Making Sense of the Sense of Time

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By Professor Victoria Sutton

August 10, 2025

Guest Opinion. Time is not detected by the five senses, yet it is something we sense. Some can wake up at exactly the same time each day, to the minute. One of our five senses does not detect time, yet we must have one. Time does dictates how we spend our days and our lives.

So how is time detected absent a human sensory organ? The pre-frontal cortex, considers time in context and that seems to be where we process how we perceive time. Most of us on earth use the same units of seconds, minutes and hours, oddly enough, given we have no agreement on measures like weights and lengths and currency. Likely since we are all bound by the timing of the rotation of the earth and the orbit around the sun, we all have the same timeframes. But from an individual perspective, we tend to perceive how fast or slow that is from our own individual collection of experiences.

Having said we all agree on measures, that is not to say there are not different ways of perceiving time. “Indian time” is sometimes used in a pejorative way to stereotype lateness as an American Indian trait, but the true meaning is that events are marked by the first thunder of the year, or a baby’s first step, or when certain events occur, or measured by commitments and promises. This can lead to prioritizing those commitments, for example, which might not fit into specific minutes.

Our sense of time makes us think that time is just flying by, or time is dragging on. As I was thinking about this article I was alerted by one of the DNA testing companies that they could tell me about my sense of time based on my genetic profile. The question they claimed to answer with my specific genes was “how prone to longer time perception are you?” The premise is that “the study of time perception suggests that different neural transmission subsystems plays an important role in time perception.” Then the identification of what genes control this and it turns out to be related to genes that produce and control serotonin, and genes containing “t”⁴ tend to make one perceive shorter intervals of time.

Time and the Law

With regard to the time-interests of the parties (not the judge or the court) the Constitution mentions time only once, and that is the guarantee of a “speedy trial”. A question around that issue prevented me from AmJur’ing my Criminal Procedure Law exam in law school (which means making the highest grade in the class). I never really accepted the fiction of a “speedy trial” that we have evolved in American jurisprudence. In fact, we seem to have abandoned the plain meaning of “speedy” trial. No Constitutional originalist should feel comfortable with that.

The speedy trial idea was not original. It came from the Magna Carta, "We will sell to no man, we will not deny or defer to any man either justice or right."

Processes of Law that are affected by Time

Beyond the speedy trial, the process of the law seems to ignore all time constraints, as if there was limitless time for everything or it just didn’t matter as long as the process was grinding along.

One concept that addresses the problem of time when time runs out for a conflict or controversy (Art. III requirement to bring a case before a federal court); is that of whether a case is capable of repeating itself. This is how the first abortion case of Roe v. Wade survived dismissal. Although it took more than nine months (pregnancy term) to come to the U.S. Supreme Court, it was a case that was capable of repeating itself with other pregnancies similarly situated. Once the pregnancy was no longer, there was no case or controversy and thus the case would have been “moot.” But the idea that the case is capable of repeating itself became an exception to mootness. Courts do not issue advisory opinions or hypothetical opinions, so there must always be a case or controversy. This exception to mootness allowed the case to continue to be heard even after the pregnancy was no longer.

Yet, there are so many areas of law where justice is not served by timing of the court. For example, family law which intervenes in family matters simply does not prioritize the short childhood of the children who are often subjects of litigation in custody disputes. Decisions linger, while childhood rushes on.

Engaging in Fictions to Set Time Limits

Courts create their own timing problems in custody and adoption cases, where after litigation and scheduling and appeals taking years, childhood rushes on. This could be the fault of parties, but it is also scheduling and court processes that prioritize procedure over subject matter. After these years pass and an opinion is rendered, the court then decides that the child has been with the current family so long, now, that change would be disruptive.

While statutes of limitations are meant to provide a time frame within which a lawsuit must be filed, they may ignore the complexities of certain cases, such as those involving latent injuries that do not show up for years or even decades. Asbestos injuries and medical malpractice are examples of latent injuries that may not be discovered until years later. This bar gives finality to the defendants, but it also unfairly bars claims that are true injuries that could not have been brought within the legal time frame of the statute of limitations.

In medical malpractice cases, a patient might not discover an error made by a healthcare provider until years after treatment, yet state law sets arbitrary limites on how long a claimant has to file a civil action. Many states have a seven-year waiting period before someone can be declared legally dead, even when there is no direct evidence of their death, disregarding the complexity of the circumstances surrounding the person's disappearance (e.g., prolonged absence due to amnesia, abduction, or other factors).

In property law, one of the challenges of the first year course in Property Law, is learning the Rule of Perpetuities. This was an ancient rule made to make sure that property continued to be sold and not committed through endless conditions that had to be met long after the death of the first title holder or might never be met. The rule is generally that land has to be transferred within 21 years of the life of the owner, so if the owner says my son has to be married before he can be vested with this property, the owner has to be certain it will happen within 21 years of his own death or it is an invalid transfer. See why it is such a problem for first year law students? So time is a critical component of this much aligned (and rightly so) rule in property law. (Some states have abolished the Rule all together.) But should time control your plans for your property?

Procedural law vs. substantive law

A distinction can be made to separate the universe of laws into either procedural or substantive. Procedural law requires order, and that can mean timing — one thing must be done before the other. For example, the National Environmental Policy Act is largely procedural law. Once the law is substantively triggered, it requires that certain considerations and studies must be timed to begin at the earliest point in the process, defined over time by case law to determine what that means.

On the other hand, the Endangered Species Act, is partly procedural in that a subject project cannot proceed without completing certain reviews of species and habitat conservation depending on the status of the species at issue. Although the statute involved procedure and timing, it is not dictated directly based on the time left for viability of a population of an endangered species. Waiting years for rulemaking, followed by adjudication challenging the rulemaking, and re-writing and promulgating the rule based on whatever court directive may have required the reshaping of the rule takes an unpredictable amount of time. The demise of the species is on its own timeline, but the law does not care about that timeline.

The legal process timeline must prevail.

To read more articles by Professor Sutton go to: https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is Director of the Center for Biodefense, Law & Public Policy and an Associated Faculty Member of The Military Law Center of Texas Tech University School of Law.