The Timing of Lawmaking
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The Timing of Lawmaking

Edited by Frank Fagan and Saul Levmore

Legal reasoning, pronouncements of judgment, the design and implementation of statutes, and even constitution-making and discourse all depend on timing. This compelling study examines the diverse interactions between law and time, and provides important perspectives on how law's architecture can be understood through time. The book revisits older work on legal transitions and breaks new ground on timing rules, especially with respect to how judges, legislators and regulators use time as a tool when devising new rules. At its core, The Timing of Lawmaking goes directly to the heart of the most basic of legal debates: when should we respect the past, and when should we make a clean break for the future?
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Chapter 3: The more it changes, the more it stays the same? Automatic indexing and current policy

Daniel Shaviro

Abstract

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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