Law & Inequality Conference at Yale

Joseph Fishkin

Friday, October 16

2:15-3:00         Opening Keynote: Principal Deputy Assistant Attorney General Vanita Gupta

3:05-4:20         Panel 1: Economic Inequality as a Threat to Democracy (Jacob Hacker, James Kwak, Jedediah Purdy, Wendy Weiser)

4:30-5:45         Panel 2: Concentrated Private Power: Efficiency Justifications and Broken Markets (Robert Hockett, Amy Kapczynski, Barry C. Lynn, Saule Omarova, Frank Pasquale)

6:00-6:45         Day 1 Closing Keynote: Professor Zephyr Teachout

Saturday, October 17

8:00-9:00         Breakfast Coffee Chats with Panelists

9:15-10:00      Day 2 Opening Keynote: Justice Goodwin Liu (introduced by Reva Siegel)

10:15-11:30   Panel 3: Barriers to Justice: Inequities in Litigation and Procedure (Deepak Gupta, Hannah Lieberman, Judith Resnik, Jason Williamson)

11:45-1:00      Panel 4: Reinforcing Racial Injustice: The Disparate Impact of Economic Inequality (Nusrat Choudhury, Olatunde Johnson, Emma Coleman Jordan, Gerald Torres)

1:15-2:15         Meritocracy and Its Discontents: Lunch and Conversation with Professor Daniel Markovits

2:30-3:45         Panel 5: Laboratories of Democracy: The Use and Abuse of Federalism (Michelle Wilde Anderson, Benjamin Sachs, David Super)

4:00-5:15         Panel 6: We the People: Constitutional Rights to Distributive Justice (Joseph Fishkin, William Forbath, Martha McCluskey, K. Sabeel Rahman)

5:30-6:00         Closing Address: Professor David Singh Grewal

Today, the richest 0.1 percent of Americans holds 22 percent of the country's wealth — the same share held by the bottom 90 percent of the population.  As has become a common refrain, we are living in a new Gilded Age. 

On October 16-17, 2015, the Yale American Constitution Society will host a national conference to discuss how law shapes and is shaped by extreme economic inequality.  Our speakers will discuss the ways that concentrated economic power imperils democracy and constitutional ideals, the trends in jurisprudence and policy that have gotten us here, and how these same tools might be used to redress the current crisis. Our speakers — who include prominent scholars, policymakers, litigators, activists, and journalists — will engage these questions from different perspectives, aiming to identify the jurisprudence and legal methods driving inequality across various areas of law. 

Please feel free to get in touch with any questions, at inequality.yls@yale.edu.

This conference is generously supported and co-sponsored by the Zelia and Oscar Ruebhausen/Debevoise & Plimpton Student Fund at the Yale Law School, the Arthur Liman Public Interest Program, and the Yale Institution for Social and Policy Studies Center for the Study of Inequality.

--Urja Mittal, Lina Khan, Jake Struebing, and Brian Highsmith

Friday, October 16

2:15pm-3:00pm - Opening Keynote: Acting Assistant Attorney General Vanita Gupta

3:05pm-4:20pm - Panel 1: Economic Inequality as a Threat to Democracy

Jacob Hacker, James Kwak, Jedediah Purdy, Wendy Weiser

This panel will discuss the ways that extreme inequality strains -- and perhaps even precludes -- democratic practice. What does it mean to be equal as citizens when we are so materially unequal? In what ways is economic inequality the result of corrupted democratic process, and in what ways does inequality, in turn, corrupt that process? How do the levers of democratic governance -- including policymaking, regulation, and elections -- favor private wealth, and what changes are needed to undo its grip?

4:30pm-5:45pm - Panel 2: Concentrated Private Power: Efficiency Justifications and Broken Markets

Robert Hockett, Amy Kapczynski, Barry C. Lynn, Saule Omarova, Frank Pasquale

This panel will discuss how trends in antitrust, intellectual property, and banking law have concentrated private power, and identify the legal regimes that underpin these trends. How does law structure markets in ways that produce inequality? Has law always been this way in these fields, or has it shifted over recent decades? Is there a common reason that equity considerations have been exiled from these disparate areas of law? What is the role of efficiency concerns and law & economics? How do markets function (or not function) amid severe disparities in capital, information, and market power?

6:00pm-6:45pm - Day 1 Closing Keynote: Professor Zephyr Teachout

Saturday, October 17

8:00am-9:00am - Breakfast Coffee Chats with Panelists

9:15am-10:00am - Day 2 Opening Keynote: Justice Goodwin Liu

10:15am-11:30am - Panel 3: Barriers to Justice: Inequities in Litigation & Procedure

Deepak Gupta, Hannah Lieberman, Judith Resnik, Jason Williamson

This panel will discuss how changes in procedure have rendered access to courts unequal, and how this unequal access exacerbates existing inequalities. How have judicial decisions around standing, pleading standards, class actions, and arbitration shaped whose claims get heard? How does the cost of litigation play a role, and how do policy choices — for instance, the funding (and underfunding) of public defense — affect who gets a day in court? If these trends do collectively point in one general direction, do they share a common jurisprudence? In other words, are these decisions driven by a particular vision of the role of courts and the values they promote? 

11:45am-1:00pm - Panel 4: Racial Injustice: The Disparate Impact of Economic Inequality

Nusrat Choudhury, Olatunde Johnson, Emma Coleman Jordan, Gerald Torres

This panel will discuss how economic inequality maps onto and reinforces racial inequalities.  What role has race played in shaping current economic arrangements? How does structural racial inequality shape legal outcomes and the politics of economic redistribution? How does the law’s treatment of economic inequality (or lack thereof) deepen racial inequality? What is the relationship between race and the concentration of poverty and economic opportunity? What would it look like for the law to expressly acknowledge the interplay between racial and economic inequality?

1:15pm-2:15pm - "Meritocracy and Its Discontents," Lunch + Talk/Conversation: Daniel Markovits

2:30pm-3:45pm - Panel 5: Laboratories of Democracy: The Use and Abuse of Federalism

Michelle Wilde Anderson, Kica Matos, Benjamin Sachs, David Super

This panel will discuss the ways that principles of federalism and localism can be used to drive inequality and also offer pathways for redressing it. How does economic inequality affect governance at the state and local level? In what ways has federalism and decentralization been used to promote policies that exacerbate inequality? To what extent can federalism offer venues for developing more progressive policy alternatives? What will it take to make localities and states address inequality in this way? Finally, while much of federalism doctrine concerns the relationship between federal and state governments, how do localities figure into these questions around federalism, decentralization, and inequality?

4:00pm-5:15pm - Panel 6: We the People: Constitutional Rights to Distributive Justice

Joseph Fishkin, William Forbath, Martha McCluskey, K. Sabeel Rahman

This panel will discuss the role of the Constitution in debates about economic inequality. What constitutional rights are endangered by extreme disparities in wealth and income?  Are there constitutional approaches for addressing these inequalities? Does constitutional theory adequately grapple with the power of economic elites? What is the role of interpretive methods? How is constitutional jurisprudence today exacerbating inequality? What would a progressive constitutional jurisprudence of equality look like?

5:30pm-6:00pm - Closing Address: David Singh Grewal