Fred Carstensen wrote:  
>   
> For this discussion, what I would point to is the  
> framework that this   
> established was one in which individuals (firms)  
> could formulate   
> reasonably stable expectations about the future  
> consequences of   
> current (economic) decisions--and thus engaged in  
> micro-planned   
> activities that at the macro level appeared  
> spontaneous.  
  
  
I think this is what John Commons was saying. The  
common law is not an epiphenomenon; it has important  
constitutive features. The doctrine of _stare decisis_  
is a key element, as it changed the source of the  
common law from custom to the opinions of judges. At  
the same time, reliance on precedent does not prevent  
judges from looking forward to ensure  
that decisions are advancing some the relevant  
collective end.  
  
Michael Nuwer