Optimal Timing of Legal Intervention: The Role of Timing Rules

In a recent article on the Harvard Law Review, Jacob E. Gersen and Eric A. Posner investigate the optimal timing of legislative action and examine the role of timing rules in constraining legislative action. This article considers a quite relevant topic, which thus far lacked a systematic treatment in the literature. As Gersen and Posner point out, decisions about the timing of legal intervention are often as important as decisions about the content of new law. Yet, the attention given to this issue is disproportionately small in the literature. Gersen and Posner successfully fill this gap in the literature, providing a comprehensive and coherent discussion of the various constitutional, economic, practical and theoretical issues, developing a very interesting normative framework on the optimal timing of legislation. In Section 1, of this comment we identify some of the issues that become relevant when considering the optimal timing of lawmaking. In Section 2, we touch upon some of the points discussed in Gersen and Posner, identifying some missed opportunities and formulate suggestions for future extensions.