Publication Date
2021
Abstract
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.
Recommended Citation
Eyal-Cohen, Mirit
(2021)
"Unintended Legislative Inertia,"
Georgia Law Review: Vol. 55:
No.
3, Article 5.
Available at:
https://digitalcommons.law.uga.edu/glr/vol55/iss3/5