Search the archive.

Marmolejo also quibbles with the language of the district court's admonishment. Marmolejo complains the district court used the word "should" instead of "must," suggesting the instruction was just an encouragement and optional rather than mandatory. We disagree. Admittedly, the district court's instruction is cloaked in polite language rather than as a strict command to the jury. But no matter how the district court phrased its admonishment, it did instruct the jury to "disregard any comments or behavior that you may have observed or heard as those people were asked to leave the courtroom." This admonishment, coupled with the jury instruction to consider only the admitted evidence, was a sufficiently curative instruction.

The specifications in the drawings for the mini-piles stated that the capacity for the mini-piles was "to be" 6,000 or 8,000 pounds and that the length of the mini-piles was "to be" adequate to get into undisturbed soil to a depth adequate for obtaining the required capacity. The specifications in the project manual stated that the mini-piles "should" have a capacity of 4 tons and 3 tons, that the mini-piles "should" be driven to minimum depth of 25 feet, and that a grout bulb "should" be formed at the base of a mini-pile. Kenneth Winters, an expert in structural engineering, and Richard Anderson, an expert in geotechnical engineering, agreed with Steve Maranowski, plaintiff's president, that the specifications in the project manual, because those specifications used the word "should," were permissive and suggestions of what plaintiff could do to achieve the required capacity. However, the trial court, when it instructed the jury on how to interpret the contract, instructed the jury that it was to interpret the words of the contract by giving them their ordinary and common meaning. An ordinary and common meaning of the word "should" is that it denotes a mandatory obligation. See People v Fosnaugh, 248 Mich App 444, 455; 639 NW2d 587 (2001) (stating that "the word 'should' can, in certain contexts, connote an obligatory effect"); Merriam-Webster's College Dictionary (11th ed) (defining "should," in pertinent part, as "used in auxiliary function to express obligation, propriety, or expediency"). Accordingly, viewing the evidence in a light most favorable to defendant, reasonable jurors could have honestly reached different conclusions on whether the specifications in the project manual were mandatory and, because Maranowski admitted that plaintiff did not use grout bulbs and did not drive all the mini-piles at least 25 feet into the ground, whether plaintiff breached the contract. Morinelli, 242 Mich App at 260-261.

Of the mind, etc.: Freed from doubt or uncertainty, fixed, settled. Obs.

In some of the most noteworthy cases in recent memory, the Justices of the Supreme Court have conspicuously pressed the defenders of controversial government policies to provide a time frame in which those policies can achieve the government’s asserted interests.1 The desire for some “sunset” to those policies has thus become a notable refrain in the Court’s recent constitutional jurisprudence, particularly in Voting Rights Act and educational affirmative action cases.2 While there is a wealth of scholarship evaluating the characteristics and propriety of general legislative sunset powers and the use of statutory sunset clauses, few evaluations of judicially enforced sunsets on the constitutionality of a government policy exist.

In sum, the benefits of sunset clauses as elements of statutory design generally fall into three categories-deliberative, informational and distributive. This suggests strongly we should expect to see sunset clauses in policy environments dominated by informational uncertainty, risk (both social and electoral) and typified by a high potential for political conflict regarding the allocation of power. In addition, because sunset clauses "allocate transaction costs differently than permanent legislation," 29 we should expect sunsetted legislation to be substantively different than legislation that would otherwise result. This is because "legislators perceive (accurately or not) temporary legislation differently. ' 30

Defendant argues that the use of the word “should” in the court's instructions to the jury left the issue of whether the prosecution proved defendant's guilt beyond a reasonable doubt to the jury's discretion rather than informing the jury that it was obligated to return a not guilty verdict if the prosecution failed to present sufficient proof. Defendant characterizes the word “should” as a permissive request rather than a mandatory command and argues that the use of the word rendered the instructions erroneous under the Due Process Clause. Further, defendant contends that the instructions unconstitutionally lowered the prosecution's burden of proof. Consequently, defendant argues, his conviction must be reversed.

