Category: Articles and Books

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The Limits of Anti-Discrimination Law

Joanna Grossman’s Nine to Five is a masterfully assembled set of commentary on sex discrimination cases. Joanna’s deft explanations and critiques of doctrine would make it great for the classroom, sort of like a volume from the “Law Stories” series but with a lot more law. Bringing the commentaries together also allows the collection to highlight some limits of discrimination law as it is now constituted. Nancy Dowd has already raised the challenge of intersectionality; another classic constraint in discrimination law is that equality can be achieved either by leveling up or by leveling down. On the issue of accommodating family responsibilities, for example, American law’s narrow conception of equality has a hard time justifying a level-up, despite the extensive body of feminist scholarship on the gendered nature of the neoliberal marketplace and its “ideal worker.” (See chapter 35, on Young v. UPS.) The demands of “the market” serve as conversation-stoppers in discrimination law, which is understood as regulation of the market, even though aspirations for sex equality include non-market goals. In light of emerging movements demanding that markets serve people instead of the other way around, the next phase in the development of discrimination law will be defined by whether it can move past the ideology of the market.

As I read through Nine to Five—especially the chapters on accommodating pregnancy, work/life balance, and the masculinity of the ideal worker—I kept coming back to the title. Joanna uses the movie 9 to 5 as a jumping off point for talking about gender in the workplace. I have long been curious about the phrase “9 to 5” and its relationship to the labor movement’s hard-won eight-hour workday. “9 to 5” has at times been a pejorative term for a corporate drone, but today it carries the aspirational tone of the past—the wish for a work day that really ends at 5, an office job that stays at the office.

An early expression of the demand for the eight-hour workday came from Robert Owen, who proposed an even division of the day: “8 hours labour, 8 hours recreation, 8 hours rest.” Today, we refer to the eight-hour workday as standard. After all, the Fair Labor Standards Act requires overtime for hourly workers above forty hours a week, and the archetypal, salaried office worker is “on the job from 9 to 5.”

Except that almost nobody is actually on the job from 9 to 5. I discovered this for myself when I started my first office job, working for the federal government. As Joanna discusses (chapter 54), the federal government is the nation’s largest employer and is therefore not only the enforcer of laws but also a standard-setter in practice. With Dolly Parton echoing in the back of my naïve mind, I learned that as a salaried employee I was expected to work a minimum of eight hours per day, with a half-hour unpaid lunch break, a 15-minute unpaid break in the morning, and a 15-minute unpaid break in the afternoon. My workday could be 8 to 5, 8:30 to 5:30, or 9 to 6, but definitely not 9 to 5. Today, the vast majority of office workers work the federal day or longer. Workers subject to FLSA rules not only get their breaks unpaid but have had to go to court over whether hours spent donning protective gear or descending into coal mines are part of their work day.

From the employer’s perspective, of course, it isn’t eight hours of work if the employee disappears for an hour at lunch. What is notable, however, is that law and culture adopted the employer’s perspective and thereby shifted from the “eight-hour work day” to “eight hours of work.” When eight hours is understood not as the portion of one’s life to be devoted to employment but as the quantity of production to which the employer is entitled, the “work day” expands, stealing time from recreation and rest because the work day has been excused from recognizing the humanity of the worker.

The work day could, instead, be “one-third of the day of a human being,” who will necessarily have to deal with some aspects of her humanity during that period. After all, no one is getting any reimbursement or comp time for having to spend some of their “8 hours for recreation” on eating or going to the bathroom, nor do we get to come in late for work when our “8 hours for rest” are interrupted by any number of human realities. “Eight hours of work” instead of an “eight-hour work day” converts time, a human experience, into a commodity defined by its alienation.

This same shift from human-centered goals to market-centered rules, which ultimately place the values of the market above all else, operates in the difficult corners of discrimination law. For example, Nine to Five tackles several problems that arise in the context of school-affiliated sports: pay disparities between the coaches of boys’ and girls’ teams (chapter 3); unequal treatment of the teams themselves (chapter 9); and the toxic masculinity of sports culture, which bleeds into politics, business, and education (chapters 55 and 56). One reason discrimination law often fails to advance equality in these contexts is that it allows market ideology to trump not only non-discrimination principles but also the purported values of sports and educational institutions themselves.

In the case of coaches’ salaries, Joanna dissects the “market defense” that the EEOC has made available to schools: to justify discriminatory salaries, a school need only refute that coaching its girls’ team requires as much skill, effort, or responsibility as coaching its boys’ team. Schools routinely argue that male coaches are responsible for more money and more media management, and that male coaches arrive at the school with higher prior salaries and more experience coaching and playing sports. (p. 20) Joanna points out that these factors allow the school to “buil[d] on past discrimination against female coaches” and that the school itself creates the expectation that boys’ teams will play for higher stakes in both prestige and money. Here, not only the logic of the market but also the explicit sexism of the market is invoked to constrain discrimination law, even when the market defense is offered by non-profit institutions who claim that they sponsor athletic contests not to make money but to support “the higher education mission” and create “an inclusive culture” with “career opportunities for coaches and administrators from diverse backgrounds.”

