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Constitutional Theory

Optimal Timing of Legal Intervention: The Role of Timing Rules

Responding to Jacob E. Gersen & Eric A. Posner, Timing Rules and Legal Institutions, 121 Harv. L. Rev. 543 (2007)

In Timing Rules and Legal Institutions, Professors Jacob E. Gersen and Eric A. Posner investigated the optimal timing of legislative action and the role of timing rules in constraining legislative action. That article provides a comprehensive and coherent discussion of the various constitutional, economic, practical, and theoretical issues involved in timing rules, while also developing a robust normative framework for assessing the optimal timing of legislation. This response expands on the points Gersen and Posner discussed, noting potential missed opportunities and formulating suggestions for future extensions. It proposes three additional timing rules in addition to the four identified by Gersen and Posner and discusses the implications of each from the perspective of option value. This response also considers the effects of the dynamic cost structure of lawmaking and argues that optimal timing should be considered in conjunction with optimal specificity of legislation.