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 Bibliography