Players from the U.S. women’s national soccer team (of which Joanna is clearly a fan!) have filed a pay equity suit that will raise these issues, albeit without a school affiliation: the soccer federation’s main defense is that the women’s game doesn’t make as much money as the men’s because it isn’t as popular with fans. There are factual questions about whether this is true and the extent to which, if true, it is the result rather than the cause of discrimination. But a larger question is whether that should matter. Assuming the market defense to be factually true, it should not end the conversation but begin it. Joanna demonstrates how this conversation should proceed in a different context: Discussing employer liability for “sudden, severe [sexual] harassment” (chapter 25), she notes that, sometimes, severe harassment will occur that no reporting system could have prevented. The question, then, is who should bear that cost? Nothing in the logic of sex discrimination law, or greater aspirations for an equal and just society, suggests that the victim rather than the employer should bear 100% of the cost. Similarly, it is not written in stone that women rather than soccer federations should bear the costs of sexist sports culture.

Other workplaces have their own versions of this market defense. In academia, it is a commonplace at many institutions that the only way to increase one’s salary is to get a job offer elsewhere. It is also a commonplace that this is a terrible policy and that it has a disproportionately negative impact on women. It persists because of the market defense.

In public debates about the gender wage gap, various factions talk past each other about whether the gap reflects “real discrimination” or “women’s choices,” which include things like taking “time off” for children or subordinating one’s own career to a spouse’s. This dichotomy is largely beside the point. Some portion of the wage gap is due to flat-out pay discrimination; some is due to discrimination in hiring; some to discrimination in the “pipeline”; some to job segregation that is linked to historical pay inequities between men’s work and women’s work; and some is due to women continuing to perform the bulk of unpaid family labor (details in chapter 51). Why does any of those things justify a skewed distribution of economic security and wealth? The market defense, writ large, puts artificial limits on aspirations for equality.

Speaking of family labor: Readers of this symposium were likely amused by Robert Owen’s facile division of the day into “8 hours labour, 8 hours recreation, 8 hours rest.” When, pray tell, was dinner to be cooked, the house cleaned, and the children’s noses wiped? Those tasks, in Owens’s mind, presumably belonged in someone else’s work day, but today we know them as the second shift, performed by people who “talk about sleep the way a hungry person talks about food.” It’s time to revisit not just minimum wages but maximum hours so we can earn our bread and bake it too, and still have time to tend our roses.

 

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Neither Freedom Nor Equality

Be careful what you wish for – that’s the clear warning that Katherine Franke gives the reader in her new book, Wedlocked: The Perils of Marriage Equality. In the book, Franke offers a far-reaching and incisive critique of marriage, based on the ways in which marriage was both sought after and suffered through by two distinctly different populations: newly freed slaves after the Civil War and same-sex couples in the wake of marriage equality. Careful not to make direct comparisons between the two populations, Franke presents the experiences of both groups side by side and draws out similarities that are always striking and often surprising. The intertwining stories of these two groups provide a window into “what it means to elaborate a new conception of freedom and equality through a form of state licensure.” (p. 11)

Freedom and equality frame the discussion and serve as touchpoints for Franke as she details the unintended consequence of access to marriage for both populations. What becomes clear, as the book progresses, is that the elaboration of freedom and equality through marriage is quite different than the reality of obtaining freedom and equality through marriage. Franke’s first overarching theme – marriage is not freedom – comes through sharply in the wide-ranging stories she tells about couples, both then and now. Marriage does not and cannot equate with freedom because it is a form of state control. This is not news, but the way in which Franke adeptly draws out the myriad ways in which marriage is used as a mechanism for domestication and governance is compelling. But Franke does not stop there. She deepens this argument by describing the peculiar genius of marriage which is that, despite its being a freedom-constraining relationship, the promise of equality that it offers is sufficiently tantalizing to make the trade-off not only acceptable but even desirable. As she presses on the idea of equality in the context of marriage, however, Franke develops her second, twin theme – that marriage rights do not necessarily produce equality. Not only is freedom illusory; equality is not guaranteed.

Beginning with freedom, Franke presses on this concept throughout and skillfully underscores how marriage operates as a “tactic of governance” (p. 62) that is both plastic and persistent. One particular loss of freedom that concerns Franke derives from marriage being deployed by the State as a technology of power that regulates sexuality, erasing all forms of “fantasmatic curiosity.” (p. 115) The embrace and imposition of marriage on both populations has placed alternative sexualities in service of hetero- and now homonormative ideals. Franke regrets in particular with the gay community that, under the yoke of marriage, “we have lost for now the opportunity to explore the possibilities of a ‘lawless homosexuality.’” (p. 115) Marriage is (as I have explored elsewhere) deeply implicated as a part of the “civilizing process.” As such, marriage demands that sexuality be confined to be legitimized and that individuals discipline their internal, sexual drives. Consequently, relationships that tolerate alternate sexualities – such as bigamy, informal marriage, and multi-party relationships – have been penalized, and might be again, in the rush to ensconce marriage as the one legitimate container for sexual intimacy and activity.

