Paul L. Caron
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Tuesday, October 29, 2024

Kysar Presents Sunrise Legislation Today At UC-Irvine

Rebecca Kysar (Fordham; Google Scholar) presents Sunrise Legislation at UC-Irvine today as part of its Tax Policy Colloquium hosted by Natascha Fastabend:

Rebecca KysarCertain philosophers and legal scholars have advocated for the increased use of “sunrise legislation,” which takes effect only after a delay. In their view, sunrise legislation can obscure the identify of those whom the law benefits and burdens, thereby achieving a “veil of ignorance” effect that can facilitate public-minded reforms. In another context, sunrise legislation has not fared as well, with scholars questioning its function, as well as that of other devices like grandfathering, in mitigating the losses sustained by private parties because of legal reform. This “legal transition” literature generally concludes that the government need not, and should not, compensate for harms caused by legal reforms because doing so induces actors to engage in inefficient behavior.

In recent decades, lawmakers are increasingly using sunrise laws, typically to delay tax increases. They do so not to mask the identify of those burdened by the law or to provide transition relief but to comply with budget rules and meet fiscal pressures.

These sunrises diffuse political opposition by creating uncertainty regarding the actual implementation of the law and by reducing the actual costs to private actors by shifting them into the future, without accounting for a corresponding reduction in the law’s fiscal or distributional benefits. Unfortunately, it is precisely these aspects of modern fiscal sunrises that cast doubt on whether they can deliver on their promise of enabling more legislation in the public interest or smoothing the path to legal reform. Indeed, rather than facilitating legislation in the public interest, these sunrises tend to impede such legislation. And rather than mitigating losses to enable transitions to new reforms, sunrises may prevent those reforms from ever occurring.

The modern fiscal context thus diminishes the theoretical benefits of sunrises identified in the “veil of ignorance” literature while increasing and supplementing their costs as set forth in the “legal transition” literature. It also helps paint a fuller picture of the democratic dangers of sunrises, which have heretofore been described by scholars as resulting from one generation of lawmakers inflicting a reform on a future generation to which itself is not subject. In the modern fiscal context, more subtle dangers lurk as well because lawmakers enact sunrise provisions that may never take effect. This symbolic use of sunrises imposes costs on generations even further out from the effective date, as well as transfers resources from the lesser well-off to the well-off and from public to private interests. This account holds lessons for sunrises outside of the fiscal context and the legislative process more generally.

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https://taxprof.typepad.com/taxprof_blog/2024/10/kysar-presents-sunrise-legislation-today-at-uc-irvine.html

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