Kenneth M. Davidson
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Kenneth M. Davidson is a Washington DC attorney who is currently engaged
in foreign and domestic consulting work. His foreign work has focused
primarily on competition law and rule of law issues faced by transitional
economies. In his domestic practice, he consults with law firms and
investment institutions on antitrust issues and procedures related to cases
that are or may be considered by the Federal Trade Commission, the Antitrust
Division of the US Department of Justice and the courts of the United States.
He does not normally accept individual law clients.
Mr. Davidson is also a writer, teacher and speaker on legal, business, and
public policy issues and is available as a consultant on any of these topics.
E-mail : ken@kennethdavidson.com
Phone : 703-533-0526
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Also
available:

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Reality
Ignored: How Milton Friedman and Chicago Economics Undermined American
Institutions and Endangered the Global Economy
Since 1962, when Milton Friedman published Capitalism
& Freedom, the Chicago School has created one side of modern American
political debate. Reality Ignored describes how Friedman's views have framed
policies for every conservative politician from Barry Goldwater to Ronald
Reagan to the Tea Party. This book describes how Chicago policies have
damaged American society by redefining the role of federal, state, and local
government, by persuading American businesses to focus on short term profits
rather than on innovation, productive efficiency and creating jobs, and by undermining
the credibility of American financial markets. The book translates the
technical jargon of economics and the posturing of political parties into an
understandable version of the curious story of Chicago Economics. This book
is a guide to those who want to understand why our society has declined in
economic strength and international influence and how we might start to renew
the strength of America.
ADVANCE PRAISE FOR REALITY IGNORED:
Thomas K. McCraw, Isidor Straus Professor of
Business History, Emeritus, at Harvard Business School and the author of
Prophet of Innovation: Joseph Schumpeter and Creative Destruction: 'This
book is a powerful analysis of how the free-market fundamentalism of the
'Chicago School' of economics shaped politics, law (antitrust law in
particular), and public discourse during the period 1970-2008. Davidson shows
how the corrosive effects of this near-religious ideology undermined
government itself and contributed to the financial catastrophe that began in
2007.'
Eleanor M. Fox, Walter J. Derenberg Professor
of Trade Regulation at New York University School of Law: 'A lively and
engaging analysis of the people and ideas that led us down the primrose path
to our current financial debacle. This book is enjoyable to read and holds
important lessons for the future.'
Pradeep S.Mehta, Secretary General of CUTS International: "Davidson, an ardent
advocate of free markets, shows how the competition policies promoted by the
Chicago School are often unsuitable for the United States and for
transitional economies."
Danielle Brian, Executive Director of the Project on Government
Oversight (POGO): "Davidson describes how, since the Reagan
Revolution, Chicago Economics has inspired government policies that have become
the sources of our problems, not the solution to them."
Dr. Philip Marsden, Director of the Competition Policy Forum and a Board
Member of the UK Office of Fair Trading: "We only learn not to repeat
the mistakes of the past if we understand what caused them. Officials and
advisors need to be able to judge what works from what hasn't, and most
importantly understand why and where they failed. It is a complex world, and
policies based on one value 'Chicago price-theory for example' are inappropriate, incomplete and dangerous. Davidson
shows us, the market works, but not by itself. Informed public policy must be
at least as rich as what he offers us in this book. Nothing could be more timely, more helpful or more insightful than this
book."
