Tuesday, December 10, 2019
Christopher R. Leslie, University of California, Irvine School of Law underscores Hindsight Bias in Antitrust Law.
ABSTRACT: Many areas of law require the factfinder to predict how probable a particular outcome was before it happened even though the factfinder knows the actual outcome. For example, police officers often conduct searches without a warrant. After such a search has happened, a judge must sometimes decide whether, before the police officers began the search, the officers had probable cause to conduct the search. But the judge knows that the search did, in fact, uncover evidence of a crime. The fact that the search was successful, however, is not supposed to affect the judge’s determination of whether the officers had probable cause before the search. In such instances, the judge must determine an ex ante probability in an ex post world.