Today's  NYT, following the announcement by Obama's executive pay "tsar" that 125 of the country's top execs would have to choke down a big paycut, warned that any stunt pulled by Feinberg would prove illusory in the long run.  Instead, the times insists that it's up to "shareholders" to reign in executive pay.  See http://www.nytimes.com/2009/10/23/business/23nocera.html?_r=1&hp

 

What's not entirely clear from the article (perhaps because such clarity would come only with embracing a bit of legal wonkishness) is the drastic change in our corporate laws required to allow shareholders to actually govern CEO salaries.

 

Ever since the seminal CEO pay case - the one dealing with, if you remember, Michael Ovitz at Disney and his golden parachute (Brehm v. Eisner) - it's been clear to us lawyers that no one can touch a salary set by an executive compensation committee unless there's outright, plan-faced fraud or a conflict of interest.  This, incidentally, is almost impossible to prove.  Folks familiar with corporate law know the roadblock as the "business judgment rule."  It's a presumption that anything an "independent" board does passes the legal straight face test.  Only when a board member is on both sides of a transaction will a court begin to look at the merits of the deal and whether it's in shareholders' best interests.  And for you normal non-lawyers, "conflict of interest" is a term of art.  It doesn't mean "smells like fraud," "looks shady," and "indirectly, of course there's a conflict."  It means that the board member is voting himself his own pay raise, or voting for one for his best friend - not "if I give him a pay raise now, it will help inflate salaries everywhere and generally be good for rich people like me." 

 

Moreover, as the article does make clear, it's nearly impossible for shareholders to control corporate governance through their suffrage rights.  Boards are stacked - so your shares only entitle  you to vote for certain board positions - and unless you have a candidate to endorse, it's financially infeasible to launch a proxy contest against the incumbents.  You can't just complain about their behavior, you have to find a willing replacement.  On top of it all: since when do beneficial share owners pay enough attention to have a voice?  The folks with enough weight to make a difference are your institutional investors.  That's Fidelity, along with your state pension fund.  Inspiring confidence??

 

My point is this: there's a mountain to move if you want to control executive pay through empowering shareholders.  On the other hand, passing a law linking executive pay to, for example, 10-year average profits is easy.  Okay, so you discourage risk taking and maybe the most talented of the talented will find a career that will bring in bigger bucks.  But last I checked, there are some pretty brilliant hard-working people in, for example, the ivory towers of academia who are motivated by such other than dollars.

correct me if I'm wrong, here, please...

but I feel like this whole currency debate has boiled down to memes and knee-jerk reactions.  Me Caveman.  Me Like Strength.  Me Want Strong Dollar.

The NYT posted 2 articles in the past 2 days (links below) talking about the falling dollar...and they  mention that a falling dollar vis a vis the world's other currencies means our exports get cheaper.  This does NOT mean (unlike inflation) that milk will double in price.  It means that foreign goods will go up in price.  For those of us not buying any high-end electronics or new foreign cars or italian suits, it's not such a bad thing.  Meanwhile, we may save a few manufacturing jobs.  The dollar means something different to the rest of the world, but means exactly the same for us.

Currency exchange rates are only truly scary if there are severe changes over short periods of time.  Otherwise, they're supposed to reflect t he relative efficiency of our economies.  So if the europeans get relatively better at making widgets, the euro will become (relatively) cheaper than dollars (ie, it takes less euros to make the same thing).  And since when is getting more efficient a bad thing??

One of the problems is that china likes to manipulate its currency so that it always remains artificially cheap.  So it will always look like it offers bargain basement prices compared to the rest of the world. I'm sure everyone remembers that Thailand did the same thing.  And we remember what happened 10 years ago, right? <shudder>  You can't keep that stuff up forever.  Eventually, you run out of foreign reserves and everything goes bust.

So maybe we ought to quit worrying about the US dollar vis a vis [insert world currency x] and concentrate on getting China off of it's unseemly currency habits??

But I'm no macroeconomic/monetary policy expert.  I'd be interested to hear what folks have to say!