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Attorney
Experience
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United States Federal Trade Commission
United States Equal Employment Opportunity Commission
National Organization for Women Legal Defense and Education Fund
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International
Experience
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Consultant to Ministry of
Commerce, Kingdom of Cambodia
Armenian State Commission for the
Protection of Economic Competition
Indonesian Commission for the Supervision of Business Competition
ASEAN Conference on Fair Competition Law
Asian Law Institute Conference on Role of Law in a Developing Asia
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Academic
Appointments
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Mr. Davidson is a lecturer and a participant in various university
programs (See Recent Activities and Professional Activities). His previous
full time academic appointments include:
State University at Buffalo, Faculty of Law and Jurisprudence
University of Bridgeport, School of Law
University of Maryland, School of Law
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Present
Affiliations
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Senior Fellow, American Antitrust Institute
Member, District of Columbia Bar
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Education
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B.A., 1963, University of Chicago
J.D., 1966, University of Pennsylvania
L.L.M., 1967, Yale Law School
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Publication
Summary
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Mr. Davidson has published four books, over 50 articles, internet
commentaries and conference papers, and prepared numerous sets of course
materials. His writings that are available online are listed below. A more
complete list can be found in Publications. He writes on topics concerning
law and competition issues as well as business and economic development. For
example:
Economic and Business topics, including:
Reality
Ignored: How Milton Friedman and Chicago Economics Undermined American
Institutions and Endangered the Global Economy (2011)
"Reality
Be Damned: The Legacy of Chicago School Economics" (2009)
The American Interest
Megamergers:
Corporate America's Billion-Dollar Takeovers (1985) (reprinted 2003)
Columnist, Journal of Business Strategy (1987-1994)
Commentary, American Antitrust Institute Website
Legal topics (law review articles and casebooks) including:
"Creating
Effective Competition Institutions: Ideas for Transitional Economies",
6 Asian Pacific Law and Policy Journal 71 (2005)
Text, Cases, and Material on Sex-Based Discrimination with Ruth
Bader Ginsburg and Herma Hill Kay (1974)
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Recent
Activities
2005-2011
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International Competition Consultant, Kingdom
of Cambodia's Ministry of Commerce, Asian Development Bank, Ethiopia
Lecturer, Competition Law and Practice,
Masters Program, Faculty of Business and Economics, Addis Ababa University, Ethiopia
Participant, The Antitrust Marathon: A
Roundtable Discussion, Institute for
Consumer Antitrust Studies, Loyola University Chicago School
of Law
Consultant, competition law issuess in India, Southeast Asia and other transitional
economies, CUTS International
Lecturer, Competition Law and Policy, Master
of Trade Policy Programme, University of the West Indies at Barbados
Yerevan, Armenia, Short Term Advisor for IRIS
pursuant to a USAID contract
Training on Competition law and policy for SCPEC Commissions and judges of
the Armenian Economic Court, Armenian
State Commission for the Protection of Economic Competition
Commentaries and Articles on the AAI Web site, American Antitrust Institute
Washington, DC
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Online
Publications
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Commentaries and Articles
on the AAI Web site:
"A Structure for Plain Language Competition Laws: Insights for Transitional Economies from the Draft Cambodian Law" 10/02/2012
"Free Markets and Competition Laws: Questions and Possible Answers" 6/28/2012 "Economic Development, Competition, and Competition Law" 11/2011
"Numerology and the Mismeasurement of Competition Laws" 11/06/2008
"Moving
Toward Growth in a Market Economy: Small Can be Beautiful" 9/29/2009
"Whither
American Assistance to Competition Agencies: An FTC-DOJ Workshop"
2/28/2008
"An
Historical Approach to Competition Advocacy in Market Economies"
9/11/2007
"Behavioral
Economists at the Gate: Antitrust in the Twenty-First Century? 6/9/2007
"The Disquieting Antitrust
Consensus of the AMC" 4/11/2007
"GPRA
and the Street Light Effect? 3/12/2007
"Is
There a Nexus Between Choosing Laws and Promoting Economic Growth?"
