February 27, 2014
The Risks of Finding a Father for Your Child on Craigslist
Posted by Greg Shill

Before returning to the legal boundaries of monetary policy, I wanted to briefly highlight some interesting contract and regulatory issues lurking just beneath the surface of an unusual Kansas state court order declaring a sperm donor to be the legal father of a child, against the wishes of all persons involved.

The facts of the case, decided last month and covered nationally (news accountorder (PDF)), are straightforward and undisputed:

In 2009, a Topeka man answered a Craigslist ad soliciting sperm donations. The ad was placed by a lesbian couple, Jennifer Schreiner and Angela Bauer. The man supplied a donation. Schreiner became pregnant and delivered a baby. Schreiner began receiving Kansas welfare benefits for the child. Seeking child support payments, the state sued the sperm donor to establish paternity. The state argued that the donor—who lacks any relationship with the child or the couple (now estranged) beyond supplying the donation—was the child’s legal father, and therefore must pay child support.

This is where the case gets interesting as a matter of private ordering and trade regulation.

Prior to the donation, all persons involved—the donor and both members of the couple—signed a non-paternity agreement in which the donor waived his parental rights and was released from his parental obligations.

Both mothers opposed the state’s campaign to declare the donor the child's legal father.

Nevertheless, the court granted the state’s paternity petition, which means it can now seek to compel the donor to provide child support. The paternity finding also appears to give the donor a good shot at asserting parental rights (though he seems unlikely to try).

Justifying its decision to ignore the wishes of both parents and the donor, the court intoned:

A parent may not terminate parental rights by contract, however, even when the parties have consented.

Well, maybe this case is a morality tale about those who would seek a father for their child on Craigslist. A warning from a heartland state to those who would selfishly try to contract around their sacred parental obligations. A sign that courts place the welfare of the child above all else. Right?

Haha, of course not!

Kansas law makes it easy to conclusively terminate the parental rights and obligations of sperm donors by contract. Care to guess what you need to do, besides sign a contract?

Pay a doctor.

The court explained:

Through K.S.A. 23-2208(f) [PDF], the Kansas legislature has afforded a woman a statutory vehicle for obtaining semen for [artificial insemination] in a manner that protects her and her child from a later claim of paternity by the donor. Similarly, the legislature has provided a man with a statutory vehicle for donating semen to a woman in a manner that precludes later liability for child support. The limitation on the application of these statutory vehicles, however, is that the semen must be “provided to a licensed physician." [FN1] (emphasis added)

The parties failed to do this.

So, the upshot is that you are free to find a father for your child on Craigslist—and you can even count on the State of Kansas to keep him out of your child’s life in the future—so long as you hire a doctor to do the procedure. Similarly, you can spend your free time fathering children on Craigslist without losing sleep over child support suits—as long as you kick some of the action upstairs to an M.D.

It’s not just Kansas; California, Illinois, and as many as 10 other states [FN2] follow the same law, the Uniform Parentage Act of 1973.

I’m not a family law expert, but it seems to me that a complete list of legitimate and unique public policy concerns that are implicated when a couple and a third-party sperm donor settle their parental obligations by contract looks something like this:

  1. Ensuring that the state can identify who can be held legally responsible for supporting the child.

Nevertheless, let’s assume there are also truly compelling public health reasons to involve a physician in artificial insemination. After speaking with a few doctors, I’m skeptical that this is the case, but even if it were here are ten points that I think are worth considering:

  1. Should a mother who became pregnant by artificial insemination be forced to share parental rights with a stranger who donated sperm simply because she decided not to hire a doctor for the procedure?

  2. Conversely, should the scope of a sperm donor’s rights and responsibilities as a father turn on the decision whether to enlist a doctor to oversee the procedure?

  3. Should the adequacy of a child support scheme turn on whether couples using sperm donors choose to hire a doctor?

  4. There are sound public policy reasons to be concerned about voluntariness in agreements that waive paternity. But if this case is really about ensuring voluntariness, why is enlisting doctors the solution? Establishing consent during contract formation is not some novel problem. Hiring a doctor is a novel solution, but as an evidentiary device it is not very probative.

  5. Hiring doctors for artificial insemination is not cheap. A single attempt through a physician’s office costs about $3,000, and sometimes multiple attempts are necessary. Unsurprisingly, the American Fertility Association (a trade group for the fertility industry) applauded the court’s decision.

  6. This rule looks even more like an attempt to extract rents when you consider that for many people, the price of artificial insemination without physician assistance may be zero.

  7. If the state interest in the use of doctor-assisted artificial insemination is so compelling, maybe the law should simply require it on penalty of criminal sanction. I have never even heard this idea floated, probably because it would be perceived (rightly) as an excessive intrusion on various important freedoms…

  8. yet while they do not provide criminal sanctions, about 13 states are willing to provide unbelievably harsh "family-law sanctions." If a woman declines to hire a doctor, she is placing herself and her child in eternal jeopardy; at any time, the donor or the state can move to declare the donor to be the legal father, which would put the donor in a position to seek full parental rights—even if he is a stranger. (The same is true in reverse re: child support.) It is unsurprising that both mothers opposed the state’s petition.