Marriage also entails another, related, loss of freedom because it demands not only sexual but also social conditioning. Marriage is a public-facing relationship that requires that families look and act a certain way: a husband and wife, several children, a well-ordered household. Measured against these perfect families, Franke’s “fluid families” come up short and are penalized for their different-looking, non-traditional forms. Women bear a particular burden of regulation and correction, because the picture-perfect form of marriage is a hierarchical and gendered one. “Fluid families” are therefore disrupted and disciplined not only because of their expressive sexuality but also because they do not conform to gender-based hierarchy. In the context of freed slaves, “female-headed households, or even matrifocal families, in many slave communities were pointed to as evidence of the dysfunction, or even the pathology, of slave family life.” (p.81) Even current marriage laws, however, “take matrimony to be a legal relationship that is fundamentally structured by gender inequality.” (p. 209) Accordingly, Franke worries about the effects of marriage on same-sex couples and how it might transform previously gender-fluid relationships into gender-filled ones. Whether or not same-sex couples will change marriage or marriage will change them, encouraging same-sex couples to reinscribe conventional gender roles in their relationships, remains to be seen. The sociology is in the making. Nevertheless Franke’s warning to monitor the impulse to gender within marriage is apt, especially given power imbalances that result in many couples due to asymmetrical earnings in a marriage.

Finally, marriage represents an immediately relevant form of state intervention and loss of freedom because it imposes default rules about money, resources, and sharing. Marriage economics are, as Franke points out, intimately related to the gendered nature of marriage and marriage as a form of “private welfare.” (p. 90) Because of legal assumptions about the specialization of household labor and marriage as an economic partnership, divorce laws mandate forced sharing, absent private contracting. Same-sex couples are not always aware of these rules (not unlike their different-sex counterparts) and, furthermore, divorce courts don’t always know what to do when confronted with couples who might have been married sooner than they were, had they been allowed to do so. Franke’s story of Ruth and Beth underscores these problems and highlight the possibility of unjust enrichment. (p. 211) Equally likely, however, is the possibility that long-term same-sex couples who have been economic partners for years will be dealt with unfairly by courts refusing to recognize those years of partnership upon divorce. That is to say, while backdating to the beginning of the dating period is one option courts have when constituting the marital estate, they also have the option of not taking into account anything that happened previous to the marriage and thereby artificially circumscribing the assets available to distribute at divorce. Given the reluctance of courts to accord property claims to unmarried cohabitants – and the almost complete rejection by state legislatures of the ALI principles (p. 156) – this may be the more likely danger. Either way, Franke establishes through an abundance of examples that freedom has little relationship with marriage.

Having deconstructed the notion of freedom with respect to marriage – the freedom to marry is really an invitation to relinquish personal freedom to the State – Franke goes on to suggest that the promise of equality through marriage may also be illusory. Marriage inequality operates on several levels. For starters, the right to marry for same-sex couples does not necessitate the right to equal treatment by a legal and societal culture still hobbled by bias and discriminatory desire. One noteworthy thread that runs through the book is that bias has an afterlife – it does not just disappear but rather gets channeled into new outlets and finds new modes of appearance. In the case of marriage equality, inequality may appear in the guise of reinvigorated enforcement of adultery and bigamy law with respect to same-sex couples. (p. 151) Laws that have been on the books for decades, never invoked, may be animated anew because of reconstituted homophobia. Gay men and lesbians, Franke remarks, “have long been accustomed” (p. 152) to outdated laws being selectively applied in order to penalize gay sex. Marriage equality may not change this. This bias may also find other ways to get into court. With same-sex couples having and adopting children, as well as divorcing, bias could easily show up in family court. It is, in fact, simple to speculate about how discrimination and stereotypes might find their way into judicial determinations about property division, spousal maintenance, and child custody. This is a matter, in many respects, of cultural change lagging behind legal change on certain issues and in certain locations. Franke does not have the space, nor is it necessarily a part of her project, to take on the question of how to move cultural change forward, to full acceptance of same-sex relationships and sexuality. The necessity of doing so, however, remains.

There are also other inequalities engendered by the push for equality. In fact, the larger problem with marriage “equality” may be that it creates inequalities within and between various communities. This is a major point in the book and one that weaves together the stories of the gay and African-American communities in the contemporary landscape. In short, the problem with the move to gain rights through marriage, thereby making marriage the standard by which other relationships are “both made legible and assigned value” (p. 112), is that it renders other relationships different and lesser. As Franke argues, “winning the right to marry should not result in making non-traditional families … even more vulnerable for their failure to take a nuclear form.” (p. 111) Perhaps one of the most damaging aspects of this bias “offloading” is that it penalizes and further stigmatizes African-Americans because of the high prevalence of non-normative families in African-American communities. (p. 61) The promise of equality is, consequently, tempered by competing claims to relationship legitimacy and the continuing legacy of racism.

Freedom is not free and equality is not equal. Looking at the possible losses rather than gains in freedom and equality that result from obtaining the right to marry, one is left to wonder two things. Why do we need marriage? And, if we do need marriage for certain purposes, how can and should we manage the technology of marriage so that it serves as a mechanism for enabling freedom and equality?

An answer to the first question is that we don’t need marriage for everything. Consequently, one way to reduce marriage governance is to stop provisioning goods and resources through marriage to the extent that we currently do. There are indisputably good instrumental and practical reasons to marry, given the structure of our current system. As Windsor winningly demonstrated, it is manifestly unfair to ask same-sex couple to be taxed when different-sex couples are not. And, on the flip side, if many different-sex couples count financial planning among the reasons for marriage, why shouldn’t same-sex couples do the same? The thousand-plus benefits that the government provisions through marriage constitute an extremely compelling reason to get married. This has led to a phenomenon of many same-sex couples “holding their noses” and getting married.

