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Wednesday, March 29, 2017 10:17
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(Before It's News)

On March 31, a book called The Timing of Lawmaking, edited by Frank Fagan and Saul Levmore, will come out via Edward Elgar Publishing. Further information about the book is available here.

One of the articles in the volume is my piece, The More It Changes, The More It Stays the Same? Automatic Indexing and Current Policy.  I posted an earlier draft on SSRN here.

Here is an abstract for the volume as a whole: “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?”

The abstract for my chapter says (or said) that it ”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 paper 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.”

Contributors to the volume, other than the two editors and me, listed in the order in which their chapters appear, are David Kamin, Daniel Farber, Tom Ginsburg & Eric Alston, Jacob Gersen & Jeannie Suk, Adam Samaha, Martha Nussbaum, Anthony Niblett, and Mark Ramseyer.


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