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Theoretical Inquiries in Law

Editor-in-Chief: Klement, Alon

2 Issues per year


CiteScore 2017: 0.49

SCImago Journal Rank (SJR) 2017: 0.345
Source Normalized Impact per Paper (SNIP) 2017: 0.727

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1565-3404
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Volume 18, Issue 1

Issues

Putting Distribution First

Robert Hockett
Published Online: 2017-02-11 | DOI: https://doi.org/10.1515/til-2017-0009

Abstract

It is common for normative legal theorists, economists and other policy analysts to conduct and communicate their work mainly in maximizing terms. They take the maximization of welfare, for example, or of wealth or utility, to be primary objectives of legislation and public policy. Few if any of these theorists seem to notice, however, that any time we speak explicitly of maximizing one thing, we speak implicitly of distributing other things and of equalizing yet other things. Fewer still seem to recognize that we effectively define ourselves by reference to that which we distribute and equalize. For it is in virtue of that which we distribute and equalize that our policy formulations treat us as politically “counting” or “mattering” for purposes of social aggregation and maximization.

To attend systematically to this form of inter-translatability, with a view in particular to that which maximization formulations latently prescribe that we distribute and equalize, might be called “putting distribution first.” It is explicitly to recognize the fact that all law and policy are implicitly as equalizing and citizen-defining as they are aggregative and maximizing, and to trace the many salient consequences that stem from this fact. It is likewise to recognize that all law and policy treat us as equals in some respects and as non-equals in other respects. Putting distribution first by attending explicitly to these “respects” yields greater transparency about how well or poorly our laws and policies manage to identify, count, and treat us as equals in the right respects.

This Article works to lay out with care how to put distribution first in normative legal and policy analysis. The payoffs include both a workable method by which to test proposed maximization norms systematically for their normative propriety, and an attractive distributive ethic that can serve as a workable normative touchstone for legal and policy analysis. Indeed, the Article concludes, much — though not yet quite all — of our law can illuminatingly be interpreted as giving inchoate expression to just such an ethic.

About the article

* Edward Cornell Professor of Law, Cornell Law School. Many thanks to Matt Adler, Kaushik Basu, Brian Bix, Yael Braudo-Bahat, Mike Dorf, Bill Ewald, Alon Harel, Roy Kreitner, Daniel Markovits, Jerry Mashaw, Trevor Morrison, Eduardo Peñalver, John Roemer, Bill Simon, Larry Solum, and the editors of Theoretical Inquiries in Law for helpful comments, criticisms, and suggestions.


Published Online: 2017-02-11

Published in Print: 2017-01-01


Citation Information: Theoretical Inquiries in Law, Volume 18, Issue 1, Pages 157–226, ISSN (Online) 1565-3404, ISSN (Print) 1565-1509, DOI: https://doi.org/10.1515/til-2017-0009.

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