourteenth century were famous by comparison. 44

55. A few examples:

levy increasingly specific time demands-and to deploy evermore specialized

B. THE EARLY COURT

65. See CIPOLLA, supra note 38, at 74.

II. TiME PRESENT

91. See Teague v. Lane, 489 U.S. 288, 303-06 (1989).

stops an obsolete law from remaining in force.1 0 0 I examine all three of

tomorrow's decisionmakers. Today is not only yesterday's tomorrow; it is also tomorrow's

Table 1: A (Partial) Tally

as a series of overlapping presents," 127 and asking ' how 128

127. ABBOTT, supra note 124, at 295.

137. See Frederic M. Bloom, UnconstitutionalCourses, 83 WASH. U. L. Q. 1679, 1696-97 (2005).

retroactivity approach has emerged. In criminal cases, judicial decisions apply

Table 2: All Time

and schedule their dockets to advance institutional self-protection. 172 They

to lifetimes-a strange point of convergence between federal judges and our

205. Id.at 794 & n.8, 819.

"sweeping," and perhaps "overprotective" finality rule: once a judicial decision

c. Later Time. Two more doctrines-declaratory judgments and the bar on

222. See Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

226. Unif.Declaratory Judgments Act § 12, 12 U.L.A. 595 (1968).

a toothless demand skirted by judges whenever they wish.2 35 But it reveals

Table 3: Some Time

inversions-an erratic chronology of frozen minutes, sporadic change, and

236. FED. R. Civ. P. 60(b)(6).

Table 4: Broken Time

4. Four Faces Resorted, a Caution, and a Question

251. 401 U.S. 37 (1971).

261. 41 U.S. 1 (1842).

these courts, then, were the real-world faces of all time.

III. TIME CHANGE

This thread reaches back to our doctrinal beginnings-to Calder, to Ogden,

266. Cf BAILEY, supra note 25, at 1 (discussing classification).

priority on matters of legal horology. And there, almost without recognition, a

A. IDEAS AND ILLUSTRATIONS

doctrinal peculiarity. And it would recognize the need to act soon.

2. Mootness & Desuetude