2/19/2007
"Assisting
Foreign Competition Agencies and the AMC Recommendations" 10/1/2006
"Promoting the Rule of
Law Abroad, The Professionals' Critiques" 4/13/2006
"The Reports on
Divestiture Remedies of the US FTC and EU DG Comp: Are There Significant
Differences?" 2/15/2006
"The Future of Free
Markets in Three Chinas" 1/18/2006
"The FTC
Monitor Trustee" 12/20/2005
"Porter and Weller, An
Antitrust Odd Couple?" 11/28/2005
"Premature
Consummation: An Evaluation of HSR Gunjumping Rules"
9/27/2005
"Right Regulation: The Due
Burden of Premerger Notification" 8/30/2005
"With a Little Help
From My Friends: A Fond Farewell from Ken Davidson" (FTC 1978-2005)
7/5/2005
Recent Items:
"Good People, Bad Laws" The American
Interest (2011).
"Reality
Be Damned: The Legacy of Chicago School Economics," The American
Interest (2009).
"The
Antitrust Marathon: A Roundtable Discussion," 20 Loyola Consumer Law
Review (2008).
Designing
Competition Institutions for Transitional Economies in The Role of Law in a
Developing Asia, First Annual Conference of the Asian Law Institute at
502-514 (2004).
Culture
and Competition in the ASEAN Conference on Fair Competition Law and Policy in
the ASEAN Free Trade Area, March 5-7, 2003.
A Study of the
Commission's Divestiture Process, with Naomi Licker, Federal Trade Commission
(1999)
Law Review Article
"Creating
Effective Competition Institutions: Ideas for Transitional Economies",
6 Asian Pacific Law and Policy Journal 71 (2005)
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Professional
Activities
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Speaker
Throughout my career I have participated in various public programs. Among
the sponsoring groups were:
- The American Business Law
Association
- The American Management
Association
- The Association of American
Law Schools
- The ASEAN Conference on Fair
Competition Law
- The Asian Law Institute
- Center for the Study of
Financial Institutions at New York University
- Ecole Polytechnique
(France)
- George Meany Center for Labor
Studies
- Institute for Policy Studies
at the University of Rhode Island
- Institute of Private
Enterprise at the University of North Carolina
- The New York State Bar
Association
- The North American Securities
Administrators Association
- Northeastern University
- The Supreme Court of
Indonesia (workshops on competition law)
- Institute for Consumer
Antitrust Studies at Loyola University Chicago
I have also appeared on television and radio public affairs programs.
Attorney
Between 1969 and 1974, I represented the National Organization for Women and
the American Civil Liberties Union in several lawsuits including writing
Supreme Court briefs in Phillips V. Martin Marietta Corporation, 400 U.S. 542
(1971) and Corning Glass Works v. Brennen, 417 U.S.
188 (1974).
Columnist
From 1988 to 1994, I wrote a regular column for the JOURNAL OF BUSINESS
STRATEGY, which had various titles, the last being Business Policy.
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Publications
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Conference Proceedings and An FTC Report
"The
Antitrust Marathon: A Roundtable Discussion," 20 Loyola Consumer Law
Review (2008).
Designing
Competition Institutions for Transitional Economies in The Role of Law in a
Developing Asia, First Annual Conference of the Asian Law Institute at
502-514 (2004).
Culture
and Competition in the ASEAN Conference on Fair Competition Law and Policy in
the ASEAN Free Trade Area, March 5-7, 2003.
A Study of the
Commission's Divestiture Process, with Naomi Licker, Federal Trade
Commission (1999)
Books
MEGAMERGERS: CORPORATE AMERICA'S BILLION DOLLAR TAKEOVERS, reprinted Beard
Books (2003); Harper/Ballinger (1985).
TEXT, CASES AND MATERIALS ON SEX BASED DISCRIMINATION, West Publishing Co.
(1974), with Ruth Bader Ginsburg and Herma Hill
Kay.
UNITED STATES TAXATION OF FOREIGN INCOME AND FOREIGN PERSONS, Federal Tax
Press (1968), Boris I. Bittker and Lawrence F. Ebb
with the collaboration of Kenneth M. Davidson.
Articles in Books
Innovation and Corporate Mergers in the United States, published in french in CULTURE D'ENTREPRISE ET INNOVATION, P.J.
