Exploring the relationship between law and time

September 21, 2017

academic law, Author Articles, monographs

Law Lady blog

Frank Fagan and Saul Levmore provide important perspectives on how law’s architecture can be understood through time.

In physics and engineering, the “time constant” is the interval required for a system to change from one state to another in response to a stimulant. Legal rules are both stimulants and substances; changes in law can measurably affect behaviors and fortunes over time, but changes in technology, populations, and politics over time also affect legal rules. The capacity of judges, legislators, and regulators to change law is often limited by past decisions, culture, and interest groups. The Timing of Lawmaking explores these relationships between law and time. The scholars represented in this collection use time to probe contemporary law’s most enigmatic practices and architecture; they describe new forms of legal innovation that leverage time as a lawmaking device; and they consider judges’ respect for the past as well as lawmakers’ eagerness to create a new, unfettered future. All of this is presented across fourteen chapters divided into three parts: Timing Devices, Law’s Architecture, and Timing in Judging.

In the first chapter, Frank Fagan (EDHEC) observes that crises, and incomplete law generally, force patterns of amendment, repeal, and new enactment. Can legislators adequately anticipate legal cycles and, if so, can they respond with law that only takes effect if people do something first? This question is discussed across banking law, budget law, environmental law, health law, national security law, and criminal sentencing. Dan Shaviro (NYU) considers the related question of policy continuity, especially with respect to U.S. income tax and Social Security policy, and observes that identifying the set of current policies that one might want to perpetuate (or change) can be surprisingly difficult. Tom Ginsburg and Eric Alston (Chicago) observe that interim constitutions and transitional provisions necessarily involve the manipulation of temporality, and ask whether these devices can prove useful for new governments. Dan Farber (UC Berkeley) analyzes lawmaking deadlines and whether they can help overcome bureaucratic inertia. When might any benefits of deadlines be outweighed by the cost of reduced decision quality or draconian consequences such as government shutdowns? David Kamin (NYU) takes up this question examining debt limits, sequesters, and the withholding of Congressional pay, and considers instances when the threat of crisis may be beneficial. Finally, Fagan and Levmore (Chicago) take on time deferral ­– occasions when strategic lawmakers postpone the starting date of their enactments, often by making them contingent on future events.

In addition to exploring time as a lawmaking device, there are a number of chapters that use time to explain the deep architecture of law. In the context of sexual consent, Jacob Gersen and Jeannie Suk Gersen (Harvard) ask when plaintiffs should be able to exercise retroactive discretion. Should law favor retrospective flexibility in this domain? Saul Levmore (Chicago) observes that durability in law can be achieved through social programs and construction projects. While durability might be reversed with targeted taxes, when will recapturing previously awarded benefits be difficult, if not impossible? Adam Samaha (NYU) develops a model of self-executing statutes, and asks when legislators might prefer rules that announce legal norms that take effect on a specified date to statutes which require further regulatory action for norms to take effect? Levmore adds a final essay on the presence or absence of incentives for desirable but risky legal change.

Rounding out the collection are a group of chapters that examine the ways in which judges consider time in their decisionmaking. Martha Nussbaum (Chicago) asks whether courts should look backward toward time-honored traditions or whether they should look forward toward the promotion of social welfare. For instance, why did Justice Anthony Kennedy state that “[i]t is not within our tradition to enact laws [that fence gays and lesbians out of political processes]”, when in fact, laws of this sort fall squarely within our tradition? Her chapter examines the tension between tradition and utilitarianism, and proposes a compromise. Sometimes tradition and utilitarianism can blur. Fagan gives new life to the idea that common law judges over time produce efficient laws. Mark Ramseyer (Harvard) examines the right of illegitimate children in Japan to inherit property and observes that the older, traditional rule of excluding them reduces surrogate punishment across generations of biological children. The traditional rule can serve forward-looking, utilitarian ends. Anthony Niblett (Toronto), considers why courts delay abrogations of unconstitutional law. Why would a law declared unconstitutional remain on the books and continue to deprive people of constitutional rights? While delay may mitigate costs associated with legal change, delay may change the game played between courts and the legislature. When will delay induce governments to be less proactive in ensuring that laws comply with constitutional norms, and when will courts be less likely to uphold borderline statutes and regulations?

Taken together, the collection presents the intriguing perspective of time as a universal constant throughout law. The picture that emerges is not the obvious dynamism of law, but its timeless contours established by a kind of equilibrium between lawmaking capacity and political resistance.

Fagan Timing blog2

Frank Fagan is Associate Professor of Law at EDHEC Business School, France and Saul Levmore is William B. Graham Distinguished Service Professor of Law at University of Chicago Law School, US

Their book The Timing of Lawmaking is out now.

The Introduction and Chapter 1 are free to read on Elgaronline.


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