Document Type


Publication Date



How does one win popular support for laws designed specifically to redistribute economic wealth? One can hardly gainsay that this is a – perhaps the – defining issue for domestic policy in the age of President Obama. Even as the recent financial crisis has exposed the need for a reliable social safety net, attempts to respond through the political and legislative arenas have triggered increasingly hostile responses among conservatives, populists, Massachusetts voters, and incipient tea partiers. The puzzle of how to attract and preserve public support for law reform aimed at redistribution – of both income and risk – is of no small significance at this critical juncture of unsettled public sentiment and a motivated (though perhaps increasingly reticent) presidential administration.

If this is an issue for the moment, however, it is also an issue for the ages. Public debates have always been particularly contentious when they involve redistributional social policy. The questions of how to spread social risks and who should receive state largesse have, to cite just a few recent examples, fueled controversies over whether national health care reform ought to incorporate means testing, that is, targeted transfers based on low income or means, as well as sharp disagreements over expansions of Medicaid, the federal program that supplies health insurance to low-income Americans, and the Children's Health Insurance Program (CHIP), the federal program that subsidizes health insurance for the children of low-income families.

In recent years, a number of scholars from law and the social sciences have advocated expanding social insurance and other aspects of the "social safety net," with particular attention to the needs of low-income citizens. Much academic work offers compelling normative arguments for intervention, paired with proposals for law reform. Nevertheless, the strikingly slow progress of redistributional law re-form during Obama's early years in office suggests that advocates of such initiatives failed to attend to more practical questions of how redistributional policies can garner and retain robust public support, particularly when perceived to redirect resources away from politically- engaged individuals who fear they will emerge economically worse off (embodied canonically by Joe the Plumber in the 2008 election).

This Article aims to help provide those pragmatic insights. In particular, it analyzes and compares law reforms that purport to redistribute by targeting benefits at poor individuals through an income or means test, with those that rely more heavily on "universally" allocated benefits, not conditioned on poverty. I argue that, notwithstanding its more muted effects in the short run, universalist policies may be more effective at achieving redistribution in the long run due to greater political durability, and – more intriguingly – by catalyzing social toleration for redistribution. I support this argument by drawing on the growing body of research in psychology and economics suggesting that people have a mixture of self-regarding and otherregarding impulses, and that some forms of social organization are more likely than others to elicit pro-social behavior. Universalist programs, I argue, plausibly increase political support for redistribution by tapping social norms of reciprocity, generating group identity effects based on a sense of common vulnerability, and serving as a "policy frame" that de-emphasizes the salience of low-income people as an undeserving "out-group." I use a case study of recent social insurance legislation as a springboard for developing an empirical research agenda that will help evaluate the strength of this thesis. I further speculate on whether universal welfare institutions may lead to a kind of "social learning" that fosters toleration for redistribution in a deeper way over time.


Health Law and Policy | Law | Law and Economics | Social Welfare Law | Tax Law