Otherwise, LegalEDHEC

Written on 20 October 2017
By Frank Fagan
Associate professor of Law, LegalEDHEC, EDHEC Business School
This article can also be read in the latest issue of OTHERWISE #5, the EDHEC Business Magazine
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History shows that laws often happen when the time is ripe. A new book looks at the many different impacts of time and timing on lawmaking today and what it means for tomorrow.

In law, timing is everything, but not necessarily in the ways that first come to mind. A new book entitled The Timing of Lawmaking explores the question from a number of often surprising angles. The relationship between law and time is rich, complex and constantly evolving. 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?

Frank Fagan, Associate Professor of Law at EDHEC Business School, was a contributing editor of this latest work. As he points out, contemporary lawmaking and political practice can be characterized by “crisis, emergency, and short-term efficiency at the expense of longer‑term social goals.” In other words, the pressure of time can have ultimately adverse effects. We sometimes see this across federal budgets, climate change, banking regulation, and even criminal sentencing. In examing law’s relationship with time, the book asks questions such as when is law durable, why do judges often look to the past, and how can lawmakers innovate for the future?

The law through time

Time can make its appearance in law as a deadline, as with the two-year countdown to Brexit triggered by Article 50. Do such mechanisms succeed at overcoming bureaucratic inertia? One of the book’s contributors develops a model of self-executing statutes which, in the future, legislators may prefer: it would work by announcing a start date for new legal norms, rather than requiring further regulatory action for norms to take effect. In addition to considering time as a lawmaking device, a number of chapters dive deeper into the architecture of law.

One complex example, in the context of sexual consent, asks when plaintiffs should be able to exercise retroactive discretion. Casting its net wide, the book draws from leading scholars in constitutional law, administrative law, jurisprudence, philosophy, law and economics, environmental law, and tax policy. Alongside EDHEC’s Frank Fagan, the book’s authors represent a variety of institutions including: Harvard University; New York University; University of California, Berkeley; University of Chicago; and the University of Toronto. 

Read on: 'The Timing of Law making', Edited by Frank Fagan, Associate Professor of Law, EDHEC Business School, France and Saul Levmore, William B. Graham Distinguished Service Professor of Law, University of Chicago Law School, US.