The Dual Meaning of Evidence-Based Judicial Review of Legislation

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