Justice Without Markets?

In a series of legal fields, from constitutional law to contracts to competition law, the market mechanism has provided a claimed neutral baseline against which to measure justice. Rights and remedies have been benchmarked against what “the market” would have provided the parties. That neutrality was always something of a legal fiction—economics has long understood that in some contexts, the market mechanism does not deliver a single, stable equilibrium. However, that did not stop the law from fixating on the cases where market mechanisms do deliver a single, stable equilibrium as a baseline proposition from which to measure rights and remedies. The rhetorical strength of the law’s adoption of a purported neutral market baseline bolstered classical liberals, Chicago School adherents, and others who favoured the translation of market ordering into the positive legal framework.