CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, October 12, 2017

Fagan on Legal Cycles and Stabilization Rules

Frank Fagan (EDHEC Business School) has posted Legal Cycles and Stabilization Rules (The Timing of Lawmaking, Frank Fagan & Saul Levmore (eds.) Edward Elgar Ltd., 2017) on SSRN. Here is the abstract:
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 sub-optimally 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.

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