  9. Although facially neutral, this rule is almost certainly discriminatory in practice. It means that lesbian couples must either hire a doctor or adopt—there is no other way they can safely preclude the donor from being granted parental rights. And of course this is just one of many unofficial taxes gays and lesbians must pay, especially in states like Kansas that do not allow them to marry. It seems to me that there’s a good argument the law should fail rational basis or equal protection review, but I will leave that brief to the con law scholars.

  10. Finally, beyond any constitutional infirmity, this law should serve as a reminder that protectionist regulations—which often take the form of onerous occupational licensing restrictions and NIMBY zoning rules—frequently have regressive distributional consequences, because they tend to favor powerful incumbents. And although probably not the case here, such laws can harm the broader economy as well by stifling innovation.

I welcome your comments. And I hope my doctor friends still talk to me.

* * * *

[FN1] It should be noted that under the letter of the statute as well as a 2007 Kansas Supreme Court decision (PDF) on this issue, the court did not have an obvious alternative to finding for the state. The problem, such as there is one, is with the statute.

[FN2] An accurate count is not possible without doing a full 50-state survey. As I have written about previously, the Uniform Law Commission’s Enactment Status Maps are often unreliable or imprecise (see FNs 163 & 188).

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January 29, 2014
Women in Corporate Law
Posted by Gordon Smith

Harvard Business School Dean Nitin Nohria issued a public apology to women on behalf of HBS:

Nohria conceded there were times when women at Harvard felt "disrespected, left out, and unloved by the school. I'm sorry on behalf of the business school," he told a hushed room. "The school owed you better, and I promise it will be better."

As for the future ...

Among other things, Nohria pledged to more than double the percentage of women who are protagonists in Harvard case studies over the next five years, to 20%. Currently, about 9% of Harvard case studies -- which account for 80% of the cases studied at business schools around the world -- have women as protagonists. 

Now that you mention it, women are not prominent in corporate law cases, either. Sandy Lerner of Cisco fame plays a leading (and unflattering) role in Urban Decay, but that is not a famous case, except to those students who use my casebook. Probably the most famous leading role for a woman goes to Martha Stewart for the litigation in connection with insider trading charges.

I am sure there are other examples, but what occurred to me again going through this exercise was how different business schools and law schools are in their basic orientation to the world. Business cases usually focus on success stories, but law cases are, almost by definition, failure stories. So if you want to make up to any group in a law school, you would never think to feature them in more cases!

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January 13, 2014
OnRamp Fellowships
Posted by Christine Hurt

HT:  Tax Prof Blog.

Caren Ulrich Stacy, a legal development professional, has created "OnRamp" fellowships, or "returnships" aimed at creating a pipeline for women to re-enter the legal profession.  These fellowships seem to be targeted toward female attorneys who left (generally big) law firm life to focus on family or other opportunities and now would like to return.  As summer internships are (still, for the most part) the pipeline from law school to large law firms, these one-year fellowships are designed to be a pipeline for experienced past associates to rejoin the work force.  So far, four firms, including Baker Botts, a firm at which I enjoyed spending many billable hours, have signed up for the program.  Applications are due February 28, and the target start date is in April.

I think these fellowships could be fantastic, and at the very least, interesting.  The pay is $125,000, which is an awful lot of money, but less than a first-year associate at these firms, and less than a summer associate on a weekly basis.  So, a firm could get an experienced attorney who may need a little time to get back up to speed cheaper than a new attorney who might take a lot longer.  Then, at the end of a year, the firm could hire the fellow at some negotiated rate, or not.  Either way, the fellow would be in a better position to interview for a different job now that she is in the game.  Could this program be a threat to new law graduates?  Would a firm that normally hires 40 summer associates for (40-X) slots now hire fewer associates for fewer slots, filling the difference with OnRamp-ers?  Or, will the number of OnRamp applicants be so low that the difference won't be felt.  I hope we see information on the number of applicants, the number of fellows, and the conversion rates.  Depending on the strength of the resumes, law firms might be silly not to participate.

I also wonder how the fellowships play out over the span of a year in terms of lifestyle and culture.  Say Associate W works at a law firm for 5 years, then leaves to have a baby.  Now, 3 years later, Associate W is hired by one of these four firms as an OnRamp fellow in April.  By June, the summer associates arrive, who are making more than she does, even though she may be supervising them.  How many billable hours are expected of Associate W?  Is she sheltered, and recruited, like a summer associate, or fully operationalized, like a fifth-year associate?  After a few more months, will Associate W be wondering why she is working as much as other 5th years, but making substantially less, or will she just be happy for the opportunity to prove herself again?  A year is a long time to try out for a job, particularly when you are billing full blast.  But, I assume that fellows who treat it like a contract job and think "I'm not getting paid to work around the clock" will be treated like a contract worker at the end of the contract.

