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Anthony Niblett

What is so special about the timing of a judicial decision? When a court finds a statute to be unconstitutional and strikes down the law, from what time does the law cease to have effect? More importantly, when should the law cease to have effect? Three timing possibilities emerge. First, the law in question has no force or effect from the time of the judicial decision. Second, the law is deemed to never have been valid. A third possibility is the subject of this chapter. Suppose the point of invalidity occurs at some time in the future. The court holds the law to be unconstitutional, but suspends its declaration of invalidity for some period of time, perhaps one year. The unconstitutional law remains on the books and in effect during the time period following the court’s decision, but if the legislature does not address the unconstitutional defect by the judicially imposed deadline, then the declaration of invalidity takes effect. Despite the fact that individuals and groups may be deprived of constitutional rights, I argue that there are good reasons to delay declarations of invalidity in some circumstances. The delay may significantly mitigate transition costs associated with legal change and can provide the option to avoid potentially wasteful investments. But this delay can also change the judicial game between the courts and the legislature. Governments will be less proactive in ensuring that laws comply with the constitution and courts will be less likely to uphold statutes and regulations. Keywords: timing, judicial review, invalidity, unconstitutional laws, delay, deadlines, transitions

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Saul Levmore

Intellectual property law is motivated by the idea that innovation requires encouragement with property rights or other rewards. Law seeks to spur innovation in the private sector with copyrights, patents, and other devices, but none of these encourage innovations in lawmaking itself. As in the private sector, a first-mover advantage or harmonization among jurisdictions could influence the rate of innovation in lawmaking, though not necessarily in an optimal way. This chapter examines various kinds of lawmaking in order to evaluate the likelihood of optimal innovation. It takes account of constituents’ likely preference for free-riding on other jurisdictions’ experiments. Lawmakers, in turn, have reason to take a wait-and-see approach so as not to be associated with unsuccessful disruptions. The analysis examines lawmakers’ incentives and draws on several examples, including the design of healthcare systems, the legalization of same-sex marriage, and school reform. In many settings, lawmakers seem to be assigned the task of execution rather than innovation; if lawmakers are best understood as ‘assemblers’ of constituents, consensus, and ideas developed elsewhere, then it is noteworthy that this sort of activity in the private sector is (also) not encouraged by intellectual property law. The discussion includes the roles that prizes and inter-jurisdictional alliances might play in encouraging innovative lawmaking. It suggests that small-scale experimentation is easier in the private sector than in the public sphere, and this too likely affects the rate and thus timing of legal innovation. Keywords: innovation, intellectual property, harmonization, incrementalism

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Saul Levmore

At any given point, lawmakers and interest groups benefit if the laws they pass are long-lived, or durable. The quest for durability explains some kinds of licensing, but a more important conclusion is that it explains a preference for spending programs, rather than mere regulation. Expenditures create endowment effects, to be sure, but spending programs are especially appealing to their beneficiaries when they bring about physical assets that future lawmakers will have no reason to dismantle. In an earlier era, the quest for durability might have generated overinvestments, as monumentalist rulers sought to leave their marks. In modern times, durability can be obtained through social programs as well as construction projects. In some settings durable projects can be reversed with targeted taxes, but recapturing previously awarded benefits is more difficult. Keywords: durability, interest groups, retroactivity, public goods, clawbacks

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Eric A. Posner

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Martha C. Nussbaum

Should law look backward toward time-honored traditions, or forward toward the promotion of social welfare? In this chapter I study the debate between Burkean traditionalists (along with their legal allies) and the British Utilitarians, who find in tradition not wisdom but irrationality and exclusion, and who propose to remodel law along lines of scientific rationality, counting each person equally and promoting aggregate welfare. I examine the strongest arguments for each side and propose a compromise. Keywords: common law, Utilitarianism, Burke, Bentham, Mill, Sidgwick, Holmes, Cardozo

