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How a legal instrument can help us avoid becoming stuck in a tired status quo
Contract law is perhaps not a domain that immediately comes to mind when thinking about behaviour and behaviour change. Nonetheless, there is a concept, quite common in certain types of contracts, that recognizes and deals with the all too human tendency, status quo bias, the tendency to opt for keeping things the way they are. What is this legalistic concept, and how could it be useful as a behavioural instrument in other situations than contractual arrangements?
A sunset clause or sunset provision is inserted in a contract to explicitly state which aspects will cease to be effective after a specified date, unless action is taken to renegotiate it. In its simplest incarnation, the clause is implicit: by definition, a fixed-term contract lapses when the specified term comes to an end. But sometimes, establishing a fixed term upfront is not appropriate, or perhaps the contract covers multiple aspects of a relationship, containing certain conditions or obligations that may need reviewing or revising from time to time, while others remain unchanged. Of course, a fixed-term contract can be extended if both parties agree, but sunset clauses offer more flexibility, while serving two purposes. They simultaneously avoid the indefinite continuation of a contract that may no longer be fit for purpose for either or both of the parties, and explicitly invite the active reconsideration of the elements within scope to reflect any changes in external and internal circumstances.
The sun never sets on a legislative status quo
A sunset clause can enable standard contracts, such as supplier agreements, distribution deals and even employment contracts to be tailored to the situation. Certain obligations or privileges (access to a supplier’s know-how, use of warehousing facilities in certain territories, primary work location) thus require revisiting while the principal part carries on. But while sunset clauses are common in contracts, they are rarely, and if so, with great difficulty, used in lawmaking in general.
In most countries, laws that have long become obsolete or irrelevant remain on the statute book amid, naturally, a steady stream of new laws. This leads to an unnecessarily complex and unwieldy legal landscape, and the legal status quo becomes institutionalized.
One example is the USA PATRIOT ACT, enacted after the terror attacks of 9/11, was intended to enhance domestic security and surveillance powers. It did contain several sunset clauses (many of which were subsequently extended), but the lack of broader sunset provisions led to concerns about overreach, privacy and civil rights infringements, and the normalization of extraordinary powers without regular review. In 2020, the sun finally set on the final provisions of the act.
Another one is Daylight Saving Time, introduced to conserve resources during WWII, or the 1970s oil crisis and, at least 5 decades on, still in use in over 50 countries. Its costs and benefits have been hotly debated for years, without a decision being made, and thus the status quo remains in place. A handful of countries (including Russia, Belarus and Turkey, whose strong central power is probably not a coincidence) repealed the measure without a sunset clause. Elsewhere, a sunset clause would likely have helped settle the issue by enforcing a review, with as default a de facto revocation.
But, perhaps not entirely surprisingly, legislators seem to have little appetite for a widespread adoption of sunset provisions in new legislation. After all, who likes to see their hard work wiped away simply because some time has passed? If the law was good enough back then, it’s good enough right now. And so the sun never sets on so many antiquated laws…
Our personal sunset
Could we take a leaf out of the contract law book, and adopt sunset clauses in our private lives or at work? Status quo bias is not without merits: there is much to say for stability rather than change at every occasion. But the circumstances in which the status quo came about may very well no longer apply, leaving us with an outspokenly suboptimal state of affairs, which only persists because it has become entrenched and is never re-evaluated.
While a romantic relationship or a marriage would not necessarily be improved with a broad sunset clause that might mean its termination, it might make perfect sense to identify specific elements that would benefit from periodic review. Anything relating to how the household is run and that is explicitly agreed, would be a good candidate, since the conditions for such an agreement are unlikely to remain the same for the duration. An example might be the household’s financial affairs (e.g., joint and separate accounts, relative contribution to the running costs). Many other aspects of a relationship – each person’s roles and responsibilities, mutual expectations, implicit obligations – might develop rather ad hoc, based on assumptions rather than agreement, and these too would benefit from being evaluated every so often.
Aspects like our spending profile (where does the discretionary money go) and saving patterns (how much to save, how to invest), or our time management (work, chores, leisure) might equally apply within a relationship as on an individual basis. Here too, past decisions may no longer be appropriate in the present.
Then there is work – a full-time job represents roughly a third of our time – which impacts our life in numerous disparate ways, including earnings, job satisfaction, work-life balance, personal development and more. Not only do our needs in each of these areas evolve, so too does the relative importance of them all.
And even smaller decisions like hobbies, memberships and subscriptions, and various routines and habits could benefit from intentionally questioning the status quo we unthinkingly allow to perpetuate. Of course, we cannot adopt the sunset clause entirely in the sense that it is used for laws or contracts – a law can be repealed and a contract terminated, but a division of the chores, or a retirement saving approach that is no longer fit for purpose must be replaced with something else. But a sunset mindset can help us verify whether choices made in the past are still valid.
One fly in the ointment is that we are not only accountable to scrutinize the status quo… we are accountable to ourselves, with only our self-discipline to help us, and none of the legal enforcement means that exist for contractual or legislative sunset clauses. If we fail to conduct the required robust review, we can simply let ourselves off the hook. That won’t do, of course. But there is help in the broader behavioural toolkit. One approach is the use of commitment devices(pair up with a friend or relative and agree that each of you will hassle the other if they are procrastinating, and challenge motivated reasoning favouring the status quo; make a public declaration of when you will revisit which choices on your social media; or simply reserve time in your calendar). Another one is to ceremonialize the process to symbolize its importance: why not have your own personal off-site where you audit your decisions in a serene environment?
In the workplace, the scourge of the inappropriate status quo (“we’ve always done it that way”) is arguably even stronger. Organizational inertia can be even more formidable than personal inertia: many employees will sooner quit than challenge stale working practices, outdated standard operating procedures based on unclear, implicit assumptions, or obsolete HR policies (e.g. for staff appraisal or recruitment). Those who stay mentally check out and numbly accept the status quo. However, organizations have one advantage over individuals: they can call on formal mechanisms that are out of place in a personal context. A sunset process can easily be integrated into existing, regular practices of planning, budgeting and performance reviews, and provide a constructive outlet for frustration with the organizational status quo.
With a little good will, sunsets can make the world a more beautiful place – in more than one way.
Koenfucius 