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July 30, 2013
Sorry ABA, I Don't Want to Click My Heels
Posted by Christine Hurt

Ugh.  Maybe I'm overreacting, but I was not overcome with a feeling of gender equity today when I received an email from the ABA this morning. The ABA Presidential Task Force on Gender Equity wants me to join a Virtual March for Gender Equity. How do I do this?  By "clicking my heels" with a mouse click.  In case I don't know what heels look like for my gender, the ABA has slapped this icon of 4 or 5 inch stilletto heels on my email and all over its webpage.

AbaclickUm, that's lame.  There's nothing that says equity more than imagining a female attorney in shoes that are made more for nighttime party activities than working as an attorney.  High heels, particularly sky-high heels, in red nonetheless, aren't really associated with gender equity.  They are associated with sexy fashions and foot problems.  I don't think I can "march" either virtually or literally in those shoes.

And of course, the person we associate with the phrase "click my heels" and red sparkly shoes is a young teenage girl in a gingham dress and pigtails.

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May 08, 2013
Mentoring Fertility
Posted by Christine Hurt

OK, that's a weird title.  Once a year, I post something that I suspect makes Gordon cringe.  This will do for the year.

Around 2006, I was on a treadmill ( a literal one, not a figurative one) in Wisconsin watching some morning news program.  One of the bits was about a woman in her 50s who had successfully borne a child using eggs she had frozen back in her more fertile days.  I looked at my friend, a pediatric physician and researcher, and said, "Weird."  My friend didn't bat an eyelash, said, "That is awesome.  I totally would have done that."

In the WSJ this weekend, there was an article that suggests those of us who mentor young professional women should include a freeze-your-fertility discussion in addition to any lessons gleaned from Sheryl Sandberg's Lean In craze.  My first thought again was, "weird," but now I'm rethinking this.  But, more broadly, I think my reaction to the article and its suggestions raise broader questions.

1.  No one ever talks with male law students or associates about when children, so why talk to women about it?  I think this is what bothers me most.  In a perfect world, the questions that male law students ask me would be the same as the ones that female law students ask, but they aren't.  Female law students ask me all the time about having kids and making partner and whether those two things are mutually exclusive.  That's reality.  So, mostly I stick to answering the "making partner" part because I don't feel all that comfortable talking to people who aren't my close friends about making babies.  But I guess I'm not really answering the question then.  When I was an associate, a female partner came to my office and asked how old I would be when (if) I made partner (this was at Baker Botts, and the math turned up the magic age of 31).  She said, "There's the answer.  Don't have kids until then."  I was fairly appalled at this conversation.  Maybe because she was the last person I wanted to talk to about making babies, but also because of point #2.

2.  Having babies is a romantic notion, not a pragmatic one.  Bringing harsh realism into future thoughts of motherhood is icky.  I was appalled at the partner's advice partly because (as I repeated to my friends over lunch) "the moment I start timing my babies because of my career is the moment that I have lost it."  That makes for a great lunch soundbite, but it may not be all that realistic.  One reason for my declaration was that I thought I was the invincible rockstar associate.  I could do anything, including have a lot of babies and make partner, even though other, weaker women, had tried and failed.  But, not only was my impression of my own career trajectory romantic, but so also my visions of motherhood.  I was enough of a feminist to appreciate the ability of modern technology (birth control) to allow women to postpone motherhood until the right point in their adult lives (finishing education, marriage stability, financial stability), but not enough to embrace postponing motherhood for climbing the career ladder.  Because that would mean I was a bad person whose priorities were messed up.

So, my first thoughts when the author (Sarah Elizabeth Richards) suggests that young women freeze their eggs is "ick -- your priorities are messed up."  But I think I'm wrong.  The reality is that to "have it all" or to "have something approaching all" is that a little timing is necessary.  I'm not a doctor, but my guess is that young eggs are healthier eggs, and I've known so many women who struggled with trying to make older eggs do the work of younger eggs.  Would it alleviate that heartbreak?  Some have argued that Sandberg finds it easy to talk about kids and work because she was already very successful when she had her children in 2005 and 2007, both post-age 35.  It is a tricky business to postpone kids.  Technology seems to have made it less tricky.  The 1970s may have given women the technology to postpone pregnancy at their own peril; today's technology may reduce that peril.

Will I ever incorporate this discussion into the many office conversations I have with female law students?  I don't know; that still feels a little too ick.  Maybe they can just read this blog post!

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March 12, 2013
Feminist Tough Love, Part Two (Melissa Mayer)
Posted by Christine Hurt

Last week, my Facebook feed was full of posts responding to Yahoo CEO Melissa Mayer's unexpected announcement that Yahoo workers may no longer work from home.  Many assailed this big change in company policy as anti-woman and anti-family, putting Mayer in the cross-hairs of not pulling for her own kind.  Mayer was first applauded when she was hired as CEO, while she was pregnant.  Then, she was criticized for returning to work after a leisurely two week maternity leave.  Mayer has said that she does not describe herself as "feminist" or "militant" or having "a chip on her shoulder."  That seems like enough notice that she does not have a particularly gender-based agenda.  Even nonfeminist critics pointed out that telecommuting generally increases productivity, so the move seems short-sighted.