This argument, however, does not justify marriage on the merits. There is nothing inherent to marriage that makes it the right or only way to provision benefits. In fact, the answer to the benefits question may be to have the State provision them outside of marriage. Franke does not explore how else we, collectively, might choose to provision benefits or the responsibility of the State to do so in a more equality driven manner. She does, however, nod at the question of redistribution when she suggests that all “married queers” think about what it means to enjoy economic advantage through marriage and reshape their behavior accordingly. (p. 235) Actions like these will help decrease the marriage privilege and smooth out differences among the various types of intimate relationships. This will also prevent couples from being channeled into marriage without any real desire for it.

Another answer is that we need marriage for certain people because, for these couples, the substance of marriage is compelling. Marriage, for some, is a positive good. Consequently, a second strategy – compatible with the first – is to commit to making marriage more equal for those who choose to be in it for affirmative substantive reasons. Franke rightly critiques the fact that “marriage has been recharged as the most august holding environment for the elaboration of one’s mature and authentic self.” (p. 61) Trying to find the charm and charisma of marriage, however, it may be that marriage is deeply appealing because it is a site for making and maintaining a unique connection with another person. The modern ideal of companionate marriage reinforces this ideal and demonstrates how marriage is more than money. Marriage provides a way for individuals to commit to one another, offer continuing support, and receive both love and encouragement. Marriage is of course not required for this type of relationship to develop and flourish. Marriage does, however, serve a signaling function and provide a legal framework for resource sharing and caretaking of multiple kinds.

For these people, marriage is an unalterable part of the social landscape. For them, Franke offers valuable suggestions in her “Call to Action For Married Queers,” including asking spouses to monitor their economic privilege, be aware of gender, and resist offloading bias on other, various non-normative groups. The notion alone of queering marriage is a project worth pursuing in an attempt to help further change the nature of marriage. In this vein, one additional suggestion for Franke’s Call to Action is for married queers – and unmarried ones as well – to open and protect robust critical, queer spaces both inside and outside of marriage. Franke’s message about preserving queer spaces in the context of sexuality is equally important in the political context. Part of keeping marriage equality in play and in question is curating spaces of play and resistance – critical spaces in which divergent practices and personae can be explored. Franke laments that the push to marriage has foreclosed many of these spaces in the gay community. These spaces, however, can be perpetually reinvented through critical inquiry and activity, and they will be the sites of cultural as well as legal resistance.

Ultimately, Wedlocked deftly deconstructs the notions of both freedom and equality with respect to marriage. What remains is to think through how to counter marriage primacy, change marriage internally, and keep open the space for critical play.

Green Bag Article 02
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The Ultimate Unifying Approach to Complying with All Laws and Regulations

Professor Woodrow Hartzog and I have just published our new article, The Ultimate Unifying Approach to Complying with All Laws and Regulations19 Green Bag 2d 223 (2016)  Our article took years of research and analysis, intensive writing, countless drafts, and endless laboring over every word. But we hope we achieved a monumental breakthrough in the law.  Here’s the abstract:

There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation.

 

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The Mis-Education of the Banker

More than eighty years ago, Carter G. Woodson—the historian-educator known as the “Father of Black History Month”—published his most enduring work, The Mis-Education of the Negro (1933). That book, among the most important education scholarship ever written, reveale

Carter G. Woodson. The Mis-Education of the Negro was the culmination of teaching work he began as a young man.

d with unassailable precision a fact that seems like pedestrian common sense when its evidence is laid out: The U.S. education system educates learners about much more than reading, writing, and arithmetic. Rather, in its structures, schedules of reinforcement, and other curricular choices, it determines an individual’s place and value in society and the understanding of that situation. Education—in all its forms—is a profoundly identity-constituting mechanism. Woodson was among the first to engage this epistemological and ontological power. With Better Bankers, Better Banks, Hill and Painter make this same type of invaluable contribution.

As a work of legal genealogy, historiography, psychology, sociology, diagnostics, etc. (the authors’ bricolage is impressive and enviable), the book offers wholly persuasive arguments and evidence (1) that the culture of banking and, at least some, bankers presents systemic problems in the industry that have economy-wide consequences and (2) that changes in the banking industry are at least partially implicated in the proliferation, persistence, and repetition of these problems. However, how all this happens remains locked in a black box Hill and Painter mark “culture,” “incentives,” “ethos.” But culture, incentive, and ethos are not formed by accident, happenstance, or default. Instead, they are part of the same type of curriculum Woodson charted in his work. The Mis-Education of the Negro revealed that school-based curricula shape students’ understandings of themselves and the society in which they live. As Woodson explained with respect to the implementation of social ordering of African Americans through schooling,“If you can control a man’s thinking you do not have to worry about his action. When you determine what a man shall think you do not have to concern yourself about what he will do. If you make a man feel that he is inferior, you do not have to compel him to accept an inferior status, for he will seek it himself. If you make a man think that he is justly an outcast, you do not have to order him to the back door. He will go without being told; and if there is no back door, his very nature will demand one.” In other words, the curriculum imparted will lead to predictable and self-sustaining results.

