Hasen: Legal Transitions -- Reliance Redux

David Hasen (Michigan) has posted Legal Transitions -- Reliance Redux on SSRN.  Here is the abstract:

The recent literature on legal transitions is noted for its welfarist approach to the analysis of legal change. This approach tends to efface, and purports to debunk, a number of distinctions that are salient to conventional understandings of legal transitions. According to a welfarist analysis, these distinctions have no significant role to play in the analysis of legal change.

This article examines the theoretical apparatus on which these criticisms are based, with a principal focus on taxation. The examination demonstrates that the apparatus suffers from significant conceptual shortcomings. They include the unwarranted assimilation of legal to factual change, the naturalization of conventional arrangements, and the unfounded disregard of the distinction between making law and finding it. The result is an account of legal transitions that is unable either to explain actual transitions or to provide a novel normative theory of how legal change should take place. In the end, the older view of legal transitions is more capable than the welfarist approach of providing an adequate normative and positive framework for understanding legal transitions.