The Role of Lawmakers, Lobbyists, and Scholars in the Normative Evaluation of Timing Rules

12 Pages Posted: 10 Oct 2012 Last revised: 26 Oct 2016

See all articles by Frank Fagan

Frank Fagan

EDHEC Business School

Michael G. Faure

University of Maastricht - Faculty of Law, Metro; Erasmus University Rotterdam (EUR) - Erasmus School of Law

Date Written: October 9, 2011


Professor Rebecca Kysar has written an interesting and informative article on the disadvantages of temporary legislation, or legislation that expires by default, when compared with lasting legislation, or legislation that does not expire by default. The article aspires to move the underlying ideological preferences of lawmakers toward lasting legislation, and represents a needed counterweight to recent scholarship that has advocated temporary legislation, or has at least viewed it less critically. Professor Kysar advocates a policy presumption against temporary legislation and in favor of lasting legislation.

Professor Kysar’s appeal to lawmakers is most forceful with respect to tax policy. She notes that internal congressional rules are easily outmaneuvered, and that budgetary rules therefore do not meaningfully constrain lawmakers. Thus, any long-term budgetary advantage of confining tax cuts and expenditures within the budget window is illusory. Moreover, Professor Kysar notes that temporary tax legislation often produces post-expiration effects that are socially costly, and that temporary tax legislation may lead to higher levels of rent-seeking. All of this leads her toward a conclusion that benevolent legislators interested in minimizing social cost should prefer lasting tax legislation to temporary tax legislation.

She likewise concludes that the social cost of temporary legislation in policy domains other than taxation is likely to be greater than the social cost of lasting legislation, and that legislators should therefore presume to legislate permanently across the board.

The analysis that leads to this conclusion details how the law and economics literature on temporary legislation has understated its costs and overstated its benefits. Lasting Legislation is heavy on criticism of temporary legislation, but perhaps given the scholarly optimism in favor of temporary legislation, this criticism may be partly characterized as pushback. Elsewhere, Fagan has shared some of Professor Kysar’s views on temporary tax legislation, and our Response accordingly focuses on her critique of the “information-producing” and “flexibility” functions of temporary legislation found in Parts III and IV of Lasting Legislation.

Keywords: temporary legislation, sunset clauses, timing rules

JEL Classification: K23, K42

Suggested Citation

Fagan, Frank and Faure, Michael G., The Role of Lawmakers, Lobbyists, and Scholars in the Normative Evaluation of Timing Rules (October 9, 2011). University of Pennsylvania Law Review Online, Vol. 160, No. 61, 2011. Available at SSRN:

Frank Fagan (Contact Author)

EDHEC Business School ( email )

58 rue du Port
Lille, 59046

Michael G. Faure

University of Maastricht - Faculty of Law, Metro ( email )

PO Box 616
Maastricht, 6200 MD
+31 - 43 - 388 30 60 (Phone)
+31 - 43 - 325 90 91 (Fax)


Erasmus University Rotterdam (EUR) - Erasmus School of Law ( email )

3000 DR Rotterdam

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