Elsewhere, I have suggested that law functions as a societal pedagogy. As John Dewey defined it, pedagogy is just a purposeful process that “shapes, forms, or molds” peoples’ behavior, activity, and thinking. This is what law does. Indeed, the evidence Hill and Painter offer powerfully illustrates that the same educative forces identified by Woodson are at play in the banking industry. The curriculum, obviously, is different than the one Woodson critiqued. But, centralize, say, risk-taking and winning (among core themes in the curriculum latent in the Hill-Painter banking narrative), and you will find problematic behavior in the banking industry.

Hill and Painter clearly show, that banking law (or the lack thereof) is part of an identity-forming process for bankers and that process is shaping problematic behavior, activity, and thinking within the industry. What is missing from Better Bankers, Better Banks, then, is a pedagogical account of the banking industry and the law that structures and regulates it. I want to know how the ethos, incentives, and culture are internalized. I want to understand the content, structure and form through which the ethos, incentives, and culture are imparted. These types of questions are explored in the academic field of education. And I want to read the curriculum of banking law.

Silence on the question of pedagogy is not surprising. A large body of socio-legal scholarship, for example, reveals the educative function of law, leaving the specific processes and mechanisms of the pedagogy unexamined. However, without a comprehensive pedagogy of banking, I am unable to determine whether the Hill-Painter “skin-in-the-game” covenant banking solution is as promising as it sounds. I am inclined to think that the limitations of the approach—readily acknowledged to exist by the authors—include pedagogical deficiencies that, were the model to be widely adopted, would result in our discussing Better Bankers, Better Banks 2.0 some years from now. That is, I intuit that, were it to be revealed, we would find a pedagogy of banking law steeped in the autonomy of limited regulation, the flexibility of contract, the security of economic interdependence, and the hegemony of certain ways of economic thinking. Such a pedagogy of “free market rule making insured by systemic safety nets” for for the privileged banking class—if it were identified as the problem—may be reinforced rather than undermined by covenant banking, which is predicated upon the institution of contracts (even in the sub-ideal regulatory version of covenant banking Hill and Painter address). This is not meant as an attempt to join the “vampire squid” school of banking analysis. Rather, I merely hope to emphasize that if we do not map more than the why and the what of modern banking culture to capture the how—to unveil its curriculum—we just don’t know what ideas will effect the change we seek…

My call for a pedagogy of banking is not a critique of Hill and Painter. Covenant banking is a proposal that actually looks at the problem in a nuanced fashion and proposes a nuanced solution that is responsive to the problem and not merely its symptoms. That is exciting. Moreover, as of today, there is no field called law and pedagogy on which they could have drawn to enrich their already robust work. So, I can offer no greater praise of their work than that it constitutes one of the best proofs of the value of the pedagogical analysis of law. Carter Woodson’s work spawned more than eighty years of constructive, proactive examination of and experimentation on the education of African Americans. I hope Better Bankers, Better Banks spurs the same for banks.

Privacy Security Novels 02
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5 Great Novels About Privacy and Security

I am a lover of literature (I teach a class in law and literature), and I also love privacy and security, so I thought I’d list some of my favorite novels about privacy and security.

I’m also trying to compile a more comprehensive list of literary works about privacy and security, and I welcome your suggestions.

Without further ado, my list:

Franz Kafka, The Trial

Kafka’s The Trial begins with a man being arrested but not told why. In typical Kafka fashion, the novel begins badly for the protagonist . . . and then it gets worse! A clandestine court system has compiled a dossier about him and officials are making decisions about him, but he is left in the dark. This is akin to how Big Data can operate today. The Trial captures the sense of helplessness, frustration, and powerlessness when large institutions with inscrutable purposes use personal data and deny people the right to participate. I wrote more extensively about how Kafka is an apt metaphor for privacy in our times in a book called The Digital Person about 10 years ago.

Franz Kafka The Trial

 

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Berkshire Trivia Contest: Win $100 in Books

Berkshire-Beyond-Buffett-Flyer-2Ace the following quiz and win a $100 Amazon gift certificate (or, if you prefer, take $100 worth of my own books directly from me).  All answers may be found in Berkshire Beyond Buffett:  The Enduring Value of Values.  Feel free to share with friends.  Email your answers to me.  Offer limited to the first person to submit all answers correctly by Friday May 29, 2015  at midnight EDT.

1. Who founded The Pampered Chef and what job did that founder holder before doing so?
2. Who founded FlightSafety and what was that founder’s favorite charity?
3. What medical scare did John Justin Jr. face in 1968?
4. At what age did Rose Blumkin pass away?
5. What was Lubrizol’s most pivotal acquisition under CEO James Hambrick?
6. What was the original name at its creation of the company today called Berkshire Hathaway Energy?
7. Who christened the company now called MiTek and what was it called before that?
8. What company most assisted McLane as it expanded in the 1960s and 1970s?
9. What CEO and company minted the “I Am Loved” campaign?
10. Identify the origins of the name Marmon, stating year, deal and source of name.
11. What company provided the inspiration for the founding of GEICO?
12. Name the Berkshire executive listed as the largest donor by the Chronicle of Philanthropy from 2000 to 2009.
13. Berkshire is to Fruit of the Loom as Philadelphia & Reading is to what company?
14. Name the bidder that Berkshire outbid to acquire Clayton Homes.
15. Name three Berkshire CEOs who have won the Horatio Alger Award.
16. Name four minority positions Berkshire has swapped for entire businesses.
17. Name four Berkshire subsidiaries that have been through bankruptcy.
18. Name the individual who introduced the deal for Berkshire to acquire Star Furniture.
19. Name all Buffett family members who have served on Berkshire’s board.
20. Who wrote the foreword to Berkshire Beyond Buffett and what is that author’s role at Berkshire?

