Copyright (c) 2009 All rights reserved. http://works.bepress.com/alex_stein Recent documents in Alex Stein en-us Fri, 06 Nov 2009 19:11:50 PST 3600 http://works.bepress.com/alex_stein/17 http://works.bepress.com/alex_stein/17 Sat, 26 Sep 2009 14:41:33 PDT This article identifies various factors -- legal and economic -- that reduce the quality of medical care under the MCO framework. Specifically, it identifies MCOs' functioning as platforms in a two-sided economy and the virtual absence of incentives on the part of MCOs and their doctors to compete with each other over the quality of medical care. The article also develops a law reform proposal that would unlock that competition. Alex Stein Torts Medical Malpractice Law and Economics http://works.bepress.com/alex_stein/16 http://works.bepress.com/alex_stein/16 Sat, 26 Sep 2009 14:13:34 PDT This Article considers the possibility of imposing liability in torts for a wrongfully created risk of future harm. We examine the American and English court decisions pertaining to this issue and consider whether a probability-based compensation for the victim's expected--albeit not yet materialized--harm is just and efficient. We demonstrate how the virtues of a legal regime that allows a tort victim to recover compensation for her expected harm overshadow its vices. We conclude that a person's risk of sustaining harm in the future should be actionable whenever the risk is substantial. We further conclude that it should be left to the victim to decide whether to recover for his or her expected harm, or else wait and see if the risk materializes and recover only if it does. We observe that allowing victims to make this choice might create a collective action problem. Because expedited compensation for a victim's expected harm erodes the wrongdoer's ability to compensate future claimants, victims would opt for an early recovery for expected harm even when their substantive remedial preferences are different. We demonstrate, however, that this problem can be resolved. Alex Stein Evidence Torts Law and Economics http://works.bepress.com/alex_stein/15 http://works.bepress.com/alex_stein/15 Sat, 26 Sep 2009 13:52:17 PDT This Article challenges the mathematical probability system that underlies law and economics and behavioral analysis and argues that many of the core insights of both approaches are irremediably flawed. The Article demonstrates that mathematical probability is only suitable for pure gambles and hence does not provide a useful epistemic tool for analyzing individual decision-making. As a result, mathematical probability cannot serve as a useful tool for lawmakers. Mathematical probability, the Article proposes, ought to be replaced with causative probability. Originating from the writings of John Stuart Mill and Francis Bacon, causative probability differs from its mathematical cousin both conceptually and substantively. By contrast to the mathematical system that bases probability estimates on abstract averages, the causative system bases probability estimates upon case-specific evidential variety. Under the causative system, the probability that a person's action will bring about a particular consequence--harm or gain--is determined by the number and scope of the consequence's evidential confirmations in the individual case, and not by general averages that are usually irrelevant to the individual determination at hand. Causative probability allows a person to develop a better epistemic grasp of her individual case relative to what she could achieve under the mathematical system. The causative-probability account has important implications for individual law-compliance, law-enforcement, and the design of legal policies. Causative determinations are intrinsic to all law-enforcement decisions: courts, prosecutors and other law-enforcers implement legal rules by responding to the information about what the relevant actor did, rather than by conducting a lottery. Legal rules are causative as well: they set up mechanisms that allow individuals to reap the benefits of their productive activities and force them to pay for the harms they cause. All this turns causative probability into a superior tool for understanding how law-enforcement mechanisms work, for improving those mechanisms, and for defining the rationality of individuals' decisions. Alex Stein Law and Economics Jurisprudence http://works.bepress.com/alex_stein/14 http://works.bepress.com/alex_stein/14 Sat, 04 Apr 2009 10:32:07 PDT In this Essay we introduce a model of copyright law that calibrates authors' rights and liabilities to the level of originality in their works. We advocate this model as a substitute for the extant regime that unjustly and inefficiently grants equal protection to all works satisfying the "modicum of creativity" standard. Under our model, highly original works will receive enhanced protection and their authors will also be sheltered from suits by owners of preexisting works. Conversely, authors of less original works will receive diminished protection and incur greater exposure to copyright liability. We operationalize this proposal by designing separate rules for highly original works, for works exhibiting average originality, and for works that are minimally original or unoriginal. We illustrate our rules' application by showing how they could have altered court decisions in classic copyright cases in a socially beneficial way. Alex Stein Evidence Law and Economics http://works.bepress.com/alex_stein/13 http://works.bepress.com/alex_stein/13 Wed, 14 Jan 2009 16:57:31 PST This Essay addresses an anomaly in trespass law. Trespass law is generally understood as the paradigmatic example of property-rule protection: an owner can obtain an injunction against the trespasser and have him removed from her land. The property-rule protection enjoyed by the owner protects her right to exclude others and to set the price for the use of her property. However, the property-rule protection only exists ex ante: it avails only against imminent or ongoing trespasses. Ex post, after a trespass ends, the owner can only recover compensation measured by the market value of the unauthorized use, i.e., the going rent. This liability-rule compensation dilutes the ex ante property-rule protection of ownership. Effectively, it grants