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 13: Delaying declarations of constitutional invalidity

Anthony Niblett


What is so special about the timing of a judicial decision? When a court finds a statute to be unconstitutional and strikes down the law, from what time does the law cease to have effect? More importantly, when should the law cease to have effect? Three timing possibilities emerge. First, the law in question has no force or effect from the time of the judicial decision. Second, the law is deemed to never have been valid. A third possibility is the subject of this chapter. Suppose the point of invalidity occurs at some time in the future. The court holds the law to be unconstitutional, but suspends its declaration of invalidity for some period of time, perhaps one year. The unconstitutional law remains on the books and in effect during the time period following the court’s decision, but if the legislature does not address the unconstitutional defect by the judicially imposed deadline, then the declaration of invalidity takes effect. Despite the fact that individuals and groups may be deprived of constitutional rights, I argue that there are good reasons to delay declarations of invalidity in some circumstances. The delay may significantly mitigate transition costs associated with legal change and can provide the option to avoid potentially wasteful investments. But this delay can also change the judicial game between the courts and the legislature. Governments will be less proactive in ensuring that laws comply with the constitution and courts will be less likely to uphold statutes and regulations. Keywords: timing, judicial review, invalidity, unconstitutional laws, delay, deadlines, transitions

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