 

 http://www.nytimes.com/2009/10/20/business/economy/20fed.html?ref=business

http://www.nytimes.com/2009/10/19/business/global/19dollar.html?ref=business

 

Today's NYT (online) business section features an article exclaiming the lack of empirical evidence of excessive compensation encouraging excessive risk-taking:

http://www.nytimes.com/2009/09/27/business/27stra.html?_r=1&ref=business


In so far as anyone can generate empirical evidence of what's going on inside a person's head, I mean.

Harvard Prof Lucian Bebchuk (no bastion of liberal progressivism, I assure you), on the other hand, points to the obvious: stock options reward successful risk taking, but do nothing in the event of failure.  

Granted, fixing executive compensation laws won't likely solve the problem -- in this the NYT is correct -- and certainly there are other alternatives.  For example: letting only long-term shareholders vote, thus making boards beholden to only those with long term interests; or, as my last blog post points out, putting a government official on the board. 

Nevertheless, I suspect this "empirical evidence" bs is the enemy's foot in the door.
The "we can't win by claiming execs deserve all this money...but if we say it doesn't *hurt*...."

Prof. Emma Coleman Jordan, of Georgetown Law Center, has a shocking (in traditional corporate law circles) idea:

put a public representative in the boardrooms of "systemically important" firms.  You know, the kind that taxpayers are going to have to bail out if/when doomsday comes.
(see http://blogs.law.harvard.edu/corpgov/   you'll need to scroll down)

This is why it's so titillating for the gray lawyer types:

the theory of corporate governance is to let management do what it wants, deferring to their "business judgment," so that capitalism may flourish -- within certain guidelines.  No fraud, no self dealing, no gross negligence.  Further, the board's fiduciary duties are to the shareholders  alone; it is to them they must act with good faith, in their best interests.  But government won't ordinarily step in when management goofs up (no matter how big the goof) as long as no one's lied outright or dunked his hand in the corporate cookie jar to buy that new rolls for the third wife.

It's a hypocritical standard; you and me and anyone else will get sued if we're negligent and someone gets hurt.  Corporate management? Gross negligence may not even be enough, because most states allow corporations to write in immunities for gross negligence in their charters.  

In summary: corporate management's only duty is to shareholders, and at that, they can act with impunity, absent fraud and self-dealing.  The law has operated thus for a hundred years, at least.

To illustrate, boards do not violate corporate law -- as it exists now -- when they take excessive risk with the goal of maximizing short term profit. Case in point: Citibank gets away with underwriting subprimes and running the company into the dirt.  

Nowhere in this equation is room for the board to consider: public interest; employee's interest; environmental interest--or, indeed, the interests of any other constituent.  Of course, if you get a nice board, they'll protect the environment and employees because they think it will, ultimately, be good for shareholders.  but you're depending, essentially, on their good will.
So Prof. Jordan's suggestion is bold, and I am so very happy to have a respected jurist actually speak, out loud, of our emperor's state of undress.

Imagine, reserving a seat on the board for a constituency other than shareholders.  For the taxpayers that will, potentially, have to bail their asses out.

We have a great opportunity, rising from the ashes of this crisis, to come up with a global securities/financial products regulatory governance structure that might actually get a grip on the world in the 21st century.  Because, I suppose, the Asian currency crisis in the 1990s wasn't enough to scare the crap out of anyone.  We had to wait until Lehman and Bear fell.  I only hope that the G-20 will give the SEC and its foreign counterparts the go-ahead to start drafting us some coordinated regulation. 

Also at the summit, the U.S. pledged -- all hortatory of course --  to cut imports and consumer spending, and obtained  a counter promise from China to start building its own domestic demand.  The aim, obviously, to do *something* about the gigantic trade imbalances that...remind one, in a very frightening way... of that little Thai Bhat crisis of 10 years ago.  Except a million times bigger.

 And they all agree that the IMF will monitor the progress of our promises and assurances, and that they would open books and records for member-country review and observation.  This is where I get confused.

First, the IMF already monitors trade imbalances and slaps countries around when their pegged currencies get a little too ridiculous. That's like, um, its purpose.  And...since a country's voice and power over the IMF, like that of its sister Bretton Woods institution, correlates directly with how much that country pays in...Well, it's all sort of like the U.S. promising to be what it already is.   I suppose Obama is hoping that everyone is so confused as to what the IMF does that we'll all walk away happy....sort of like when they talk about monetary policy at the Fed.  Until it all falls apart. 

