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Fagan, Frank --- "Legal cycles and stabilization rules" [2017] ELECD 549; in Fagan, Frank; Levmore, Saul (eds), "The Timing of Lawmaking" (Edward Elgar Publishing, 2017) 11

Book Title: The Timing of Lawmaking

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

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781785364327

Section: Chapter 1

Section Title: Legal cycles and stabilization rules

Author(s): Fagan, Frank

Number of pages: 23

Abstract/Description:

A legal cycle is legislation that takes effect contingently, where contingent factors are ex ante known to fluctuate with some level of predictable regularity. Apart from broad constitutional mandate, lawmakers have historically and suboptimally responded to legal cycles with general and patchwork patterns of legislation involving repeal, amendment, and new enactment. This is true across nearly all domains of codified law. This chapter develops a normative theory of how lawmakers should respond to legal cycles by setting forth the optimal architecture of stabilization rules. Under a general set of conditions, stabilization rules work toward smoothing fluctuations in rulemaking and exert downward pressure on short-term legislative pathologies that result from cognitive bias and interest group politics. The potential of welfare-enhancing stabilization rules is discussed across banking law, budget law, environmental law, health law, national security law, and criminal sentencing. Keywords: timing rules, contingent law, legal cycles, stabilization rules, climate change, budget law, availability bias