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Introduction

A Law and Economics Perspective

Wenming Xu, Stefan E. Weishaar and Niels Philipsen

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Table of constitutions, legislation, and regulations

Sustainable, Just, and Democratic

Edited by Melissa K. Scanlan

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Table of cases

Sustainable, Just, and Democratic

Edited by Melissa K. Scanlan

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Prologue

Sustainable, Just, and Democratic

Edited by Melissa K. Scanlan

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Foreword

Sustainable, Just, and Democratic

Edited by Melissa K. Scanlan

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Climate change, system change, and the path forward

Sustainable, Just, and Democratic

Melissa K. Scanlan

The current global economic system, which is fueled by externalizing environmental costs, growing exponentially, consuming more, and a widening wealth gap between rich and poor, is misaligned to meet the climate imperative to rapidly reduce greenhouse gases (GHGs). Amidst this system breakdown as we reach the end of the Industrial Age, the new economy movement has emerged to provide an alternative approach where ecological balance, wealth equity, and vibrant democracy are central to economic activity. Laws are the fundamental infrastructure that undergirds our economic and political system. Environmental law is typically conceived as a set of rules that establish pollutant limits for specific waterbodies, protect an identified species, or direct an industry to use a required technology. Although necessary, these types of law do not address the fundamentals of our political economy, and the most dramatic failure of environmental law is seen in increasing amounts of GHGs and global climate disruption. In order to develop a new economic system that is aligned with a climate and economic justice imperative, we need laws that will facilitate the new system and discourage the old. This chapter discusses systems thinking and systems change, highlighting leverage points to achieve change. It gives an overview of the new economy movement that has emerged to provide a new narrative, and using a systems lens, identifies areas where the law needs to evolve to facilitate building a more sustainable, equitable, and democratic future.

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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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Eric A. Posner

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Jonathan Klick

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Brian Galle

I present for the first time in the literature a quantitative analysis of the efficacy of the “political safeguards of federalism.” I also test the popular theory that congressional control of state authority to tax maximizes national welfare. Both analyses rely on a hand-collected data set of every federal statute from 1789 to 2011 affecting state power to tax. Overall, the data suggest that federal decisions to curtail state autonomy are influenced by congressional self-interest. Conditional on enactment, statutes affecting state taxing power are more likely to reduce state authority when a concentrated special interest group stands to benefit and also when the reduction would diminish competition between states and Congress. I argue that these results suggest that state power to influence Congress is not absolute, and that they should cast doubt on recent calls to grant control of state taxing authority solely to Congress.