Resiliency, Adaptation, and the Upsides of Ex Post Lawmaking

BY Donald T. Hornstein

Although the U.S. Constitution and the constitutions of many states and foreign countries properly prohibit ex post facto lawmaking in the criminal context, the practice takes place quite regularly in other settings. This Essay argues that there are numerous reasons for this phenomenon, including the need for a resilient legal system to be able to respond to those who game the law through practices known as “regulatory arbitrage.”

 

DOWNLOAD PDF | 89 N.C. L. Rev.1549 (2011)