After the sunset: the residual effect of temporary legislation

Abstract

The difference between permanent legislation and temporary legislation is the default rule of termination: permanent legislation governs perpetually, while temporary legislation governs for a limited time. Recent literature on legislative timing rules considers the effect of temporary legislation to stop at the moment of expiration. When the law expires, so does its regulatory effect. This article extends that literature by examining the effect of temporary legislation beyond its expiration. We show that in addition to affecting compliance behavior which depends on statutory enforcement, temporary legislation also affects compliance behavior which does not depend on statutory enforcement, and more generally, organizational behavior after a sunset. When temporary legislation expires therefore, it can continue to administer regulatory and other effects. We specify the conditions for this process and give the optimal legislative response.

Temporary legislation, better regulation, and experimentalist governance: An empirical study

“…11 Admittedly, there have also been scholars that argued that in specific legislative domains (e.g. where the legislature is addressing new risks or where a regulated technology is undergoing rapid transformation), and under certain circumstances (particularly, when information benefits are high and extension costs are low), routine extension of temporary legislation may in fact maximize social welfare (Gersen 2007;Fagan & Faure 2011;Fagan 2013a). 12 One of the anonymous reviewers questioned the reliance on the explanatory notes in bills, mentioning inter alia, that "there are no clear directives about what has to be provided in the explanatory notes."…”

“…Theoretical scholarship about temporary legislation often emphasizes its informational effects, its ability to produce information and facilitate information‐based policymaking, and to reduce error costs, risks of cognitive bias, and problems of asymmetric information (Gersen ; Finn ; Fagan, ,b; Ginsburg et al . ).…”

“…Admittedly, there have also been scholars that argued that in specific legislative domains (e.g. where the legislature is addressing new risks or where a regulated technology is undergoing rapid transformation), and under certain circumstances (particularly, when information benefits are high and extension costs are low), routine extension of temporary legislation may in fact maximize social welfare (Gersen ; Fagan & Faure ; Fagan ).…”

Time and Law in the Post-COVID-19 Era: The Usefulness of Experimental Law

“…Though legislation becomes highly precarious, various legal techniques are now attempting to remedy this precariousness somewhat. The best is undoubtedly that of 'temporary laws', which from the outset provide that legislation will only be in force for a limited period, being self-repealing after an unavoidable delay (Fagan, 2013). Since the future is open and uncertain, practices of 'experimentation' dominate the survivor time.…”