Political Paralysis and Timing Rules

New York University Law Review Online, Vol. 91, p. 43, 2016

10 Pages Posted: 4 Mar 2016 Last revised: 14 Sep 2016

Date Written: March 2, 2016

Abstract

This Essay builds on the framework of Daniel Herz-Roiphe and David Singh Grewal for overcoming political paralysis with timing rules as set forth in their recent article, "Make Me Democratic, But Not Yet: Sunrise Lawmaking and Democratic Constitutionalism." They suggest that delayed implementation of controversial policies with sunrise rules increases the likelihood that those policies will become law. Lawmakers may not agree to a difficult reform that takes effect today, but they may agree to a difficult reform that takes effect tomorrow.

In addition to sunrise rules, I suggest that a different species of timing rule can help overcome gridlock, i.e. stabilization rules. Stabilization rules facilitate agreements differently from sunrises in one important respect: instead of expanding the space for agreement by leveraging time, they do so by creating multiple versions of the same policy that apply conditionally. For example, suppose that climatologists desire a carbon tax and that skeptics oppose it. Setting aside who has the better evidence, climatologists and skeptics both justify their positions on the basis of scientific claims. To facilitate compromise, lawmakers can counterintuitively ignore the evidence altogether and instead create a stabilization rule. That rule implements a tax only when a conditional event occurs, say, when average annual temperature is increased by 1.2 degrees from pre-industrial levels or some other threshold. Otherwise, the tax is not placed into effect. This form of lawmaking recognizes that a current generation may be willing to reduce consumption for a future one, so long as it is certain that its reduction will achieve its desired effect. By expanding the space for sacrifice, stabilization rules can satisfy the normative framework of Herz-Roiphe and Grewal and its deep connection with Kantian principles of guardianship.

The Essay examines federal budget law along the same lines and offers some comments on Herz-Roiphe and Grewal's discussion of using sunrise amendments to reform the Electoral College and representation in the Senate.

Keywords: timing rules, stabilization rules, sunrises, climate change, balanced budgets, representation clauses, Article V

Suggested Citation

Fagan, Frank, Political Paralysis and Timing Rules (March 2, 2016). New York University Law Review Online, Vol. 91, p. 43, 2016. Available at SSRN: https://ssrn.com/abstract=2740963

Frank Fagan (Contact Author)

EDHEC Business School ( email )

58 rue du Port
Lille, 59046
France

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