The New Doctrinalism: Implications for Evidence Theory

24 Pages Posted: 6 Feb 2015 Last revised: 2 Sep 2015

Date Written: February 4, 2015


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.

Keywords: evidence, evidence theory, new doctrinalism, probability, economic analysis, moral theory, case-specificity, cost-minimization, equal best

Suggested Citation

Stein, Alex, The New Doctrinalism: Implications for Evidence Theory (February 4, 2015). University of Pennsylvania Law Review, Vol. 163, 2015, pp. 2085-2107; Cardozo Legal Studies Research Paper No. 445. Available at SSRN:

Alex Stein (Contact Author)

Israel Supreme Court ( email )

Sha'arei Mishpat Street
Jerusalem, 9195001
972-2-6759743 (Phone)

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