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David Schaub 20, Lecturer in Law and Senior Research Fellow at UC Berkeley School of Law, 7/19/2020, "Doctrinal Sunsets," Southern California Law Review, vol. 93, no. 3, pg. 431-506, christian

Modern attention to the utility and advisability of sunset clauses reignited in the mid-twentieth century, initially as a potential avenue for limiting interest group capture of increasingly powerful federal or state agencies.7 Since then, a robust literature has developed exploring the virtues and vices of sunset clauses. Proponents of the use of sunsets contend that they promote evaluation and reassessment of governmental programs, ensuring that they remain effective and operate within the public interest.8 A sunset clause, Adrian Vermeule observes, “pushes the question onto the legislative agenda a second time and thus encourages the legislature to take a second look at the policy.”9 This reappraisal is argued to promote both governmental efficiency10 as well as democratic values.11 Meanwhile, sunsets may offer more opportunities for compromise and bargaining by lowering the stakes of the dispute. Negotiators may be more willing to accede to a temporary provision that will expire after a given period than one which is slated to have an indefinitely lasting effect. 12

Sunsets also are useful in enabling the acquisition of information by policymakers, which they can use to further tailor policies to better meet political goals.13 Sunsets are a means of facilitating experimentalism in policymaking, allowing “learning-by-doing” and thereby increasing both the effectiveness and legitimacy of laws.14 When a policy is enacted without an explicit end date, it often can persist via inertia alone. By contrast, because a sunsetted law needs to be renewed, it encourages policymakers to gather information and make assessments regarding what works and what does not in order to justify reauthorizing the provision (or to vindicate its abandonment).15

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