Search result: 251 articles

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Article

Access_open Privatising Law Enforcement in Social Networks: A Comparative Model Analysis

Journal Erasmus Law Review, Issue 3 2018
Keywords user generated content, public and private responsibilities, intermediary liability, hate speech and fake news, protection of fundamental rights
Authors Katharina Kaesling
AbstractAuthor's information

    These days, it appears to be common ground that what is illegal and punishable offline must also be treated as such in online formats. However, the enforcement of laws in the field of hate speech and fake news in social networks faces a number of challenges. Public policy makers increasingly rely on the regu-lation of user generated online content through private entities, i.e. through social networks as intermediaries. With this privat-ization of law enforcement, state actors hand the delicate bal-ancing of (fundamental) rights concerned off to private entities. Different strategies complementing traditional law enforcement mechanisms in Europe will be juxtaposed and analysed with particular regard to their respective incentive structures and consequential dangers for the exercise of fundamental rights. Propositions for a recommendable model honouring both pri-vate and public responsibilities will be presented.


Katharina Kaesling
Katharina Kaesling, LL.M. Eur., is research coordinator at the Center for Advanced Study ‘Law as Culture’, University of Bonn.
Part II Private Justice

Using Technology and ADR Methods to Enhance Access to Justice

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords ODR, ADR, mediation, online court, e-court, consumer ADR, CADR, CDR, ombudsman
Authors Pablo Cortes
AbstractAuthor's information

    This article discusses how technology and extrajudicial processes can provide a solution to the access-to-justice problem for self-represented litigants. The article first observes the need for efficient dispute resolution processes based on a wider concept of access to justice and argues for greater integration amongst courts and extrajudicial bodies, especially in the consumer sphere where dispute resolution bodies are currently undergoing an institutionalization process as a result of recent EU legislation. Accordingly, it is argued that access to justice for consumers will only be achieved if they have access to either an accountable and effective extrajudicial scheme that offers adjudication or a truly user-friendly and accessible online court that incorporates alternative dispute resolution techniques as the United Kingdom has endeavoured to deliver. To that end, this article examines the policy options for the English Online Court with a particular focus on the challenges faced by litigants in person. Finally, this article submits that dispute system design changes need to be informed by empirical research and a holistic policy strategy on dispute resolution.


Pablo Cortes
Pablo Cortes is Professor of Civil Justice, Leicester Law School, University of Leicester.
Part II Private Justice

Reputational Feedback Systems and Consumer Rights

Improving the European Online Redress System

Journal International Journal of Online Dispute Resolution, Issue 1-2 2018
Keywords reputational feedback systems, consumer’s protection, dispute resolution, ADR, ODR, enforceability, ecommerce, European redress system small claims
Authors Aura Esther Vilalta Nicuesa
AbstractAuthor's information

    The European Union single market needs to tackle an outstanding issue to boost competitiveness and growth: a trust-based redress framework that ensures the effectiveness of consumers’ rights. The current disparities among dispute resolution mechanisms, added to the fact that in practice many do not guarantee participation and enforceability, are serious obstacles to this goal. Trust and the integration of certain dispute avoidance tools added to the regulation of some common enforcement mechanisms are key issues in the field of consumer protection. The goal of this article is to offer some insights within the context of the European Union legislative proposals aimed at improving the current redress system.


Aura Esther Vilalta Nicuesa
Aura Esther Vilalta Nicuesa is Professor of Law, Universitat Oberta de Catalunya (UOC) and member of the National Center or Technology and Dispute Resolution, Massachusetts, Amherst.
Article

Civil Society Perspectives on the Criminal Chamber of the African Court of Justice and Human Rights

Journal African Journal of International Criminal Justice, Issue 1-2 2018
Keywords Malabo Protocol, African Court, Criminal Chamber, International and Transnational Crimes, African Union
Authors Benson Chinedu Olugbuo LLB BL LLM Ph.D.
AbstractAuthor's information

    In June 2014, African Heads of States and Governments adopted the Protocol on the Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights in Malabo, Equatorial Guinea. The Malabo Protocol seeks to expand the jurisdiction of the African Court to international and transnational crimes. This development raises fundamental issues of jurisdiction, capacity, political will and regional complementarity in the fight against impunity in the African continent. The paper interrogates the role of Civil Society Organisations in the adoption and possible operationalisation of the Court in support of the efforts of the African Union to end human rights abuses and commission of international and transnational crimes within the continent.


