Law Commons^™

Dualism And Doctrine, Alex Stein, Dov Fox

Alex Stein

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …

Inefficient Evidence, Alex Stein

Alex Stein

Why set up evidentiary rules rather than allow factfinders to make decisions by considering all relevant evidence? This fundamental question has been the subject of unresolved controversy among scholars and policymakers since it was raised by Bentham at the beginning of the nineteenth century. This Article offers a surprisingly straightforward answer: An economically minded legal system must suppress all evidence that brings along a negative productivity-expense balance and is therefore inefficient. Failure to suppress inefficient evidence will result in serious diseconomies of scale. To operationalize this idea, I introduce a “signal-to-noise” method borrowed from statistics, science, and engineering. This method …

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. …

Understanding The Law Of Evidence Through The Lens Of Signal-To-Noise, Alex Stein

Alex Stein

No abstract provided.

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 …

Evidence, Probability, And The Burden Of Proof, Ronald J. Allen, Alex Stein

Alex Stein

This Article analyzes the probabilistic and epistemological underpinnings of the burden-of-proof doctrine. We show that this doctrine is best understood as instructing factfinders to determine which of the parties’ conflicting stories makes most sense in terms of coherence, consilience, causality, and evidential coverage. By applying this method, factfinders should try—and will often succeed—to establish the truth, rather than a statistical surrogate of the truth, while securing the appropriate allocation of the risk of error. Descriptively, we argue that this understanding of the doctrine—the “relative plausibility theory”—corresponds to our courts’ practice. Prescriptively, we argue that the relative-plausibility method is operationally superior …

Toward A Theory Of Medical Malpractice, Alex Stein

Alex Stein

This Article introduces a novel methodology for understanding medical malpractice law and guiding its reform. I divide the legal rules that apply in medical malpractice cases into four basic categories: “entry rules,” “exit rules,” “treatment rules,” and “setup rules.” The first two of these categories of rules intersect with the other two categories. Our medical malpractice system thus consists of treatment-related and setup-related entry and exit rules.

Based on this taxonomy, I demonstrate how our medical malpractice system responds to two major concerns about legal rules: form and institutional competence. As far as form is concerned, our system systematically prefers …

Self-Incrimination, Alex Stein

Alex Stein

This Chapter surveys the law & economics literature on self-incrimination and confessions.

Liability For Future Harm, Alex Stein, Porat Ariel

Alex Stein

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 …

Strategic Enforcement, Alex Stein, Margaret H. Lemos

Alex Stein

Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under which law-enforcers try to apprehend and punish every violator within the bounds of feasibility; and the randomized model, under which law enforcers economize their efforts by apprehending a small number of violators and heightening their penalties so as to make violations unattractive. This Article supplements this list of options by developing a strategic model of law enforcement. Under this model, law enforcers concentrate their effort on the worst, or most rampant, violators at a given point in time while leaving all others unpunished. This enforcement …

Originality, Alex Stein, Gideon Parchomovsky

Alex Stein

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 …

The Trial-Time/Forum Principle And The Nature Of Evidence Rules, Alex Stein

Alex Stein

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.

The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein

Alex Stein

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 …

Torts And Innovation, Alex Stein, Gideon Parchomovsky

Alex Stein

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.

A Liberal Challenge To Behavioral Economics: The Case Of Probability, Alex Stein

Alex Stein

THE "BLUE CAB" EXPERIMENT: ARE LAY FACT-FINDERS "PROBABILISTICALLY CHALLENGED"? No, they are not. The experiment is methodologically deficient, as is the behavioral economics' assumption that one needs to conceptualize probabilities in the Pascalian way in order to be rational.

Mediating Rules In Criminal Law, Alex Stein, Richard A. Bierschbach

Alex Stein

This Article challenges the conventional divide between substantive criminal law theory, on the one hand, and evidence law, on the other, by exposing an important and unrecognized function of evidence rules in criminal law. Throughout the criminal law, special rules of evidence work to mediate conflicts between criminal law’s deterrence and retributivist goals. They do this by skewing errors in the actual application of the substantive criminal law to favor whichever theory has been disfavored by the substantive rule itself. The mediating potential of evidentiary rules is particularly strong in criminal law because the substantive law’s dominant animating theories—deterrence and …

Ambiguity Aversion And The Criminal Process, Alex Stein, Uzi Segal

Alex Stein

Ambiguity aversion is a person's rational attitude towards probability's indeterminacy. When a person is averse towards such ambiguities, he increases the probability of the unfavorable outcome to reflect that fear. This observation is particularly true about a criminal defendant who faces a jury trial. Neither the defendant nor the prosecution knows whether the jury will convict the defendant. Their best estimation relies on a highly generalized probability that attaches to a broad category of similar cases. The prosecution, as a repeat player, is predominantly interested in the conviction rate that it achieves over a long series of cases. It therefore …

Overenforcement, Alex Stein, Richard A. Bierschbach

Alex Stein

Overenforcement of the law is widespread, but underinvestigated. Overenforcement occurs when the total sanction suffered by the violator of a legal rule exceeds the amount optimal for deterrence. Overenforcement sometimes generates overdeterrence that cannot be remedied through the adjustment of substantive liability standards or penalties ex ante. When that happens, the legal system can counteract the effects of overenforcement by adjusting evidentiary or procedural rules to make liability less likely. This framework, which we call the overenforcement paradigm, illuminates previously unnoticed features of various evidentiary and procedural arrangements. It also provides a useful analytical and prescriptive tool for creating optimal …

Indeterminate Causation And Apportionment Of Damages, Alex Stein, Ariel Porat

Alex Stein

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, …

The Right To Silence Helps The Innocent: A Game-Theoretic Analysis Of The Fifth Amendment Privilege, Alex Stein, Daniel Seidmann

Alex Stein

This Article develops a consequentialist game-theoretic perspective for understanding the right to silence. By applying this perspective, the Article reveals that the conventional perception of the right to silence, as impeding the search for truth and thus helping criminals alone, is mistaken. The Article demonstrates that the right to silence can help triers of fact to distinguish between factually innocent and guilty suspects and defendants. This is achieved by an important feature of the right to silence which this Article brings to the fore: a criminal's self-interested response to questioning can impose externalities (in the form of wrongful conviction) on …