Bernard and J.P. Daviet (eds.) (1992).
Do Megamergers Make Sense? in the LIBRARY OF
INVESTMENT BANKING, Robert Kuhn (ed.) (1990).
Megamergers: A Scorecard of Winners and Losers, in THE WALL STREET JOURNAL ON
MANAGING, David Asman (ed.) (1990).
Comment on Legal and Social Issues, in MERGERS AND ACQUISITIONS: CURRENT
PROBLEMS IN PERSPECTIVE, Michael Keenan and Lawrence J. White (eds.) (1982).
What's Wrong With Conglomerate Mergers? with Michael
Pertschuk, in THE BIG BUSINESS READER, Mark Green
and Robert Massie, Jr. (eds.) (1980).
Business Columns
Business Policy: Living the Law of the Jungle 16 JOURNAL OF BUSINESS STRATEGY
15 (May/June 1994).
Business/Public Policy: How to Improve Business Relationships 15 JOURNAL OF
BUSINESS STRATEGY 13 (May/June 1993).
Business/Public Policy: The Need for Long-Term Investments in American
Corporations 14 JOURNAL OF BUSINESS STRATEGY 9 (March/April 1993).
Business Policy/Public Policy: The Value of Long-Term Commitment 13 JOURNAL
OF BUSINESS STRATEGY 53 (July/August 1992).
Business Policy/Public Policy: How Should the U.S. Encourage Innovation? 13
JOURNAL OF BUSINESS STRATEGY 58 (March/April 1992).
Mergers and Acquisitions: Why Acquisitions May Not Be the Best Route to
Innovation 12 JOURNAL OF BUSINESS STRATEGY 50 (May/June 1991).
Mergers and Acquisitions: Innovation and Corporate Mergers 12 JOURNAL OF
BUSINESS STRATEGY 42 (January/February 1991).
Mergers and Acquisitions: Anatomy of the Fall 11 JOURNAL OF BUSINESS STRATEGY
48 (September/October 1990).
Mergers and Acquisitions: Junk Bonds -- Have They Lost Their Luster? 11
JOURNAL OF BUSINESS STRATEGY 54 (January/February 1990).
Mergers and Acquisitions: Where Do Merger Profits Go? 10 JOURNAL OF BUSINESS
STRATEGY 47 (May/June 1989).
Fire Sale on America? 10 JOURNAL OF BUSINESS STRATEGY 9 (September-October
1989).
Mergers and Acquisitions: Evolution of a New Industry 10 JOURNAL OF BUSINESS
STRATEGY 54 (January/February 1989).
Mergers and Acquisitions: Tax-Distorted Mergers 9 JOURNAL OF BUSINESS
STRATEGY 63 (September/October 1988).
Mergers and Acquisitions: The Acquisition Risk 9 JOURNAL OF BUSINESS STRATEGY
56 (May/June 1988).
Mergers and Acquisitions: Another Look at LBOs 9 JOURNAL OF BUSINESS STRATEGY
44 (January/February 1988).
Do Megamergers Make Sense? 7 JOURNAL OF BUSINESS STRATEGY 40 (Winter 1987).
Strategic Investment Theories, 6 JOURNAL OF BUSINESS STRATEGY 16 (Summer
1985).
Looking at the Strategic Impact of Mergers, 2 JOURNAL OF BUSINESS STRATEGY 13
(Summer 1981).
Law Review Articles
Creating
Effective Competition Institutions: Ideas for Transitional Economies, 6
ASIAN PACIFIC LAW AND POLICY JOURNAL 71 (2005)
Book Review: Tender Offers, Edited by Mark I. Steinberg, 11 JOURNAL OF
CORPORATION LAW 809 (1986).
The Competitive Significance of Segmented Markets, 71 CALIFORNIA LAW REVIEW
445 (1983).