Lawrence A. Cunningham, a professor at George Washington University,  has written numerous books on a wide range of subjects relating to business and law. 

Posner
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The Promethean Posner – An Interview with the Judge’s Biographer

When one considers that the appellate judge is the central figure in Anglo-American jurisprudence, the dearth of evaluative writing on individual judges that is at once systematic, nonpolitical, and nonpolemical is remarkable. Richard Posner (1990)

This is the eleventh and next-to-last  installment in the Posner on Posner series.

William Domnarski is the author of a forthcoming biography of Judge Richard Posner. The table of contents for that biography is set out at the end of this post.  

Mr. Domnarski is a California-based lawyer who both practices law and teaches English. He is the author of four books:

  1. Swimming in Deep Water: Lawyers, Judges & Our Troubled Legal Profession (American Bar Association, 2014) (See here re Judge Richard Kopf’s comments on this book) 
  2. Federal Judges Revealed (Oxford University Press, 2009)
  3. The Great Justices: 1941-54 — Black, Douglas, Frankfurter and Jackson (University of Michigan Press, 2009)
  4. In the Opinion of the Court (University of Illinois Press, 1996)

Mr. Domnarski has likewise authored many scholarly articles (on law and also on literary criticism), including an article titled “The Correspondence of Henry Friendly and Richard A. Posner 1982-86.” In the Posnerian spirit, in 2012 he published a New York Times op-ed titled “Judges Should Write Their Own Opinions.”

William Domnarski has been a lawyer and legal writer for 30 years. He is the author of three previous books on federal judges, as well as a book on the nature of practicing law. He has a JD from the University of Connecticut School of Law and a Ph.D. in English from the University of California, Riverside. (Publisher’s statement)

Note: Some of the links below will open in Firefox or Chrome but not in Safari.

Question: How did you first come to know Richard Posner?

William Domnarski

William Domnarski

Domnarski: It was through some correspondence in the late 1980s on Tom Wolfe’s Bonfire of the Vanities (1987). I challenged his 1988 Yale Law Journal review essay concerning the novel; he was gracious enough to concede that there was something to my point. A correspondence over the years then ensued.

Question: You have written about Judge Posner before. Tell our readers a little bit about that.

Domnarski: In 1996 I wrote a book on judicial opinions that featured a lengthy chapter on Posner’s opinions. In that chapter I argued that he was writing opinions the likes of which we had never seen before. In that regard, a few years ago I was delighted to find at the Harvard Law School a 1983 letter from Henry Friendly to Posner (they corresponded during the last four years of Friendly’s life) in which Friendly wrote essentially the same thing to Posner, this as part of his assessment that Posner was the greatest appellate judge of his generation.

It was from Judge Friendly . . . that Posner learned the surprising truth that Holmes was wrong when he said that you can live greatly in the law. . . . With judging, Posner feels, you cannot know enough about one thing. The knowledge is too much on the surface because so much is required. To live greatly as an intellectual contributor, Posner has determined that he must go beyond law. William Domnarski (1996)

Question: Oxford University Press is publishing your forthcoming biography (with David McBride as your editor). Had you submitted the book elsewhere or did you go to Oxford because you had published with that house before?

Domnarski: I had a contractual obligation to go to Oxford first with my proposal because it had published my last book. That said, I would gone there anyway because Oxford is so good at what it does.

Question: How long will your biography be?

Domnarski: It will probably be a happy medium, around 125 thousand words [RC: Oxford lists it at 336 pages]. Long books turn most readers off, and a short book just wouldn’t let me cover all that I need to cover.

Question: When is it scheduled for publication?

Domnarski: It should be available sometime during the Spring-Summer of 2015.

Question: What kind of response did you get from the people you were able to interview?

Answer: First of all, almost everyone, wanted to talk to me. There were only three or four people who took a pass, one rather huffily. Nearly everyone I contacted long thought that there was something special about him. It was as though they knew that they would be asked about Posner sometime in the future.

Question: Did you interview any sitting Justices?

Domnarski: In an earlier book, I interviewed Justice Antonin Scalia and then Judge Stephen Breyer about Posner. Thereafter, I met once with Justice Breyer at the Supreme Court, this when I was thinking about taking the Posner biography on as a project.

Question: There was a wide conceptual gap between the thought of the late Ronald Dworkin (1931-2013) and that of the Judge. Did you have an opportunity to interview Professor Dworkin? If so, what can you tell us about that?

Domnarski: I suspect Dworkin would have been willing to talk (only a few have declined), but he was ill when I wrote to him. Thus, I did not get a chance to interview him. I did, nonetheless, talk with some people close to Dworkin. They provided me with some information and insight about how Dworkin responded to Posner when they famously clashed (helmets flashing) at a 1979 conference on the issue of wealth maximization. [RC: See Guido Calabresi, “An Exchange: About Law and Economics: A Letter to Ronald Dworkin“]

Question: What individual(s), living or dead, do you think has had the greatest impact on the Judge’s thinking? And why?

