“You seem to be implying that judges see the rule of law as clearly black and white without regard to any externalities, and that they apply the law in a mechanical fashion to the facts of a case without regard to value judgments or social factors that may be involved outside of the pleadings.”
No, that wasn’t my argument, pravnik. I am well aware the rule of law is never black and white and that, on the contrary, interpretations of the law change over the course of time along with historical contexts.
“That’s why I say given a choice between accepting a creative interpretation of the law and leaving a situation alone as best handled through market forces or legislative means, judges will tend to do the latter.”
And what I’m trying to say is that embedded in this statement is a particular assumption that, from your view, may seem matter of fact but, as I see it, reflects a belief that not all people, including judges, accept. To wit, the idea that a ruling on contract law represents interference in “market forces,” rather than a component of market forces, reflects a particular ideological belief–a dogmatic and (in my view quite naive) laissez-faireism that many reject. As I see it, a judge will rule based on whether s/he sees a legitimate breach of contract. And the legitimacy of that breach–or the lack thereof–will have (and indeed should have) nothing to do with the (erroneous) assumption that market forces stand magically outside of the law and are “best” left that way.
Consider this analogy : Theater company A contracts with Customer X to show kids movies on the occasion of X’s child’s birthday party. A’s projectionist shows up fifteen minutes late and, as a result, the kids begin crying and fighting even though the movies are eventually shown, so that, according to X, the party was ruined for his child and his child’s friends. Now I am willing to bet that if a judge ruled in favor of X no one would accuse that judge of intervening with situations “best handled through market forces.” It’s possible they might feel the whole case was silly, or that an award of $350 was too much, but in neither case would market forces have anything to do with their feelings. On the contrary, they would know that the conditions under which X contracted with the theater company included X’s ability to sue should anything go wrong with the services contracted for. In other words, as consumers in the marketplace we contract with a degree of confidence in part b/c we know that the courts are available to us in a worst case scenario. That ability to sue for breach of contract is part of business-as-usual as we know it.
The principle behind the moviegoer lawsuit is much the same as the one described above. I suspect the only reason that you introduce the idea of “market forces,” as a thing distinct from the law, is that you a discern an intent on the part of these litigants to serve all consumers and not just the specific ones who are arguing the breach. Now it may well be the case that the judge is a friend of december and will be influenced by his/her thoughts on tort reform. Or it may well be the case that the judge is a member of Public Citizen and sees the courts as an important avenue for consumer rights.
In either case, though, the issue is whether or not there is a breach of contract. And one’s views on the relation between the law and the marketplace–a relation which ought properly to be seen as mutual constitutiveness–should have nothing to do with it.
If it does it’s because the judge is an ideologue.