Second.  I don't suppose anyone remembers, wayyyy back before 9-11, that the world sat down and came up with the Millennium Development Goals, to, inter alia, end extreme poverty (bono anyone?), improve womens rights, and save the environment.  All they could think to do to make sure countries' honored their promises was to insert some sort of peer pressure -- lots of countries' agreed, and ostensibly would want to save face instead of reneging.  Instead of forming a real treaty.

So, like, that turned out real well.

Last year, our venerable supreme court ruled that liability for most securities laws violations does not extend to the bankers, lawyers and accountants that enable balance sheet voodoo and other illegal, fraudulent manipulations of our capital markets. 

Today, Senators Specter (PA) and Kaufman (DE--Biden's replacement) introduced a bill to undo the Supreme's Handiwork.  See http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aez.SQHDhS0E

I encourage everyone to support this bill.   Too often, corporate directors shirk responsibility by claiming that they "reasonably relied" on their expert advisors, denying defrauded investors (i.e., anyone with a 401(d)) the relief they deserve.  And in a system dependent upon the integrity and diligence of such advisors (given SEC's inability to police everyone all the time), encouraging accountants, lawyers and advising underwriters to quake in their shoes a bit will clean things up and give us some much needed confidence.

From Prof. Lynn Stoudt, UCLA School of Law:

Why re-regulating derivatives can prevent another disaster

When credit markets froze up in the fall of 2008, many economists pronounced the crisis both inexplicable and unforeseeable. That's because they were economists, not lawyers.

Lawyers who specialize in financial regulation, and especially the small cadre who specialize in derivatives regulation, understood what went wrong. (Some even predicted it.) [1] That's because the roots of the catastrophe lay not in changes in the markets, but changes in the law. Perhaps the most important of those changes was the U.S. Congress's decision to deregulate financial derivatives with the Commodity Futures Modernization Act (CFMA) of 2000.

It was the deregulation of financial derivatives that brought the banking system to its knees. The leading cause of the credit crisis was widespread uncertainty over insurance giant AIG's losses speculating in credit default swaps (CDS), a kind of derivative bet that particular issuers won't default on their bond obligations. Because AIG was part of an enormous and poorly-understood web of CDS bets and counter-bets among the world's largest banks, investment funds, and insurance companies, when AIG collapsed, many of these firms worried they too might soon be bankrupt. Only a massive $180 billion government-funded bailout of AIG prevented the system from imploding.

This could have been avoided if we had not deregulated financial derivatives.

Derivatives "De"regulation?

Wait a minute, some readers might say. What do you mean, "de"regulated derivatives? Aren't derivatives new financial products that have never been regulated?

Well, no. Derivatives have a long history that offers four basic lessons. First, derivatives contracts have been used for centuries, possibly millennia. Second, healthy economies regulate derivatives markets. Third, derivatives are regulated because while derivatives can be useful for hedging, they are also ideal instruments for speculation. Derivatives speculation in turn is linked with a variety of economic ills--including increased systemic risk when derivatives speculators go bust. Fourth, derivatives traditionally are regulated not through heavy-handed bans on trading, but through common-law contract rules that protect and enforce derivatives that are used for hedging purposes, while declaring purely speculative derivative contracts to be legally unenforceable wagers.

A Brief History of Derivatives Regulation

Just as derivatives have been around for centuries, so has derivatives regulation. In the U.S. and U.K., derivatives were regulated primarily by a common-law rule known as the "rule against difference contracts."

The rule against difference contracts did not stop you from wagering on anything you liked: sporting contests, wheat prices, interest rates. But if you wanted to go to a court to have your wager enforced, you had to demonstrate to a judge's satisfaction that at least one of the parties to the wager had a real economic interest in the underlying and was using the derivative contract to hedge against a risk to that interest.