Domnarski: Three great economists come to mind – Aaron Director, George Stigler, and Gary Becker. From them Posner learned economic analysis and the way that it can illuminate the connections, large and small, between economics and the way we live.

Publisher’s Blurb

Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. 

THE CHALLENGES OF WRITING POSNER’S BIOGRAPHY

Question: What was the biggest challenge in doing this biography?

Domnarski: The easy answer is the staggering amount of paper I had to push through. I have been on Posner’s slip opinion mailing list (now sent via e-mail) since the late 1980s. I read the opinions as they came out, but once I took on the project I had to read them all over again, this time annotating them – there are some three thousand of them. Then there are the dozens of books and the hundreds of articles. But that wasn’t the hardest part. The hardest part was the ongoing challenge of trying to figure out what mattered in Posner’s career and how I could make that matter to my readers.

Judicial biography is one of the most difficult genres in which to write. Few, if any, writers meet the challenges that the genre presents. In Posner’s case, you are essentially writing a book about someone who sits at a desk and reads and writes. It’s all a judgment call, I guess, about what one thinks matters most. The hope is that one will have answered all or most of the questions the reader will have, and this in an appealing and intelligible way.

Question: What has it been like to work with the Judge in writing this biography? Have there been any awkward moments?

Domnarski: He’s been a prince about cooperating with me. The book is not, however, an authorized biography, by which I mean that I have no obligations to Posner and he has no right to review the manuscript or to insist on changes.

The Judge agreed to give me complete access to his archive at the University of Chicago Regenstein Library. He also agreed to sit for recorded interviews, and to answer any questions I might e-mail him. On that score, I would sometimes send e-mails at eleven or twelve in the evening (California time) and get an immediate response. He also took me through three boxes of childhood memorabilia, including baby pictures and the report cards.

The only moments that could possibly come close to being awkward were a few times when I relayed or just mentioned a story someone told me (I interviewed people dating back to his grade school years). Sometimes he remembered the story differently or said that what I had been told did not happen. Of course, that is not unusual as any biographer knows.

Question:

  1. Given the complexity of his character, the volume of his work, and nature of his jurisprudence, how did you go about juggling all those biographical balls while at the same time moving your narrative along?
  1. How analytical will your biography be? That is, are there any extended critiques (by you or others) of his opinions and jurisprudence generally, or is your book largely descriptive?

Domnarski:

  1. It was easy enough to write separate chapters on Posner’s early years, such as chapters taking him through high school and then through college at Yale and law school at Harvard. And it was also easy grouping together Posner’s various Washington jobs and then writing a separate and fairly long chapter on his full-time teaching years at Chicago. The hard part was dealing with all those opinions and all those books and articles once he went onto the bench. I’ve tried to move the narrative forward by dividing the mass of work by decades and following different themes and threads in each decade so that the reader always has something fresh.
  1. I analyze why his opinions are special and try to pinpoint his contributions to the law by looking at the way his opinions have been used by other circuit court judges. I also track how the Supreme Court has responded to his opinions when they were reviewed by the High Court. This is as part of my broader interest in tracking a kind of marketplace response to his jurisprudence. I do the same with his many books. I don’t argue, though, that he is the most influential judge of his time or that he is the most respected. I take these points as givens and try to explain how and why his reputation is what it is. Put differently, I have tried to avoid jurisprudential analyses that I think weigh down other judicial biographies.

Question: The last major biography of a federal court of appeals judge was David Dorsen’s Henry Friendly, Greatest Judge of His Era (2012), also a practicing lawyer-authored biography. What was your sense of that biography and how does it differ in form and style from the one you are doing of Judge Posner?

Domnarski: For all of its strengths, the Dorsen book left me wanting because I wanted to hear more about Judge Friendly from people who knew him at various stages of his life. That’s the difficulty with writing about someone who is so far in our past such as Friendly, who died in 1986 – like him, his contemporaries have all passed.

There are, to be sure, inherent problems in writing about a subject based in part on information gathered in interviews in the same way that there are inherent problems in interviewing a subject to gather information. But from the point of view of being able to make the subject come alive for the reader, this kind of information is first tier, nearly equal I’d say to what the subject writes in private correspondence. (in that respect, I had access to Posner’s many letters by way of his Chicago archive.)

THE “BRASH YOUNG MAN” Read More

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Should the FTC Be Regulating Privacy and Data Security?

This post was co-authored with Professor Woodrow Hartzog.

This past Tuesday the Federal Trade Commission (FTC) filed a complaint against AT&T for allegedly throttling the Internet of its customers even though they paid for unlimited data plans. This complaint was surprising for many, who thought the Federal Communications Commission (FCC) was the agency that handled such telecommunications issues. Is the FTC supposed to be involved here?

This is a question that has recently been posed in the privacy and data security arenas, where the FTC has been involved since the late 1990s. Today, the FTC is the most active federal agency enforcing privacy and data security, and it has the broadest reach. Its fingers seem to be everywhere, in all industries, even those regulated by other agencies, such as in the AT&T case. Is the FTC going too far? Is it even the FTC’s role to police privacy and data security?

