David Blankfein-Tabachnick
Associate Professor of Law; Associate Dean for Faculty and Intellectual Life Michigan State University
- East Lansing MI
Professor Blankfein-Tabachnick is an expert on Bankruptcy, Intellectual Property, Contracts, Taxation, Tax Policy, Torts, Trusts, Estates
Media
Biography
Professor Blankfein-Tabachnick joined the Law College faculty in 2014 and was awarded tenure in 2020. He was appointed Associate Dean for Research in the summer of 2023 and promoted to Associate Dean for Faculty and Intellectual Life in the winter of 2023. He served as Visiting Professor of Law at the University of Michigan in the spring of 2023, has been a visiting scholar at the Yale Law School, and a visiting faculty member at Penn State Law and Washington University in St. Louis School of Law. He is a recurring visiting professor at Peking University School of Transnational Law where he is a member of the founding faculty.
Professor Blankfein-Tabachnick has notable law journal leadership experience. In 2017, he was appointed Faculty Advisor to the Michigan State Law Review. Since his appointment, the journal has risen nearly fifty places in the W&L ranking of flagship American law reviews. Under his leadership, the journal has instituted its Visionary Scholar Article Series and the Law Review Symposium-Faculty Workshop Series. Additionally, he co-created and innovated the widely referenced 2006 Virginia Law Review symposium, Contemporary Political Theory and the Private Law.
He has taught courses on bankruptcy, copyrights, contracts, criminal law, federal income tax, intellectual property, international relations, legal and political theory, property, property II, remedies, tax policy, torts, and trusts and estates.
Areas of Expertise
Accomplishments
Michigan State University Teacher-Scholar Award
2021
Education
Yale Law School
M.S.L.
2008
University of Virginia
Ph.D.
Legal and Political Philosophy
2007
University of Rochester
M.A.
1995
Ithaca College
B.A.
1993
Links
- Michigan State University Profile
- Faculty Voice: David Blankfein-Tabachnick
- Shifting the Paradigm in Private Law Theory
- Harvard Law Workshop Presentation ‘Highlight’ of Blankfein-Tabachnick’s Career
- Michigan State Law Review Ranked 56th in National Rankings
- MSU Law Granted Chapter of Order of the Coif
Event Appearances
“Maximizing Intellectual Property: Optimality, Synchronicity and Distributive Justice”
Spring 2021 | 2020 Obligations Conference
“Methods in Legal Academia”
September 2019 | Michigan State Law Review Membership
Private Law Workshop
Spring 2023 | Harvard Law School
Journal Articles
On Rawlsian Contractualism and the Private Law
Virginia Law Review2022
Shifts in academic paradigms are rare. Still, it was not long ago that the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer. This was thought to be true, although for different reasons, in both philosophical and economic accounts of private law. The question was, for example, whether the law of contract and tort is properly governed by the values of autonomy and corrective justice or by distributive concerns instead. The conventional, indeed, the nearly universal view of Rawlsianism—the overwhelmingly dominant theory of liberalism and distributive justice—was that the private law lies beyond the scope of Rawls’s two principles of justice.
On Rawlsian Contractualism and the Private Law
Virginia Law Review | 2022For decades, the prevailing view held that Rawls’s principles of justice applied only to public institutions like taxation and transfer, leaving private law outside the reach of distributive justice. On Rawlsian Contractualism and the Private Law, published in the Virginia Law Review, articulates a paradigm shifting alternative. David Blankfein-Tabachnick and Kevin A. Kordana have been central in challenging this orthodoxy, arguing that private law must, for Rawls, be subject to distributive principles and exposing flaws in both philosophical and economic arguments for the exclusion. Their view has been, overwhelmingly, vindicated as leading scholars—including Liam Murphy, Samuel Scheffler, Samuel Freeman, and Gregory Keating—have joined the growing consensus that private law, for Rawls, must be understood as part of the basic structure, governed by Rawls’s two principles of justice.
Maximizing Intellectual Property
St. John's Law Review | 2021Maximizing Intellectual Property: Optimality, Synchronicity, and Distributive Justice critiques existing IP scholarship for neglecting the distributive implications of legal rules like taxation and bankruptcy, arguing that maximizing principles require synchronizing IP doctrine with all entitlement-governing rules to optimize innovation. The piece demonstrates that internal doctrinal boundaries (e.g., copyright/patent divides) and institutional designs (e.g., prizes vs. monopolies) must align with a chosen external distributive principle, as IP value depends on interactions with tax rates, bankruptcy rules, and other "background" legal structures. The analysis concludes that efficiency in innovation policy demands abandoning compartmentalized IP frameworks in favor of optimization calibrated to governing principles.
Maximizing Intellectual Property: Optimality, Synchronicity, and Distributive Justice
St. John's Law Review2020
This Article addresses the distributive structure of intellectual property and innovation policy and the foundational role it plays in distributive justice. Distributive accounts of law are undergoing a renaissance; an unprecedented paradigm shift away from the wealth-maximizing approach to law and legal theory and toward a distributive view. In line with this shift, this Article breaks new ground in providing a needed framework for a distributive theory of intellectual property law and innovation policy and articulates an appealing, egalitarian alternative to wealth- or welfare-maximizing accounts of intellectual property and innovation policy. In doing so, this Article diagnoses and serves as a corrective to a seemingly systematic omission in the mature scholarly literature surrounding intellectual property.