Benson Chinedu Olugbuo LLB BL LLM Ph.D.
LLB (Nigeria); BL (Abuja); LLM (Pretoria); Ph.D. (Cape Town); Executive Director, CLEEN Foundation, Abuja–Nigeria and Research Associate, Public Law Department, University of Cape Town, South Africa.
Article

The Rome Statute Complementarity Principle and the Creation of the African Court of Justice and Human and Peoples’ Rights

Journal African Journal of International Criminal Justice, Issue 1-2 2018
Keywords Rome Statute, International Criminal Court, complementarity, African Court of Justice and Human and Peoples’ Rights, unwillingness and inability
Authors Muyiwa Adigun LLB, LLM PhD
AbstractAuthor's information

    The Rome Statute places the responsibility of prosecuting crimes recognized under the Statute on state parties and the International Criminal Court (ICC) and will only intervene when such states are unwilling or unable. This is called the principle of complementarity. Thus, African state parties to the Statute are expected to prosecute crimes recognized under the Statute. However, these African state parties and their counterparts who are not parties have decided to create the African Court of Justice and Human and Peoples’ Rights, which, like the ICC, will prosecute the crimes recognized under the Rome Statute if they are unwilling and unable. This study therefore examines the question of whether the creation of the African Court of Justice and Human and Peoples’ Rights is compatible with the obligation of the African state parties under the Rome Statute to prosecute. The study argues that the creation of the Court can be reconciled with the obligation to prosecute under the Rome Statute if the African Union, of which the Court is its judicial organ, is considered to be the agent of the African state parties, which invariably implies that the African state parties are the ones carrying out the prosecution as principals.


Muyiwa Adigun LLB, LLM PhD
LLB, LLM (Ibadan); PhD (Witwatersrand); Lecturer, Faculty of Law, University of Ibadan, Ibadan, Nigeria.
Article

Access_open Keeping complexity alive: restorative and responsive approaches to culture change

Journal The International Journal of Restorative Justice, Issue 3 2018
Keywords Restorative justice, responsive regulation, relational governance, complexity
Authors Gale Burford
AbstractAuthor's information

    The human services are fraught with history of failure related to grasping oversimplified, across-the-board solutions that are expected to work in all situations for all groups of people. This article reviews some of the long-standing and current challenges for governance of programmes in maintaining cultures that safeguard restorative and responsive standards, principles and values, thereby amplifying and enhancing their centrality to relational engagement within families, groups, communities and organisations. Despite their potential for helping groups of people grapple with the complex dynamics that impact their lives, restorative justice approaches are seen as no less vulnerable to being whittled down to technical routines through practitioner and sponsor colonisation than other practices. This article explores some of the ways culture can work to erode and support the achievement of restorative standards, and why restorative justice and regulation that is responsive to the ongoing experiences of affected persons offers unique paths forward for achieving justice. Included in this exploration are the ways that moral panic and top-down, command-and-control management narrow relational approaches to tackling complex problems and protect interests that reproduce social and economic inequality.