Because we conclude that the common meaning of “should” conveys an obligatory command and not a permissive request and after considering the use of the term in the context of all of the court's instructions, we conclude that the instructions using that word adequately informed the jury of its obligation to adhere to the reasonable doubt standard in deciding defendant's guilt. Further, when the instructions are read in context with the court's general instruction on reasonable doubt, it is evident that the jury was adequately informed of its duty to decide the case based on the law and the evidence offered at trial.

To be sure, providing a sunset does not necessarily mean that legal or political actors will cease believing that it is a natural and inevitable state of affairs that our current suspect classifications deserve that moniker.321 Citizens and judges alike may grow used to the putatively temporary rule and view not renewing as akin to an overt act of repeal.322 But a sunset provision at least reduces the barriers to a rule change by disenabling courts or litigants from relying on stare decisis alone as a reason for keeping the current doctrine intact.323

Both the Bush tax cuts and the Trump administration’s tax cuts impact the deficit because both result in a revenue decrease coinciding with taxing decrease.90 The tax cuts, despite the negative deficit impact, were passed with sunset provisions because the legislation lacked the necessary sixty votes from the Senate.91 Sunset provisions have proven to be the key for parties that lack the necessary majority and the requisite votes to otherwise pass legislation. With sunset provisions, these laws can exist in perpetuity, using the simple majority to continuously pass, impacting the deficit, without the procedurally required super majority.

Once the date of expiration arrived, however, the laws did not sunset as their original manifestation dictated. In 2010, President Obama extended the cuts for another two years, seeking to avert a sudden and dramatic tax increase on American families in the middle of an economic recovery during the recession period.92 The final matter of President Bush’s Tax Act was settled in 2012 when Congress decided which cuts would be made permanent and which would expire, known as the “fiscal cliff” deal.93 The deal made permanent the vast majority of the Bush tax cuts. One estimate found that 82 percent of the Bush tax cuts were made permanent in 2012, meaning a meager 18 percent actually expired, or sunset, as originally intended.94 Despite initial opposition from many Democrats, the fiscal cliff deal passed with large bipartisan majorities in both the House and the Senate, and avoided a significant increase on the tax burden of households making under $250,000.95 With the new Tax Act, when the time comes for the law to sunset, the actuality of such seems less than optimistic. It will likely depend on how the economy is doing at the time. The recent projections for the nation’s deficit and high interest payments paint a dreary picture for the future and the ability of the country to overcome such daunting fiscal setbacks.

Lowi’s idea of sunset provisions started to gain traction in postWatergate America.64 “By setting a termination date on a particular law, a sunset provision is supposed to shift the burden of proof onto those seeking the law’s extension.”65 However, once the law is in effect for several years, it regains the old problem it was trying to fix. After a few years in effect the law had the potential to amass “considerable staying power as the political constituents and interests dedicated to its continued existence developed.”66

Americans are notorious for this dislike of taxes; the tax code is rife with sections that were not intended to be permanent changes, but once people were given a benefit, such as a deduction, it was hopeless to try to take such a significant tax saving device away.67 Take for example, the recent success of graduate students at American colleges to retain the decades old tuition shield, which was threatened by a proposed version of the Tax Act. Many universities waive tuition for graduate students in exchange for their work as teaching assistances and researchers.68 According to Steven Bloom, the Director of Government Relations at the American Council on Education, the House’s tax bill, as it was proposed in November, slashed $65 billion in tax benefits for higher education. 69 Graduate students would be hit the hardest by the repeal of the tuition waiver, which critically shielded their tuition from taxation. The tuition waiver provision functioned essentially as a way to make graduate education more affordable and accessible to the graduate students whose research is considered to provide “crucial knowledge and skills needed to drive the nation’s economy.”70 An analysis by the University of California, Berkeley found the proposed Tax Plan would raise taxes for graduate students by 61 percent for those who are campus teaching assistants and 31 percent for those who are research assistants if the annual tuition waiver became taxable.71 For private footnote institutions, such as MIT, taxes could more than triple.72 Throughout the entire University of California system, 23,000 graduate students received $250 million in tuition benefits in the 2015 to 2016 tax year.73 Increased taxes would discourage Americans from seeking advanced degrees at a time when the country badly needs a better educated workforce.74 Graduate students were lucky; their nationwide walk-outs, protests, and social media presence had some sort of impact in Washington. The final Act kept the tuition waiver, permitting graduate students to let out a sigh of relief as their tuitions remain safe, for now.

