Foundations Of Evidence Law

Hardcover | August 25, 2005

byAlex Stein

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This book examines systematically the underlying theory of evidence in Anglo-American legal systems and identifies the defining characteristics of adjudicative fact-finding. Stein develops a detailed innovative theory which sets aside the traditional vision of evidence law as facilitating thediscovery of the truth. Combining probability theory, epistemology, economic analysis, and moral philosophy; he argues instead that the fundamental purpose of evidence law is to apportion the risk of error in conditions of uncertainty. Stein begins by identifying the domain of evidence law.He thendescribes the basic traits of adjudicative fact-finding and explores the epistemological foundations of the concept. This discussion identifies the problem of probabilistic deduction that accompanies generalizations to which fact-finders resort. This problem engenders paradoxes which Stein proposesto resolve by distinguishing between probability and weight. Stein advances the principle of maximal individualization that does not allow factfinders to make a finding against a person when the evidence they use is not susceptible to individualized testing.He argues that this principle has broadapplication, but may still be overridden by social utility. This analysis identifies allocation of the risk of error as requiring regulation by evidence law. Advocating a principled allocation of the risk of error, Stein denounces free proof for allowing individual judges to apportion this risk asthey deem fit.He criticizes the UK's recent shift to a discretionary regime on similar grounds. Stein develops 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; andthe 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 errorbetween the claimant 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 andmust not provide better protection to other individuals. Regulating both the admissibility of evidence and its sufficiency, these principles explain and justify many existing evidentiary rules. Alex Stein is Professor of Law at the Benjamin N.Cardozo School of Law,New York.

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This book examines systematically the underlying theory of evidence in Anglo-American legal systems and identifies the defining characteristics of adjudicative fact-finding. Stein develops a detailed innovative theory which sets aside the traditional vision of evidence law as facilitating thediscovery of the truth. Combining probabilit...

Alex Stein is Professor of Law at the Benjamin N. Cardozo School of Law, New York.

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Format:HardcoverDimensions:264 pages, 9.21 × 6.14 × 0.78 inPublished:August 25, 2005Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0198257368

ISBN - 13:9780198257363

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Table of Contents

ACKNOWLEDGEMENTS PREFACE I. GROUNDWORK II. EPISTEMOLOGICAL COROLLARY III. UNDERSTANDING THE LAW OF EVIDENCE THROUGH PARADOXES OF RATIONAL BELIEF IV. EVIDENCE LAW: WHAT IS IT FOR? V. COST-EFFICIENCY VI. ALLOCATION OF THE RISK OF ERROR IN CRIMINAL TRIALS VII. ALLOCATION OF THE RISK OF ERROR IN CIVIL LITIGATION

Editorial Reviews

`[Foundations of Evidence Law] attempt[s] the monumental task of combining the contributions of the New Evidence Scholarship with those of doctrinal evidence lawyers and those who see evidence as encapsulating social values. Even works of partial synthesis are rarely encountered, and so Steinis to be congratulated on not only making an attempt to square the whole circle, but on making such a credible attempt. ... Stein has provided us with an extremely thoughtful and thought-provoking theory of evidence law. Both his objective and his conclusions are bold, and the reader is forced atevery stage in the argument to consider whether she accepts the line that Stein takes, and why. Even if one does not accept that Stein's theory is uniquely correct, it is difficult not to accept that it is at least valid. ' Deirdre M. Dwyer, 5 Law, Probability and Risk 75 at 79 and 85 (2006).