Volume 35, Issue 1

“Flesh-and-blood” corporate criminals have long been a major focus of U.S. enforcement authorities in the battle against foreign bribery. Many of the actions taken against individuals were largely enabled due to the cooperation of culpable corporations with investigative authorities. For years, this cooperation was encouraged by the award of “cooperation credit,” which is a mitigated approach toward cooperating corporations. The Yates Memorandum promulgated recently by the Department of Justice, however, has changed the rules of the game. According to the memo, the Department of Justice will no longer provide “cooperation credit” to corporations unless they demonstrate their cooperative approach by “sacrificing” employees involved in bribery. While the newly emerged policy seeks to send a reinforced message of deterrence to corporate executives, a law and economics analysis reveals that the Yates Memo may fall short of reaching its deterrence goals, and in fact may lead to more—rather than fewer—bribery practices.

As the need for fundamental reform of our nation’s labor laws has grown more and more evident since the 1970s, major reform efforts have focused narrowly on adjusting the provisions of the National Labor Relations Act (“NLRA”), but have repeatedly foundered amidst intense polarization over tipping the existing “balance” between labor and management. At the same time, at the federal, state, and, increasingly, municipal levels, U.S. labor laws governing worker organization and collective bargaining have been surrounded by a growing thicket of other laws governing the workplace. These employment laws have established various minimum standards. But the employment law on the books has not been matched by the law in action as violations are endemic, particularly at the bottom of the wage scale.

The following pages contain selected essays from the panelists of the American Constitution Society’s Law and Inequality Conference held at the Yale Law School on October 16 and 17, 2015.

The Law and Inequality Conference considered how law shapes, and is shaped by, extreme economic inequality. Today, the richest .1% of Americans holds 22% of the nation’s wealth—the same share held by the bottom 90% of the population.[1] The Conference posited that the law has played a central, yet oft-overlooked role in this phenomenon, presenting an opportunity to understand how law, policy, and jurisprudence have been instruments in generating our current crisis, and to identify ways in which they can be harnessed as tools to redress it.

Rules of civil procedure presuppose a level playing field where litigants have structured opportunities to develop and present their claims to a neutral fact-finder. In millions of cases—the vast majority processed by state courts today—the field is neither level nor fair. Instead, enormous numbers of small dollar value cases are disposed of mechanically, without meaningful adjudication. High-volume state court dockets involve serious asymmetries of power and knowledge, where plaintiffs’ lawyers are able to manipulate or short-circuit the rules against unrepresented and generally unsophisticated low-income defendants. As a recent study by the National Center for State Courts (NCSC) concluded, “[t]he idealized picture of an adversarial system in which both parties are represented by competent attorneys who can assert all legitimate claims and defenses is an illusion.”