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 6: Legislative sunrises: Transitions, veiled commitments, and carbon taxes

Frank Fagan and Saul Levmore

Abstract

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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