Because, of course, wagers can be used to hedge against risk. For example, if you own a corporate bond and you are worried the issuer might default, you can reduce your risk by entering a CDS contract, essentially betting against the issuer's creditworthiness. If the bond decreases in value, the CDS will increase in value. Similarly, if you own a $500,000 home, you can hedge against the risk your home will burn down by making a bet with an insurance company that will pay off $500,000 if the home actually burns. (Most of us call these wagers "homeowner's insurance," although a typical Wall Street derivatives dealer might label them "home value swaps.") Using derivatives this way is truly hedging, and it serves a useful social purpose by reducing risk.

But as judges have recognized for centuries, at least until recently, derivative bets are also ideally suited for pure speculation. Speculation is the attempt to profit not from producing something, or even from providing investment funds to someone else who is producing something, but from predicting the future better than others predict it. [4] A speculator might, for example, try to make money predicting wildfires by buying home insurance on houses in Southern California without actually buying the houses themselves. Similarly, a speculator might hope to make money betting on a company's fortunes by buying CDS on the company's bonds without buying the bonds themselves. Unlike hedging, which reduces risk, speculation increases a speculator's risk in the much same way that betting at the track increases a gambler's risk. Highly-speculative markets are also historically associated with asset price bubbles, reduced returns, price manipulation schemes, and other economic ills.

Common-law judges accordingly viewed derivatives speculation with suspicion. Under the rule against difference contracts and its sister doctrine in insurance law (the requirement of "insurable interest"), derivative contracts that couldn't be proved to hedge an economic interest in the underlying were deemed nothing more than legally unenforceable wagers.

This didn't mean derivatives couldn't be used to speculate. But the rule against difference contracts forced speculators to think about how they could make sure their fellow gamblers paid their bets. The answer was for the speculators to set up private exchanges with membership requirements, margin requirements, netting requirements, and a host of other rules designed to make sure that, despite the legal invalidity of speculative derivatives contracts, speculating traders would make good on their contract promises. In the process, the exchanges kept derivatives speculation in check and under controlled conditions. Eventually, the control was increased when government regulators like the Commodities Futures Trading Commission (CFTC) and Securities Exchange Commission (SEC) were empowered to oversee trading on particular exchanges. Meanwhile, off the exchanges, the rule against difference contracts kept "over the counter" speculation in derivatives in check.

At least, it kept speculation in check until the rule was dismantled. The dismantling process began when the United Kingdom passed its Financial Services Act of 1986, "modernizing" the UK's financial laws by eliminating the old rule against difference contracts and making all financial derivatives, whether used for hedging or for speculation, legally enforceable. US regulators, worried that Wall Street banks might lose out on a lucrative new market, followed suit in the 1990s by creating ad hoc regulatory exemptions for particular types of financial derivatives like currency forward contracts and interest rate swaps. Soon the US also embraced wholesale deregulation with the passage of the CFMA in 2000. The CFMA not only declared financial derivatives exempt from CFTC or SEC oversight, it also declared all financial derivatives legally enforceable. The CFMA thus eliminated, in one fell swoop, a legal constraint on derivatives speculation that dated back not just decades, but centuries. It was this change in the law--not some flash of genius on Wall Street--that created today's $600 trillion financial derivatives market.

for the entire blog post:

http://blogs.law.harvard.edu/corpgov/2009/07/21/how-deregulating-derivatives-led-to-disaster/#more-2596

Okay, that's a bit overblown, but in the event anyone (other than me) is interested in this stuff:

I was talking to a friend from the UK the other day, a reasonably liberal post-doc at university of pennsylvania, and he said the general consensus is that the US is a little too bullyish when it comes to applying its laws everywhere in the world.  It's not that they're not good laws, and it's not that it's bad to put crooks in jail, but come on, there *are* other governments out there with just as much right to govern.

Right now, the IRS and UBS are fighting over the names of alleged U.S. tax evaders.  UBS doesn't want to cough up the names because (they say) doing so would violate swiss privacy laws.  Violating those laws, as I understand it, comes with swiss criminal penalties.  The DoJ says, in response: screw you and your dumb secrecy laws; our tax evasion laws are more important.  So UBS has got to decide: break the US laws, and risk losing US business (poor dears, I know) or violating swiss laws and losing european business.  I'm not trying to paint too sympathetic a picture here; it's just an example that's in the news. 

