Distributional Arguments, In Reverse

This Article contends that the government should consider – rather than ignore – distributional consequences both in the design of legal rules and during legal transitions. This does not mean that the distributional effect of every legal rule should be measured and taken into account in the rule’s design. But if the likely distributional effects are unintended, large, and objectionable, if the efficiency of the legal rule is doubtful, if the compensating tax-and-transfer adjustment is not forthcoming (or has not occurred), policymakers should take distribution into account. One way of doing so is to choose among several alternative legal rules of questionable efficiency the one with better distributional consequences. Another is to slow the pace of legal change in certain cases. This Article also does not suggest that every transitional loss should be reimbursed. But if losses are large and unforeseeable, if private risk-mitigation mechanisms are unavailable, the government should step in. Enacting a broad-based transitional assistance program for low-skill workers and replacing our complex, obscure, state-specific social safety net with a simpler, transparent, nationally uniform one would go a long way toward mitigating the losses discussed here