The Emergence of the Evidence-Based Judicial Reflex: A Response to Bar-Siman-Tov's Semiprocedural Review

Abstract

There is an incipient debate as to whether courts across jurisdictions are embracing new forms of judicial review characterized by greater scrutiny of the political process that accompanies the adoption of the contested act. This article responds to Ittai Bar-Siman-Tov’s theorization of semiprocedural review as a ‘new, distinct model of review’ that, by merging procedural and substantive review, could do justice to this mounting trend. While this article recognizes the emergence of a global ‘procedural trend’ towards greater rationality review in the case law of several national and international courts, it contends that this phenomenon cannot be straightforwardly captured under an autonomous model of judicial review. Rather, after contextualizing this ‘judicial trend’ within a broader process of ‘rationalization of law-making’ that has gradually been occurring, this article demotes this phenomenon as an inevitable and not intrinsically controversial development. In particular, by connecting it to the rapid expansion of regulatory reform programmes and the progressive emancipation of the social sciences within the legal system, this article suggests to apprehend the ever-increasing judicial attention towards the rationality of the policy process within a less ambitious and more nuanced categorization: the ‘evidence-based judicial reflex’. As soon as this new judicial trend is understood and downgraded from a ‘distinct form of judicial review’ to a mere (evidence-based) judicial reflex, the idea that courts may examine the legislature’s decision-making process as part of their determination of the substantive constitutionality of legislation appears less problematic and may entail positive implications for the judiciary and the entire legal system.

Keywords: Judicial review; semiprocedural review; evidence-based judicial review; regulatory reform; legitimacy; legitimate expectations; proof and evidence; judicial humility; behavioural regulation; proportionality

JEL Classification: K00, K20, K23, K33, K40, K41, L50