I specialize in Evidence and in the general economics of law enforcement. Medical Malpractice, Torts and Criminal Law are my additional areas of interest. My evidence theory, published as a book in 2005, 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/.
Evidence
ARE PEOPLE PROBABILISTICALLY CHALLENGED? BOOK REVIEW OF DANIEL KAHNEMAN, "THINKING, FAST AND SLOW" (2011), Michigan Law Review (2013)
Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and...
Are People Probabilistically Challenged? Book Review of Daniel Kahneman, THINKING, FAST AND SLOW (2011), Michigan Law Review (2013)
Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and...
Toward a Theory of Medical Malpractice, Iowa Law Review (2012)
This Article introduces a novel methodology for understanding medical malpractice law and guiding its reform....
Liability for Future Harm (with Porat Ariel), Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (forthcoming by Hart Publishing) (2011)
This Article considers the possibility of imposing liability in torts for a wrongfully created risk...
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)
This Chapter surveys the law & economics literature on self-incrimination and confessions.
Criminal Law
Corrupt Intentions: Bribery, Unlawful Gratuity, and Honest-Services Fraud, Law & Contemporary Problems (2012)
This Article develops an economic understanding of bribery, unlawful gratuity, and honest-services fraud offenses. Given...
The Relational Contingency of Rights (with Gideon Parchomovsky), Virginia Law Review (2012)
In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent....
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)
This Chapter surveys the law & economics literature on self-incrimination and confessions.
Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)
Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under...
The Distortionary Effect of Evidence on Primary Behavior (with Gideon Parchomovsky), Harvard Law Review (2010)
In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an...
Torts
Toward a Theory of Medical Malpractice, Iowa Law Review (2012)
This Article introduces a novel methodology for understanding medical malpractice law and guiding its reform....
Liability for Future Harm (with Porat Ariel), Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (forthcoming by Hart Publishing) (2011)
This Article considers the possibility of imposing liability in torts for a wrongfully created risk...
Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)
Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under...
The Distortionary Effect of Evidence on Primary Behavior (with Gideon Parchomovsky), Harvard Law Review (2010)
In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an...
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...
Medical Malpractice
Toward a Theory of Medical Malpractice, Iowa Law Review (2012)
This Article introduces a novel methodology for understanding medical malpractice law and guiding its reform....
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...
Healthcare Intermediaries, Regulation (2007)
This article identifies various factors — legal and economic — that reduce the quality of...
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
The Relational Contingency of Rights (with Gideon Parchomovsky), Virginia Law Review (2012)
In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent....
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)
This Chapter surveys the law & economics literature on self-incrimination and confessions.
Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)
Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under...
The Distortionary Effect of Evidence on Primary Behavior (with Gideon Parchomovsky), Harvard Law Review (2010)
In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an...
Constitutional Evidence Law, Vanderbilt Law Review (2008)
This Article identifies the causes and consequences of a puzzling asymmetry in constitutional law. Of...
Law and Economics
ARE PEOPLE PROBABILISTICALLY CHALLENGED? BOOK REVIEW OF DANIEL KAHNEMAN, "THINKING, FAST AND SLOW" (2011), Michigan Law Review (2013)
Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and...
Are People Probabilistically Challenged? Book Review of Daniel Kahneman, THINKING, FAST AND SLOW (2011), Michigan Law Review (2013)
Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and...
Corrupt Intentions: Bribery, Unlawful Gratuity, and Honest-Services Fraud, Law & Contemporary Problems (2012)
This Article develops an economic understanding of bribery, unlawful gratuity, and honest-services fraud offenses. Given...
The Relational Contingency of Rights (with Gideon Parchomovsky), Virginia Law Review (2012)
In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent....
Liability for Future Harm (with Porat Ariel), Richard S. Goldberg, ed., PERSPECTIVES ON CAUSATION (forthcoming by Hart Publishing) (2011)
This Article considers the possibility of imposing liability in torts for a wrongfully created risk...
Jurisprudence
ARE PEOPLE PROBABILISTICALLY CHALLENGED? BOOK REVIEW OF DANIEL KAHNEMAN, "THINKING, FAST AND SLOW" (2011), Michigan Law Review (2013)
Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and...
Are People Probabilistically Challenged? Book Review of Daniel Kahneman, THINKING, FAST AND SLOW (2011), Michigan Law Review (2013)
Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and...
The Relational Contingency of Rights (with Gideon Parchomovsky), Virginia Law Review (2012)
In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent....
Strategic Enforcement (with Margaret H. Lemos), Minnesota Law Review (2010)
Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under...
The Distortionary Effect of Evidence on Primary Behavior (with Gideon Parchomovsky), Harvard Law Review (2010)
In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an...