The Fount of FTC Authority

The FTC’s source of authority for privacy and data security comes from some specific statutes that give the FTC regulatory power. Examples include the Children’s Online Privacy Protection Act (COPPA) where the FTC regulates online websites collecting data about children under 13 and the Gramm-Leach-Bliley Act (GLBA) which governs financial institutions.

But the biggest source of the FTC’s authority comes from Section 5 of the FTC Act, where the FTC can regulate “unfair or deceptive acts or practices in or affecting commerce.” This is how the FTC has achieved its dominant position.

Enter the Drama

Until recently, the FTC built its privacy and security platform with little pushback. All of the complaints brought by the FTC for unfair data security practices quickly settled. However, recently, two companies have put on their armor, drawn their swords, and raised the battle cry. Wyndham Hotels and LabMD have challenged the FTC’s authority to regulate data security. These are more than just case-specific challenges that the FTC got the facts wrong or that the FTC is wrong about certain data security practices. Instead, these challenges go to whether the FTC should be regulating data security under Section 5 in the first place. And the logic of these challenges could also potentially extend to privacy as well.

The first dispute involving Wyndham Hotels has already resulted in a district court opinion affirming the FTC’s data protection jurisprudence. The second dispute over FTC regulatory authority involving LabMD is awaiting trial.

In the LabMD case, LabMD is contending that the U.S. Department of Health and Human Services (HHS) — not the FTC — has the authority to regulate data security practices affecting patient data regulated by HIPAA.

With Wyndham, and especially LabMD, the drama surrounding the FTC’s activities in data protection has gone from 2 to 11. The LabMD case has involved the probable shuttering of business, a controversial commissioner recusal, a defamation lawsuit, a House Oversight committee investigation into the FTC’s actions, and an entire book written by the LabMD’s CEO chronicling his view of the conflict. And the case hasn’t even been tried yet!

The FTC Becomes a Centenarian

And so, it couldn’t be more appropriate that this year, the FTC celebrates its 100th birthday.

To commemorate the event, the George Washington Law Review is hosting a symposium titled “The FTC at 100: Centennial Commemorations and Proposals for Progress,” which will be held on Saturday, November 8, 2014, in Washington, DC.

The lineup for this event is really terrific, including U.S. Supreme Court Justice Steven Breyer, FTC Chairwoman Edith Ramirez, FTC Commissioner Joshua Wright, FTC Commissioner Maureen Ohlhausen, as well as many former FTC officials.

FTC 03 GW

Some of the participating professors include Richard Pierce, William Kovacic, David Vladeck, Howard Beales, Timothy Muris, and Tim Wu, just to name a few.

At the event, we will be presenting our forthcoming article:

The Scope and Potential of FTC Data Protection
83 George Washington Law Review (forthcoming 2015)

So Is the FTC Overreaching?

Short answer: No. In our paper, The Scope and Potential of FTC Data Protection, we argue that the FTC not only has the authority to regulate data protection to the extent it has been doing, but it also has the authority to expand its reach much more. Here are some of our key points:

* The FTC has a lot of power. Congress gave the FTC very broad and general regulatory authority by design to allow for a more nimble and evolutionary approach to the regulation of consumer protection.

* Overlap in agency authority is inevitable. The FTC’s regulation of data protection will inevitably overlap with other agencies and state law given the very broad jurisdiction in Section 5, which spans nearly all industries. If the FTC’s Section 5 power were to stop at any overlapping regulatory domain, the result would be a confusing, contentious, and unworkable regulatory system with boundaries constantly in dispute.

* The FTC’s use of a “reasonable” standard for data security is quite reasonable. Critics of the FTC have attacked its data security jurisprudence as being too vague and open-ended; the FTC should create a specific list of requirements. However, there is a benefit to mandating reasonable data security instead of a specific, itemized checklist. When determining what is reasonable, the FTC has often looked to industry standards. Such an approach allows for greater flexibility in the face of technological change than a set of rigid rules.

* The FTC performs an essential role in US data protection. The FTC’s current scope of data protection authority is essential to the United States data protection regime and should be fully embraced. The FTC’s regulation of data protection gives the U.S. system of privacy law needed legitimacy and heft. Without the FTC’s data protection enforcement authority, the E.U. Safe Harbor agreement and other arrangements that govern the international exchange of personal information would be in jeopardy. The FTC can also harmonize discordant privacy-related laws and obviate the need for new laws.

* Contrary to the critics, the FTC has used its powers very conservatively. Thus far, the FTC has been quite modest in its enforcement, focusing on the most egregious offenders and enforcing the most widespread industry norms. The FTC should push the development of the norms a little more (though not in an extreme or aggressive way).

* The FTC can and should expand its enforcement, and there are areas in need of improvement. The FTC now sits atop an impressive body of jurisprudence. We applaud its efforts and believe it can and should do even more. But as it grows into this role of being the data protection authority for the United States, some gaps in its power need to be addressed and it can improve its processes and transparency.

The FTC currently plays the role as the primary regulator of privacy and data security in the United States. It reached this position in part because Congress never enacted comprehensive privacy regulation and because some kind of regulator was greatly needed to fill the void. The FTC has done a lot so far, and we believe it can and should do more.

If you want more detail, please see our paper, The Scope and Potential of FTC Data Protection. And with all the drama about the FTC these days, please contact us if you want to option the movie rights.

Cross-posted on LinkedIn