Every summer for several years now, my mother-in-law's extended family has gathered at Bear Lake for a few days of fun at the lake. We've stayed at various places, but last summer reservations were made, a full year in advance, for this years festivities to occur at a lakeside condominium. Imagine her shock when, just a week before the event, my mother-in-law discovered that (despite having paid in full) her reservation was "not in the calendar." She had wisely retained her receipt, but when she faxed it over to the rental agency, they made her a pretty weak offer: nicer (available) lodgings for about twice what she'd already paid, or a refund.

The story ends with various family members ponying up the difference; vacation saved at minimal expense. I personally have some very strong doubts about the nature of the "mistake" made by the rental agency; my mother-in-law initially got a screaming deal (25-person capacity lakeside condominium for $225 a night?) and I wouldn't put it past someone to "accidentally" delete the reservation when they realized that she'd booked one of the busiest and most lucrative weekends of the summer. But even assuming an honest mistake, the story illustrates very well one of the central problems with the modern legal industry.

Now, I am not a lawyer and the following analysis is not legal advice; I have not looked into the law as it pertains to temporary lodgings in the state of Utah. But from a pure contract law analysis, my in-laws' is a textbook case of breach. Consideration for the contract was paid in full--this was not a "deposit," the money had been paid for the dates in question. The rental agency's choices were to cancel the second reservation and perform on their contract, or possibly to provide an "equal or better" replacement choice. Barring that, my in-laws could seek their own replacement from whatever housing was available and bill the rental agency for the difference. In short, "pay us more money" was not something the rental agency was in a position--legally--to ask.

But in reality, despite their position in breach, the rental agency had us over a barrel. They surely knew that, on such short notice, no other comparable lodging would be available. If we turned down their "offer," the annual lake trip would likely not happen. We could certainly be vindictive about it, cancel the vacation and sue, but contract damages aren't like tort damages--as a general rule, punitive damages are limited or nonexistent. Taking all possible damages into account, I can't imagine the suit being worth more than a thousand dollars.

As I said to my mother-in-law, who was wrangling with how to respond, "Would you rather have a good case or a good vacation?"

Thus our story ends with the mildly reluctant outlay of a little additional capital, the pinch diluted across several solvent households. The rental agency comes out ahead, suffering not one whit for its "mistake," but the vacation proceeds as planned.

But of course, the additional expense might have been too great. What then? Assuming this establishes a hypothetical fiscal state of affairs wherein a lawyer, too, is too great an expense, should companies be permitted to unilaterally breach contracts without consequence, so long as the individual wronged is too poor to demand justice?

Outside the criminal justice system, the vast majority of lawsuits are between business entities. Most political campaigns are funded by business entities. It is valid to note that businesses are, ultimately, made up of people, but this is a little misleading; by choice and often by law, business entities have different priorities; many CEOs are not allowed to do "the right thing" if it is not also demonstrably the most profitable thing.

There are those who believe that "right" is indistinguishable from "profitable," or at least that the situation is fundamentally unavoidable. Perhaps they're right. The law has been called a "blunt instrument" and I do tend to believe that we are better off with laws defining the outermost boundaries of behavior, rather than governing our every breath. On an even playing-field, this would really be ideal.

But instead we have a legal system that favors businesses (under the hollow argument that what's good for the economy is necessarily good for the people) by making itself largely unavailable to the common citizen. When you have a dispute with Best Buy or Wal*Mart or the lakeside rental agency and they tell you to "take it or leave it," they do so with the confidence that you are unlikely to demand justice. They know you probably can't afford it.

So I find myself vacillating wildly between two (ostensible) extremes. This tends to confuse my more politically polarized peers. One will ask me, "How can a small-government libertarian like you favor socialized health care?" Another will ask, "How can a liberal academic like you favor free market economics?" I don't know! I guess, if the government is going to take any of my money, I'd prefer they spend it vaccinating children over killing Muslims--but when I'm feeling optimistic, I acknowledge that I'd really prefer they just take less of my money and do less stuff altogether? This is really tricky for me.

Maybe what I'm trying to say is that I don't prefer government intervention, but insofar as the government involves itself at all, there are certain kinds of involvement I prefer over others. I would prefer the late Chief Justice Rehnquist's position on corporate personhood over the position presently predominant. I would prefer that corporations be more afraid, for example, to unashamedly breach contracts in pursuit of profit (note that many Law and Economics types believe that breach is a corporate duty where it is more profitable than performance). I would prefer a court system more accessible (not to mention affordable) to the common citizen.

Not sure what the solution is. What if we had high school "life skills" courses on how to file with a suit in small claims court? It's not a super-complicated process, but it can be daunting. Certainly we need to strip a lot of corporate "rights" and cut back on corporate bailouts--hey fellow Republicans, how the heck does a corporate bailout (see also: airlines) comport with free market economics, anyhow? By my calculations, every airline in the United States has been purchased outright by the United States of America. Some, twice over! To say nothing of our data infrastructure...

Okay, we're boiling over into "wild tangent" territory, now. But hopefully my anecdote has illustrated the problem?

What do you say?

UPDATE:

It has come to my attention that the phrase "I'd prefer they spend it vaccinating children over killing Muslims" irked some of my readers and bordered on "intellectually dishonest" because the implication is that the war in Iraq is racially-motivated.

This implication was not intended. While a disturbingly large number of Americans (likely the same sort of people who forward emails about Obama being the Antichrist because his father is Muslim) are in fact delighted when non-Christians perish at our hands, I do not believe for a moment that the choice to invade Iraq was motivated by a racist agenda.

But neither was it really motivated by a genuine desire to "liberate" anyone, let alone to "protect" any American interest more fundamental than economic interest. The main thing Saddam Hussein and George Bush II have in common is that their respective administrations killed a lot of Muslim extremists; indeed, that's one of the reasons we put Saddam in charge in the first place. The creation of Iraq by the U.S. and U.K. still boggles my mind; it was like we put a rabid lion, a vicious tiger, and a hungry bear together in a cage surrounded by other ferocious beasts, handed a big game rifle to the zookeeper, and had the gall to act surprised when he started using it.

But I digress... and am probably guilty of yet another oversimplification here! The argument can certainly be made that our robust economy is in fact central to our freedom, but it's not really an argument I accept. Consequently, what we are literally doing in Iraq is killing Muslims, without any valid ethical reason for invading in the first place--in short, we didn't go to Iraq specifically to kill Muslims, but our "real reasons" are not much better than that. By stating the facts plainly, I also stated them pejoratively, and this was intended--however, to whatever extent I undermined my own argument by engaging in unfair implication, I am willing to backpedal and apologize.