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18 N. Ill. U. L. Rev. 339 (1997-1998)
Nozick: A Utilitarian Reformulation

handle is hein.journals/niulr18 and id is 349 raw text is: Nozick: A Utilitarian Reformulation MARK S. STEIN* I. INTRODUCTION Robert Nozick's Anarchy, State, and Utopia' is a forceful libertarian polemic against income redistribution.2 One striking aspect of this famous book is that it purports to rely not at all on considerations of social utility.3 I will contend, however, that Nozick's polemic can usefully be seen as a utilitarian response to arguments for redistribution, and in particular as a utilitarian response to the utilitarian case for redistribution.4 The utilitarian case for redistribution is founded on the diminishing marginal utility of money.5 The poor, it is argued, need money more than the rich do. Moreover, it is claimed, the poor gain more in well-being from redistribution than the rich lose.6 Therefore, redistribution increases aggregate well-being, at least up to a point.7 * Ph.D. Candidate, Yale University, Department of Political Science. J.D., 1983, University of Michigan. 1. Robert Nozick, ANARCHY, STATE, AND UTOPIA (1974). 2. Nozick, like his fellow political philosophers Rawls and Dworkin, has had a significant impact on the legal academy. See, e.g., Donna M. Byrne, Progressive Taxation Revisited, 37 Ariz. L. Rev. 739, 782-86 (1995); John Stick, Turning Rawls into Nozick and Back Again, 81 Nw. U. L. REv. 363 (1987); Richard A. Posner, Utilitarianism, Economics and Legal Theory 8 J. LEGAL STUD. 103, 131 (1979). 3. Indeed, in responding to Richard Epstein's claim that natural-rights theories owe a considerable debt to utilitarianism, Erick Mack has pointed to Nozick as a theoretician who owes little if anything to utilitarianism. See Erick Mack, Comment: A Costly Road to Utilitarianism, 12 Harv. J.L. & Pub. Pol'y 753, 755 (1989); Richard A. Epstein, The Utilitarian Foundations of Natural Law, 12 Harv. J.L. & PUB. POL'Y 713 (1989). 4. Utilitarianism seeks to maximize the aggregate well-being or happiness in society. For a fuller definition of utilitarianism, from one of its most astute critics, see Amartya Sen, ON ETHICS AND ECONOMICS 39 (1987). 5. For a classic modern statement of this case, see Abba P. Lemer, THE ECONOMICS OF CONTROL 26-32 (1944). 6. Some have denied that money has diminishing marginal utility. See Walter J. Blum & Harry Kalven Jr., The Uneasy Case for Progressive Taxation, 19 U. Chi. L. Rev. 417 (1952). I do not find this position persuasive. See Mark S. Stein, Diminishing Marginal Utility of Income and Progressive Taxation: A Critique of the Uneasy Case, 12 N. Ill. U. L. Rev. 373 (1992). 7. The negative incentive effects of redistribution must also be considered, such as its effect on the work effort of both poor and rich.

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