Selected Works of Alex Stein

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Alex Stein

Yeshiva University

• Professor of Law
• Benjamin N. Cardozo School of Law
• Curriculum Vitae [PDF]

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I specialize in evidence. 

Torts, medical malpractice, procedure, criminal law and economic analysis of law
generally are my additional areas of interest. 

My evidence theory, recently published as a book, holds that evidence law allocates the
risk of error in fact-finding, rather than facilitates ascertainment of the truth. This
is what evidentiary rules predominantly do and should be doing. How to allocate the risk
of error is a difficult question that crucially depends on political morality. 

I develop three fundamental principles for allocating the risk of error: the
cost-efficiency principle which applies across the board; the equality principle which
applies in civil litigation; and the equal-best principle which applies in criminal
trials. The cost-efficiency principle demands that fact-finders minimize the total cost
of errors and error-avoidance. Under the equality principle, fact-finding procedures and
decisions must not produce an unequal apportionment of the risk of error between the
plaintiff and the defendant. This risk should be apportioned equally between the parties.
The equal-best principle sets forth two conditions for justifiably convicting and
punishing a defendant. The state must do its best to protect the defendant from the risk
of erroneous conviction and must not provide better protection to other individuals. 

The equal-best and equality principles branch into more specific evidentiary rules that
respond to the "maximal individualization" criterion. Under this criterion,
fact-finders can make no adverse finding against a litigant unless the evidence
supporting that finding was subjected to—and survived—maximal individualized testing. The
cost-efficiency principle, however, sometimes overrides this criterion on special policy
grounds that call for adoption of different evidentiary rules. 

This system justifies and explains the rules that control the admissibility and
sufficiency of evidence. 

See Alex Stein, Foundations of Evidence Law (Oxford University Press, 2005). 

For details, book reviews, and other information, please go to
http://www.professoralexstein.com/publications/foundationsofevidencelaw.html. 

For my entire scholarship, please visit my website:
http://www.professoralexstein.com/.

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