(c) Levels of enactment in federal states

Sunset clauses and experimental legislation can be used both in federal and unitary jurisdictions. As earlier mentioned, in the 1970s sunset clauses were a state phenomenon but there are nowadays examples of federal laws containing these provisions (see below). Since sunset clauses do not involve derogation from existing law and do not reveal particular affinity with the different levels of enactment and implementation, more attention will be paid here to experimental legislation.

Experimentation is common in federal states characterized by a greater diversity of races, cultural backgrounds, religions and political identi- ties.^[1] State and local unities will tend to experiment because ‘different populations have different goals’.^[2] Although most examples come from the United States and Germany, federalism is ‘neither a necessary nor an essential condition for policy [or legislative] experimentation’.^[3] Rather, it has been claimed in the literature that experimentation is ‘a happy incident of decentralization’ which allows for variation of policy solutions: a wide variety of solutions gives a state the possibility of choosing the ‘most desirable policies’.^[4] Rubin and Feeley explain that experimentation can be useful for a decentralized state because the respective subunits usually share goals among each other and with the central level.^[5] The same does not necessarily apply to a federalist system where state governments can define their own goals and are not limited to experimenting with new instruments to achieve common national goals. Experimentation in federal states may be particularly useful in the case of shared competences when the states have to implement federal legislation but have leeway to decide upon the means of implementation.

Distinguishing between the so-called ‘policy variation’, ‘legal transplants’ and experimental legislation in the sense of ‘states as laboratories’ is not a simple task. Policy variation signifies that states, within their competences, act independently in defining their own policies which, if proven successful, can eventually be transplanted to other states. This does not imply the enactment of temporary laws. Such transplantation can be regarded as a part of ‘the grass is greener on the other side’ effect of comparative law. Differently, in the case of experimental legislation, there is a derogation from existing law: in a scenario of shared competences, the federal level may authorize states to derogate from federal provisions on an experimental basis in order to find the best way to implement these rules in the state’s circumstances.

Whereas federalism might particularly stimulate experimentation because ‘multiple truth-seekers are more likely to uncover the truth than a single-seeker’,^[3] Rubin and Feeley stress that the key element lies in the existence of a multiplicity of distinct policy-makers.^[7] A unitary but decentralized government can equally stimulate policy and legislative experimentation, namely, with the aim to develop policy innovation. According to the literature, smaller units such as municipalities should be given the competence to experiment with their own legislative solutions.

Should these experiments work, other units can try to borrow them.^[3] According to a study on the diffusion of innovation, demographic factors and the availability of reduced financial resources were mentioned as correlates of this effect of policy innovation and policy diffusion: small decision-makers can ‘afford’ the luxury of experimenting because they can also afford the risk of failure (see Bryce’ and Brandeis’ positions above).^[9] This is far more serious in the case of an entire nation, which may explain why nation-wide experiments are less common.

The majority of German experimental clauses have been implemented at the level of the Lander (states),^[10] but the Kommunen (municipalities) are equally significant users of this instrument. There appears to be a preference for state or local experiments, since it is substantially more difficult to experiment at a national level due to the high costs involved and eventual lack of cooperation by all the relevant authorities.^[11] As earlier demonstrated, in the Netherlands, experimental regulations and other forms of experiments with law are often implemented by municipalities.

The decision as to which level to choose for the implementation of experimental regulations depends notably on the objective and complexity of the experiment, competences and/or the field at stake.

• [1] See Section 2.4 on the link between experimental legislation, innovationand the value of diversity.
• [2] Yair Listokin, ‘Learning through Policy Variation’ (2008) 118 Yale LawJournal 480.
• [3] Tarr, Laboratories of Democracy?, n. 51 above, 9.
• [4] Malcom M. Feeley and Edward Rubin, Federalism: Political Identity andTragic Compromise (University of Michigan Press, 2008) 26.
• [5] Ibid. 26.
• [6] Tarr, Laboratories of Democracy?, n. 51 above, 9.
• [7] Edward Rubin and Malcolm Feeley, ‘Federalism? Some Notes on aNational Neurosis’ (1994) 41 University of California Los Angeles Review 903,924.
• [8] Tarr, Laboratories of Democracy?, n. 51 above, 9.
• [9] Jack L. Walker, ‘The Diffusion of Innovation among the American States’(1969) 63(3) American Political Science Review 880, 883.
• [10] Freund, Kommunale Standardoffnungs- und Experimentierklauseln imLichte der Verfassung, n. 64 above, 59.
• [11] John Gerring and Rose McDermott, ‘An Experimental Template for CaseStudy Research’ (2007) 51(3) American Journal of Political Science 688, 693.