With John McCain’s dramatic “no” vote, the Health Care Freedom Act (HFCA) died early last Friday morning and with it any hope of repealing the Affordable Care Act (ACA) for the foreseeable future. While conservatives might prefer to blame incompetent vote-whipping in the Senate, the ACA could prove resilient for the same reason Medicare and Social Security have: most voters prefer not to wonder if they will be able to eat when hungry or see a doctor when sick. Any program that gives more economic security to a broad, politically powerful group will be dangerous to meddle with, even in these polarized times.

Conservative activists and pundits who don’t want to contend with that reality may point to the president they were dealt: Donald Trump knew essentially nothing about health care and he alternated between disengagement and crude bullying of wavering senators ahead of the vote.

Instead of using devices that minimize the impact of systematic mistakes as part of a broader architecture of justice, our judicial system has adopted a system to magnify it. Both the doctrine of stare decisis and the superiority of the Supreme Court over the lower courts exacerbate Supreme Court errors, the former over time, the latter over distance. The stare decisis principle is so entrenched into jurisprudence that even when the Supreme Court realizes it made a mistake-such as Plessy v. Ferguson-it does not often admit the error.31

In these settings, and some others, the judicial sunset provides a method to prevent the automatic magnification of the mistake. The sunset gives the Court a way to convey its uncertainty about the longterm effect of its holding. The Justices may come to a decision in a particular case, but fear that the underpinnings of its decision may evaporate over time. Or they may know themselves well enough to know that they may be overreacting to a potential crisis, but at the same time believe that a generalist court, in the midst of a national security emergency, should not hamstring the executive branch.

Finally, while courts are always free to overturn their own precedents and so adapt to changing factual circumstances on their own initiative, sunsets can serve an anti-inertial function. Some issues may, for a variety of reasons, demand periodic revisitation to maintain judicial legitimacy. Sunsets offer a formalized mechanism for ensuring such revisitation occurs. Other doctrines—particularly fact-tracing and fact-modifying rules— seemingly demand recalibration to ensure that the doctrinal outcomes continue to track the underlying purposes of the rule. Again, sunsets would provide an explicit structure enabling such adjustments to regularly occur.

The regulatory reform movement of the 1970s promoted the use of sunset clauses as a mechanism to improve legislative oversight of the bureaucracy and to increase regulatory efficiency. As Christopher Mooney has written, "[t]he contemporary concept of sunsetting dates from the idealistic political reform movement of the 1970s, which sought to transform a U.S. government considered bloated, in-efficient, and beholden to special interests. ' 16 In The End of Liberalism, Theodore J. Lowi favored sunsets as a mechanism to reinvigorate stagnant government bureaucracies. 17 To counteract the problem of interest-group liberalism, in which bureaucratic agencies were often captured by the interests they were meant to regulate, Mooney writes, "Lowi suggested a 'tenure-of-statutes act' that would set a 'Jeffersonian limit of from five to ten years' on the life of every law creating a federal agency."' 18 "The objective," Mooney notes, "was less to make these agencies disappear than to use the termination date to achieve what Lowi called a 'guillotine effect,' sparking effective legislative oversight and possible reorganization of agencies that had grown too big for their britches." 19 On this view, sunsets can advance the public welfare by ensuring that legislation creating regulatory agencies that have outlived their purpose expire or are replaced by more current public policy tools. The impetus behind the sunset movement was to improve democratic accountability by subjecting bureaucratic agencies to periodic legislative oversight and control.