It's positions like these that make people not want to talk to us when it comes to, oh, I dunno, climate change treaties.

I'm not saying our tax laws are less important than Switzerland's secrecy laws--although honestly, when you boil it down, it all comes down to which country's treasury needs/deservers more money -- but we should come to the table appearing a little less opinionated. We might be mistaken for les francais otherwise.

By the by, this post shouldn't be confused with the kinds of arguments used to support a downward convergence in regulation of the banking industry.  Just because having a global regulator might ease some of the pains that comes with conflicting jurisdictions doesn't mean we should have NO regulator. 

Or so says an SEC staffer, Hugh C. Beck (there is, of course, no such thing as inter-agency rivalry....):

"the Fed's culture is, of necessity, antithetical to deflating asset bubbles. To set monetary policy, the Fed continuously collects production and price data to which it applies what it considers the best of macroeconomic theory. The Fed accepts this theory as true because the information it collects is constantly changing; if applicable theory was also in constant flux the Fed's interest rate policy making would be paralyzed. As a result, the Fed's culture values the steady application of conventional thinking.

Bubble-detection has not thrived in this culture. At the end of 2004, the New York Fed conducted a study to answer the question, "Are Home Prices the Next 'Bubble'?" Applying conventional economic theory to publicly available data, the study concluded there was no bubble in home prices.

The culture of the regulator assigned to spot asset bubbles must have a decidedly outside-the-box flavor. Indeed, in culture, the regulator should seek to be the anti-Fed. In markets periodically subject to herd behavior, the regulator must be adept at developing contrarian views that are likely to be supported by non-public data. Once such data is obtained, publication of the regulator's views of the respective asset class will, at a minimum, divide the herd."

I know all this inspires such confidence in our National Economists.  Especially after those earning, oh, Nobel awards complain about their lack of understanding of the fundamentals of macroeconomics.

It's time we all educate ourselves, and remember that whenever someone says something's too hard to understand, they usually have an interest in you not understanding it.

From Harvard Prof. Lucien Bebchuk:

 

"The plan for buying troubled assets -- which was earlier announced as the central element of the administration's financial stability plan -- has been recently curtailed drastically. The Treasury and the FDIC have attributed this development to banks' new ability to raise capital through stock sales without having to sell toxic assets. But the program's inability to take off is in large part due to decisions by banking regulators and accounting officials to allow banks to pretend that toxic assets haven't declined in value as long as they avoid selling them."

(http://blogs.law.harvard.edu/corpgov/)

So basically, since the government relaxed its accounting standards, letting banks value their cruddy mortgage-based securities at whatever price they like, they had absolutely no incentive to sell them (at fair market value - er, a much lower price).   So they can go about business as  usual.

You know, sort of like taking out a home equity loan without telling the bank the house has burned down.  Known as "fraud" in insurance circles. 

Um, the emperor's still naked, Mr. Geithner...

From today's NYT:

The failure to establish specific targets on climate change underscored the difficulty in bridging longstanding divisions between the most developed countries like the United States and developing nations like China and India. In the end, people close to the talks said, the emerging powers refused to agree to the specific emissions limits because they wanted industrial countries to commit to midterm goals in 2020, and to follow through on promises of financial and technological help.

Okay, I understand why the BRIC countries, and other developing/emerging states, resist climate change measures.  After all, not fair that we got 100 years to screw up the earth without any babysitting.   Now that we've offshored all our energy-intensive manufacturing, 'course we can gag down climate change regulation without any fancy gel-covered easy-swallow pill coatings.  Relatively speaking.

But don't let china, and the anti-earth free-trade hawks tell you any different: it IS possible to do this without violating our international treaties.  See, e.g., http://worldtradelaw.typepad.com/ielpblog/2009/07/cap-and-trade-the-devil-is-the-details.html

Congress just has to ensure that we apply any tariff/tax without discrimiantion based on nationality.  And includes the back-door stuff, too: if canadian beer has 3.25% alcohol, and american has 3.23%, you can't suddenly impose a "tax" on any beer over 3.23%.  So pick a number that makes sense and doesn't automatically give the home team an advantage.  At least not an obvious one.

