Alex Stein
Brooklyn Law School, Law, Faculty Member
- Harvard University, Harvard Law School, Department Memberadd
- Presently, Justice of the Israel Supreme Courtedit
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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.... more
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 which the defendant belongs, without nullifying the plaintiff’s right. The Article then shows that society has a special interest in the successful raising of class and general defenses. These defenses eliminate the unneeded intellectual property protection and thereby facilitate innovation, creativity, and competit...
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This Comment contributes to the special volume of the Seton Hall Law Review, Experts, Inference and Innocence: Symposium in Honor of the Work of D. Michael Risinger. In this Comment, I connect science-driven postconviction relief to the... more
This Comment contributes to the special volume of the Seton Hall Law Review, Experts, Inference and Innocence: Symposium in Honor of the Work of D. Michael Risinger. In this Comment, I connect science-driven postconviction relief to the epistemology of disagreement — a young and rapidly developing discipline that analyzes the effects of a disagreement on the truth-value of the underlying opinion. Specifically, I argue that when a prosecution’s expert makes an inculpatory finding and then finds out that an equally informed and honest expert — an “epistemic peer” — arrived at a different opinion indicating that the defendant might be innocent, she ought to scale down her level of confidence in her own opinion. This epistemological mandate calls for granting defendants postconviction relief. In Daubert jurisdictions, which broadly admit expert testimony into evidence, courts should grant such relief as a matter of course. In jurisdictions in which expert testimony is only admissible wh...
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ARE PEOPLE PROBABILISTICALLY CHALLENGED? THINKING, FAST AND SLOW. By Daniel Kahneman. New York: Farrar, Strauss and Giroux. 2011. Pp. 3, 418. Cloth, $30; paper, $17.INTRODUCTIONDaniel Kahneman's1 recent book, Thinking, Fast and Slow,... more
ARE PEOPLE PROBABILISTICALLY CHALLENGED? THINKING, FAST AND SLOW. By Daniel Kahneman. New York: Farrar, Strauss and Giroux. 2011. Pp. 3, 418. Cloth, $30; paper, $17.INTRODUCTIONDaniel Kahneman's1 recent book, Thinking, Fast and Slow, is a mustread for any scholar or policymaker interested in behavioral economics. Behavioral economics is a young, but already well-established, discipline that pervasively affects law and legal theory.2 Kahneman, a 2002 Nobel Laureate, is the discipline's founding father. His pioneering work with Amos Tversky and others challenges the core economic concept of expected utility, which serves to determine the value of people's prospects.3 Under mainstream economic theory, the value of a person's prospect equals the prospect's utility upon materialization (U) multiplied by the probability of the prospect materializing (P).4 When the prospect is advantageous, its utility is a positive sum that augments the person's well-being. When th...
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This chapter draws on Hohfeld’s scheme of jural opposites and correlatives to identify the irreducibly second-personal nature of legal entitlements and the interplay between the right-holder’s authority and the duty-bearer’s... more
This chapter draws on Hohfeld’s scheme of jural opposites and correlatives to identify the irreducibly second-personal nature of legal entitlements and the interplay between the right-holder’s authority and the duty-bearer’s accountability. Based on that insight, the author argues that facts that courts need to ascertain and—critically—the procedures that courts must carry out in ascertaining those facts, ought to be second-personal as well. As a corollary, courts must only rely upon second-personal evidence, that is: upon information concerning the alleged jural relationship between the holder of the underlying entitlement and the bearer of the correlative duty or obligation. Further, this fundamental requirement defines the modus operandi of the Anglo-American system of evidence and its core rules.
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102 Cornell L. Rev. 1319 (2017)The individual plaintiff plays a critical—yet underappreciated— role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and... more
102 Cornell L. Rev. 1319 (2017)The individual plaintiff plays a critical—yet underappreciated— role in our legal system. Only lawsuits that are brought by individual plaintiffs allow the law to achieve the twin goals of efficiency and fairness. The ability of individual plaintiffs to seek justice against those who wronged them deters wrongdoing, ex ante, and in those cases in which a wrong has been committed nevertheless, it guarantees the payment of compensation, ex post. No other form of litigation, including class actions and criminal prosecutions, or even compensation funds, can accomplish the same result. Yet, as we show in this Essay, in many key sectors of our economy, suits by individual plaintiffs have become a rare phenomenon, if not a virtual impossibility. The architecture of liability, by making causes of action more complex and difficult to prove, while equipping defendants with multiple defenses, coupled with the fact that large corporate defendants enjoy a vast cost ...
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edical care organizations (mcos), such as health maintenance organizations and preferred provider organizations, have become popular in recent decades because of their ability to lower consumers' healthcare costs while increasing... more
edical care organizations (mcos), such as health maintenance organizations and preferred provider organizations, have become popular in recent decades because of their ability to lower consumers' healthcare costs while increasing providers' throughput. These organizations function as healthcare intermediaries or, in a technical language, as platforms in the two-sided market for medical care, with the two sides being healthcare providers looking for patients and patients looking for healthcare providers. This function currently has negative implications for the quality of medical care, but it can be utilized to improve that quality. This article explains how to do it. It begins with describing various factors-both legal and economic-that affect the quality of medical care under the mco framework. This discussion singles out a serious economic anomaly that the law of medical malpractice aggravates instead of rectifying. This anomaly is the virtual absence of incentives on the ...
This Chapter surveys the law & economics literature on self-incrimination and confessions.
This is the first article to examine the effects of ambiguity aversion on the criminal process. Ambiguity aversion is a person’s rational attitude towards probability's indeterminacy. When a person is averse towards such ambiguities,... more
This is the first article to examine the effects of ambiguity aversion on the criminal process. 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 can depend on this general probability as an adequate predictor of this rate. The defendant only cares about his individual case and cannot depend on this general probability. From the defendant's perspective, his individual probab...