Gale Burford
Gale Burford is Emeritus Professor of Social Work, University of Vermont, Burlington, USA. Contact author: gburford@uvm.edu. Disclosure statement: There are no financial conflicts of interest.
Article

Access_open Empirical Legal Research in Europe: Prevalence, Obstacles, and Interventions

Journal Erasmus Law Review, Issue 2 2018
Keywords empirical legal research, Europe, popularity, increase, journals
Authors Gijs van Dijck, Shahar Sverdlov and Gabriela Buck
AbstractAuthor's information

    Empirical Legal research (ELR) has become well established in the United States, whereas its popularity in Europe is debatable. This article explores the popularity of ELR in Europe. The authors carried out an empirical analysis of 78 European-based law journals, encompassing issues from 2008-2017. The findings demonstrate that a supposed increase of ELR is questionable (at best).
    Moreover, additional findings highlight:

    • An increase for a few journals, with a small number of other journals showing a decrease over time;

    • A higher percentage of empirical articles for extra-legal journals than for legal journals (average proportion per journal is 4.6 percent for legal journals, 18.9 percent for extra-legal journals);

    • Criminal justice journals, environmental journals, and economically oriented journals being more likely to publish empirical articles than other journals;

    • More prestigious journals being more likely to publish empirical articles than less-prestigious journals;

    • Older journals being more likely to publish empirical work than younger journals, but not at an increasing rate;

    • Journals being legal/extra-legal, journals in a specific field, journal ranking, or the age of the journal not making it more (or less) likely that the journal will publish empirical articles at an increasing (or decreasing) rate.
      Considering the lack of convincing evidence indicating an increase of ELR, we identify reasons for why ELR is seemingly becoming more popular but not resulting in more empirical research in Europe. Additionally, we explore interventions for overcoming the obstacles ELR currently faces.


Gijs van Dijck
Professor of Private Law at Maastricht University, the Netherlands.

Shahar Sverdlov
Law student at the Vrije Universiteit Amsterdam, the Netherlands.

Gabriela Buck
Law student at Maastricht University, the Netherlands.
Article

Access_open Evidence-Based Regulation and the Translation from Empirical Data to Normative Choices: A Proportionality Test

Journal Erasmus Law Review, Issue 2 2018
Keywords evidence-based, regulation, proportionality, empirical law studies, law and society studies
Authors Rob van Gestel and Peter van Lochem
AbstractAuthor's information

    Studies have shown that the effects of scientific research on law and policy making are often fairly limited. Different reasons can be given for this: scientists are better at falsifying hypothesis than at predicting the future, the outcomes of academic research and empirical evidence can be inconclusive or even contradictory, the timing of the legislative cycle and the production of research show mismatches, there can be clashes between the political rationality and the economic or scientific rationality in the law making process et cetera. There is one ‘wicked’ methodological problem, though, that affects all regulatory policy making, namely: the ‘jump’ from empirical facts (e.g. there are too few organ donors in the Netherlands and the voluntary registration system is not working) to normative recommendations of what the law should regulate (e.g. we need to change the default rule so that everybody in principle becomes an organ donor unless one opts out). We are interested in how this translation process takes place and whether it could make a difference if the empirical research on which legislative drafts are build is more quantitative type of research or more qualitative. That is why we have selected two cases in which either type of research played a role during the drafting phase. We use the lens of the proportionality principle in order to see how empirical data and scientific evidence are used by legislative drafters to justify normative choices in the design of new laws.


Rob van Gestel
Rob van Gestel is professor of theory and methods of regulation at Tilburg University.

Peter van Lochem
Dr. Peter van Lochem is jurist and sociologist and former director of the Academy for Legislation.
Article

Access_open Sustainable Enjoyment of Economic and Social Rights in Times of Crisis

Obstacles to Overcome and Bridges to Cross

Journal European Journal of Law Reform, Issue 4 2018
Keywords social and economic rights, austerity measures, Euro crisis, defaulting countries
Authors Dr. Natalie Alkiviadou
AbstractAuthor's information