In fact, it is so very clear (at least to anyone with even just a passing familiarity with trade treaties and the legal authority encircling them) that it *is* possible to legally regulate trade to save the environment, that any whining about trade agreements is purely a foil.

you know, like racism is really about states' rights. 

 

 

Even before our current crisis, many lawyers and laypersons -- myself included -- had an itch about corporate governance reform.  The rise of the Institutional Investor -- international behemoths with huge ownership shares and profit stakes but not a whole lot of interest in anything long-term or, indeed, preserving the company and its payroll or the community around it -- were crippling corporate boards that wanted to do good (or at least refrain from doing evil) while pushing for the quickest corporate profits.  Ironically, some of these huge investors with huge voting power had every incentive to see good companies destroyed by virtue of their short positions.  Quarterly profit swings means share price upticks, which means outsourcing instead of investing at home, looking for the three-month buck rather than 30-year stability.  Certainly, some institutional investors -- employee pension funds, for one -- are sympathetic, and deserve investments that pay.  But others -- and you know them, because they used to hold your 401ks -- didn't even try to hide their tunnel vision.  As lawyers, we saw evidence of this every day, and made a living off it it, because those investors would file lawsuits day in and day out, arguing corporate misfeasance because directors didn't turn a quick enough buck.  Rarely would we see a lawsuit that actually showcased true corporate malfeasance -- AIG, Disney, etc.  The rest of the grindmill, well, it was just another form of extortion.

So when the crisis hit, some of us were hoping for a silver lining.  That finally, FINALLY, we would get a grip on handling these global, multinational institutional investors, and learn how to handle them vis a vis running our companies.

Looks like it's not to be.  Nevermind that none of Obama's domestic plans deal directly with institutional ivnestors and their power over corporate boards.  The administration is apparently determined to block everyone else's efforts.  From public citizen's eyes on trade:

Instead of the UN summit remedying the problems of the G-20 approach, reports indicate that rich countries have worked behind the scenes to ensure the UN summit does not focus on the role of existing global economic governance structures in causing the crisis nor issue a call for reforms to these institutions and policies. In a candid speech this weekend, the elected president of the UN General Assembly, Nicaraguan priest Miguel D'Escoto noted: "...despite the growing need for major changes, many Member States, particularly those in the North, increasingly resist reforms of the IMF and the World Bank, hoping that things will return to business as usual. And they have also made it very clear that they do not want a serious global conversation to take place at the United Nations."

well, whatever.  more money for the corporate litigators.

 

It was in a legal writing class 7 years ago when an earth-mother-triathlete-come-adjunct-law-professor introduced me to the tactical necessity of kissing rocks:

When kayaking through whitewater, and upon the discovery of a big honking rock in way, one must bear down and turn into the obstacle in order to avoid it.  By embracing the obstacle, or, indeed, confronting it head-on early in proceedings, you can manage your way around it.  waiting too long or doing too little...you're sure to crack your head, get stuck, drown, or at least dislocate a shoulder. 

This technique, naturally-bleached blonde opined, is urgently necessary when presenting any kind of legal argument.  there are going to be bugs in your case.  So address it early, briefly, honestly, and give people the chance to forget about it.

I am hoping that the dems, when whining about cost of health care reform, are just kissing rocks.

There's been a bit of a  hullabaloo about banning clove cigarettes (and not menthols!) because those pesky cloves come mostly from Indonesia.  Some argue (including repugs in Congress) that such a ban has a disproportionate impact on foreigners and, therefore, much be protectionist and in violation of our WTO commitments.

The general rule of Free Trade is that governments must treat "like" (similar) products the same way, no matter where they come from.  However, regulators can get away with trade-restrictive regulation that impacts "like" products differently (e.g., those pesky environmental laws) so long as the interest being protected is compelling enough and so long as the regulation is applied evenly across the board.  If you don't implement evenly, it's likely to be (according to the WTO) protectionism in an envrionmental-protection costume.  As an example: under the GATT, you *can* slap a quota on indonesian tuna if indonesian fisherman don't adequately protect dolphins -- even though the indonesian tuna is "like" American dolphin-safe tuna. 

