Fletcher's Paradox Revisited

7 Pages Posted: 2 Feb 2018

See all articles by Jan Broulík

Jan Broulík

Amsterdam Centre for European Law and Governance

Date Written: February 1, 2018

Abstract

George P. Fletcher introduced a paradox consisting in the inability of a court to reach decision: The court is trapped in a vicious circle, switching eternally between acquitting and convicting the conduct in question. Fletcher maintains that the paradox ensues from interweaving of ex ante and ex post considerations and, thus, sheds light on the use of different temporal perspectives in legal decision-making. The current article, however, argues that the real cause of the paradox is self-reference of the applied decision-making formula. It demonstrates that Fletcher’s explanation based on interweaving of temporal perspectives does not hold for the paradox arises also when all relevant considerations are ex ante in nature.

Suggested Citation

Broulík, Jan, Fletcher's Paradox Revisited (February 1, 2018). NYU School of Law, Public Law Research Paper No. 18-04. Available at SSRN: https://ssrn.com/abstract=3116372 or http://dx.doi.org/10.2139/ssrn.3116372

Jan Broulík (Contact Author)

Amsterdam Centre for European Law and Governance ( email )

P.O.Box 1030
Amsterdam, 1000 BA
Netherlands

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