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Constitutional Sunsets and Experimental Legislation: A Comparative Perspective
Acknowledgements
I Introducing sunset clauses and experimental legislation
Lawmaking in a time of change
INTRODUCTION
The Ignorance Society
An Experiment Named Lawmaking
Setting the Sun on Legislation
STRANGE SILENCES AND GUIDING VOICES
APPROACH AND METHOD
Approach
(a) United States
(b) Germany
(c) The Netherlands
Method
ROADMAP TO CONSTITUTIONAL SUNSETS AND EXPERIMENTAL REGULATIONS
The past and present of sunset clauses and experimental legislation
INTRODUCTION
HISTORICAL BACKGROUND
Sunset Clauses
Experimental Legislation
DEFINITION AND CHARACTERISTICS
Sunset Clauses
(a) Different types of sunset clauses
(b) True sunset clauses and ‘the others’
Experimental Legislation
(a) Different shades of experimental legislation
(b) Other forms of legislative experimentation
(c) Levels of enactment in federal states
FUNCTIONS OF SUNSET CLAUSES AND EXPERIMENTAL LEGISLATION
To Tackle Uncertainty, Lack of Information and Prognosis Problems
To Enhance the Quality of Legislation
(a) Instruments to rationalize the legislative process
(b) To reduce regulatory pressure
(c) Gathering facts and considering evidence-based information
(d) Legislative process converted into a learning path
To Improve the Effectiveness of Public Administration
To Respond to Temporary Problems
To Act as ‘Consensus-Finders’
To Facilitate the Regulation of Innovation
VALUE OF SUNSET CLAUSES AND EXPERIMENTAL LEGISLATION
Nature of the Problem or Sector
Legislative Goals
Forbidden Ground for Temporary Legislation?
CONCLUSION
Separation of powers, delegation and a legality framework
A DIFFERENTIATED APPROACH
SUNSET CLAUSES AND SEPARATION OF POWERS
SEPARATION OF POWERS AND EXPERIMENTAL LEGISLATION
A LEGALITY FRAMEWORK FOR EXPERIMENTAL LEGISLATION
Principle of Legality
Legality Framework
LEGALITY FRAMEWORK AND THEORIES OF DELEGATION
Theory of Essentiality (Wesentlichkeitstheorie)
Non-delegation Theory in the United States
Delegation in the Netherlands
Delegation Doctrines: Preliminary Conclusion
ELEMENTS OF THE LEGALITY FRAMEWORK: CLARIFICATION
Elements of the Statutory Basis: An Example
Goals of the Experiment
Unambiguous Legislative Intent
‘Direction’ and ‘Extent’ of the Experiment
Evaluation Criteria and Transparency
Follow-up Decision
CONCLUSION
II Legal framework
The principle of legal certainty
MEANING AND DIMENSIONS OF LEGAL CERTAINTY
Different Forms and Dimensions of ‘Legal Certainty’
Legal Certainty and the Rechtsstaat or the Rule of Law
LEGAL CERTAINTY AND SUNSET CLAUSES
A ‘Foe’ to Legal Certainty
A ‘Friend’to Legal Certainty
(a) Sunset clauses as a source of certainty
(b) Sunset clauses can tackle uncertainty
LEGAL CERTAINTY AND EXPERIMENTAL LEGISLATION
Experimental Legislation: A ‘Foe’ to Legal Certainty
Experimental Legislation: A ‘Friend’ to Legal Certainty
PRINCIPLE OF LEGAL CERTAINTY: PRELIMINARY CONCLUSION
The principle of equal treatment
INTRODUCTION
MEANING(S) OF THE PRINCIPLE OF EQUAL TREATMENT
PRINCIPLE OF EQUAL TREATMENT AND SUNSET CLAUSES
EXPERIMENTAL LEGISLATION AND THE PRINCIPLE OF EQUAL TREATMENT
Experimental Legislation and Objective Differentiation
Voluntary Participation in the Experiment
EXPERIMENTAL LEGISLATION AND THE PRINCIPLE OF EQUAL TREATMENT: CONCLUDING REMARKS
The principle of proportionality
THE PROPORTIONALITY INQUIRY
GENERAL CONSIDERATIONS ON THE PRINCIPLE OF PROPORTIONALITY
PROPORTIONALITY TEST, SUNSET CLAUSES AND EXPERIMENTAL LEGISLATION
III Beyond the law
Sunset clauses and experimental legislation beyond the law
INTRODUCTION
INTELLECTUAL AND IDEOLOGICAL RELUCTANCE
Intellectual Reluctance
(a) Sunset clauses and the reluctance towards ‘termination’
(b) Experimental legislation and scepticism towards the experimental method
Role of Ideology
LACK OF INFORMATION OR EXPERTISE
POLITICAL RATIONALITY
Political Persistence
Reputational and Electoral Concerns
Capture by Special Interest Groups and Politicians
ENACTMENT OR IMPLEMENTATION PATHOLOGIES
Problems at the Design or Enactment Level
(a) Deficient goals and evaluation criteria
(b) Duration of sunset clauses and experimental legislation
Intricacies at the Implementation Level
(a) Disregard for participation of stakeholders
(b) Evaluation and validity of experiment
(c) Inadequate evaluation or disregard for the results of evaluation reports
COSTS AND BURDENS
PRELIMINARY CONCLUSION
Conclusion
THOUGHTS ON A LEGISLATIVE MIDWAY BETWEEN PAST AND FUTURE
Flexibility in Lawmaking
Learning by Doing
CONCLUSIONS AND INSTRUCTIONS FOR USE
INSTRUCTIONS FOR USE OF SUNSET CLAUSES AND EXPERIMENTAL LEGISLATION
Permanent Legislation: General Guidelines
Temporary Rules
(a) Sunset clauses
(b) Experimental legislation
Limits to the Enactment of Sunset Clauses and Experimental Legislation
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