However, if you ban fossil fuel product x because it has toxic chemical y, and y only comes from canada, but you DONT ban toxic chemical z (which is just as toxic as y) which comes from the US, the WTO is likely going to find that you're implementing illegal protectionism. 

Okay, fine.  So hypocrisy is not tolerated by GATT or NAFTA.  But we seem to get tripped up on those incremental measures that *do* have a disproportionate impact on a foreign industry but, had we the time and polictical momentum, would be bigger, better and more widely applied -- and then would smell less like protectionism.  We can't, for example, ban all fossil fuel vehicles all at once, but maybe we can ban luxury cars that use too much fuel.  Well, let's say all those luxury cars come from Germany.  You can't really say that this is protectionist--it's just a first step that happens to have a disparate impact.

Or so the argument goes.  I would suggest a change in the treaty language that allows for this slipperyness in domestic politics. 

My day job is the sort of job populated by floundering ex-Biglaw-types and pays by-the-hour-with-no-benefits (and you thought such employment could only be spyed loitering around McDonalds and Wal-Mart!) and feels more like a grindhouse than a law practice (a term, I had thought, that implies the involvment of some kind of art and expertise). 

I look around my office and I feel both shame and pity.  And not just for the dying, cancerous plaintiffs that we accidentally step on while we throw elbows at the dasterdly incomeptent, lazy and slippery plaintiff lawyers while exploring the nuances of practicing as little law as possible and minimizing overhead (non-billable) expenses while NOT commiting malpractice.  Yes, insurance companies screw over their lawyers, too. 

At my day job, there are two kinds of older men I interact with on a daily basis --  all other men of a certain age are, well, men that happen to be a certain age (or just aren't old enough yet).  Okay, three: "too cranky and important to acknowledge your existence, you silly female peon."  I can't tell if the "female" part is important there.  Anyway, here's my genus-species:

Type 1: Exhibits shameless flirtation, mixed in with some half decent advice on why the job sucks and how to avoid the worst of it, while planning the thirteenth vacation for the year with wife of 30 years; engenders in young female professional both discomfort because of outrageously non-pc statements and affection for the genuine support and encouragement; embraces the fact he can't win, being old, white, and male.  Tells the "gals" they're beautiful as he stops by for chit chat and the usual water cooler fare while at the same time asks for somewhat intelligent input on work-related subjects.  Definite tendency to hang out around the younger female crowd.  But all members of such crowd are part-timers with outside lives and thus necessarily more interesting than their overstressed bill-80-hours-a-week male counterparts.

Type 2: unintentionally sexist ("but you guys are so much BETTER at typing and organization"), the kind that calls young female coworker's name from down the hall, crooks finger at her ("come dog!"), to ask her (politely) to check his emails for him when he's not in office, and why not make a few photocopies (so much for the law degree) while she's at it.  When (perceived?) unintentional sexism is bluntly identified to him (after a particularly bad day), this species feels the need to thereafter, forevermore constantly describe his (alleged*) friendly acquaintence with a plethora of smart accomplished women (including the aggrieved female in question, as a cherry) along with the occasional vivid verbal illustration of his former habitation in hippy-friendly part of philadelphia and involvement in civil rights marches 40 years ago.   Note, incidentally, his lack of interaction (willing or otherwise) with any junior male associates.  Gives young professional female decently interesting work, and compliments her on good work, but is too scatterbrained (or dumb? or lazy? or important) to actually look at such work, requiring instead  endless correction and verbal explanation.  Makes young female feel like priceless hungarian porcelain teapot that cracked and got glued back together with a few missing pieces, yet still must serve hot beverage with a smile.

See, I need to know which I am allowed to be mad at.  Because if I talk to the men I know, type 1 is disgusting and type 2 is misunderstood and unjustly maligned.  But No. 2 definitely makes me angrier. As the reader likely perceives.

And why, if we have "two ends of the hallway" here, one being female, and the other male, and both are equally and perpectually terrifying, brusque, and frustrated, is the female one "scary"? Or is it just me, and she really is just scarier?  I think she is louder, at least.  and the reason I  haven't been fired after blowing a gasket.  she blows more.

 

* I am an attorney, after all.  No apologies.