    In 2008, the European Union was hit by the most severe financial downturn since the Great Recession of the 1930s. One of the major consequences of this phenomenon was the deterioration in the enjoyment of human rights, in particular economic and social rights. While it is indisputable that the crisis itself was directly correlated to the erosion of such rights, the conditions attached to the loan agreements between defaulting countries and the three lending institutions, namely the International Monetary Fund (IMF), the European Central Bank and the European Commission, have negatively affected the rights under consideration. Loans came with strict austerity measures, such as public expenditure cuts in the realm of, inter alia, public services, benefits and social security. This article considers the deterioration in the enjoyment of economic and social rights by Union inhabitants and particularly the anti-crisis strategy adopted by the European Union, which, as will be demonstrated, directly contributed to this deterioration. The stance of the three institutions was facilitated by the less than proactive, but improving, positioning of the Court of Justice of the European Union in case law, which will be assessed. It must be noted that it is not the three institutions acting alone in this process; the Member States are the ones who agree to the loans and their conditions and implement austerity measures on the ground. However, as will be reflected, the practical role and actual input of the countries themselves in this procedure is limited. The central theoretical tenet of the article is that the European Union is re-shifting its direction to the almost absolute adoption of an economic constitution, with little regard to its social counterpart. Within the aforementioned framework, this article seeks to assess the status of economic and social rights in a crisis-hit Union, provide a theoretical explanation for this occurrence and put forth possibilities for positive change, placing the protection and promotion of economic and social rights at the heart of any responses to crisis as a method to ensure their sustainable protection effectively.


Dr. Natalie Alkiviadou
Dr Natalie Alkiviadou is a Lecturer at the University of Central Lancashire Cyprus.
Article

Plain Language

A Promising Tool for Quality Legislation

Journal European Journal of Law Reform, Issue 4 2018
Keywords plain language, clarity, precision, accessibility, interpretation
Authors Kally K.L. Lam LLB
AbstractAuthor's information

    The hypothesis of this article is that plain language drafting with innovative drafting techniques can improve the quality of legislation. Further to this, the article tries to prove that quality legislation can also make the law more accessible to its general audience. With regard to quality, the article assesses plain language drafting with innovative drafting techniques using Helen Xanthaki’s criteria of quality in legislation, i.e. that it should be clear, precise and unambiguous. With regard to accessibility, it is defined broadly as to include readability. I will first assess whether plain language drafting with innovative drafting techniques can meet the expectations of its general audience and second discuss whether legislation drafted in plain language with innovative techniques passes the usability tests.


Kally K.L. Lam LLB
Kally K.L. Lam, LLB (University of Hong Kong), LLM (University of London) is Solicitor (Hong Kong).
Article

The Suprema Lex of Malta

A Forgotten Law in Legislative Drafting, Statutory Interpretation and Law Making?

Journal European Journal of Law Reform, Issue 4 2018
Keywords Maltese Law, legislative drafting, statutory interpretation, law making, supreme law
Authors Kevin Aquilina
AbstractAuthor's information

    Although the Constitution of Malta is the supreme law of the land, yet, in practice, the three principal organs of the state – the legislature, executive and judiciary – have, in certain respects exemplified in this article, tended to close their eyes to the provisions of the supreme law of the land to such an extent that legislation, government action and judicial pronouncements have breached the basic law. Without attempting to be all-inclusive, the article discusses a few illustrations where this has been the case and reflects upon this institutional behaviour where the Constitution is not upheld as the supreme law of Malta but is instead derided and disparaged. Consequently, fundamental principles of state governance such as the tenets of a democratic society and the rule of law end up being threatened and imperilled by those same institutions which are called upon to respect them. Nevertheless, the Constitution proclaims itself supreme over any other law and the organs it establishes, including the three principal organs of the state which are assaulting it, and embodies within its fold the rule of law which at the current state of play is passing through a critical phase in the state of Malta.


Kevin Aquilina
Professor Kevin Aquilina is Dean of the Faculty of Laws at the University of Malta.
Article

Politics and Pragmatism

The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights

Journal East European Yearbook on Human Rights, Issue 1 2018
Keywords Constitutional Court of the Russian Federation, European Court of Human Rights, Russia
Authors Bill Bowring
AbstractAuthor's information

    After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law?