Limitation Without Regulation: The FTC's Bureau of Competition Approach to
Conglomerate Mergers, 1980 UTAH LAW REVIEW 95 (1980) with Alfred F.
Dougherty, Jr.
What's Wrong With Conglomerate Mergers? 48 FORDHAM LAW REVIEW 1 (1979) with
Michael Pertschuk. Reprinted in 22 CORPORATE
PRACTICE COMMENTATOR 37 (1980).
Preferential Treatment and Equal Opportunity, 55 OREGON LAW REVIEW 53 (1976).
Welfare Cases and the "New Majority": Constitutional Theory and
Practice, 10 HARVARD CIVIL RIGHTS-CIVIL LIBERTIES LAW REVIEW 513 (1975).
Government Role in the Economy: Implications for the Relief of Poverty, 48
URBAN LAW JOURNAL 1 (1970).
Voting Rights of Americans Abroad, 18 BUFFALO LAW REVIEW 469 (1969).
Other
In addition I have written editorial columns which have appeared in a number
of newspapers, including the Wall Street Journal, the Los
Angeles Times, the Journal of Commerce, the Saint Louis
Post-Dispatch, the Baltimore Sun, and the Toronto Star.
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EMPLOYMENT HISTORY
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1978-2005
Attorney, Deputy Assistant Director
Bureau of Competition
Federal Trade Commission
Washington, D.C. 20580
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I held various positions with the Federal Trade
Commission's Bureau of Competition, including Deputy Assistant Director and
senior attorney in several divisions of the Bureau. Each of my positions had
both managerial and policy development responsibilities. When I retired from
the FTC, I was awarded the Commission's highest honor, the Award for
Distinguished Service. This Commendation reads: "For Your Continuous
Career-long Dedication to the Public Interest and American Consumers, Through
Your Research, Writings, Investigations, Rule-makings, and Enforcement of the
Federal Trade Commission Act and the Hart-Scott-Rodino
Act."
My final position was as senior attorney in the Bureau's Compliance Division.
This division is responsible for securing compliance with the Commission's
antitrust orders and with premerger notification obligations imposed by the
Hart-Scott-Rodino (HSR) Act and for drafting
revisions to the Commission's premerger notification rules. My primary duties
involved investigation and litigation of law violations, drafting premerger
notification regulations, and conducting empirical research on law related
topics.
Investigation/Litigation
Since the HSR Act came into effect, I participated in most of the premerger
notification investigations and litigation brought on behalf of the
Commission. These transactions included intentional nonreporting
to hide anticompetitive acquisitions, inadvertent failures to file, premature
consolidations during antitrust investigations, and the creation of devices
to avoid reporting obligations. The cases involved issues of contract law,
securities law, bankruptcy law, and tax law, as well as accounting principles
related to valuation of corporate assets. The cases in which I was lead
attorney have resulted in the largest civil penalties paid under the HSR Act
and in agreements to prevent or reverse consolidation of companies while the
Commission completed its antitrust investigations.
Rulemaking
I also worked on all the substantive changes that have been made to
regulations implementing to the HSR Act that have been made since the early
1980s. From 1984 to 1988 I was in charge of revising the premerger
notification rules as a member of the Evaluation Office. We completed the
first comprehensive review of the premerger notification program after it was
established in 1978. Since that time, I drafted or consulted on the drafting
of amendments to the rules and drafted proposed legislative amendments to the
HSR Act.
Research and Policy Development
Since joining the Commission, I have been involved in a wide range of
empirical research. Most recently, my colleagues and I conducted the first
retrospective analysis of Commission Orders requiring divestiture of
businesses or business assets. Naomi Licker and I wrote up the results in A
STUDY OF THE COMISSION'S DIVESTITURE PROCESS (1999). As Deputy Assistant
Director for Special Projects (1979-1982), I both supervised the research
conducted by that Office and undertook individual assignments. These included
a variety of topics concerning antitrust litigation, antitrust legislation,
and research on business strategy, capital markets, and tax policy. As a
member of the Planning Office (1978-1979), I directed the research and
supervised the development of the Bureau's legislative proposal to limit
conglomerate mergers. I also compiled and directed the antitrust law training
program for new FTC attorneys.
