Research note. How should law keep up with the evolution of society and technology?

Research note by Sofia Ranchordás

Now more than ever, legislators and regulators are required to be ‘smarter’, regulate without stifling innovation, reduce unnecessary burdens on the private sector and update rules, making sure that law does not lag behind. However, law appears to be doomed to have a reactive nature and always walk a few steps behind society and technology. Although we value law for its aspirational stability, certainty and predictable rules, this traditional perception does not seem fit in an ever-changing world. Instead, it might be worth asking whether some laws should not be temporary or even experimental. The idea of temporary legislation is far from being a new phenomenon. Instead, it has a longstanding tradition in common law countries. However, both in civil and common law countries temporary laws are still scarcely employed and there is a great deal of uncertainty regarding their nature and legal framework. This book aims to fill this gap by analyzing two temporary legislative instruments from a comparative perspective: sunset clauses and experimental legislation. This book offers a thorough comparison of the experience of the United States, Germany and the Netherlands with both instruments in the last decades.

Sunset clauses determine the termination of an act or of a number of its dispositions after a determined period of time, unless a retrospective evaluation shows that they are still necessary. Experimental legislation is a broad term which can refer to an array of legislative experiments and experimental regulations. Experimental legislation allows legislators and regulators to try out new rules for a determined period and on a small-scale basis. This is often put in practice in federal contexts, but these forms of legal experimentation have also been put in practice in unitary states such as France and the Netherlands. Sunset clauses and experimental regulations are multifunctional instruments that can be employed in different settings. Both instruments can be used to gather information, overcome a cognitive bias regarding a new social phenomenon or technology or gather consensus regarding controversial legislative proposals.

Despite their numerous advantages, they have been scarcely used. “Constitutional Sunsets and Experimental Legislation” undertakes a journey in search of the reasons why sunset clauses and experimental legislation have not been more frequently used. By considering both legal and non-legal arguments, it aims to demystify traditional objections to these instruments and offer a legal framework for their broader enactment. The book asks questions such as: Do sunset clauses and experimental legislation break with existing legal paradigms and constitutional principles? Or are they compatible with a more dynamic interpretation of these legal principles? Or are there other elements beyond the law susceptible of explaining the reluctance of legislators and regulators?

In this book, I explore the nature and functions of these instruments, and analyze the relationship between them and different fundamental legal principles from a comparative perspective. “Constitutional sunsets and experimental legislation” gravitates around the question: “how should law keep up with the evolution of society and technology?”. And offers sunset clauses and experimental legislation wrapped up in a legal framework as the answer to this question. This is not a mere technical book on temporary legislation. Rather, it is a comparative study that delves into the meaning of the principle of separation of powers and theories of delegation, legal certainty, equal treatment and proportionality in the context of lawmaking in the 21st century.

Sofia May 2014

Sofia Ranchordás is an Assistant Professor of Constitutional and Administrative Law at Tilburg Law School in the Netherlands. Her research interests include comparative constitutional and administrative law, innovation law and policy regulation of sharing economy, and, more broadly, the relationship between time and law.

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