trespassers a call option on others' property, creating a mismatch between rights and remedies. To remedy this mismatch, we introduce the concept of "propertized compensation"--a damage measure that sets compensation equal to the owner's pre-trespass asking price. We contend that propertized compensation should become the primary remedial option in trespass cases. The use of this measure will reinstate the owner's position as a price maker, entitling her to recover the amount that she would have agreed to accept ex ante in a voluntary exchange. We further argue that owners who cannot produce evidence regarding their pre-trespass asking price (as well as owners who prefer not to seek propertized compensation) should be entitled to seek disgorgement of the trespasser's profits. Finally, we claim, contra the extant regime, that market-value compensation should only be used in the exceptional cases of trespass by necessity, media trespass, and good faith encroachments. In all other cases, it should only be awarded if the owners specifically ask for it. Alex Stein Torts Law and Economics http://works.bepress.com/alex_stein/12 http://works.bepress.com/alex_stein/12 Fri, 07 Nov 2008 21:42:30 PST This contribution to the Cardozo Law Review symposium on the future of the Fifth Amendment responds to the numerous critics of Daniel J. Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430 (2000). Under Seidmann and Stein's theory, the right to silence protects innocents who find themselves unable to corroborate their self-exonerating accounts by verifiable evidence. Absent the right, guilty criminals would pool with innocents by making false self-exonerating statements. Factfinders would consequently discount the probative value of all uncorroborated exculpatory statements, at the expense of those innocents who cannot corroborate their true accounts. The right to silence minimizes this pooling effect, thereby reducing the incidence of wrongful convictions, by providing guilty criminals an attractive alternative to lying. Under Seidmann and Stein's theory, innocents tell the truth, whereas criminals--fearful of being implicated by their lies and unwilling to confess--exercise the right to silence. This separation reduces the distortion that factfinders would otherwise commit by discounting the probability of true self-exonerating accounts. The Article defends this theory against its critics on empirical and methodological grounds, as well as by demonstrating that the anti-pooling rationale stands out as the only coherent and comprehensive explanation of the Fifth Amendment jurisprudence. Alex Stein Evidence Criminal Law Procedure Law and Economics http://works.bepress.com/alex_stein/11 http://works.bepress.com/alex_stein/11 Wed, 27 Feb 2008 17:25:25 PST This Essay exposes and analyzes a hitherto overlooked cost of the current design of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, the recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation. Alex Stein Evidence Torts Medical Malpractice Law and Economics http://works.bepress.com/alex_stein/10 http://works.bepress.com/alex_stein/10 Wed, 27 Feb 2008 17:18:07 PST This Article examines two principles that settle temporal and jurisdictional conflicts between evidentiary rules: the trial-time principle and the forum principle. Under the trial-time principle, evidentiary rules that exist at the time of the trial override rules that existed before trial when the relevant action or transaction took place. Under the forum principle, evidentiary rules of the court's jurisdiction override rules applicable in the jurisdiction in which the relevant action or transaction took place. These principles control the application of rules categorized as strictly evidentiary, as opposed to substantive. The Article explains, criticizes and refines this categorization. Alex Stein Evidence Procedure http://works.bepress.com/alex_stein/9 http://works.bepress.com/alex_stein/9 Sat, 23 Feb 2008 20:59:41 PST This Article takes a fresh look at the misalignment of interests between class attorneys and their clients. Specifically, it examines the class attorneys' opportunity for shirking and for striking collusive settlements with corporate defendants. Both case law and scholarly writings offer numerous solutions to this misalignment of interests; yet, those solutions suffer from serious flaws. Professors Harel and Stein examine the reasons for that failure and propose a new solution that overcomes the class action agency problem. They argue that the law should resolve this problem by choosing between two basic paradigms of class action lawyering: Attorney-as-Owner and Attorney-as-Servant (Ownership and Servantship). The Ownership paradigm seeks to align the attorney's and the claimants' interests by giving the attorney a proprietary right in the action (usually, through a contingent-fee arrangement). The Servantship paradigm attains this alignment through the attorney's supervision and monitoring, coupled with penalties for inadequate performance. Professors Harel and Stein analyze these paradigms by rigorously identifying the attorney's "conflict-of-interests differential" and by juxtaposing the two paradigmatic attempts to bring this differential down to zero. Subsequently, they develop a new competition-based mechanism that operates under the Servantship paradigm and aligns the interests of class attorneys and their clients. Alex Stein Procedure Law and Economics http://works.bepress.com/alex_stein/8 http://works.bepress.com/alex_stein/8 Sat, 19 Jan 2008 18:48:03 PST This Article analyzes the problem of indeterminate causation in torts and develops a system of compensating plaintiffs that responds to both optimal deterrence and corrective justice criteria. Under this system, the plaintiff's award should equal her harm multiplied by the ex post probability of causation. Any other system, including that of recovery for lost chances that many courts have adopted, would either under-compensate or over-compensate the plaintiff. The Article's approach is presently recommended by the Third Restatement of Torts. This Article derives from the general theory developed in my book with Ariel Porat, Tort Liability under Uncertainty (Oxford University Press, 2001). Alex Stein Evidence Torts Medical Malpractice Law and Economics