European Journal of Law Reform

Article

The Reliability of Evidence in Evidence-Based Legislation

Keywords evidence-based legislation, Institutional Legislative Theory and Methodology (ILTAM), reliable evidence, Professor Robert Seidman
Authors Sean J. Kealy en Alex Forney
Author's information

320152 Sean J. Kealy
Sean J. Kealy is a Clinical Associate Professor of Law, Director of the Legislative Clinics, Boston University School of Law. This article expands upon a concept that he first wrote about in Designing Legislation (APKN, 2011). Professor Kealy wishes to thank Professor Richard Briffault, Joseph P. Chamberlain Professor of Legislation at Columbia Law School, and Professor William W. Buzbee, Georgetown Law School, for reading and commenting on this article at the American Association of Law Schools 2017 Conference.

320155 Alex Forney
Alex Forney earned his Juris Doctor, Boston University School of Law, 2016.
  • Abstract

      As evidence-based legislation develops, and as technology puts more information at our fingertips, there should be a better understanding of what exactly constitutes reliable evidence. Robert and Ann Seidman devoted their professional careers to developing the evidence-based Institutional Legislative Theory and Methodology and teaching it to legislative drafters around the world. Although ILTAM was firmly grounded in – and driven by – evidence, the question becomes what evidence is reliable and a worthy input for the methodology. Further, how can the drafter avoid the misuses of evidence such as confirmation bias and naïve beliefs? We aim to give a guide for using evidence by offering examples of evidence-based legislation in practice and through a proposed hierarchy of evidence from most to least reliable:

      1. Experiments within the jurisdiction / lessons from other jurisdictions.

      2. Information on a topic or issue that was formally requested by the legislature or produced to the legislature under oath or under the penalties of perjury.

      3. Studies / information provided by a government agency.

      4. Expert or scientific studies.

      5. Economic or mathematical models and statistics.

      6. Information provided by special interests.

      7. Stories, apocrypha and uncorroborated tales.


      We hope that this hierarchy provides a starting point for discussion to refine and improve evidence-based legislation.

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