Kaplow and Shavell and the Priority of Income Taxation and Transfer
Hastings Law Journal | 2018Kaplow and Shavell and the Priority of Income Taxation and Transfer critiques Kaplow and Shavell’s claim that egalitarian goals are best achieved through taxation and transfer systems rather than private law, arguing their analysis overlooks how property entitlements themselves shape distribution and that direct changes to private law can advance equity more efficiently. The piece demonstrates that once a tax system is optimized for a distributive principle, further redistribution via taxation becomes costly, making property rule adjustments—tailored to the governing maximand—a lower-cost alternative. The piece concludes that achieving egalitarian goals requires integration of tax and private law, rejecting Kaplow and Shavell’s tax and transfer prioritization.
Kaplow and Shavell and the Priority of Income Taxation and Transfer
Hastings Law Journal2017
This Article rejects a central claim of taxation and private law theory, namely, Kaplow and Shavell’s prominent thesis that egalitarian social goals are most efficiently achieved through income taxation and transfer, as opposed to egalitarian alterations in private law rules. Kaplow and Shavell compare the efficiency of rules of tort to rules of tax and transfer in meeting egalitarian goals, concluding that taxation and transfer is always more efficient than other private law legal rules. We argue that Kaplow and Shavell reach this conclusion only through inattention to the body of private law that informs the very basis of their discussion: underlying property entitlements. This Article contends that Kaplow and Shavell’s comparison of rules of taxation to rules of tort fails to take proper account of the powerful role that (re)assigning underlying property entitlements plays in achieving egalitarian goals, even at the level of formal theory.
Property, Duress, and Consensual Relationships
Michigan Law Review | 2016Property, Duress, and Consensual Relationships published in the Michigan Law Review addresses Seana Shiffrin’s arguments concerning truthfulness, promissory obligation, and the limits of consent under duress, holding that even promises made under duress may remain morally binding, if unenforceable by contract law. The piece highlights and objects to the location of Shiffrin’s boundary between interpersonal norms and institutional rules. Ultimately, the piece argues that while Shiffrin’s account of private order begins in a Rawlsian spirit, it departs conceptually, offering a Kantian or deontic alternative that stands in sharp contrast to a Rawlsian the account of contract law.
Intellectual Property and Midlevel Principles
California Law Review | 2013Intellectual Property Doctrine and Midlevel Principles objects to the claim that “midlevel principles” (e.g., proportionality, efficiency) unify intellectual property law, arguing they inconsistently guide doctrine and clash with foundational theories of property. The piece holds through case analysis (e.g., DNA patentability) that these principles fail to predict outcomes or align with liberal property theories. The piece holds that intellectual property law should prioritize foundational distributive or utilitarian principles more directly, rejecting midlevel neutrality—a claim Robert Merges engaged in the California Law Review, sparking a broad scholarly debate.
The Rawlsian View of Private Ordering
Social Philosophy and Policy | 2008The Rawlsian View of Private Ordering examines Rawls’s ambiguous treatment of private law institutions, highlighting inconsistencies in his discussion which have caused world-wide theoretical confusion and scholarly debate. The piece argues that Rawls’s shift between pre-institutional (natural) and post-institutional (legally constructed) conceptions of freedom created the trouble, but a consistent post-institutional view clarifies that private law must serve the distributive aims of his two principles of justice. The piece concludes that Rawlsian private law—unlike deontic theories like Charles Fried’s promise account—is justified solely by its role in achieving distributive aims, as opposed to comprehensive pre-institutional moral ideals.
On Belling the Cat: Rawls and Tort as Corrective Justice
Virginia Law Review | 2006On Belling the Cat: Rawls and Tort as Corrective Justice analyzes the fundamental incompatibility between Rawlsian distributive justice and the corrective justice conception of tort. Invoking Aesop’s fable as metaphor, the piece holds that integrating backward-looking corrective justice with Rawls’s forward-looking framework is conceptually unworkable. Opening with self-deprecating humor, the piece quickly became a sensation, highlighting the tension between high hopes and conceptual compatibility.
Taxation, the Private Law, and Distributive Justice
Social Philosophy and Policy | 2006Taxation, the Private Law, and Distributive Justice challenges the philosophical separation of tax law (as the sole domain of distributive justice) from private law, arguing that private law’s role in defining entitlements inherently shapes resource distribution and must align with justice principles. For post-institutional theorists like Rawlsians, private law cannot be neutral—it is constructed alongside tax policy to serve distributive aims, rendering the tax/private law divide incoherent. Even pre-institutional theorists, the authors contend, can coherently integrate equity-oriented values into private law without abandoning foundational property rights, advocating a holistic approach to distributive justice across legal institutions.
Rawls and Contract Law
George Washington Law Review | 2005Rawls and Contract Law was among the first pieces to name and challenge the “conventional view” that Rawlsian principles apply only to constitutional and tax systems, arguing instead that contract law must align with Rawlsian justice as part of a holistic institutional scheme. The piece demonstrates that Rawlsian freedom of contract is post-institutional, defined by “options open” within a system designed to maximize justice for the least advantaged, as opposed to the will conception of contract and promise. The piece discussed conception of contract law, holding that Rawlsianism, like law and economics, is committed to the ex ante conception of contract law.
Tax and the Philosopher's Stone
Virginia Law Review | 2003Tax and the Philosopher's Stone discusses Murphy and Nagel’s, now contemporary classic of taxation, The Myth of Ownership, agreeing with their conclusion that tax policy must be grounded in a conception of justice, while examining traditional principles of taxation like horizontal equity, ability to pay, equal sacrifice, and the benefit principle and the compatibility for these principles with differing conceptions of justice. The piece ultimately holds that Murphy and Nagel’s spellbinding arguments are strongest in the context of maximizing, post-institutional frameworks.
