Alex Raskolnikov (Columbia) has just published “A New View of Formal Equality and a Case for Predistribution” in volume 17 of the Journal of Legal Analysis. Here is the abstract:

A long-held egalitarian view is that formal equality—the absence of formal legal distinctions based on the material resources of individuals—is regressive. If legal rules are the same for the rich and the poor, the rich benefit and the poor suffer. This Essay argues that this view is mistaken. Far from being synonymous with laissez-faire, a commitment to formal equality provides a counterweight to the key neoliberal maxim that regulation of the market economy should focus on efficiency alone. Moreover, a new view of formal equality offered here reveals a key advantage of predistribution over redistribution: Explicit redistribution is formally unequal, while predistribution can be achieved using only formally equal rules.