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Liu, Ava

What should we do about labor automation in the age of artificial intelligence? Early proposals such as Universal Basic Income focused on taxing and redistributing the proceeds of AI. Now, an emerging slate of ideas tagged to the concept of “predistribution” proposes distributing ownership through citizen stakes in AI or sovereign wealth funds. But what is “predistribution”?

This Article presents a positive and unifying theory of predistribution, describes its categories, and explains how it can remake work in the age of AI. For over a century, Americans have focused on tax-and-transfer redistribution to address income inequality in the realm of consumption while calibrating tax policy to produce the right mix of forward incentives for production. Predistribution encompasses the ways of intervening in the realm of production before market outcomes are produced for consumption. This Article defines “predistribution” as the distribution of power over economic outcomes and identifies four categories of predistribution: (1) incentives and bargaining power, (2) public production, (3) ownership, and (4) governance and control.

For the question of how to govern technology and labor automation, the Article turns to the fourth category: governance. Because governing technology at work begins with governing work itself, it examines the law of labor and technology. Surveying the twentieth-century history of U.S. labor and employment law, the Article finds that labor law under the National Labor Relations Act (NLRA) places decisions about technology beyond the scope of worker governance while employment and tax law incentivize labor automation. To address this picture, it advances a model for the future of work based on predistributive governance—distributing control to democratize decisions about technology in the workplace.

Can developing countries rely on liberal constitutionalism to break free of material inequality? Although South Africa’s post-apartheid 1996 Constitution established the redistribution of land as a formal priority, three decades of stalled progress reflect not only failures of domestic governance but structural constraints of international economic law. The conventional developmental wisdom that strict property protection is good for growth—evaluated through the eyes of international investors and enforced through international economic law—operated as a "development trap": an external discipline that locked South Africa into its colonial distributional order while presenting itself as a neutral prerequisite of growth. Because the constraint operates transnationally and without formal preemption, even constitutional orders with transformative language risk devolving into symbolic contests over inequalities they promise to undo. Decades of energetic constitutional politics absorbed the nation's reformist energy while the distributive question was materially settled elsewhere, at the level of the supranational “economic constitution.” Herein lie the limits of "transformative constitutionalism," South Africa's ambitious constitutional strategy: escaping the development trap requires intervening where the constraint operates with pecuniary effect—through a materially oriented development strategy rather than constitutional language. Reflecting on what South Africa's experience suggests for the possibilities and limits of liberal constitutionalism in post-colonial developing countries, the Article names the dynamic at work as 'foreclosure': the closing off of material possibility at one level of law by another, and the investment or politicization of reformist energy in a legal space whose outcomes have already been constrained.