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This is so given the possibility of redistribution through tax law--an equally effective and less costly alternative in terms of encroaching on predictability, liberty, and efficiency.
In the following section, I argue that the existence of a theoretically superior mechanism for redistribution is not a sufficient reason for the courts to neglect the promotion of equality through private law mechanisms.
A redistribution of wealth through private law rules can be effected by the courts.
21) Therefore, the lower the likelihood that the theoretically superior alternative would be used, the less judicial engagement in redistribution is susceptible to the excessive cost critique.
Redistribution of wealth by the tax system is in essence predictable.
Prior to making a full defence to the unpredictability challenge to private law redistribution, two preliminary comments are in order.
Alan Schwartz has challenged this response by asserting that in order to protect the planning interest of individuals, the mere predictability of participation in redistribution is insufficient.
In tort law, the full compensation principle, combined with the ubiquity of liability insurance, leads to regressive redistribution.
Having clarified the meaning of the term "redistributive rule" and delineated the inherent regressiveness of combining full compensation with liability insurance, I will now explain how the integration of clear redistributive rules with insurance mechanisms can answer the concern that redistribution through tort law is unpredictable in terms of its extent and timing.
A certain fraction of the rich insured's premium will represent the redistributive component of the legal rule; the insurance scheme protects him from the unpredictability of a random redistribution effected by private law interaction.
Redistribution effected by the tax system is often portrayed by its opponents as a merciful act bestowed by the productive in society on the unproductive.
The argument from liberty is that private law redistribution encroaches excessively on individual liberty.