Chapter 1: Introduction
Legislatures are inherently limited. Apart from the difficulties posed by collective choice that judicial and administrative lawmaking can largely circumvent, legislatures face additional difficulties adjusting their laws when adjustment is needed or desired. At the very least, repeals or amendments must be placed on the legislative agenda and thus face opportunity cost comparisons across other legislative actions. Unfavorable cost comparisons can slow or indefinitely suspend legislative adjustment. Meanwhile the initial enactment will continue to govern. To the contrary, when legislation is passed temporarily, it can provide more substantive flexibility than permanent legislation. Precise rules need not be codified to govern for an indefinite duration by default, and can instead be adjusted periodically. Moreover, temporary legislation forces itself onto the legislative agenda at expiration; the legislature must decide to extend the provision in its current form, extend it in a different form, or let it expire completely. Early law and economics studies that addressed the optimal levels of statutory and judge-made law such as Ehrlich and Posner (1974) were not so much interested in normatively prescribing one type of law over the other.