Sunset clauses can also contribute to ‘greater certainty’ than a permanent law does because, as times goes by, the effectiveness of a rule may diminish.78 The evolution of social circumstances are susceptible of creating new possibilities for legal disputes that are not comprehended by the scope of lasting rules, or potential litigants may try to readjust their conduct in order to avoid the application of this specific rule.79 This growing reduction of the effectiveness of rules may constitute a ground for justifying the need for legal change. In this light, D’ Amato argues that a (judicial) sunsetting of statutes comparable to the amendment of precedents performed by courts, would increase legal certainty and ensure that legislation reflects the changed reality.80

In addition, sunset clauses, if correctly designed and implemented, are susceptible of stimulating long-term investment.81 To wit, in cases involving taxes as the example on tax production credits, a sunset may still accelerate investment because tax payers may fear losing tax benefits. Moreover, ‘a calculable legal system’ in the sense desired by entrepreneurs, does not necessarily mean that private actors may expect that legal systems are solely inhabited by lasting, clear and unambiguous bright-line rules.82 There is a discrepancy between the certainty pursued by lawyers, and the one pursued by economic parties. The latter are mainly interested in the certainty regarding their contractual rights and duties: the consequences of their actions.83 Lawyers, on the contrary, identify legal certainty with the predictability of applying legal rules to specific cases. This is why it has been purported that although lawyers prefer clear, precise and determinate legal rules, entrepreneurs might be often satisfied by vague legal standards as long as they can allow them to calculate the consequences of their actions.84

First, the uncertainty allegedly caused by sunset clauses is merely potential, since sunset clauses do not introduce more uncertainty in the legal order than permanent legislation does.71 In the case of permanent legislation, the legislature can at any time amend existing laws, as long as a sufficient parliamentary support is gathered. This argument is even acknowledged by sceptics of sunset clauses in the United States who agree that ‘permanent legislation [only] creates a certainty illusion, whereby taxpayers are not mindful of the frequent changes of legislation’.72 In addition, no previous warning as to the intention of the legislator to revise laws shall be given, so this ‘surprise effect’ can in abstract interfere with the principle of legal certainty.73 In the case of sunset clauses, sudden amendments before the sunset date are not expected. Any changes or revisions will exclusively be accepted on extraordinary grounds.74 Sunset clauses, if correctly implemented, can provide a greater continuity guarantee and time framework on which citizens can rely.75 In this light, the principle of legal certainty is not endangered but rather furthered by sunset clauses, since the latter can function as an impediment for abrupt and unjustified changes before the sunset occurs.

In this respect, judicial sunsets may be better positioned than their legislative counterparts. Legislatures faced with an upcoming sunset of a high-profile statute may not see increased deliberation so much as increased lobbying by relevant stakeholders seeking to preserve or overturn the status quo.332 But the judiciary is not subject to (or at least is more insulated from) these pressures. While it is an exaggeration to say that judges are immune to public choice influence, it is fair to say that they are less vulnerable to aggressive lobbying efforts or purely self-interested assessments of the facts.333 And while legislators need not explain their votes or explicitly ground them in any sort of principled analysis, the norms of judicial-opinion writing help bring forward some publicly identifiable rationale justifying judicial decisions.

Another procedural aspect that could be included is that behavioral policies could be implemented as so-called sunset laws.Footnote107 A sunset clause causes a statute to expire on a legally specified date.Footnote108 Sunset clauses allow the legislator to govern for a specific limited time. Sunset clauses differ from simple ex post evaluations of a policy or legal provision effect because, in order to be renewed, the clause must be explicitly re-discussed and re-approved. Law and economics scholarship has shown that sunset clauses are more particularly introduced in socially normative and often controversial legislation such as, for example, legislation regulating gun control in the US or domestic surveillance.Footnote109 Temporary legislation (including a sunset clause) may be easier to enact also in controversial policy domains because it governs for a shorter period of time.Footnote110 The major advantage is that it is generally held that this type of legislation allows for an ex post evaluation and learning mechanism.Footnote111 If this evaluation shows that the rules were effective, then they can be adapted and converted into permanent laws.Footnote112