However, others applauded her decision.  Interestingly, my FB friends who were aghast by Mayer's announcement were of my generation or older.  My young former students who are now associates and having babies were very supportive.  Some in the media have tried to explain that Mayer may just be wanting to make Yahoo a little more like Google, where few telecommute and employees enjoy free food and activities at Google headquarters.  Having everyone eat, work and play together may encourage innovation, creativity and collaboration, as well as boost morale.  Even our Glom alum and my former colleague Vic Fleischer pointed out that showing up to an office with free food and gyms is like getting money tax-free.

I'm not a good telecommuter.  What attracted me to the University of Illinois in 2006 was that everyone came into the office.  Even in the summer.  Champaign allows most folks to have a 5-10 minute commute, so there's no great excuse for working for home.  The summer of 2006 was great for me.  Folks went to lunch, we had brownbags and paper presentations, and I felt fully integrated into the school.  I made friends, formed my village, and dug in.  I could bounce ideas off of people and get feedback.  I have to say that the dynamic has changed in the past seven years.  People work at home a lot more now.  There are still lunches and bouncing off ideas, but it generally involves a little more planning.  I miss the old way.  I still come in.  I'm not productive at home, where laundry and the dishwasher beckon and I miss the late, great Hankey, who was a great writing partner.  And if my kids are home, forget it. 

This week, Mayer is under fire for a new policy of reviewing every new hire and demanding academic qualifications.  I don't recall every new policy that male CEOs institute being vetted by the media.  Why is this news?  She's trying to turn around a company.  I'm not sure why every non-Yahoo yahoo out there gets to second-guess her every move, from every angle.

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Feminist Tough Love, Part One (Sheryl Sandberg)
Posted by Christine Hurt

If my friends' FB posts are any indication, last week was a week where women felt assailed at every turn.  First, it's still unclear whether Seth McFarlane is a sexist pig or an unsuccessful satirist (not a satyr, as I almost typed).  I didn't watch the Oscars, so I'll leave that debate to others.  However, I was more interested in two news stories last week that riled women for and against two of the most powerful corporate women in the country:  Sheryl Sandberg and Melissa Mayer.  This post will focus on Sandberg.

Sheryl Sandberg, has come under fire from certain feminist quarters for her saying, movement and book "Lean In."  If you don't recall (blog post here), Sandberg has given TED talks and commencement speeches urging women in the workplace to "lean in" -- i.e., believe in yourself, fully engage, take on as much responsibility as possible, and throw yourself into your work until you need to pull back because of family responsibilities.  Sandberg's conclusion from being in the workplace is that many women pull back way before they need to in anticipation of exiting, leaving themselves little options.  Sandberg's book hit the shelves yesterday, and seeks to be not just a book but a social movement, complete with Lean In "circles" to help women network, meet monthly, and learn from video lectures.  So, what's not to love about that? 

Sandberg's critics argue that she places no blame on employers, supervisors, or the government for either condoning sexism or not putting family-friendly policies in place.  To Sandberg, this is a multi-front war, and she is tackling "internal obstacles" not "external obstacles," which have traditionally been the target of feminists.  She is not saying that external obstacles do not exist, but is arguing that internal obstacles also exist and are the ones that individuals have the most power to overcome.  Sandberg is also an easy target for feminists concerned with the injustice of external obstacles because she is extremely successful and superwealthy.  As the NYT articles puts it, there is an "awkwardness of a woman with double Harvard degrees, dual stock riches, a 9,000 square foot house and a small army of household help urging less fortunate women to look inward and work harder."  In other words, her words stick in the craw of "earthbound women, struggling with cash flow and childcare."  This argument is of course, an old one, in feminist history, in which some feminists accuse groups or movements ofbeing mostly about white women, or middle-class women, or professional women, etc. 

The NYT article linked to above names Anne-Marie Slaughter as Sandberg's "chief critic," suggesting that the two have created a "notable feminist row" following Slaughter's lengthy piece in The Atlantic, Why Women Still Can't Have it All, which criticized Sandberg for laying workplace issues at the feet of working women instead of employers.  Slaughter reviews Lean In for the NYT Book Review (front page) this week, and the review seems glowing until the very end.  Slaughter compliments the author as a "feminist champion" and as "compassionate, funny, honest and likable" and suggests that Sandberg's exhortations to women seem nagging "taken out of context."  However, at the end of the review she concedes that Sandberg's focus on internal obstacles is "at best half a loaf."  Slaughter reminds us of the working women who, on their way to the top, face a "maternal wall" or "tipping point" where they can no longer balance caregiving and career, even with a full partner-spouse, belief in self and unlimited ambition.  For these women, Slaughter proposes we ask "how can business lean in?"

