Volume 18, Issue 1

Inequality, as well as the scope of the duty of justice to reduce it, has always been a central concern of political justice. Income taxation has been seen as a key tool for redistribution and the state was the arena for discussions of justice. Globalization and the tax competition it fosters among states change the context for the discussion of distributive justice. Given the state’s fading coercive power in taxation and the decreasing power of its citizenry to co-author its collective will due to global competition, we can no longer assume that justice can be realized within the parameters of the state. International tax policy in an effort to retain justice often opts for cooperation as a vehicle to support distributive justice. But cooperation among states is more than a way for them to promote their aims through bargaining. Rather, it is a way for states to regain legitimacy by sustaining their very ability to ensure the collective action of their citizens and to treat them with equal respect and concern. The traditional discussion in international taxation seems to endorse a statist position — implicitly assuming that when states bargain for a multilateral deal, justice is completely mediated by the agreement of the states. In contrast, this Article argues that such a multilateral regime intended to provide the state with fundamental legitimacy requires independent justification. Contrary to the conventional statist position, I maintain that cooperating states have a duty to ensure that the constituents of all cooperating states are not treated unjustly because of the agreement. I argue that not only cosmopolitanism but political justice too requires that a justifiable cooperative regime must improve (or at least not worsen) the welfare of the least well-off citizens in all cooperating states. I explain that cooperation alone is no guarantee of improved welfare and that certain transfer payments between rich and poor countries might be required to ensure this.

Section 170 of the U.S. Internal Revenue Code is known as the “charitable contribution deduction.” This Article explores the section’s rationale as well as its effect on income/wealth distribution. It reaches the conclusion that the deduction can be justified on efficiency (mitigating the free-riding on public goods and asymmetric information problems) and democracy grounds, but is not “charitable,” as its distributive effects are neutral or even regressive.

Widespread recognition that economic inequality has been growing for forty years in most of the developed world, and in fact has tended to grow across most of the history of modern economies, shows that the period 1945-1973, when inequality of wealth and income shrank, was a marked anomaly in historical experience. At the time, however, the anomalous period of equality seemed to vindicate a long history of optimism about economic life:that growth would overcome meaningful scarcity and usher in an egalitarian and humanistic period that could almost qualify as post-economic. This has not been the experience of the last four decades. In this intellectual history of the anomalous period, we trace the main lines of that optimism and its undoing.

Why do women sellers in product markets receive lower prices than men sellers when selling the same identical products? This Article investigates the effects of cultural beliefs about competence, desert and trust on market interactions with women and men sellers. We use an experimental approach to show that the prices people are willing to pay for the exact same product (a $100 Amazon gift card) are affected by cultural beliefs about gender; when a woman sells a gift card, she is likely to receive five percent less for it, compared to when a man does. Our analysis further suggests that it is beliefs about women’s relative competence and moral entitlement that drive the gender price gap in product markets. When the participants in the experiment were presented with information that suggested that the woman seller was a competent or entitled seller, no gender price differences were found between such women sellers and their equally qualified male counterparts. Nonetheless, information about the trustworthiness of sellers did not decrease the gap between women and men sellers. This suggests that price gaps between women and men in product markets are not generated by beliefs about the trustworthiness of women and men.

Rising income inequality was a major factor in the surge of household debt that brought on the financial crash and Great Recession. Other studies have identified rising household debt as a cause of the crash but not income inequality as a cause of the rising debt. Here the unusual rise in household debt post 1995 is documented. Econometric evidence links rising income inequality to the rise of household debt. Consumer expenditure data shows that prices of major necessities —shelter, healthcare and education—rose faster than inflation as demand by high-income households surged. In order to maintain their consumption of such necessities, lower-income households resorted to massive borrowing. Their rising debt precipitated the financial crash and Great Recession. That link was overlooked by mainstream economists because they adhere to a theory of household consumption that posits no role for income inequality.

Inequality isn’t just for the young anymore. People over age sixty-five face large and growing inequalities in health, wealth, work, and family. The widening gap between better- and worse-off older Americans has begun to undermine legal institutions that once worked to correct inequality, including Social Security, Medicare, private pensions, and family law. In this Article, I briefly document the inequalities that have transformed old age in the last fifty years (or so) and then analyze three common justifications for reform: budget solvency, inequality, and progressivity. I show that each of these falls short of the kind of principled justification that will be needed to justify cutting benefits, raising taxes, or both.

Inequality is the defining feature of our times. Many argue that it calls for a policy response, yet the most obvious policy responses require legislative action. And if inequality is the defining feature of our times, partisan acrimony and gridlock are the defining features of the legislature. That being so, it is worth considering what role administrative agencies, and administrative law, might play in ameliorating or exacerbating economic inequality. Here, I focus on American safety net programs, many of which are joint operations between federal administrative agencies and state governments. In this context, a central mode of bureaucratic policy innovation comes in the form of administrative waivers, whereby a federal administrative agency waives some statutory requirement that is otherwise binding on state administrators. For example, the Centers for Medicare and Medicaid Services recently granted waivers to allow several states to impose various “personal responsibility” requirements on Medicaid beneficiaries. Faced with a choice between legislative inactivity and policy innovation through waivers, many scholars and policymakers of both parties have tended to favor waivers. The appeal of waivers as a path around legislative gridlock is compelling. However, I argue that this view has neglected the federal structure of American safety net programs, and does not account for the state politics of implementation. Moreover, scholars have not focused on the severe information problems that federal agencies face when issuing waivers; a permissive waiver regime exacerbates these problems. Focusing on Medicaid implementation, I highlight the risks of waivers for American safety net programs. Before concluding, I discuss possible reforms to administrative procedures, and offer a case study of litigation surrounding one recent waiver application. The case study illustrates many of the theoretical arguments, and further demonstrates the failure of judicial review; it indicates how review might be adjusted to promote more effective use of waivers and diminish their perils.

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in virtue of that which we distribute and equalize that our policy formulations treat us as politically “counting” or “mattering” for purposes of social aggregation and maximization. To attend systematically to this form of inter-translatability, with a view in particular to that which maximization formulations latently prescribe that we distribute and equalize, might be called “putting distribution first.” It is explicitly to recognize the fact that all law and policy are implicitly as equalizing and citizen-defining as they are aggregative and maximizing, and to trace the many salient consequences that stem from this fact. It is likewise to recognize that all law and policy treat us as equals in some respects and as non-equals in other respects. Putting distribution first by attending explicitly to these “respects” yields greater transparency about how well or poorly our laws and policies manage to identify, count, and treat us as equals in the right respects. This Article works to lay out with care how to put distribution first in normative legal and policy analysis. The payoffs include both a workable method by which to test proposed maximization norms systematically for their normative propriety, and an attractive distributive ethic that can serve as a workable normative touchstone for legal and policy analysis. Indeed, the Article concludes, much — though not yet quite all — of our law can illuminatingly be interpreted as giving inchoate expression to just such an ethic.

The most striking economic and political fact of the past forty years has been the dramatic increase in economic and political inequality throughout the advanced economies. This Article considers this development as an occasion to explore the contribution of contemporary law and legal thought to the problem of inequality. I focus on two main themes: the naturalization of the present institutional form of the regulated market economy, and the naturalization of the present low-energy form of democracy. I argue that in each case, the absence of structural vision in law prevents us from understanding the sources of and remedies for inequality. We must rescue the insight from the compromise and begin to develop a better way of thinking about law and the economy, if we are to understand and address the rise of inequality. Therefore, three programmatic implications are suggested in this Article regarding three domains: politics, production and finance.