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(b) Experimental legislation

Contrary to sunset clauses, experimental regulations aim at continuity and are part of an iterative ‘learning’ or ‘persuasion’ process that allows the legislator to gather more information regarding either the nature of a new problem, product or service or new legal dispositions translating a new approach to an existing situation. The gathered informational elements can be valuable not only to obtain more information about the effects and side-effects of new rules but also to convince political opponents about the advantages of the introduction of an innovation in the legal order. Experimental regulations are a first step in the enactment of laws that aim at being permanent but which require at first cautious steps to avoid the whole jurisdiction being exposed to the risk of failure of the new law.

In brief, experimental regulations should be the legislator’s first choice in the following scenarios: (a) where the legislator is required to regulate new social or technological problems, products or services; (b) where little is known about such problems, products or services, either regarding their nature or their regulation; (c) where incremental changes in the regulated field may be expected, justifying an experimental adaptation of regulation to new realities; (d) where the legislator aims to confer flexibility on the regulation of a rapidly changing field, by experimenting with rules that can ensure the adaptability of regulation to new social and technological phenomena.

Experimental legislation must be ‘handled with care’ so as not to be misused by politicians who seek the appearance of evidence to disguise their political statements, instead of using facts to further demonstrate them. When enacting experimental legislation, the Congress and national parliaments should remain, to a great extent, the master of the experiment, formulating (a) the explicit goals of the experiment; (b) the direction, extent and scope of the experiment; (c) its duration; (d) the evaluation criteria; and (e) a reasonable deadline for the institution implementing the experiment to decide on the evaluation report.

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