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Full-Text Articles in Law
The New Doctrinalism: Implications For Evidence Theory, Alex Stein
The New Doctrinalism: Implications For Evidence Theory, Alex Stein
Alex Stein
This Article revisits and refines the organizing principles of evidence law: case specificity, cost minimization, and equal best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case-specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties’ entitlement–accountability relationship. The cost-minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal-best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the board. …
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Alex Stein
This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world of the duty to comply with it. An individualized defense is much narrower in scope: Its successful showing defeats the specific infringement claim asserted by the plaintiff, but leaves the plaintiff’s right intact. Class defenses form an in-between category: They create an immunity zone for a certain group of users to …
Are People Probabilistically Challenged? Book Review Of Daniel Kahneman, Thinking, Fast And Slow (2011), Alex Stein
Are People Probabilistically Challenged? Book Review Of Daniel Kahneman, Thinking, Fast And Slow (2011), Alex Stein
Alex Stein
Daniel Kahneman’s recent book, Thinking, Fast and Slow, is a must-read for any scholar and policymaker interested in behavioral economics. Thus far, behavioral economists did predominantly experimental work that uncovered discrete manifestations of people’s bounded rationality: representativeness, availability, anchoring, overoptimism, base-rate neglect, hindsight bias, loss aversion, and other misevaluations of probability and utility. This work has developed no causal explanations for these misevaluations. Kahneman’s book takes the discipline to a different level by developing an integrated theory of bounded rationality’s causes and characteristics. This theory holds that humans use two distinct modes of reasoning, intuitive (System 1) and deliberative (System …
The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky
The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky
Alex Stein
In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …