Alex Stein

Visiting Professor of Law

Fall 2016

Biography

As of Fall 2016, Professor Alex Stein will be holding a permanent appointment at Brooklyn Law School. Before joining Brooklyn, he served as a Professor of Law at Cardozo Law School and the Hebrew University of Jerusalem and held visiting professorial appointments at several schools, including Columbia and Yale. Professor Stein’s specialty areas include Torts, Medical Malpractice, Evidence, and general legal theory. His writings combine law with economic theories and moral philosophy. He authors three books, An Analytical Approach to Evidence: Text, Problems and Cases (6th ed., Wolters-Kluwer, 2016, with Ronald J. Allen et al.), Foundations of Evidence Law (Oxford University Press, 2005) and Tort Liability under Uncertainty (Oxford University Press, 2001, with Ariel Porat), and over sixty articles of which many have appeared in leading journals that include Harvard Law Review, Columbia Law Review, University of Pennsylvania Law Review, Michigan Law Review, Virginia Law Review, and Oxford Journal of Legal Studies. Professor Stein was one of the founding editors of Theoretical Inquiries in Law and is on the editorial board of the International Journal of Evidence & Proof. In 2013, he launched an e-journal STEIN on Medical Malpractice that covers all significant developments in medical malpractice laws across the United States. He is also a prolific contributor to the Bill of Health, a blog run by the Petrie-Flom Center at Harvard Law School. Professor Stein graduated from the Hebrew University of Jerusalem and earned a Ph.D. from the University of London.

Alexander Stein, The New Doctrinalism: Implications for Evidence Theory, 163 U. Pa. L. Rev. 2085 (2015).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Evidence
,
Legal Theory & Philosophy
Type: Article
Abstract
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. This Article connects these principles to the irreducibly second-personal structure of legal doctrine (that tracks Stephen Darwall’s celebrated account of morally justified claims). Under this structure, the plaintiff’s (or the prosecutor’s) authority to extract compensation from (or impose punishment on) the defendant critically depends on the trustworthiness of the individual infringement allegations that make the defendant accountable to the plaintiff (or the prosecutor). Evidentiary rules fit into this second-personal framework only when they promote case specificity, cost minimization, or equal best. Reform proposals that favor different rules are fatally disconnected from that framework and are therefore ill-conceived. Based on this observation, I criticize three powerful accounts of evidence law that rely, respectively, on economics, probability theory, and morality. These accounts include Louis Kaplow’s theory of the burden of proof, Daniel Kahneman and Amos Tversky’s claim that factfinders’ deviations from mathematical probability are irrational, and Ronald Dworkin’s distinction between accidentally and deliberately imposed risks of error. These accounts break away from our second-personal system of entitlements and liabilities; by doing so, they create a methodologically impermissible disconnect between rules of evidence and substantive laws.
Alexander Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201 (2012).
Categories:
Civil Practice & Procedure
,
Health Care
,
Legal Profession
Sub-Categories:
Torts
,
Medical Jurisprudence
,
Legal Reform
Type: Article
Abstract
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 articulated high-resolution rules over broad standards as a basis for courts’ determinations of the adequacy of the medical treatment complained against by the plaintiff. The system resorts predominantly to broad standards as a basis for courts’ assessments of whether medical care providers adequately set up the physical and informational conditions for their patient’s treatment. Courts’ decisions in these two areas determine whether the defendant — a doctor or other provider of medical care — will enter into liability for medical malpractice. For exits from that liability, the system fashions narrowly tailored rules, which it generally (but not always) prefers over standards. As far as institutional competence is concerned, the system authorizes the medical profession to devise rules identifying medical errors that make a patient’s treatment defective and actionable as malpractice (treatment-related entry rules). The system allows courts and the legislature, on one side, and the medical profession, on the other side, to design discrete components of the standards making doctors and other care providers responsible for setting up poor physical or informational conditions for treating patients (setup-related entry rules). Finally, the system gives courts a virtually exclusive power to formulate rules that allow a negligent care provider to escape liability for malpractice (treatment- and setup-related exit rules). Courts used this power to narrow malpractitioners’ exits from liability in torts: negligent doctors and other defaulting care providers normally cannot disassociate themselves from the aggrieved patient’s damage. This interplay of rules and rulemaking powers pervasively affects our medical malpractice system: it narrows care providers’ liability for treatment-related malpractice; it expands care providers’ liability for setup-related malpractice; and it narrows negligent care providers’ ability to avoid the duty to compensate the aggrieved patient. The Article demonstrates that this system is both fair and efficient and criticizes tort reforms that reduce liability for malpractice.
Alexander Stein & Gideon Parchomovsky, The Distortionary Effect of Evidence on Primary Behavior, 124 Harv. L. Rev. 518 (2010).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Evidence
,
Law & Economics
,
Law & Behavioral Sciences
Type: Article
Abstract
In this Essay, we analyze how evidentiary concerns dominate actors’ behavior. Our findings offer an important refinement to the conventional wisdom in law and economics literature, which assumes that legal rules can always be fashioned to achieve socially optimal outcomes. We show that evidentiary motivations will often lead actors to engage in socially suboptimal behavior when doing so is likely to increase their chances of prevailing in court. Because adjudicators must base decisions on observable and verifiable information – or, in short, evidence – rational actors will always strive to generate evidence that can later be presented in court and will increase their chances of winning the case regardless of the cost they impose on third parties and society at large. Accordingly, doctors and medical institutions will often refer patients to undertake unnecessary and even harmful examinations just to create a record demonstrating that the doctors or medical institutions went beyond the call of duty in treating them. Owners of land and intellectual property may let harmful activities continue much longer than necessary just to gather stronger evidence concerning the harms they suffer. And even the police will often choose to allow offenders to carry out crimes in order to improve the chance of a conviction. The effect we identify is pervasive. It can be found in virtually all areas of the law. Furthermore, there is no easy way to eliminate or correct it. However, the evidentiary phenomenon we discuss also has positive side effects: it reduces adjudication costs for judges and juries and improves the accuracy of court processes. In some cases, these improvements will exceed the social cost of suboptimal behavior. In other contexts, however, the social cost will far outweigh the benefit.

Education History

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