Evidence-based legislation
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Through Data, Legislature and Cost–benefit analysis
Overview
The concept of Evidence-based legislation was first introduced by psychologist Gerald T. Kaplan during a conference titled "At the Margins. A Conference on Sex Offender Management in Minnesota 2006. Policy and Management Options for the Most Dangerous Sex Offenders". The conference, held on February 24, 2006, in Minneapolis, Minnesota, was organized by Eric Janus, Esq. Vice-Dean of the William Mitchell College of Law, and centered on policy considerations for managing dangerous sex offenders.
The conference highlighted that legislation concerning sex offenders often gets passed in response to public sentiment and fear, neglecting the need for rational policy deliberation and assessment of potential consequences. Drawing from the evolving standard of evidence-based medicine, Kaplan proposed a similar standard for legislatures when drafting legislation, particularly in areas prone to swift legislative action in reaction to emotionally charged incidents, such as publicized sex crimes. Although initially applied to legislation affecting sex offenders, this evidence-based approach can be extended to other legislative areas.
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History
The emergence of evidence-based legislation as a recognized concept is a recent phenomenon, with scant references in legal or academic literature until contemporary times. It was first acknowledged in legal discourse in a publication by Shajnfeld and Krueger. This paper, along with a book by Jenkins, scrutinizes the often irrational approach towards prior sex offender legislation, suggesting "evidence-based legislation" as a countermeasure. The objective is to avert the continued promulgation of emotionally charged, reactionary laws, particularly concerning the management of sex offenders and the reduction of sexual crime. Such hastily enacted laws often fail to adequately consider their practical and economic implications.
The notion of evidence-based legislation also appeared in an op-ed in the Los Angeles Times on March 11, 2007, titled "The new American witch hunt," authored by Richard B. Krueger, M.D.
Cost-Benefit Analysis in Evidence-Based Legislation
Cost-benefit analysis (CBA) serves as a fundamental tool within the framework of evidence-based legislation (EBL). By comparing the anticipated costs and benefits of a proposed legislative action, CBA provides policymakers with a quantitative method for decision-making. This process aids in ensuring that the proposed laws or regulations are economically efficient and beneficial.
The integration of cost-benefit analysis into administrative decision-making was formalized in the United States by President Ronald Reagan's in 1981. The Order set forth five general requirements, the first of which stated that "Administrative decisions shall be based on adequate information concerning the need for and consequences of proposed government action." This mandate underscored the importance of using empirical data, including cost-benefit analyses, as a cornerstone for policy and legislative decisions.
While subsequent administrations have made modifications to the executive order, the fundamental principle of using cost-benefit analysis in policy-making has remained intact. President Bill Clinton replaced Reagan's order with Executive Order 12866 in 1993, which preserved the requirement for cost-benefit analysis but emphasized a more balanced approach. The new order instructed that regulations should only be promulgated if the benefits justified the costs, while also considering values that were difficult to quantify, such as equity and human dignity.
President Barack Obama further refined the use of cost-benefit analysis in in 2011. His order reaffirmed the principles and structures set by Clinton's order and introduced an emphasis on using the "best available techniques to quantify anticipated present and future benefits and costs as accurately as possible." This executive order reinforced the principle of EBL, emphasizing the need for laws and regulations to be based on robust evidence and thorough cost-benefit analysis.
These executive orders highlight the enduring role of cost-benefit analysis in evidence-based legislation, underscoring the importance of rigorous, data-driven decision-making in the legislative process.