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/.

Criminal Law

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Constitutional Evidence Law, Vanderbilt Law Review (2008)
This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of...
 

PDF

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

This contribution to the Cardozo Law Review symposium on the future of the Fifth Amendment...

 

PDF

Mediating Rules in Criminal Law (with Richard A. Bierschbach), Virginia Law Review (2007)
This Article challenges the conventional divide between substantive criminal law theory, on the one hand,...
 

PDF

Ambiguity Aversion and the Criminal Process (with Uzi Segal), Notre Dame Law Review (2006)

Ambiguity aversion is a person's rational attitude towards probability's indeterminacy. When a person is averse...

 

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Overenforcement (with Richard A. Bierschbach), Georgetown Law Journal (2005)
Overenforcement of the law is widespread, but underinvestigated. Overenforcement occurs when the total sanction suffered...
 

Evidence

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Liability for Future Harm (with Porat Ariel), Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (forthcoming by Hart Publishing) (2010)
This Article considers the possibility of imposing liability in torts for a wrongfully created risk...
 

PDF

Originality (with Gideon Parchomovsky), Virginia Law Review (2009)
In this Essay we introduce a model of copyright law that calibrates authors’ rights and...
 

PDF

Constitutional Evidence Law, Vanderbilt Law Review (2008)
This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of...
 

PDF

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

This contribution to the Cardozo Law Review symposium on the future of the Fifth Amendment...

 

PDF

The Trial-Time/Forum Principle and the Nature of Evidence Rules, Current Trends in Criminal Procedure and Evidence—A Collection of Essays in Honor of Professor Eliahu Harnon (Anat Horovitz & Mordechai Kremnitzer, eds.) (2008)
This Article examines two principles that settle temporal and jurisdictional conflicts between evidentiary rules: the...
 

Law and Economics

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Liability for Future Harm (with Porat Ariel), Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (forthcoming by Hart Publishing) (2010)
This Article considers the possibility of imposing liability in torts for a wrongfully created risk...
 

PDF

The Flawed Probabilistic Foundation of Law & Economics, unpublished draft, 01.23.2010 (2010)
This Article challenges the mathematical probability system that underlies law and economics and behavioral analysis...
 

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Originality (with Gideon Parchomovsky), Virginia Law Review (2009)
In this Essay we introduce a model of copyright law that calibrates authors’ rights and...
 

PDF

Reconceptualizing Trespass (with Gideon Parchomovsky), Northwestern University Law Review (2009)
This Essay addresses an anomaly in trespass law. Trespass law is generally understood as the...
 

PDF

Constitutional Evidence Law, Vanderbilt Law Review (2008)
This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of...
 

Medical Malpractice

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Torts and Innovation (with Gideon Parchomovsky), Michigan Law Review (2008)
This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort...
 

PDF

Healthcare Intermediaries, Regulation (2007)
This article identifies various factors — legal and economic — that reduce the quality of...
 

PDF

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

This Article analyzes the problem of indeterminate causation in torts and develops a system of...

 

Procedure

PDF

Constitutional Evidence Law, Vanderbilt Law Review (2008)
This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of...
 

PDF

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

This contribution to the Cardozo Law Review symposium on the future of the Fifth Amendment...

 

PDF

The Trial-Time/Forum Principle and the Nature of Evidence Rules, Current Trends in Criminal Procedure and Evidence—A Collection of Essays in Honor of Professor Eliahu Harnon (Anat Horovitz & Mordechai Kremnitzer, eds.) (2008)
This Article examines two principles that settle temporal and jurisdictional conflicts between evidentiary rules: the...
 

PDF

Mediating Rules in Criminal Law (with Richard A. Bierschbach), Virginia Law Review (2007)
This Article challenges the conventional divide between substantive criminal law theory, on the one hand,...
 

PDF

Ambiguity Aversion and the Criminal Process (with Uzi Segal), Notre Dame Law Review (2006)

Ambiguity aversion is a person's rational attitude towards probability's indeterminacy. When a person is averse...

 

Torts

PDF

Liability for Future Harm (with Porat Ariel), Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (forthcoming by Hart Publishing) (2010)
This Article considers the possibility of imposing liability in torts for a wrongfully created risk...
 

PDF

Reconceptualizing Trespass (with Gideon Parchomovsky), Northwestern University Law Review (2009)
This Essay addresses an anomaly in trespass law. Trespass law is generally understood as the...
 

PDF

Torts and Innovation (with Gideon Parchomovsky), Michigan Law Review (2008)
This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort...
 

PDF

Healthcare Intermediaries, Regulation (2007)
This article identifies various factors — legal and economic — that reduce the quality of...
 

PDF

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

This Article analyzes the problem of indeterminate causation in torts and develops a system of...