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Consider the following statements, which describe the Anglo-American laws of evidence:The rules of evidence state what matters may be considered in proving facts and, to some extent, what weight they have. They are largely ununified and... more
Consider the following statements, which describe the Anglo-American laws of evidence:The rules of evidence state what matters may be considered in proving facts and, to some extent, what weight they have. They are largely ununified and scattered, existing for disparate and sometimes conflicting reasons: they are a mixture of astonishing judicial achievements and sterile, inconvenient disasters. There is a law of contract, and perhaps to some extent a law of tort, but only a group of laws of evidence.In one of our classics of literature,Alice in Wonderland, one of the characters is the Cheshire Cat who keeps appearing and disappearing and fading away, so that sometimes one could see the whole body, sometimes only a head, sometimes only a vague outline and sometimes nothing at all, so that Alice was never sure whether or not he was there or, indeed, whether he existed at all. In practice, our rules of evidence appear to be rather like that.
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ABSTRACTThis paper uses Carl Ginet's concept of “disinterested justification” to identify the boundaries of the epistemic authority of courts. It claims that courts exercise this authority only in the “interest-free” zone, in which... more
ABSTRACTThis paper uses Carl Ginet's concept of “disinterested justification” to identify the boundaries of the epistemic authority of courts. It claims that courts exercise this authority only in the “interest-free” zone, in which their determinations of disputed facts’ probabilities can be made and justified on epistemic grounds alone. This is not the case with the “interest-laden” domain, where courts allocate risks of error under conditions of uncertainty. This domain is controlled by the risk-allocating evidentiary rules: burdens of proof, corroboration, hearsay, opinion, character, and others. These rules are driven by moral and political, rather than epistemic, reasons. Their role is to allocate the risk of error among plaintiffs, defendants, and prosecution by setting forth probability thresholds for findings of fact and the criteria for adequacy of the evidence upon which those findings can be made.
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This Essay calls for a repositioning of two distinct legal regimes—inalienability and contract—that govern the imposition of liability for medical malpractice upon doctors and institutions, respectively. The inalienable right to tort... more
This Essay calls for a repositioning of two distinct legal regimes—inalienability and contract—that govern the imposition of liability for medical malpractice upon doctors and institutions, respectively. The inalienable right to tort remedies places opportunistic patients—who file unmeritorious lawsuits against doctors and increase the cost of medical care—in the same pool with honest patients, who cannot credibly promise doctors not to sue them opportunistically. The contract regime allows managed care organizations (MCOs) not to ...
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This essay examines the rationale for allocating the burden of persuasion in relation to the conformity of the tendered goods in sales cases. In a recently published article which analyzes this problem from an economic efficiency... more
This essay examines the rationale for allocating the burden of persuasion in relation to the conformity of the tendered goods in sales cases. In a recently published article which analyzes this problem from an economic efficiency perspective, Professor Jody S. Kraus argues that this burden should be shouldered by the party with the best access to evidence.'By juxtaposing this argument with the principal writings on the subject (inexplicably ignored and consequently not confronted by Professor Kraus) I demonstrate ...
Of Two Wrongs That Make a Right damage-related proof requirements. Probability of the litigated damage must therefore also be removed from the multiplication formula, so the conjunction paradox disappears altogether. As demonstrated by... more
Of Two Wrongs That Make a Right damage-related proof requirements. Probability of the litigated damage must therefore also be removed from the multiplication formula, so the conjunction paradox disappears altogether. As demonstrated by the essay, this rationale also necessitates an adjustment in punitive damages. The essay therefore offers the required adjustment. The essay establishes the above arguments by using the following methodology: it constructs a simple Bayesian model of civil litigation, from which it derives ...
This Article takes a fresh look at the misalignment of interests between class attorneys and their clients. Specifically, it examines the class attorneys' opportunity for shirking and for striking collusive settlements with corporate... more
This Article takes a fresh look at the misalignment of interests between class attorneys and their clients. Specifically, it examines the class attorneys' opportunity for shirking and for striking collusive settlements with corporate defendants. Both case law and scholarly writings offer numerous solutions to this misalignment of interests; yet, those solutions suffer from serious flaws. Professors Harel and Stein examine the reasons for that failure and propose a new solution that overcomes the class action agency problem. They ...
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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... more
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, ...
This Article advances a novel positive theory of the law of torts that grows out of a careful reading of the caselaw. My core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability.... more
This Article advances a novel positive theory of the law of torts that grows out of a careful reading of the caselaw. My core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability. This finding is both surprising and innovative, since the operation of the doctrines that determine individuals’ liability for accidents — negligence, causation and damage — is universally believed to be driven by harms, not benefits. The key role of benefits in the operation of our tort system has eluded the searching eye of scholars, even though it is fully consistent with the caselaw, as I repeatedly demonstrate in the Article.Specifically, I show that our tort system operates in two parallel modes — private and public — rather than just one, as conventional accounts erroneously suggest. Furthermore, the system’s mode of operation and the rules allocating liability for accidental harm are dictated by the type of the benefit sought by the alleged ...
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The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understanding, the state’s boundaries demarcate the terrain on which women’s right to... more
The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understanding, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right. This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possibility that such standards might cross state lines. Planned Parenthood v. Casey and other decisions that have approved abortion-specific informed-consent requirements have failed to account for this interstate dynamic.In recent years, fourteen states, led by South Dakota, have enacted statutes that direct doctors to warn patients, as part of an informed-consent dialogu...