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

Abstract

This article presents the findings of an extensive multi‐method empirical study that explored the relationship between temporary legislation, better regulation, and experimentalist governance. Temporary (or “sunset”) legislation – statutory provisions enacted for a limited time and set to expire unless their validity is extended – is often hailed as a key tool for promoting experimental and better regulation. Despite the importance of temporary legislation and the burgeoning theoretical scholarship on the subject, there is still a dearth of empirical studies about how temporary legislation is used in practice. The lack of empirical evidence creates a lacuna in at least three areas of theoretical scholarship, concerning temporary legislation, better regulation, and experimentalist governance. This paper is a first step to fill this gap.

The slippery slope of rights-restricting temporary measures: an experimental analysis

“…However, when policymakers make decisions regarding a proposed policy, they often consider alternatives and evaluate the various options side by side. When policymakers evaluate several options and weigh temporary measures against permanent ones, they may prefer to approve the measures temporarily, since temporary measures are considered less severe (Ginsburg et al, 2014;Bar-Siman-Tov, 2018a). Therefore, when presented with a choice between temporary and permanent measures, people are expected to be more willing to approve the temporary policy.…”

“…For example, in constitutional law, an important aspect of the proportionality principle is that any suspension of human rights should be temporary, and that such suspensions can only be justified in periods of emergency (McGarrity et al, 2012). When there is a need to limit civil liberties or human rights, temporary measures serve as a more proportional solution that causes less harm (Ginsburg et al, 2014;Bar-Siman-Tov, 2018a).…”

The Coproduction of Primary and Secondary Legislation: Israel as a Case Study of Substitutive Relationships

“…In some cases, however, the classification of new primary legislations was difficult. For example, many pieces of legislation are temporary (“sunset”) legislations, which are “laws (or statutory provisions within laws) enacted for a limited amount of time, after which they expire unless their validity is extended” (Bar‐Siman‐Tov , 2). In such cases, we referred to temporary legislations as new if they did not carry a name similar to any previous primary legislation.…”

Legal enclaves as a test environment for innovative products: Toward legally resilient experimentation policies1

“…Statutory experiments fit into and draw from contemporary trends in regulatory theory and practices, such as interactive regulation, evidence‐based regulation and smart regulation (Hanebury 2006; van Gestel & van Dijck 2011; Gunningham & Sinclair 2017; Bar‐Siman‐Tov 2018). Rules are developed in a process of searching and learning (SERV 2016, p. 26), instead of being announced once and for all.…”

“…This article is related to earlier publications on temporary legislation that uncovered the variety of legal constructs that have been deployed over time creating legislation with an initial and intentional openness to revision (van Gestel & van Dijck 2011; Ranchordas 2014; Bar‐Siman‐Tov & Harari‐Heit 2020). However, we do not aim to further this specific legisprudential research, if only because not all temporary legislation is experimental, and not all experimental policies can be facilitated by temporary legislation (Kouroutakis & Ranchordas 2016; Bar‐Siman‐Tov 2018). Nevertheless, in the development of our guidelines that promote legally resilient decision‐making of experiment permissions, we build on this research.…”