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July 23, 2012
Maternity Pause -- The New Front in the Mommy Wars
Posted by Christine Hurt

So, for about one minute women celebrated Yahoo's hiring as its CEO Marissa Mayer, a pregnant 37-year-old former Google executive.  Then, the celebration turned into divided debate over Mayer's announcement that following the birth, she would only take a few weeks off and be working throughout that time.  Putting aside the great conundrum of how to measure gender equality (female CEOs?  female CEOs who have flextime?), the debate poses a better question.  What's so special about maternity leave?  Particularly in our technological era?

When I started practicing law in the Stone Age, the 12-week paid maternity leave was seen as the great advance of having women in the workplace and was universal at large law firms.  We knew that women in other jobs were not so lucky.  And, before BlackBerries and DropBox, when it was even difficult to "dial in to the server," women enjoyed a leave with few, if any, calls from the front.  But, that 13th week was a doozie.  Once back, you were all in.

But I could see a world in which the 12-week maternity leave was less important, for both good and bad reasons.  First, because the expectation would be that you weren't firewalled during that time, and the emails, calls, document sends wouldn't stop.  Or second, because even while working "full-time," you could "work from home."  So the 13th week didn't have to be a doozie.  I sense that Mayer's situation is much more like the first.  Even though folks know she just had a baby, they won't stop calling/emailing her, and realistically, no one can take her place as a "temp CEO."  For us academics, the I think both the first and second situations hold.  I have taught class while someone else held my infant many, many times, knowing that after class was over I could take over where I left off and do much of my job one-handed.  But, I've also had law review editors send me edits that needed attention within seven days who weren't very impressed that I had just gotten home from the hospital.

Is it so unrealistic that new moms could respond to work email from the hospital?  I have definitely seen new moms updating Facebook from the hospital.  There are several ways to view the first weeks/months of mommy/baby time (or daddy/baby time).  One is convalescence.  But, for most moms that is measured in days.  Few surgeries of any kind require three-month recuperation periods, and most deliveries of both flavors see moms going about their business in a few weeks.  Someone once told me that the first month off is for the mom, the second month off is for the baby.  So, the second way to view extended leave is bonding time.  And I definitely have fond memories of staring at babies with no worries about what I needed to be doing.  But I also don't think that this time is as firewalled now, even for nonbusiness reasons.  Through social media, "staying in" isn't the same as "staying in."  So, if we integrate our online life into maternity leave without social stigma, it seems ok to integrate our career life as well.  The third way to view leave is merely symbolic:  I think my baby is important enough not have to share my mental space with work for this period of time.  Well, that would be nice, but it seems like most people don't like to be disconnected for three months, either from work or social media.

I think one person interviewed for the NYT piece summed it up nicely, analogizing one's company or career to another child:  "You can think of a lot of moms who have more than one child, and do they ever say, ‘I’m going to stop feeding my older child because I have a newborn’?"  Moms of newborns rarely take three months (or weeks) off from life, and for women entrepreneurs or executives who love their jobs, part of their life is their job.  So, some moms still tend to other children, cook, read novels, play FB games, and visit with friends, and others keep up with their companies.

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March 02, 2012
Good for Georgetown
Posted by Usha Rodrigues

I am a product of 17 years of Catholic education, and although I'm what my nieces term a "Chreaster", if you're raised Catholic, you're always Catholic.  I mean, I know what the Immaculate Conception is, and it's not what you think.

Catholics have been in the news rather a lot the past few years--particularly with the priest sex abuse scandal, and more recently with the debate over contraception.  My sense is that, taking the separation of church and state out of the equation, most Americans just don't get the Church's prohibition on birth control. 

Still, there has been much incredulity over the all-male contraception panel on the Hill, and over Rush Limbaugh's calling Georgetown Law student Sandra Fluke a slut (see Eugene Volokh, ATL).  Normally I would say the best way to treat Limbaugh is to ignore him--or better yet, boycott his sponsors.

But I will say: Good for Georgetown and Georgetown Law.  Hoya Saxa.  You made me proud.

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February 06, 2012
Why Aren't There Women or Minorities on Facebook's Board?
Posted by Usha Rodrigues

That's the question Huffington Post asks.  Bloomberg observes the same.  This though 58% of Facebook's users are women and its COO, Sheryl Sandberg, has commented on gender equity issues before (as Christine observed).

Just today I sat in on a discussion about the dearth of women on boards.  Some thought maybe the issue was passe, already solved.  We've come a ways, after all: according to Catalyst 15.7%. of board seats were held by women in 2010. 

OK, that doesn't really sound so good, does it? 

But by my calculations, 15.7% of 7 (the number of Facebook directors) is 1.099, and that's 1.099 more women directors than Facebook has.

Really?  The blockbuster IPO of 2012 doesn't see fit to put anyone but 7 white guys on its board? Really? 

I realize may sound angry, but I really don't mean to.  I'm more incredulous.  This is a the social media company, whose professed mission is "to make the world more open and connected."  Mark Zuckerberg is already serving as both Chairman and CEO and using dual class common to keep control, both of which are corporate governance best practices no-nos.   Basically they translate into 1) letting you as CEO head up the entity that's supposed to monitor you and 2) selling your company to the public without risking that your could ever be bought out, even if the market thinks you're doing a lousy job.  I would have thought Zuckerberg would at least make a gesture towards boardroom diversity, so that Facebook's vision of the world has some semblance of input from the outside.



