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 7: Timing of consent

Jacob E. Gersen and Jeannie Suk

Abstract

Consent distinguishes certain criminal acts from non-criminal ones. Sex without consent is sexual assault. Sex with valid consent is just, well, sex. In this chapter, we focus on one particular aspect of consent to sex – the timing of consent. That is, not whether consent is given, how consent is given, or the scope of consent that is given, but rather when consent is given. More precisely, we explore the relation between the timing of consent and these other aspects of the consent calculus, in light of the changing definitions of sexual assault in criminal law and university sexual misconduct codes. In this setting, retrospective consent offers a partial corrective for definitions of sexual misconduct that render most sex technically a violation. Keywords: sexual assault, consent, retrospective, retroactivity

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