Legal Theory Lexicon for 1Ls: Ex Ante & Ex Post

For the first 10 weeks of the Fall Semester, select Legal Theory Lexicon entries of special interest to first-year law students in their first semester will be posted in addition to the regular set  of Lexicon entries. Introduction If I had to select only one theoretical tool for a first-year law student to master, it would be the ex post/ex ante distinction. (Of course, this is cheating, because there is a lot packed into the distinction.) The terminology comes from law and economics, and here is the basic idea: The ex post perspective is backward looking. From the ex post point of view, we ask questions like: Who acted badly and who acted well? Whose rights were violated? Roughly speaking, we associated the ex post perspective with fairness and rights. The ex post perspective in legal theory is also loosely connected with deontological approaches to moral theory. In general jurisprudence, we might associate the ex post perspective with legal formalism. The ex ante…

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