This book examines the uncertainties which arise when courts have to deal with complex empirical data and contested scientific evidence in public interest cases, but lack the necessary knowledge and training to do so. Expert contributors explore the strategies, methods and techniques applied by the courts to inform their decisions, reduce uncertainty and assist proportionality assessments.
Moving beyond mainstream legal thinking, which evaluates whether courts should engage with policy making, the contributors investigate the ways in which courts are actively interacting with this process. Chapters explore how courts are often hesitant to collect empirical data or scientific evidence and yet sometimes rely on this kind of evidence too easily when it is brought by self-interested litigants. The contributors present solutions to make courts less dependent on the adversarial system, revealing how courts are eager to avoid a battle of the sciences. They analyse the dependence of courts on legal principles, the procedural rules which distribute the burden of proof and ways of outsourcing complex factual issues to third party experts.
Judicial Policy Making, Empirical Data and Scientific Evidence is a vital resource for scholars and students of constitutional and administrative law, research methods and law and politics. It is also beneficial for practitioners dealing with cases involving empirical data and scientific evidence.
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Judicial Policy Making, Empirical Data and Scientific Evidence offers invaluable insight into an unavoidable problem that courts everywhere face. Lawsuits routinely pose complex questions implicating data and scientific evidence, and they require judges without technical training to provide answers. The theoretically rich but grounded essays in this volume present a pathbreaking comparative legal perspective on how judges do and should grapple with this challenge. The volumes indispensable guidance will strengthen judges capacities to forge public policy wisely, evenhandedly, and expertly. -- David Marcus, University of California, Los Angeles, USA How should judges approach their difficult, institutional-legitimacy-testing mandate of reviewing complex policy choices made on the basis of sometimes imperfect empirical data? It is hard to think of a more illustrious cast of authors than the contributors to this volume to discuss this important question. -- Theunis Roux, UNSW Sydney, Australia
Contents
1 Introduction to Judicial Policy Making, Empirical Data and
Scientific Evidence 1
Rob van Gestel, Jurgen de Poorter and Edward L. Rubin
PART I THE PROMISE OF EMPIRICAL EVIDENCE IN
JUDICIAL POLICY MAKING
2 Why courts can only tell the truth with statistics 25
Edward L. Rubin
3 Discrimination by generalisation: about judicial use and abuse
of statistics in anti-discrimination cases 69
Juliana de Augustinis and Rob van Gestel
4 Adopting the gold standard: field experimentation for
evidence-based judicial lawmaking 100
Arthur Dyevre
PART II THE PROBLEMS OF EMPIRICAL EVIDENCE IN
JUDICIAL POLICY MAKING
5 The design of judicial deference and the use of scientific
evidence in constitutional public interest litigation 114
Niels Petersen
6 Empirical evidence in equality law-making 136
Alysia Blackham
7 Unreliable science in the courtroom: shifting the courts focus
from assessing the substance of an experts analysis to the
process by which it was produced 169
Wendy Wagner
8 The misuse of AI in US sentencing 213
Jed S. Rakoff
PART III BALANCING THE PROMISE AND THE PROBLEMS
9 Macro effects in climate change mitigation cases: four
empirical challenges 227
Elbert de Jong
10 Climate science and the courtsscience takers or science
makers? 246
J.B. Ruhl
11 Courts and expertise in environment dispute resolution a
tale of two models 266
Sharngan Aravindakshan and Dewy Pistora
Conclusion 291
Rob van Gestel, Jurgen de Poorter and Edward L. Rubin
Index 309
Edited by Rob van Gestel, Professor of Theory and Methods of Regulation, Department of Private, Business & Labour Law (PBLL), Tilburg University, Jurgen de Poorter, Professor of Administrative Law, Department of Public Law and Governance,Tilburg University, the Netherlands and Edward Rubin, Distinguished University Professor of Law and Political Science, Vanderbilt University, USA
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