Empirical evidence-based legislation and the judicial review of the determining facts of the legislative decision

Abstract

The article discusses the use of empirical evidence for legislative decision making, presenting some theoretical and practical difficulties around it. It argues that there is a lack of conceptual clarity about what is evidence and what are the concrete duties of legislators in producing and considering it. It is explained that the movement towards evidence-based legislation is not the same as empirical legal scholarship, and that the academic production resulting from the latter trend does not necessarily produces (or will produce) evidence-based legislation, even because empirical studies do not always provide clear answers or evidence will not always be determinant for legislation. A potentially conflicting perspective is presented – although also aimed at improving law-making – focusing on the democratic qualities of the legislative process. The syndicability of determining facts via judicial control (evidence-based judicial review) is analyzed, pointing out the dysfunctionalities of the Brazilian practice on this matter. Finally, the article presents some challenges and recommendations regarding the consideration and judicial review of the evidence considered (or not) by legislators.