In recent decades, both legal and economic scholarship have largely converged on the view that redistribution can be pursued through the tax system rather than through substantive legal rules. Yet, against the backdrop of persistent and, in many jurisdictions, worsening inequality, we have witnessed a growing body of scholarship is beginning to revisit this orthodoxy. Guttentag’s article joins this conversation and offers a compelling case for reexamining the role of law—tax law included—in addressing distributive concerns.

At the heart of Guttentag’s analysis is a sustained critique of the “double distortion” framework developed by Kaplow and Shavell in the 1990s (see, e.g., here. That framework holds that legal rules aimed at redistribution are inefficient because they distort both behavior and market functioning. 

Redistribution, they argue, should instead be pursued through the tax system, leaving legal rules to focus on efficiency. Guttentag recounts how this position became dominant within the law and economics movement but also documents the growing body of theoretical and empirical work that challenges it. Theoretical critiques have pointed to the framework’s static behavioral assumptions, its neglect of administrative and political constraints, and its failure to acknowledge the constitutive role of legal rules in shaping market structures. Empirically, Guttentag notes that reliance on the tax system has failed to generate the anticipated distributive gains: inequality has widened, and the tax code—particularly in the U.S.—has grown more regressive, porous, and politically fragile.

In this context, Guttentag joins a cohort of scholars who in recent years have been reevaluating how core domains of private and regulatory law—contract, corporate governance, consumer protection, antitrust—might serve redistributive aims. Guttentag uses Eldar and Van Loo’s article, Unequal Ownership, as a springboard to illustrate the potential of this emerging paradigm. Eldar and Van Loo argue that more equitable stock ownership could address inequality while also improving economic efficiency. Their premise is straightforward: if working- and middle-class households owned more corporate equity, they would benefit directly from the profits that currently accrue primarily to the wealthiest 10%. Moreover, firms might behave differently—perhaps more equitably—if their shareholders more closely resembled their customers and workers. Guttentag applauds this intervention on multiple grounds. First, it challenges the false dichotomy between equity and efficiency by showing how broader ownership can align firm behavior with social welfare. Second, it provides a rigorous, empirically grounded case for legal intervention outside the tax code. And third, it reframes stock ownership itself as a site of distributive contestation, rather than a neutral market outcome

Accordingly, Guttentag advocates for a reconceptualization of legal rules themselves. Rather than viewing law as merely a facilitator of efficient transactions (as traditional law and economics might view it), the New Law and Inequality scholarship treats law as a constitutive force: it shapes markets, allocates bargaining power, and determines the very structure of economic opportunities. For example, contract law does not merely enforce private agreements—it structures the conditions under which agreements are made. Antitrust law is not just about market competition—it’s about power, concentration, and access. Consumer protection is not just about disclosure—it’s about fairness and dignity in economic life. In each case, legal rules can and should be evaluated not only for their efficiency but also for their distributive effects. By reframing these domains through the lens of inequality, Guttentag brings legal analysis closer to the moral and political stakes that animate public concern about capitalism’s current trajectory.

Still, several points in Guttentag’s argument would benefit from further development. His embrace of a “many tools” approach—emphasizing complementarity between legal and tax instruments—is both timely and compelling. But a pluralist orientation also requires a clearer framework for adjudicating among tools. Legal rules often entail distributive tradeoffs: they may raise prices, reduce innovation, or create uncertainty. Tax expenditures to promote stock ownership, for example, may erode the public revenue base or generate regressive effects, depending on design. Here lies an opportunity to position Guttentag’s work more explicitly within the broader movement in legal scholarship that has embraced policy pluralism. Work by scholars such as Lisa Ouellette and Daniel Hemel in Innovation Policy Pluralism, has advanced a similar methodology for combining regulatory and fiscal tools across domains. Their insights are applicable here: just as innovation policy benefits from a portfolio of incentives—grants, tax credits, regulatory approvals—so too might distributive policy require a layered approach, in which legal rules and tax policy operate in tandem, with careful attention to comparative institutional design.

