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Yael Aridor Bar-Ilan

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S.J.D. 2006

 


Dissertation

Is The Ex Post Perspective An Alternative? Ex Ante Versus Ex Post

Judicial decisions and legal analysis are often dependent on the timing a decision is explored: ex ante versus ex post. The ex ante perspective is premised on the idea that justice is achieved “before the fact” by consistently pursuing the resolutions and balances set by the legal system to the underlying dilemmas (such as the extent of individualism and altruism in torts) and adhering to them after the case has occurred; the ex post perspective is premised on the idea that justice is known “after the fact” through the realization of the particularities of the case that actually occurred. In my dissertation I create a framework, which draws on legal theory, economics, philosophy and moral considerations, to systematically study the ex-post and ex-ante perspectives and their complex relationship across contemporary legal contexts, such as torture, censorship, contract law and civil procedure. I study the hypothesis that the perspectives are co-existent and co-dependent within judicial decisions on various contexts. I ask: what does an ex ante perspective mean if plurality is constant - - and specifically, how recognizing the simultaneous capability to see ex post and ex ante perspectives relates to our experiences, living through time and judging in specific moments?

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