Those arguments may equally apply to the case of behavioral policy-making which is, as one can see from the criticism in both economic and legal scholarship, of a controversial nature. Moreover, scholars encourage the implementation of behavioral policies following experimental procedures in order to facilitate their impact evaluation.Footnote113 The advantage of introducing behavioral policies with a sunset clause is that it facilitates the experiment, while at the same time limiting its duration. An experimental implementation coupled with a sunset clause has, on the one hand, the advantage that the impact of the behavioral policy on the outcome of interest can be estimated. On the other hand, this procedure forces the regulator to base behavioral policy-making (and the eventual extension of sunset clauses) on available evidence. Furthermore, to the extent that behavioral policy-making would have negative or unpredicted consequences (as held by McCrudden and King,Footnote114 who referred to “the dark side of nudging”), the advantage of a sunset clause is that these effects would be limited in time.

It was perhaps because the language of judicial sunsets had not been invented, that the one possible recent example of it, Grutter, was itself hazy. Some of the haze is due, no doubt, to the way in which the Court shoehorned the sunset into the opinion. The Supreme Court for years has insisted on affirmative action having a "logical stopping point."27 But this stopping point was one internal to the program—the term was meant to refer to the time period in the affirmative action policy where the preference should end. In Grutter, however, the Court appears to have imposed an external, judicial stopping point—one that had nothing to do with the University of Michigan policy. The Court said, in essence, that it did not want to give the University carte blanche for all time.28 This does not really appear to be a claim about a "logical stopping point" as such; rather, it appears to be one about the vitality of a Supreme Court opinion in the face of evolving circumstances.

Regardless of whether this 'Judicial sunset" reading of Grutter is descriptively correct, the above characterization of it enumerates a possible template for such sunsets. That is, the Court can hand down an opinion and announce that its holding is entitled to the full effect of the stare decisis doctrine for a set number of years (e.g., "In five years, we will be completely open to reconsideration of these claims."), or that it will be binding law until a designated event (e.g., "Following the cessation of hostilities with Japan and Germany, we will be completely open to reconsideration."). After the elapse of that time period, both lower courts and the Supreme Court would not be bound by the decision, though they could of course follow its reasoning and logic. In effect, the decision would become something akin to an out-of-circuit precedent for a federal court of appeals, in that it would have no formal binding weight as law, but its reasoning could be cited as persuasive authority via an affirmative codification of the old decision.

Major financial legislation is invariably enacted in the wake of a financial crisis. However, legislating following a crisis is hazardous, because information is scarce regarding causes of the crisis, let alone what would be an appropriate response. Compounding the lack of information, crisis-driven legislation is sticky, but financial markets are dynamically innovative, which can undermine the efficacy of regulation. As a result, it is foreseeable that such legislation will contain at least some provisions that are inapt or inadequate or, more often, have consequences that are not well understood or even knowable. This paper advocates the use of sunsetting as a mechanism for mitigating the potentially adverse consequences of crisis-driven financial legislation. With sunsetting, after a fixed time span, legislation and its implementing regulation must be reenacted to remain in force. Such a requirement would compel a timely revisiting of crisis-driven legislation when far more information is available than at the time of enactment.

How Sunsetting Resolves Key Problems of Crisis-Driven Financial Legislation.

There are multiple rationales for sunsetting statutes, including improving the information available to legislators and policymakers for reassessing legislation (40); enhancing legislative oversight over executive agencies to reduce administrative “drift” whereby an agency is following policies contrary to congressional preferences (34); and meeting budgetary requirements in tax laws by limiting duration of a tax credit or reduced rate (41). The rationales are not equally laudable: For instance, tax provisions set to expire are perpetually extended, and sunsetting thereby simply facilitates evading budgetary restrictions (41). However, concern over such a use of sunsetting is orthogonal to our context. Of the rationales for adopting a sunsetting strategy, the key justification in the financial regulatory domain is that sunsetting mitigates the predicament of legislating with minimal information in the aftermath of a crisis. It sets into motion a process by which postenactment information can be incorporated into regulation.