Expiring laws to stop legal rot
Refresh laws every few decades to keep them up-to-date.
There’s a regulatory ratchet that causes legal systems to grow more complicated and dysfunctional over time.
It follows the same basic pattern. Something bad happens and people decide that there ought to be a law preventing the bad thing from happening1. A law gets enacted regardless of whether it accomplishes its goal or has side effects2. Then, it sticks around forever because laws are persistent. Even well-intentioned laws remain long enough to go hilariously out of date.
Most of these laws are harmless, but some are truly damaging. Take the Jones act, a 103-year-old law that has damaged the U.S. shipping industry, blocked offshore wind projects, and hampered the U.S. Navy. The domestic shipping industry that benefits from the Jones act will do everything they can to block its repeal. There are dozens of such laws preventing people from building housing, public transit, and clean energy.
This is not anyone’s vision of a capable, dynamic state. It’s undemocratic for laws passed by long-dead representatives to bind the citizens of today. Thomas Jefferson thought the constitution should be renegotiated every 20 years:
… let us provide in our constitution for its revision at stated periods. What these periods should be, nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness …
So here’s a simple fix: every law expires 20 years after it’s signed34. A month before its expiration date, that law automatically comes up for a vote with no option to delay or avoid the vote. That way, truly critical laws are constantly in place.
If repealed, we can always pass a similar bill, but legislators have to make an active decision to do so, and will likely take the opportunity to modernize the law. Another benefit is that it forces interest groups to constantly defend their position rather than passing a piece of legislation and resting on their laurels.
There is probably a more principled way to address legal rot, such as having an independent body flag laws that have passed their prime while leaving ones that are truly valuable5. But requiring our representatives to explicitly reconsider old laws passed may be sufficient to address the problem.
The same thing happens at the level of regulatory agencies. They are rewarded for preventing bad things from happening rather than for the good things that they allow to happen. Over time, they learn to prevent things from happening in general. Every newsworthy event creates pressure to increase their protection and it’s hard to see the harms caused by more regulation.
Interest groups also pile on by adding laws that help them.
We could also try to address this by educating people about omission bias or constraining the types of things that the legal system can regulate.
Addressing the Godel loophole, the law that laws expire does not itself expire.
It would be pretty helpful to have the Congressional Budget Office do a cost-benefit analysis of existing regulations to identify which ones need amendment.
100% agree with you here. I have been making this argument for a while now. Government is asymmetrical; okay at creating laws and regulations, but terrible at removing them. We need a mechanism to address outdated and nonfunctional laws and regulations. In an upcoming piece at Risk & Progress, I wrote:
"…I have long been a critic of unidirectional government; governments appear only capable of creating new laws and regulations and are poorly equipped to remove or edit older ones. Thus, I also envision a third branch, very loosely modeled after the Nomothetai in ancient Athens, which was tasked with reviewing and editing law. Via this third branch, anyone could challenge an existing law, take it before a ‘court’ of appointed experts and laymen, and make their case as to why it should be abolished or revised. The third branch could make the changes itself or punt it back to the legislature with recommendations…This helps prevent the gradual buildup of “non-functional” laws and regulations that, stifle growth and prosperity."
Perhaps better would be that any new law has to repeal two old laws. After a couple of generations there would be only the minimum number of laws required for a sane society. People would, because they could, choose to get rid of laws that empower the already powerful capital interests.
New laws should be petitioned by people and not the lobby industry.
Each law should fir on a folded sheet of paper, 4 pages and be open to public who can lobby their representatives.
Lastly to make sure the representatives will advance the will of the people make it easier to leave office, Any person can at any time raise a vote of no confidence in any official for a modest admin fee of say $100 and co-signers in the number of say 10% of the votes that the representative received to reach office. If in the vote the representative receives a majority of OUT votes that is more than they received to enter office they are out on their ear. Politicians should be scared of the people so they do what the people ask of them. While they are scared of their campaign funders/lobby industry they will be beholden to them.