[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Antonios Kouroutakis reviews Frank Fagan & Saul Levmore’s “The Timing of Lawmaking” (Edward Elgar 2017).]
—Antonios Kouroutakis, IE Law School, Madrid
There has been much ink shed about lawmaking; from the law and the politics of lawmaking to the due process of lawmaking and from constitutional lawmaking to judicial lawmaking. However, little attention was paid until recently to the timing of lawmaking and the overall interaction between time and laws. It is said that “timing is everything” but the timing of lawmaking, whether a law is temporary or not, whether such law will expire or be activated after a certain period of time, whether a law has a short term or a long term effect seems to be a secondary consideration.
The academic interaction between time and laws, which was opened up the last decade with a series of monographs[1] and articles,[2] is substantially widened with the Frank Fagan’s and Saul Levmore’s edited book on “The Timing of Lawmaking”. With this new edited book, which includes a mixture of contributions from well-established and career – younger scholars, light is shed on some neglected aspects of the complex and multifaceted relationship between lawmakers and time while fresh perspectives are offered on how law’s architecture is affected by time.
1. The Structure of the book
The book has three parts, preceded by an introduction in which Eric Posner with a very systematic way presents the divergent chapters of the book but also introduces to the readers the challenges and the opportunities posed to lawmakers by the element of time.
In the first part, “Timing Devices” Frank Fagan (bis), Dacid Kamin, Daniel Shaviro, Daniel Farber, Tom Ginsburg, Eric Alston, and Saul Levmore display the plethora of devises such as sunset clauses, sunrise clauses, entrenchment clauses that influence the lifespan of the law.
In the second part, “Law’s Architecture” Jacob Gersen, Jeaniie Suk, Saul Levmore (bis) and Adam Samaha explore the value of timing in distinct areas of laws such as in criminal law with the case of consent, in administrative law with the distinction between self-executing and non-self-executing statutes, and in intellectual property and legislative innovation.
Finally, the third part, “Time in Judging” is thematically more specific. Martha Nussbaum explores the dual nature of laws to combine past experiences while looking forward to specific social goals, Frank Fagan examines the efficiency of litigation rules in common law, Anthony Niblett shows how courts manage time on the implementation of new rules and Mark Ramseyer focuses on the specific legal order of Japan and discusses the surrogate punishment across generations.
2. Added Value
To begin with, the 368 pages of the book and its 14 chapters prove its voluminous content. Central among the book’s multiple themes is to map out and underline the diverse and multifaceted interplay between time and lawmaking. The first chapters provide the reader with an overview of the distinct legislative “time-tools” and this makes it easier to draw similarities and dissimilarities between them. The book also includes normative and positive analysis from a variety of legal perspectives, such as jurisprudence (see Chapter 11) and law and economics (see for instance Chapter 12).
Most importantly, the analysis on time and lawmaking is not confined within the capacity of the legislators (ie Chapter 2) as chapters are devoted to the time and lawmaking of regulators (Chapter 9) to the time and lawmaking of the courts (Chapter 13) and to the time and lawmaking of constitutional drafters (Chapter 5). As Posner remarks in the introduction (p 7), each institution faces different timing problems and may address them with different time devices.
But, the added value of this book is twofold. First, there is a balanced discussion on both the benefits and the implications from the interaction between time and law. Suffice to mention here the discussion on how deadlines in budget rules can create artificial crisis (see Chapter 2). Second, this book is likely to become source of inspiration for further academic research on the impact of time on lawmaking. This remark is also incorporated among the conclusions of Farber in Chapter 4 (p. 107).
3. Critical Evaluation and Concluding remarks
From a more critical perspective, the anthology of the book would have benefited methodologically from more comparative analysis on how the time devices operate within different legal systems and different legal traditions, as the chapter on the “delaying of constitutional invalidity” does by incorporating paradigms from Canada and South Africa (Chapter 13). Furthermore, while the approach of the editors to include articles examining different aspects of lawmaking – from legislators, administrators, judges and constitutional drafters – is innovative and opens new paths for research on the interplay between timing and lawmaking, it seems that it is left unanswered first how timing is used under different institutional settings, and second what are the pros and cons from each use.
Among the serious weakness of the book is that some chapters bring little new to the existing bibliography, while some chapters would have benefited from more rich references. There is a considerable amount of literature, already published, on several aspects of the interface between time and lawmaking. That said, if the conclusions of the existing literature have been taken into consideration, the added value of the book would have been further advanced and enriched.
Finally, as it is the case with edited books, the chapters differ significantly and hence it is difficult for the reader to grasp their inner connection. Hence, what is lacking from the edited volume – which is a collection of chapters on a plethora of topics such as administrative law, banking law, budget law, constitutional law, criminal law, environmental law, inheritance law, national security law, tax law, and tort law – is a final chapter with a set of conclusions bringing everything together under the umbrella of timing.
Without doubt, this book is an important brick in the process to the critical theorization of the relationship between law and time, which was until recently largely underappreciated. The book adequately represents a balanced review on the interaction between lawmaking and time, which renders it a valuable material for lawmakers, policymakers and academics alike but also for lawyers, economists and political scientists.
Suggested Citation: Antonios Kouroutakis, Review of Frank Fagan & Saul Levmore’s “The Timing of Lawmaking”, Int’l J. Const. L. Blog, Oct. 19, 2017, at: http://www.iconnectblog.com/2017/09/book-review-antonios-kouroutakis-on-frank-fagan-saul-levmores-the-timing-of-lawmaking
[1] See Frank Fagan, Law and the Limits of Government: Temporary versus Permanent Legislation (Edward Elgar, 2013); Sofia Ranchordás, Constitutional Sunsets and Experimental Legislation A Comparative Perspective (Edward Elgar, 2014); Antonios Kouroutakis, The Constitutional Value of Sunset Clauses; An Historical and Normative Analysis (Routledge 2017).
[2] Suffice to mention here: Francesco Parisi, Vincy Fon & Nita Ghei, “The Value of Waiting in Lawmaking” 18 European Journal of Law and Economics 131 (2004); Jacob E Gersen & Eric Posner, ‘Timing Rules and Legal Institutions’ 121 Harvard Law Review 543, (2007); Jacob E Gersen, ‘Temporary Legislation’ 74 Chicago Law Review 247 (2007); Richard Albert, ‘Temporal Limitations in Constitutional Amendment’ 21 Review of Constitutional Studies 37 (2016); Sofia Ranchordas, Constitutional Sunrise in Richard Albert, Xenophon Contiades, Alkimini Fotiadou (eds) The Foundation and Traditions of Constitutional Amendment (Hart Publishing 2017); Ittai Bar-Siman-Tov, ‘Temporary Legislation, Better Regulation and Experimentalist Governance: An Empirical Study’ 11 Regulation and Governance (forthcoming 2017).
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