Institutional and political forces create strong inertial pressures that make updating legislation a difficult task. As a result, laws often stagnate, leading to the continued existence of obsolete rules and policies that serve long-forgotten purposes. Recognizing this inertial power, legislatures over the last few decades have increasingly relied on a perceived solution -- temporary legislation. In theory, this measure avoids inertia by requiring legislators to choose to extend a law deliberately.
This Article argues that temporary legislation is a double-edged sword. While some temporary laws ultimately expire, many perpetuate through cycles of extension and reauthorization. Temporary legislation often creates its own inertial force, leading to the unintended permanence of what was originally believed to be provisional. Using a case study from a large public subsidy adopted as a localized fix to a temporary problem, this Article demonstrates how the subsidy has inadvertently grown in scope and in size, creating its own inertial pathways that made its repeal exceedingly difficult.
Path-dependent dynamics of temporary legislation affect not only present-day policies, but also the ability of legislatures to resist status quo bias and bring about legal change. This Article concludes with normative insights on ways to utilize flexible rulemaking whilst circumventing legislative inaction. Careful design of expiring provisions that is aware of the inertial power of temporary legislation can effectively ensure that laws are kept or discarded given their merits, not by force of the past.
Unintended Legislative Inertia,
Ga. L. Rev.
Available at: https://scholarship.law.ua.edu/fac_articles/684