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/.

SelectedWorks of Alex Stein

Alex Stein

Yeshiva University

Expertise

Courses/Seminars

Honors & Awards

Links

Evidence

Toward a Theory of Medical Malpractice, Iowa Law Review (2012)

Liability for Future Harm (with Porat Ariel), Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (forthcoming by Hart Publishing) (2011)

SELF-INCRIMINATION, Procedural Law and Economics (Chris W. Sanchirico, volume ed., 2011) (ENCYCLOPEDIA OF LAW AND ECONOMICS, Vol. X, Edward Elgar Publishing Limited, Cheltenham, UK, Gerrit De Geest, gen. ed., 2nd ed. 2009-2011) (2011)

Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)

The Distortionary Effect of Evidence on Primary Behavior (with Gideon Parchomovsky), Harvard Law Review (2010)

Criminal Law

Corrupt Intentions: Bribery, Unlawful Gratuity, and Honest-Services Fraud, Law & Contemporary Problems (2012)

SELF-INCRIMINATION, Procedural Law and Economics (Chris W. Sanchirico, volume ed., 2011) (ENCYCLOPEDIA OF LAW AND ECONOMICS, Vol. X, Edward Elgar Publishing Limited, Cheltenham, UK, Gerrit De Geest, gen. ed., 2nd ed. 2009-2011) (2011)

Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)

The Distortionary Effect of Evidence on Primary Behavior (with Gideon Parchomovsky), Harvard Law Review (2010)

Constitutional Evidence Law, Vanderbilt Law Review (2008)

Torts

Toward a Theory of Medical Malpractice, Iowa Law Review (2012)

Liability for Future Harm (with Porat Ariel), Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (forthcoming by Hart Publishing) (2011)

Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)

The Distortionary Effect of Evidence on Primary Behavior (with Gideon Parchomovsky), Harvard Law Review (2010)

Reconceptualizing Trespass (with Gideon Parchomovsky), Northwestern University Law Review (2009)

Medical Malpractice

Toward a Theory of Medical Malpractice, Iowa Law Review (2012)

Torts and Innovation (with Gideon Parchomovsky), Michigan Law Review (2008)

Healthcare Intermediaries, Regulation (2007)

Indeterminate Causation and Apportionment of Damages (with Ariel Porat), Oxford Journal of Legal Studies (2003)

Procedure

SELF-INCRIMINATION, Procedural Law and Economics (Chris W. Sanchirico, volume ed., 2011) (ENCYCLOPEDIA OF LAW AND ECONOMICS, Vol. X, Edward Elgar Publishing Limited, Cheltenham, UK, Gerrit De Geest, gen. ed., 2nd ed. 2009-2011) (2011)

Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)

The Distortionary Effect of Evidence on Primary Behavior (with Gideon Parchomovsky), Harvard Law Review (2010)

Constitutional Evidence Law, Vanderbilt Law Review (2008)

THE RIGHT TO SILENCE HELPS THE INNOCENT: A RESPONSE TO CRITICS, Cardozo Law Review (2008)

Law and Economics

Corrupt Intentions: Bribery, Unlawful Gratuity, and Honest-Services Fraud, Law & Contemporary Problems (2012)

Liability for Future Harm (with Porat Ariel), Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (forthcoming by Hart Publishing) (2011)

SELF-INCRIMINATION, Procedural Law and Economics (Chris W. Sanchirico, volume ed., 2011) (ENCYCLOPEDIA OF LAW AND ECONOMICS, Vol. X, Edward Elgar Publishing Limited, Cheltenham, UK, Gerrit De Geest, gen. ed., 2nd ed. 2009-2011) (2011)

The Flawed Probabilistic Foundation of Law & Economics, Northwestern University Law Review (2011)

Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)

Jurisprudence

Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)

The Distortionary Effect of Evidence on Primary Behavior (with Gideon Parchomovsky), Harvard Law Review (2010)