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August 09, 2011
Sheryl Sandberg in the New Yorker
Posted by Christine Hurt

This week's New Yorker magazine has an article about Sheryl Sandberg, chief operating officer of Facebook.  The article focuses on her remarks and attitudes toward the fact that so few woman are in powerful corporate and political positions.  I had previously pointed readers toward an excerpt of a graduation speech Sandberg had made, and that speech may have been modeled after Sandberg's very popular TED speech on the same topic.

In the speech, Sandberg acknowledges that her (my) generation is very lucky compared with earlier generations in that there are no legal or structural barriers to women in the workplace.  She then, and this is the controversial part, says very nicely but very emphatically that women hold themselves back.  Women do this by underestimating themselves and shying away from challenges.  She has three points to make to women beginning their career:

1.    Sit at the table.  Don't shy away; don't hesitate; don't doubt yourself.

2.    Make your partner your real partner.  Marriages where household responsibilities are shared are stronger as well as necessary for women's career success.

3.    Don't leave before you leave.  Don't put yourself on a mommy track years before you become a mommy.  Be at the top of your game when you have your first child, then you will have a reason to come back.

Now, some commentators aren't happy with Sandberg's message because she doesn't address sexism, overt or nuanced, old boy networks or glass ceilings.  Sandberg hasn't demanded to be on the all-male Facebook board and wasn't on the Google board.  Others say she is out of touch with the problems that most women face because she was lucky to have a "sponsor" that was Larry Summers.  Perhaps, but many watchers seem to be empowered by the vision of owning their choices instead of spotting hindrances.

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June 20, 2011
Moms v. Moms: Are Part-Time Doctors (and Attorneys) Cheating the Public?
Posted by Christine Hurt

In last Sunday's NYT (June 12, 2011), I read two articles that seemed to beg to be blogged together.  The first article, Words of Wisdom, excerpted various commencement speeches, including one given by Facebook COO Sheryl Sandberg:

Women almost never make one decision to leave the work force. It doesn't happen that way. They make small little decisions along the way that eventually lead them there. Maybe it's the last year of med school when they say, ''I'll take a slightly less interesting specialty because I'm going to want more balance one day.'' Maybe it's the fifth year in a law firm when they say, ''I'm not even sure I should go for partner, because I know I'm going to want kids eventually.'' These women don't even have relationships, and already they're finding balance, balance for responsibilities they don't yet have. And from that moment, they start quietly leaning back. So, my heartfelt message to all of you is, and start thinking about this now, do not leave before you leave. Do not lean back; lean in. Put your foot on that gas pedal and keep it there until the day you have to make a decision, and then make a decision. That's the only way, when that day comes, you'll even have a decision to make.

I totally agree with this. This is the same advice that I give my students. Negotiating a great reduced load is a lot easier after several years when you have become indispensable. I have a great friend who worked full-tilt for the first ten years we practiced. Now, she is one of a handful of attorneys in the country who does what she does, so she only does it about 20 hours a week. For loads of money. But that deal wasn't offered to her when she entered the law profession. I was a "lifer" until I wasn't an employee any more. However, I don't think I agree with this piece by Dr. Karen Sibert, entitled Don't Quit This Day Job, in the same issue:

Today, however, increasing numbers of doctors — mostly women — decide to work part time or leave the profession. Since 2005 the part-time physician workforce has expanded by 62 percent, according to recent survey data from the American Medical Group Association, with nearly 4 in 10 female doctors between the ages of 35 and 44 reporting in 2010 that they worked part time. This may seem like a personal decision, but it has serious consequences for patients and the public.  Medical education is supported by federal and state tax money both at the university level — student tuition doesn’t come close to covering the schools’ costs — and at the teaching hospitals where residents are trained. So if doctors aren’t making full use of their training, taxpayers are losing their investment. With a growing shortage of doctors in America, we can no longer afford to continue training doctors who don’t spend their careers in the full-time practice of medicine. It isn’t fashionable (and certainly isn’t politically correct) to criticize “work-life balance” or part-time employment options. How can anyone deny people the right to change their minds about a career path and choose to spend more time with their families? I have great respect for stay-at-home parents, and I think it’s fine if journalists or chefs or lawyers choose to work part time or quit their jobs altogether. But it’s different for doctors. Someone needs to take care of the patients.

Wow. Those are tough words. Should they be dismissed as "pulling up the ladder" talk from a woman of an earlier generation who made very tough choices and hates to see others have a wider array of choices than she had?  (Dr. Sibert begins her piece by telling us she had four chidlren and always worked full-time, and ends by saying that she never made cupcakes for homeroom.)  There is definitely a phenomenon that's not hard to spot among both working moms and stay-at-home moms of convincing oneself over the years that one's choice not only was best for that mom, but is the best for all moms. If not, then one may experience regret over one's choice, which is particularly unsavory.  Dr. Sibert has contributed a chapter in a book exploring these choices, Torn:  True Stories of Kids, Career & the Conflict of Modern Motherhood.  Dr. Sibert, however, packages her annoyance with "kids these days" by alleging that doctors who go part-time cheat the taxpayers.

