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."

Attorney Experience

 

United States Federal Trade Commission
United States Equal Employment Opportunity Commission
National Organization for Women Legal Defense and Education Fund

International Experience

 

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

Academic Appointments

 

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

Present Affiliations

Senior Fellow, American Antitrust Institute
Member, District of Columbia Bar

Education

 

B.A., 1963, University of Chicago
J.D., 1966, University of Pennsylvania
L.L.M., 1967, Yale Law School

Publication Summary

 

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)

Recent Activities

2005-2011

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

Online Publications

 

 

 

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)

 

Professional Activities

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.

Publications

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.

EMPLOYMENT HISTORY

 1978-2005
Attorney, Deputy Assistant Director
Bureau of Competition
Federal Trade Commission
Washington, D.C. 20580

 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.

 2002-2003
Resident Legal Advisor
Indonesian Competition Commission
KPPU RI
Jakarta, Indonesia

 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.

 1982-1984

Visiting Professor of Law
University of Maryland
Baltimore, MD 21201

Visiting Professor of Law
University of Bridgeport
Bridgeport, CT 06601

 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.

1974-1978
Branch Chief, Decisions Division
District Counsel, Buffalo District Office
Equal Employment Opportunity Commission

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.

Assistant Professor 1967-1971
Associate Professor 1971-1974
Faculty of Law and Jurisprudence
State University of New York at Buffalo
Buffalo, NY 14260

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.