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 4: Racing the clock: Deadlines, conflict, and negotiation in lawmaking

Daniel A. Farber

Abstract

Deadlines are a ubiquitous feature of lawmaking in contexts ranging from federal agency rulemakings to international negotiations. Despite the expectation that these deadlines will drive conflicting parties toward agreement or overcome bureaucratic inertia, their impact on decision-making is mixed, often producing only modest improvements in speed, and perhaps sometimes none at all. On the downside, deadlines can sometimes reduce the quality of decisions or encourage brinksmanship when missing a deadline would have draconian consequences. If there is a case for deadlines, then, it is an uneasy one. Game theory suggests some potential ways to increase the effectiveness of deadlines as action-forcing strategies, such as improving information sharing between actors and providing enforcement mechanisms for negotiated outcomes. Keywords: statutory deadlines, regulatory deadlines, lawmaking brinksmanship, negotiation theory

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