But is it really that surprising that judges have trouble getting past the he-said, she said? In a sense, isn’t our whole legal system geared towards having judges think in those terms? In addition, I suspect that the Supreme Court labours under a particular disadvantage in this area. Think about their task. They accept a case, and receive arguments from the parties. They are inundated with ‘amicus briefs’ – full of sociological and statistical analysis. They do not hear evidence, nor do they get impartial expert advice. They hear very brief oral arguments. They then work on a number of judgments simultaneously with their clerks – some of whom, admittedly, these days probably would have the expertise and training to analyse these issues (and indeed, arguably given the kinds of briefs the judges get, perhaps they should be choosing their clerks at least partly on this basis). They do this in an unremitting yearly calender which means they don’t sit on judgments for long times (everything comes out on a timetable). I know I’m explaining to a former High Court associate how to suck eggs here, but my guess would be that it must be very difficult, in this context, to get past he-said, she-said to really dig in to the economic analysis.

All that said – if this debate really is important to the particular judgment, obviously there’s an argument for more.