Law for the Rich

With top incomes and wealth reaching historic highs, scholars and politicians have proposed new taxes and novel legal rules aimed at reversing the emergence of the new Gilded Age. Yet while new taxes target the rich directly by imposing greater burdens only on those with incomes or wealth above multi-million-dollar thresholds, none of the proposed legal reforms do anything of the sort. There appears to be no interest in changing property law, corporate law, antitrust law, or labor law, among others, to have special, more burdensome rules applicable only to the rich. This Article asks: Why not? Why shy away from a separate law for the rich if one supports both progressive taxation and distribution- ally informed legal rules in general?

This puzzle, it turns out, is surprisingly difficult to solve. Neither political philosophy nor economic analysis nor practical design considerations offer a plausible answer. Looking for clues outside of legal theory suggests that a separate law for the rich would be widely viewed as unfair because it imposes burdens that are obvious, highly concentrated, and possibly contrary to one of the fundamental elements of law itself. Redistribution through legal rules, it turns out, is limited in a way that redistribution through the tax law is not. Law for the rich is not a solution to the emergence of the new Gilded Age. Reformers must look for other ways of achieving a more prosperous and more just society.