I would probably want a little more information before deciding if part-time doctoring cheats taxpayers.  Dr. Sibert never follows up her allegation that state tax dollars subsidize medical education.  I suppose she means state-run universities, in which case we will just note that states are subsidizing less and less these days, and move on.  However, she does specify that Madicare pays for $9 billion of resident salaries and teaching.  I've always thought that the resident program was a win-win for everyone.  Teaching hospitals get really cheap labor, and residents get really great training.  Dr. Sibert seems to think that residents get more out of these programs than the hospitals and the public.  I have no other information.

However, even if the new doctor owes something to the public, how much?  Forty years of 50 hour weeks?  Thirty years?  Dr. Sibert doesn't seem to have the same ire for her male counterparts who retire early or step down from the more unpredictable parts of practice (delivering babies, surgeries, etc.).  Dr. Sibert is even upset with full-time female doctors who practice a few hours less a week than male counterparts or see a few less patients a week. 

I also have a hard time linking owing something to the U.S. taxpayer with being a private physician.  Am I giving back to the public at large merely by being a physician that private individuals have access to for a fee?  I went to law school at a time in which my degree was heavily subsidized by the people of the great state of Texas.  I'm not sure if they felt paid back by my years of service at the private law firm, at the prevailing billing rate.

Dr. Silbert seems to be saying that if you take up a spot in a U.S. medical school class and a residency program, then you have to practice as hard and as long as the person who did not get that spot.  And I think she means as hard and as long as the person who did not get that spot in 1983.

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August 30, 2010
Maggie Sachs on Douglas Branson's The Last Male Bastion: Gender and the CEO Suite in America's Public Companies
Posted by Christine Hurt

Friend and Glom reader Maggie Sachs sends along her quick take on this intriguing new book by a corporate law colleague, which is inspiring me to read more:

I have just finished reading a recent book by Douglas Branson that is likely to be of interest to many readers of this blog. Entitled The Last Male Bastion: Gender and the CEO Suite in America’s Public Companies, the book offers fascinating insights into the challenges that women face in becoming (and surviving as) CEOs. The purpose of the book is to shed light on a perplexing and under-publicized phenomenon: the astonishing fact that as of 2010, a mere three percent of Fortune 500 companies have women CEOs.

In the first part of the book, Branson, a law professor at the University of Pittsburgh, profiles twenty-one women CEOs. These women run the gamut in terms of personality, family background, and financial literacy. A few have been great successes as CEOs, while others have been abject failures. Paradoxically, sometimes the very traits that open the door of the CEO suite prove counterproductive once a woman is inside the door.

In the second and third parts of the book, Branson dissects the data he has assembled. There is a wealth of intriguing analysis here, which I will illustrate by sharing a few of my personal favorites. First, there is a tendency for women to be hired by companies that spot trouble on the horizon. With the deck stacked against women CEOs in this fashion, how surprised should we be if they don’t succeed? Moreover, women CEOs who fail at their jobs seem to fall off the professional checkerboard, whereas their male counterparts often land on their feet in new and visible positions. In addition, women are more likely to be hired when the length of time allotted for interviews is longer, allowing greater opportunity either for initially hesitant interviewees to convey their accomplishments or for initially prejudiced interviewers to overcome their biases (or both).

In short, Branson’s book is as sobering as it is provocative. It will resonate with everyone who cares about the problems that confront women professionals in general, as well as those of us with an interest in women CEOs in particular.

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April 14, 2010
Marriage Procedure
Posted by Mae Kuykendall


Disputes about the substance of marriage have obscured questions about the statutes governing marriage procedure.  The states license marriages under statutes that assumed fairly standard forms during the twentieth century.  

Banns developed in England to prevent clandestine marriages which undercut parents' and communities' ability to stop objectionable marriages.  Licensing emerged in the U.S. as an improvised replacement, given the lack of a state church to supervise a regime of banns.  Couples have, nonetheless, for generations defeated efforts to stop them from using state law to formalize their relationship. 

In his memoir of growing up in Wharton, Texas, the late playwright Horton Foote recounts the story of his parents' marriage against firm parental disapproval by his mother’s parents.  Albert Horton Foote and Harriet Gautier Brooks sneaked over to a nearby Texas town called El Campo, got a license, and came back to Wharton, where a minister married them in a house six blocks from Harriet’s parents' house.  They set up housekeeping in Wharton and were snubbed by her parents until the day her mother called and said, "I thought I'd come over to see you this afternoon if you're going to be home."  Her mother had yielded to the hardy practice of couple autonomy.

Horton Foote's parents were tame compared with the couples who went to "Gretna Greens," or to Las Vegas, to marry despite reasons (often, the age of a girl) for someone to intervene and stop them.  The record of marriage is clear about one point.  Marriage licensing simply does not support goals of marriage regulation and preservation of tradition.  It never has, not in Las Vegas in the 1960s, not in Horton Foote's Texas, and not today. 

