Unintended Legislative Inertia

Institutional and political forces create strong inertialpressures that make updating legislation a difficult task. As aresult, laws often stagnate, leading to the continued existence ofobsolete rules and policies that serve long-forgotten purposes.Recognizing this inertial power, legislatures over the last fewdecades have increasingly relied on a perceived solution—temporary legislation. In theory, this measure avoids inertia byrequiring 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 andreauthorization.

Temporary legislation often creates its owninertial force, leading to the unintended permanence of whatwas originally believed to be provisional. Using a case studyfrom a large public subsidy adopted as a localized fix to atemporary problem, this Article demonstrates how the subsidyhas inadvertently grown in scope and in size, creating its owninertial pathways that made its repeal exceedingly difficult.Path-dependent dynamics of temporary legislation affect notonly present-day policies, but also the ability of legislatures toresist status quo bias and bring about legal change. This Articleconcludes with normative insights on ways to utilize flexiblerulemaking whilst circumventing legislative inaction. Carefuldesign of expiring provisions that is aware of the inertial powerof temporary legislation can effectively ensure that laws arekept or discarded given their merits, not by force of the past.