The Political Morality of Evidence Law

Abstract

This review essay discusses Alex Stein's recent book Foundations of Evidence Law. It focuses on explicating the book's general normative framework and then offers a critique of that framework from within the domain of political morality. Part I discusses Stein's views about the purpose of evidence law and the importance of error allocation. Part II explains how Stein derives his normative principles from probability theory. Part III discusses the book's master principle—the principle of maximal individualization. Part IV explains how this principle operates, along with two additional principles (``equality" and ``equal best"), to regulate evidentiary issues. Part V evaluates the overall theory in light of two goals that the law of evidence must satisfy to a significant degree in order to be justified in terms of political morality: error reduction and the fair allocation of the risk of errors that do occur. The critique developed in this essay offers some reasons to question the extent to which Stein's theory would achieve either goal. The general theme of the critique is that a greater focus on the epistemology of proof would also lead to a more morally justified proof process, and thus that the epistemic and moral domains are more intertwined than the book supposes.