What does licensing do?  Very little.  It asserts no control over the decision-making by couples. It generally does not impose health checks on the parties.  It doesn't force disclosure by one person to the other.  Waiting periods are almost all gone.  Historically, licensing has served as a means to support anti-miscegenation laws and forms of religious discrimination.  It's hard to view marriage licensing as useful, except insofar as it serves the purpose of formality, open consent to marriage, ceremonial affirmations celebrated by a community, and clear records.  

At its best, licensing is about the state's serving as a facilitator of the creation and recognition of a legal status.  In that way, the state is doing something similar to what it does when it facilitates the formation of other legal relationships, such as the corporation or binding agreements, all subject to autonomous party choices for their creation.  Indeed, the Massachusetts marriage statute avoids the term, "license."  Massachusetts’s statutory usage recognizes the parties’ control over the marriage and the role of the state as a facilitator, recorder, and source of publicity.

Despite the similarity of the state role in marriage formation to its role in facilitating other legal relations, the states have been timid and unimaginative about creating innovations in marriage procedure.  Marriage statutes contain odd rigidities, little regulatory clout, and a continuing insistence that couples use the marriage license within the state that issues it.  Licensing sounds like something that protects a tradition, even as its main use has been to exclude some pairings, create needless complications for couples who are physically separated, and defeat couples' occasional preferences about ceremonial details. 

Adam Candeub and I have posted a paper exploring the possibility of bringing a new energy to the states' facilitative role in marriage solemnization.  For shorthand, we've labeled the idea e-marriage.  We suggest that, with careful study and deliberation, states could enhance their facilitative and record-keeping role by modernizing the statutes governing marriage ceremonies.  For marriages of same-sex couples, states that authorize the marriages could take the next step in the logic of federalism by allowing couples in distant states to use their marriage-authorization laws. 

For controversial marriages, states that do not recognize them would still be able to refuse recognition. But the couples could engage in an expressive activity, with legal meaning in many jurisdictions, in their own community.   Couples already travel to marry in places like Massachusetts, returning to reside in states that refuse their marriage recognition, so such couples clearly value an official legal blessing provided by another jurisdiction.

We have tentatively planned a conference on November 12, 2010, in East Lansing, to explore the many ramifications of our idea.  We will have legal scholars, legislators, economists, and English professors gather for a stimulating discussion of the possibilities for innovation in the regime governing marriage formation.  We'd welcome suggestions for types of relevant commentary and for specific names of persons from business schools with expertise in evaluating proposed business models, experts in e-government and government record-keeping and statistics generation, and any other source of insight about the notion of improving current marriage formation procedure.

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April 01, 2010
The Mommy Track: Then and Now
Posted by Christine Hurt
A Slate essay this week marks the 21st anniversary of the term "mommy track."  Apparently, when the author, Angie Kim, and I were both seniors in college, getting ready to go to law school, an article in the Harvard Business Review, without using the term, suggested having separate career paths so that those who sought work-life family balance could contribute to the enterprise in a meaningful way but also attain other life goals.  Here's that article (full article is gated).  The author, Felice N. Schwartz, noted that studies were showing that professional women were much more expensive to hire than professional men because of turnover rates, etc.  So, she proposed a new way of thinking and structuring career paths: 
The studies will be useless—or worse, harmful—if all they teach us is that women are expensive to employ. What we need to learn is how to reduce that expense, how to stop throwing away the investments we make in talented women, how to become more responsive to the needs of the women that corporations must employ if they are to have the best and the brightest of all those now entering the work force.

Well, that doesn't sound like a rallying cry now, but apparently it was not well-received. Feminist commentators pooh-poohed this suggestion as proposing a "Mommy Track."  I don't specifically remember this public discourse, but I know that if, at 20, you had thrown this idea out for me, I would have balked.  Really balked.  When I was in law school (1990-'93, like the author), we never talked about work/life family balance.  We never talked about lifestyle.  I don't even remember having a conversation with anyone, male or female, about babies or motherhood.  I did have conversations about employers pushing us onto the Mommy Track without our permission.  (As an aside, my law school friends and I debated the 1991 Johnson Controls case, in which Johnson Controls barred fertile women from lead-exposing jobs and was successfully sued for discrimination.)

But I remember soon after that fielding questions from summer associates about maternity leave and part-time programs.  What?  I remember being both impressed at the foresight but also a little disappointed by the lack of ambition.  Then I fell in love and wanted to have ten babies.  At thirty, I had my first child (the author had hers at thirty-two).  By then, I had understood the wisdom of asking questions.

So now we are in a world where asking such questions is the norm.  Where firms compete at being family-friendly.  It's not a Utopia, of course, but definitely a sea-change.  Alternative career paths are seen as pro-feminist, not anti-feminist.  The Mommy Track has not, in  the words of Betty Friedan, became the "Mommy Trap."  And it's not just for Mommies.  I think the Mommy Track has grown up. 

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