Foundations of Evidence Law
Published on 25. August 2005
Book
Hardback
264 pages
978-0-19-825736-3 (ISBN)
Description
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 the discovery 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 then describes 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 proposes to 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 broad application, 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 as they 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; and the 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 error between 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 and must 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.
Reviews / Votes
the most provocative of evidence books ... constitutes the most sophisticated and persuasive argument for enormously enhanced legal control over the evidentiary process in recent memory, and stands in marked contrast to the progression of the law of evidence in the Anglo-American world...Foundational to [Stein's] call for intense control over the evidentiary process is his deep insight that rules of evidence do not just do what they purport to do; they also allocate error, like it or not. He is right on this point...[he] articulates an elegant unified theory of evidence law ... From these theoretical perspectives, he brilliantly critiques various evidentiary rules...[and] provides a creative theoretical foundation for both civil and criminal litigation. * Ronald J. Allen, 27 Law & Philosophy (2008) * Without sharing all positions of Prof. Stein ... one has to salute the effort accomplished to prevent the law of evidence from oozing away in the lazy folds of the Cartesian spirit. * Rafael Encinas de Munagorri, 2-2007 Revue Internationale de Droit Compare 457 (in French) * Alex Stein may be the Ronald Dworkin of evidence law. Foundations of Evidence Law ... offers an alternative to Bentham's influential evidentiary views...Like Dworkin's theory of law generally, Stein attempts to locate and justify the law of evidence within the domain of political morality, that is, to legitimate and justify the coercive state authority that the law of evidence helps to initiate. [The] "foundations" that Stein articulates seek to describe and explain... Anglo-American evidentiary practices in light of a few broad principles that in turn justify the practices in terms of political morality...a significant book [that] offers unique and powerful arguments regarding virtually every important evidentiary issue, and it pushes the debates regarding these issues forward. * Michael S. Pardo in 5(2) International Commentary on Evidence (2007) * Foundations of Evidence Law ... represents an important first attempt to base evidence doctrine on something more than armchair psychology, to provide a justification for and conceptual unity to what has hitherto been regarded as an incoherent patchwork of historical hangovers from outdated assumptions about fact-finding, and to make clear the value of probability theory. As such, it deserves to be read and engaged with by all evidence scholars, whether interested in evidence law alone or more widely in the processes of proof. * Donald Nicolson, Legal Studies * ...Although this book contains much that is challenging and controversial, there can be little doubt that it is one of the most significant and stimulating monographs on evidence law to have been published in recent years. * Roderick Bagshaw, Law Quarterly Review 168, 172, 2007 * [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 Stein is 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 at every 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 & 85 (2006). *
More details
Language
English
Place of publication
Oxford
United Kingdom
Target group
Professional and scholarly
Scholars and advanced students of law, philosophy of law and ethics, practitoners and judiciary in civil and criminal litigation.
Dimensions
Height: 240 mm
Width: 161 mm
Thickness: 19 mm
Weight
570 gr
ISBN-13
978-0-19-825736-3 (9780198257363)
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Schweitzer Classification
Person
Alex Stein is Professor of Law at the Benjamin N. Cardozo School of Law, New York.
Content
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