The Dual Meaning of Evidence-Based Judicial Review of Legislation

4(3) The Theory and Practice of Legislation, December 2016, Forthcoming

27 Pages Posted: 5 Aug 2016 Last revised: 10 Nov 2016

Date Written: August 3, 2016

Abstract

This article contributes to the nascent debate about the globally emerging, yet largely undefined, phenomenon of evidence-based judicial review of legislation, by offering a novel conceptualization of evidence-based judicial review. It argues that evidence-based judicial review can have two related, but very different, meanings: one in which the judicial decision determining constitutionality of legislation is a product of independent judicial evidence-based decision-making; and the other in which the judicial decision on constitutionality of legislation focuses on evidence about the question of whether the legislation was a product of legislative evidence-based decision-making.

The article then employs this novel insight about the overlooked dual meaning of evidence-based judicial review to shed new light on some of the major debates about this phenomenon, such as: whether it should be understood as part of substantive or procedural judicial review; the relationship between evidence-based judicial review and evidence-based lawmaking; and the role of legislative findings in constitutional adjudication.

Keywords: Evidence-Based Judicial Review, Evidence-Based Lawmaking, evidence-based decision-making, Rational Lawmaking, Due Process of Lawmaking, Legislative Findings, Congressional Findings, Substantive Judicial Review, Procedural Judicial Review, Semiprocedural Judicial Review

Suggested Citation

Bar-Siman-Tov, Ittai, The Dual Meaning of Evidence-Based Judicial Review of Legislation (August 3, 2016). 4(3) The Theory and Practice of Legislation, December 2016, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2818007

Ittai Bar-Siman-Tov (Contact Author)

Bar-Ilan University Law Faculty ( email )

Faculty of Law
Ramat Gan, 52900
Israel
972-3-7387071 (Phone)
972-3-7384096 (Fax)

HOME PAGE: http://law.biu.ac.il/en/node/1726#tabs-tabset-1

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