Other Compliance Functions
I also worked on or supervised other matters that are the responsibility of
the Compliance Division. These include: formulating Commission Orders to
remedy antitrust violations; investigating compliance with Commission Orders;
supervising divestitures pursuant to Commission Orders; drafting
modifications to Commission Orders; and drafting staff opinions on the
applicability of Commission Orders.
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2002-2003
Resident Legal Advisor
Indonesian Competition Commission
KPPU RI
Jakarta, Indonesia
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I was selected by the Federal Trade Commission to
assist the Indonesian Commission for the Supervision of Business Competition
(KPPU RI) pursuant to a grant funded by the United States Agency for
International Development. The purpose of the grant was to help the newly
established Indonesian agency develop competition policy, organize the
agency's procedures, train the staff in the principles of competition law,
develop guidelines on compliance with the Indonesian competition law and
advise on ongoing investigations of possible violations of the Indonesian
law. I was in Jakarta for six months between August, 2002 and July, 2003. My
residence was interrupted by a six month evacuation ordered by the Department
of State, but continued to work on issues concerning the Indonesian agency
during the evacuation.
During the year I was assigned to Indonesia, I was involved in a large
variety of activities. Among other activities, I advised on ongoing
investigations of the agency, I proposed a set of new procedural regulations
for the agency, I helped develop the agency's long term strategic plan, I
drafted proposed public guidelines construing aspects the Indonesian
competition law, I participated in workshops with a committee of the Supreme
Court of Indonesia on the standard to be used by judicial bodies reviewing
decisions of the agency, I taught a survey course on competition law for the
staff of the agency, participated in investigational skills training sessions
for competition investigators and gave speeches on competition topics to
judges, lawyers and members of the public.
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1982-1984
Visiting Professor of Law
University of Maryland
Baltimore, MD 21201
Visiting Professor of Law
University of Bridgeport
Bridgeport, CT 06601
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For two years, while on a leave of absence from the
Federal Trade Commission, I taught Antitrust, Business Organizations and
Torts at these institutions. In addition to academic responsibilities, I
wrote MEGAMERGERS: Corporate America's Billion-Dollar Takeovers, a
book describing large corporate mergers of the 1970s and 1980s.
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1974-1978
Branch Chief, Decisions Division
District Counsel, Buffalo District Office
Equal Employment Opportunity Commission
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As chief of a branch (1976-1978), I supervised twelve attorneys in the
Decisions Division. The major functions of the division were to draft
decisions for the Commission and provide advice to field offices on Commission
precedent. Personal assignments included redrafting the Commission's
procedural regulations and a six month detail to the Office of the Chairman
during the 1977-78 reorganization. I prepared option papers on various
reorganization topics and subsequently had supervisory responsibility for
developing field manuals containing the new procedures.
As legal officer of the Buffalo District Office (1974-1976), I was
responsible for drafting and court enforcement of administrative subpoenas
issued by the office. I was also responsible for recruiting and training a
referral panel of private attorneys and providing litigation assistance to
them. Special assignments included drafting a worksharing
agreement with the New York State Division of Human Rights and developing
staff training materials for the New York Region.
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Assistant Professor 1967-1971
Associate Professor 1971-1974
Faculty of Law and Jurisprudence
State University of New York at Buffalo
Buffalo, NY 14260
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I taught Social Legislation (6 years), Taxation of Foreign Income (5
years), Torts (5 years), Employment Discrimination (4 years), Business
Organizations (2 years), and Administrative Law (1 year). In addition, I
taught courses in the School of Management and the School of Social Welfare
and served on various law school and university committees, e.g.,
Chairperson, Law School Academic Standing Committee and election to
University Senate.
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