Bill Bowring
Professor of Law, Birkbeck College, University of London.
Article

The Margin of Appreciation in the ECtHR’s Case Law

A European Version of the Levels of Scrutiny Doctrine?

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords ECHR, judicial deference, levels of scrutiny, margin of appreciation, U.S. federalism
Authors Koen Lemmens
AbstractAuthor's information

    Although the American doctrine of levels of scrutiny and the European concept of margin of appreciation are regularly compared as typical instances of deferential judicial decision-making, this article argues that owing to the institutional setting in which they operate, the differences between the two are notable. It is also argued that the social consequences of the application of the two concepts may even be radically opposed.


Koen Lemmens
Associate professor of Public Law at KU Leuven (Belgium) and press law VU Brussels (Belgium). The author thanks Toon Agten for his comments and Camille Van Peteghem for her assistance during research. The usual disclaimer applies. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

Federalization through Rights in the EU

A Legal Opportunities Approach

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords EU Charter of Fundamental Rights, Federalization, Integration, Legal change, Legal opportunities, Litigation, Scope of application
Authors Marie-Pierre Granger
AbstractAuthor's information

    While academic contributions abound on the reach and impact of the European Union (EU) system of fundamental rights protection, and notably on the desirability of a more or less extensive control of Member States’ actions in light of the rights protected by the EU Charter of Fundamental Rights, there have been few attempts to explain the dynamics of integration-through-rights in the EU. This article proposes an explanatory framework inspired by a legal opportunities approach, which emphasizes the relevance of national and EU legal opportunities, and interactions between them, in determining the actual scope and pace of federalization through rights in the EU. It suggests that the weaker the legal opportunities for fundamental rights protection are at the domestic level, the greater the federalizing pressure is, and call for more empirical comparative studies to test this framework out.


Marie-Pierre Granger
Associate Professor, Central European University, Budapest. The development of the conceptual framework proposed in this article was inspired by empirical studies on France and Hungary carried out within the EU-funded project ‘bEUcitizen: barriers towards EU Citizenship’ under the FP7 programme (Grant agreement 320294). This volume (The EU Bill of Rights' Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets `Momentum' Research Group.
Article

The Harmonization Potential of the Charter of Fundamental Rights of the European Union

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords application of EU law, Article 51 of the Charter, Charter of Fundamental Rights of the EU, Court of Justice, jurisdiction of the Court of Justice, market freedoms, spontaneous harmonization
Authors Filippo Fontanelli and Amedeo Arena
AbstractAuthor's information

    This article discusses two underrated and connected aspects that determine the applicability of the EU Charter on Fundamental Rights to Member State measures. First, the Charter can be a decisive standard of review for domestic measures only when they are covered by EU law but are not precluded by it. In this respect, the distinction between non-preclusion and non-application of EU law has been overlooked by legal scholarship. Second, because the scope of application of EU law and that of the Charter are identical, the latter suffers from the same uncertainties as the former. This article concludes that the entry into force of the Charter has exposed the blurred contours of the application of EU law, in particular in the area of the market freedoms. As a result, a certain spontaneous harmonization of human rights protection has emerged.


Filippo Fontanelli
Respectively, Senior Lecturer in International Economic Law, University of Edinburgh; and Associate Professor, Università degli Studi di Napoli ‘Federico II’. The work is the outcome of both authors’collaboration. Amedeo Arena drafted sections A to C, Filippo Fontanelli drafted sections D to G.