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Frank Fagan

A legal cycle is legislation that takes effect contingently, where contingent factors are ex ante known to fluctuate with some level of predictable regularity. Apart from broad constitutional mandate, lawmakers have historically and suboptimally responded to legal cycles with general and patchwork patterns of legislation involving repeal, amendment, and new enactment. This is true across nearly all domains of codified law. This chapter develops a normative theory of how lawmakers should respond to legal cycles by setting forth the optimal architecture of stabilization rules. Under a general set of conditions, stabilization rules work toward smoothing fluctuations in rulemaking and exert downward pressure on short-term legislative pathologies that result from cognitive bias and interest group politics. The potential of welfare-enhancing stabilization rules is discussed across banking law, budget law, environmental law, health law, national security law, and criminal sentencing. Keywords: timing rules, contingent law, legal cycles, stabilization rules, climate change, budget law, availability bias

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David Kamin

For the last several years, the congressional budget process has jumped from self-created crisis to self-created crisis. Debt limit, shutdown, sequester, potential withholding of congressional pay, and others beyond that – all of these crises coming in quick succession and requiring Congress to take action to avert a problem. The result has been measurable damage to the economy and federal agencies. There is a common element to each of these crises. In particular, Congress sets an undesirable event to occur at a later time – hence, prompting the possible ‘crisis.’ This chapter represents an exploration of these devices, and a modest defense of some of them, despite the recent chaos in Washington. In particular, in legislating crisis, Congress may be addressing some of its other failings. These devices can serve constructive purposes by allowing Congress to not fully specify the way legislation will work in the future given the transaction costs involved in doing so; allowing it to better coordinate negotiations and, specifically, set timelines; and allowing it to then enforce its deals. Thus, in some cases, the threat of crisis may be better than the alternative of none. Keywords: timing rules, budgetary crisis, lawmaking deadlines, negotiation theory

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Frank Fagan and Saul Levmore

Sunrise legislation aims to apply new rules only to transactions in the distant future, so that it postpones the consequences of lawmaking or triggers future law based on some anticipated contingency. Most good lawmaking involves immediate implementation, with perhaps a short period of transition, and sunrising is therefore remarkable. But sunrising may be a useful means of putting decisionmakers behind a veil of ignorance, as in the case of an agreement to create new federal judgeships following the next presidential election. Incomplete sunrising is more common and yet more troubling, as in the case of deficit financing; this deferral of costs combined with quick enjoyment of benefits is a recipe for inefficient legislation. On the other hand, legislation that defers benefits but allows burdens to take immediate effect may be attractive on occasion. Some proposals for dealing with climate change have this feature. There is reason to be skeptical about proposals that mismatch benefits and burdens, but in the case of climate change it is plausible that the underrepresentation of beneficiaries at the time of legislation reduces the risk that sunrising will be used to externalize costs. At its best, sunrising involves present burdens, or sunk costs, that influences future generations, who must hope that those who blazed the path knew what they were doing. Keywords: timing rules, sunrise legislation, sunset legislation, behind-the-veil lawmaking, deficit financing

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Daniel Shaviro

This chapter addresses issues associated with automatically indexing fiscal policies, such as those in the U.S. income tax and Social Security systems. Under indexing, a statistical measure – pertaining, for example, to inflation, wage levels, life expectancy, or income inequality – is used to determine changes to nominal legal rules that then take effect automatically. One possible reason for favoring automatic indexing is that it may keep the underlying policy, by some metric, the same as empirical circumstances change. While indexing often makes sense from the standpoint of a policymaker whose long-term preferences it would keep in place barring further legislative action, identifying the set of current policies that one might want to perpetuate (or change) can be surprisingly difficult. The chapter explores broader conceptual issues pertaining to policy continuity and competing objectives when legislation remains on the books indefinitely, with particular reference to examples drawn from the history of the U.S. income tax and Social Security. Keywords: automatic indexing, inflation indexing, long-term budget policy, timing of legal intervention, policy change, tax reform, Social Security reform

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Tom Ginsburg and Eric Alston

Regime transition is a central challenge in constitutional design. This chapter discusses two increasingly popular mechanisms to effectuate the transition between regimes: (i) interim constitutions; and (ii) transitional provisions. Both mechanisms involve the manipulation of temporality, limiting duration of what is supposed to be an enduring form. This chapter provides a theory of when these devices are useful, positive evidence of their use in national constitutions, and a discussion of normative considerations. Keywords: timing rules, constitutional transition, interim constitutions, transitional provisions