Many scholars and politicians have decried increasing levels of inequality in the United States in recent decades, and while calls for increased taxes on the wealthy have produced no shortage of opinion pieces and academic literature, the political appetite for raising such taxes has been low. Are policymakers simply relegated, then, to the status quo of increasing inequality? In his forthcoming work in the Journal of Legal Analysis, titled “A New View of Formal Equality and a Case for Predistribution,” Alex Raskolnikov answers in the negative.

At the heart of Raskolnikov’s article is his concept of “formally equal” legal rules, which are those rules that do not differentiate among individuals on the basis of income or wealth. (To be clear, this is separate from the Equal Protection jurisprudence, which looks at equality on a much broader set of parameters, such as race, sex, age, or employment.) Thus, progressive income taxes are not formally equal (since the rate of tax varies as a function of one’s income), but a progressive corporate tax (which individual shareholders bear equally without regard to such shareholders’ income or wealth) is formally equal.

Raskolnikov traces the principles for formal equality back to Classical Greece, both in the works of philosophers like Plato and Aristotle as well as in the Athenian leaders Demosthenes and Pericles. He argues, however, that after the fall of Rome, it was not until the Enlightenment that philosophers like John Locke advocated that the law should be formally equal. He then traces how various political thinkers up through the twentieth century have approached formal equality, both in adopting some version of it (as Friedrich Hayek did) or in rejecting it (as John Rawls did). This was a compelling overview, though it would have benefited from a discussion of some of the developments in the law that occurred during the Enlightenment as well. In any event, whatever its detractors might say about the downsides of formally equal rules, it is not hard to buy Raskolnikov’s argument that the principles of formal equality have had enormous staying power up until the present day.

In contrast to the argument that formally equal rules lead to unequal outcomes, Raskolnikov argues that formal equality need not lead to material inequality; in fact, he points out examples of formally equal rules that do benefit the poor. For example, stronger tenant protections tend to disproportionately benefit economically disadvantaged individuals, notwithstanding the fact that they are laws that are formally equal. Raskolnikov argues that in many cases, the real problem with formally equal rules are those rules that lead to an increase in efficiency. As much prior scholarship has demonstrated, such efficiency-increasing rules disproportionately benefit those at the top.

Because this reality is fairly well-recognized, those scholars (of whom Louis Kaplow and Steven Shavell are perhaps most prominent) who desire formally equal legal rules that increase efficiency argue that the tax-and-transfer system ought to be the tool by which increases in inequality resulting from efficiency-increasing legal rules are mitigated. In other words, to combat inequality, the argument goes, we should pursue redistribution such that we mitigate increasing inequality resulting from increasing efficiency.

The problem with this approach, however, is at least twofold. First, Raskolnikov argues that in the United States, we have implemented efficiency-increasing rules, but have failed to implement the corresponding redistributive taxes needed to reduce (or at least not increase) inequality. Second, to the extent that we care about formal equal rules as an underlying value, there is no reason why such formally equal rules should not apply to tax laws as well. Having shown, then, that formally equal rules do not necessarily lead to increasing inequality—at least insofar as such rules are not efficiency-increasing—Raskolnikov argues that policymakers should be more open to using formally equal rules as a means of “predistribution.” Such laws could reduce disparities in pre-tax income, obviating the need to impose ever greater levels of progressively to mitigate inequality in post-tax income.

Part of the attractiveness of Raskolnikov’s suggested approach is, of course, that large increases in progressive taxes are political nonstarters today, but there has been significant political support for the types of predistributive rules that could achieve similar ends. This is perhaps where this paper is at its strongest: showing that formally equal legal rules can actually serve as a means for reducing inequality (or at least, minimizing the increase in inequality) and that such predistributive rules may serve as a politically viable alternative to redistributive progressive taxes.

What remains unclear from Raskolnikov’s piece is whether predistributive rules are preferable to redistributive rules (because the former can be done using formally equal rules, whereas the latter cannot), or whether predistributive rules are a second-best solution in a world where there is insufficient political will to implement the necessary redistributive rules to offset the increases in inequality resulting from efficiency-increasing formally equal rules.

Beyond that, while Raskolnikov has laid out an incisive theoretical case for his proposal, the actual proposals for the sort of rules that might be desirable come across as somewhat vague. In that sense, the paper runs the risk of simply acting as a stamp of approval for contemporary progressive (albeit non-tax) policy goals. But it is not at all obvious that the appetite for predistributive rules lies exclusively on the left; indeed, such proposals may well have resonance within the populist right as well. As it relates to the tax system itself, it would have been helpful to understand where Raskolnikov might argue formally equal rules could play a role. For example, would a flat tax, paired with a demogrant (as Bankman and Griffith have suggested), be a wise policy prescription? Outside of the income tax context, is this an argument for the United States (finally) adopting a VAT (which is formally equal)?

Finally, as it relates to contemporary debates, how does Raskolnikov’s argument square with the new pro-tariff regime in the White House? After all, one of the arguments in favor of tariffs is not so dissimilar from Raskolnikov’s—by imposing tariffs on imported goods, we put a thumb on the scale in favor of American manufacturers, thereby benefiting American workers (even at the cost of efficiency). While those premises may be contestable, of course, it would be interesting to think through contemporary debates over tariffs in light of Raskolnikov’s argument.

In short, Raskolnikov offers an incisive piece that shows how formally equal rules need not be immediately derided as leading to inequality. Rather, such rules can actually be used as a “predistributive” technology that can serve to mitigate inequality. Moreover, such rules can be used in lieu of redistributive rules that are unable to achieve the level of progressivity needed to appropriately mitigate inequality. Thus, as policymakers consider the kind of laws that lead to more equal outcomes, they would do well to recognize the role that formally equal rules can play in such a system.