At the same time, this reconceptualization of law’s redistributive role should not bypass the rich tradition of tax scholarship that has long wrestled with these issues. The work of Professors David Weisbach and Jacob Nussim warrants renewed consideration in this context. Their influential article, The Integration of Tax and Spending Programs, offers a foundational framework for evaluating the comparative advantages of tax instruments relative to legal and regulatory alternatives in advancing public policy goals. Extending this analysis, Nussim—together with Anat Sorek—in Theorizing Tax Incentives for Innovation, develops a rigorous methodology for determining when the tax system constitutes a more effective and administratively tractable mechanism for shaping behavior than indirect legal rules. These contributions offer a systematic comparison of taxation and regulation across key dimensions, including transparency, cost-effectiveness, administrability, enforceability, and political resilience. For instance, in the domain of innovation policy, Nussim and Sorek argue that targeted tax incentives may outperform legal mandates or direct subsidies when benefits are difficult to measure, diffuse in distribution, or complex in implementation. Likewise, the integration framework developed with Weisbach provides a structured approach for determining whether tax or legal rules should be primary in advancing redistributive or corrective objectives.

Guttentag might also engage more directly with the political economy of redistribution. One of the reasons the tax system has struggled to achieve redistributive goals is not analytic failure, but political resistance. Legal rules may sometimes evade these pressures—they are more targeted, embedded in technical domains, and often less visible to voters. Yet legal reforms are not immune to capture or drift. The Opportunity Zones program, for example, demonstrates how legally sophisticated policy can be repurposed to benefit entrenched interests. A more thorough engagement with the political conditions under which legal versus tax-based redistribution can succeed would strengthen the case for a broader legal role.

Likewise, the question of institutional implementation deserves fuller attention. Guttentag gestures toward promising reforms—such as broadening stock ownership or regulating surplus extraction—but says little about how these ideas might be operationalized. Would they require new agencies, model statutes, reinterpretation of private law doctrines, or sector-specific regulation? Institutional detail is critical if the New Law and Inequality project is to evolve from critique to blueprint. Furthermore, Guttentag’s article frames inequality primarily in economic terms: income, wealth, ownership. But many of today’s redistributive debates are also about identity, recognition, and intersectionality—issues that economic metrics often fail to capture. For example, redistributing stock ownership may help low-income households overall, but what if it reinforces racial disparities in wealth or fails to reach immigrant communities excluded from capital markets? Similarly, some legal reforms (e.g., criminal justice, housing law) may be more impactful for marginalized racial or ethnic groups than financial or corporate policies. The New Law and Inequality framework would benefit from more engagement with these multidimensional inequalities asking hard questions such as the manner in which legal rules should intersect with race, gender, and geography and whether redistributive legal strategies be designed with these overlapping axes of disadvantage in mind.

One of the most intriguing parts of Guttentag’s article is his “friendly amendment” to Eldar and Van Loo’s analysis: the idea that wasteful competition for economic surplus is itself a kind of market failure that legal rules can mitigate. Guttentag draws on his earlier work to show how price discrimination, behavioral manipulation, and surplus extraction often lead to inefficiencies that harm both consumers and workers. This is a powerful point, and one that deserves more sustained development. In fact, the “surplus problem” could be the conceptual anchor for the entire New Law and Inequality movement. Just as the “externality” concept became the linchpin of environmental law, “surplus extraction” could serve as the foundational critique of market inequality. Future work could develop a typology of surplus extraction mechanisms (e.g., monopolistic pricing, arbitration clauses, attention harvesting, algorithmic opacity) and link them to corresponding legal interventions. It could also quantify the magnitude of surplus waste and redistribute costs across income or identity groups. By systematizing the surplus critique, scholars could move beyond ad hoc legal reforms and offer a more coherent, principle-based framework for legal redistribution.

Overall, Guttentag’s review is a landmark in the New Law and Inequality scholarship that urges rethinking the role of law in confronting economic injustice. By challenging the false dichotomy between law and tax, and by elevating the analytical rigor of legal redistribution, Guttentag provides both a theoretical correction and a normative vision. His call is timely. As inequality continues to strain the social fabric, the search for effective, legitimate, and politically viable solutions grows ever more urgent. Tax policy alone will not suffice. The legal system—long treated as a neutral arbiter or technocratic facilitator—must be reimagined as a tool of justice in its own right.  Still, much work remains. We need sharper tools for choosing among redistributive levers, deeper engagement with political feasibility, greater attention to identity-based inequalities, and more ambitious thinking about institutional implementation.