Amedeo Arena
A previous version of this work appeared in M. Andenas, T. Bekkedal & L. Pantaleo (Eds.), The Reach of Free Movement, Springer, TMC Asser Press, 2017, p. 293-312. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Article

The Sovereign Strikes Back

A Judicial Perspective on Multi-Layered Constitutionalism in Europe

Journal European Journal of Law Reform, Issue 2-3 2018
Keywords Constitutional identity, constitutionalism, fragmentation, globalization, multilayered constitution, sovereignty, trust
Authors Renáta Uitz and András Sajó
AbstractAuthor's information

    The supranational web of public law is often described as a new constitutionalism. It emerged in a globalized world together with global markets. In the course of the multilayered constitutional experiment, the old, national constitutional framework had lost its ability to deliver on the key features associated with constitutionalism: limiting the exercise of political powers and preventing the arbitrary exercise thereof. In the multilayered era it has become difficult to pinpoint the centre of authority. Ultimately, someone needs to govern, if not for other reasons, at least to avoid chaos. Is it possible to have the guarantees of freedom, rule of law and efficiency that a constitutional democracy seems to provide in a system where there is no sovereign with authority?


Renáta Uitz
Renáta Uitz is Professor, Chair of the Comparative Constitutional Law Program, Department of Legal Studies, Central European University, Budapest.

András Sajó
András Sajo is University Professor, Central European University, Budapest. This volume (The EU Bill of Rights’ Diagonal Application to Member States. Ed. Csongor István Nagy) was published as part of the research project of the HAS-Szeged Federal Markets ‘Momentum’ Research Group.
Law Review

Access_open 2018/1 EELC’s review of the year 2017

Journal European Employment Law Cases, Issue 1 2018
Authors Ruben Houweling, Catherine Barnard, Zef Even e.a.
Abstract

    This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks.


Ruben Houweling

Catherine Barnard

Zef Even

Amber Zwanenburg

Daiva Petrylaitė

Petr Hůrka

Jean-Philippe Lhernould

Erika Kovács

Jan-Pieter Vos

Andrej Poruban

Luca Ratti

Niklas Bruun

Francesca Maffei

Estelle Zinsstag

Ivo Aertsen

Lode Walgrave

Fernanda Fonseca Rosenblatt

Stephan Parmentier
Article

From Legal Imposition to Legal Invitation

From Transplants to Mutual Learning, Benchmarks and Best-Practice-Inspiration

Journal European Journal of Law Reform, Issue 1 2018
Keywords legal transplants, comparative constitutional law, endurance of constitutions, transposition of EU directives, Councils for the Judiciary
Authors Wim J.M. Voermans
AbstractAuthor's information

    Ever since Alan Watson published his thought-provoking book on legal transplant, legal scholars seem to have imported their own ‘do-institutions-matter’ debate. Strong positions have been taken in the debate on the possibility of legal transplants. Some deem context-free legal transplants impossible or at least unwarranted, whereas others rally for a more liberal stance. Bob and Ann Seidman were always working at the heart of this most topical, scholarly debate – one of the most interesting debates on the crossroads of law and (political) societies in our age of globalization. This article tries to get at the heart of the debate on legal transplants, which is rooted in the immediate wake of decolonization and the ideological strife during the Cold War. Since then the world has changed dramatically. We now live in the age of globalization and possibilities for mass communication, information sharing and cooperation in ways unfathomable 40 years ago. This has undoubtedly had an impact on how jurisdictions learn and borrow legal concepts, rules and solutions from one another. Have these new developments and experiences outdated the legal-transplant debate or is it still relevant? The article argues that Bob and Ann Seidman’s position in the debate is still very relevant for present-day practices of legal borrowing and legal transplants. Key to this is their notion of contextual legal-legitimacy.


Wim J.M. Voermans
Wim Voermans is professor of Constitutional and Administrative Law at Leiden University, Director of the Institute of Public Law at Leiden Law School and vice-President of the International Association for Legislation (IAL).
Article

The Reliability of Evidence in Evidence-Based Legislation

Journal European Journal of Law Reform, Issue 1 2018
Keywords evidence-based legislation, Institutional Legislative Theory and Methodology (ILTAM), reliable evidence, Professor Robert Seidman
Authors Sean J. Kealy and Alex Forney
AbstractAuthor's information

    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.


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.

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