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Home arrow Law arrow Constitutional Sunsets and Experimental Legislation: A Comparative Perspective

(a) United States

In the United States, sunset clauses were mainly used at state level to tackle the overwhelming power of agencies in the 1970s,[1] but they have also been more recently adopted by Congress in the fight against terrorism (USA Patriot Act).[2] In addition, a substantial number of programmes aiming to stimulate investments in research and development (R&D) have included sunset clauses.[3] Since the United States has a long experience with the implementation of sunset clauses, valuable lessons can be drawn from the rise and failure of state sunsets.

Experimental legislation has a relatively old tradition in the United States, and some examples date back to child labour laws at the very beginning of the twentieth century.[4] Moreover, policy and legislative experimentation has been regarded here as a motor of innovation and an instrument to further federalism. In 1932, Justice Brandeis, dissenting in New State Ice Co. v. Liebmann, pled for ‘power in the States and the Nation to remold, through experimentation, our economic practices and institutions to meet changing social and economic needs’.[5] Brandeis stated that ‘it [was] one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country’.[6] Most experiments with laws are still performed at state level through the use of waivers: states may apply for an exemption of the observance of a number of federal dispositions, experimenting with policy and legislative solutions that fit their socioeconomic conditions. As it will be explained later in this book (see Chapter 2), experimental regulations are also conceivable at the federal level and federal agencies could benefit from this instrument when regulating complex problems.

  • [1] Dan R. Price, ‘Sunset Legislation in the United States’ (1978) 30(3)Baylor Law Review 401.
  • [2] John E. Finn, ‘Sunset Clauses and Democratic Deliberation: Assessing theSignificance of Sunset Provisions in Antiterrorism Legislation’ (2010) 48 Columbia Journal of Transnational Law 442.
  • [3] Wendy H. Schacht, Cooperative R&D: Federal Efforts to Promote Industrial Competitiveness, Report for Congress, Order Code RL33526 (CongressionalResearch Service, 2008).
  • [4] ‘New Labor Law works well: experimental statute in Capital reducesnumber of children employed’, New York Times, 24 August 1909: experimentallaw introduced in the District of Columbia in 1908 imposed work permits andlimited child labour to an eight-hour day.
  • [5] Justice Brandeis, dissenting, in New State Ice Co. v. Liebmann, 285 U.S.265, 303; 52 S. Ct. 371; 76 L.Ed. 747 (1932).
  • [6] Ibid. 311.
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