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Posner, Eric A. --- "Introduction" [2017] ELECD 548; in Fagan, Frank; Levmore, Saul (eds), "The Timing of Lawmaking" (Edward Elgar Publishing, 2017) 1

Book Title: The Timing of Lawmaking

Editor(s): Fagan, Frank; Levmore, Saul

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781785364327

Section Title: Introduction

Author(s): Posner, Eric A.

Number of pages: 8

Extract:

Introduction
Eric A. Posner*

Lawmaking bears a complex relationship with time. Lawmakers control
when a law is enacted, when it takes effect, and how long it remains in
effect, and whether it will apply to future acts only, as is usually the case,
or to past acts as well. Lawmakers also take into account time when
deciding whether to create law in the first place ­ whether to enact a law
now or wait until later ­ and what sorts of law to create. It is tempting, as
Martha C. Nussbaum notes in Chapter 11, to give weight to past laws
because people have ordered their lives around them, and because they
may reflect deeply held values ­ they have `passed the test of time' ­ but
also to disregard the past because it embodies the judgments of past
generations who operated under conditions of ignorance relative to our
own understanding and whose values we no longer share.1 The major
political-legal debate in the United States reflects this ambivalence. In
constitutional law, conservatives seek to ground the law in founding-era
understandings, while liberals seek to emancipate the law from the fetters
of that age.
To fix ideas, consider a unitary legislative body that seeks to maximize
a political `outcome' of some sort, given a set of ideological or other
preferences, over time, which we divide into a series of arbitrary periods.
In any period, the legislature may pass a law that, with some probability,
creates a new outcome that the legislature ...