Robert S. Summers

Economists’ Reasons for Common Law Decisions

When judges write opinions in common law cases they frequently seek to justify their decisions not merely by citing any relevant precedent or other authority but also by setting forth what we will call ‘substantive reasons’. Reasons of this kind incorporate moral, political, institutional, or other social considerations.1 In our view, substantive reasons have primacy over appeals to authority in the common law.2 Judges must rely on such reasons in cases of first impression, cases posing conflicts of precedent, and in cases involving the overruling or other renovation of precedent. Moreover, judges should and do advert to the substantive reasons behind precedents in order to interpret them and determine their scope.3