Alex Raskolnikov (Columbia), A New View of Formal Equality and a Case for Predistribution, 17 J. Legal Analysis ___ (2025):

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 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.

This Essay makes three key points. First, while formally equal legal rules do have unequal impacts on unequal individuals, such unequal impacts do not necessarily favor the rich and harm the poor—the opposite is also possible. Second, if we assume, given plausible reasons to do so, that formal equality is important in the real world, the neoliberal maxim of light market regulation combined with redistribution only through the tax-and-transfer
system is misguided. There is a tradeoff between efficiency and formal equality that points toward a balanced regime that tolerates
some inefficiency of legal rules and some formal inequality (that is, some explicit progressivity) in the tax system. Third, such balanced regime features a lot of predistribution and may look like property owning democracy that Rawls favored rather than welfare capitalism of today’s United States.

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