I agree with BS about "legal realism", having spent about 3,000 hours in the University of Southern California's (USC) law library reading thousands of cases. I made BS's observation with regard to cases with "identical or almost identical facts". I learned judges can always "distinguish cases" on the facts. So? No two cases have "identical facts"; there is always something different. In two auto accident cases: one car was red, the other blue. So? A judge ignores another case for some reason, so says, "the case is distinguished on the facts". He states no reason. Arguably, Oliver Wendell Holmes (1841-1935) was the first legal realist (LR). The LR movement became significant at Yale and Columbia law schools in the 1930s. Some books worth reading to understand LR are: Courts on Trial, Frank, Jerome, 1949 and Woe Unto to You Lawyers, Roddell, Fred, 1939. An excellent law review article is: 10 Harvard Law Review 457, "The Path of the Law", (1897), Holmes. Look at Stoneridge. I doubt any of Stoneridge's stated reasons are its basis, which was: "enhance American capital markets" or some such thing. But our Supremes lack the intellectual integrity to say, "We are adopting Hank Paulson's policy". President Bush decries "judicial activism". What was Stoneridge, if not judges putting Bush's policy preferences into law?
The balance of BS's article is about traders affecting markets. If interested, read Yves Smith's dissection of it at http://www.nakedcapitalism.com/, 27 January 2008.