Kirkpatrick Award Oral Remarks
December 4, 2002
Timothy J. Muris
I. Welcome and Introduction.
This is the second year for the presentation of the Miles W. Kirkpatrick Award for Lifetime FTC Achievement. It is an occasion to gather past and present FTC supporters to honor someone whose contributions to the agency span the whole length of a professional career and are reflected in all facets of the honoree's work, inside and outside the agency.
We welcome a number of our past commissioners and staff who join us in honoring one of the great figures in FTC history, Robert Pitofsky. As a special guest we welcome Bob's wife, Sally. Also here are many of Bob's Georgetown Law faculty colleagues, led by Dean Judy Areen, and a number of Bob's admirers from his many years at the FTC, spanning parts of four decades, and from his distinguished life outside the agency. I want especially to acknowledge the presence of three distinguished members of the judiciary, Judges Harry Edwards, Merrick Garland, and Patricia Wald, whose most recent judicial service took her from the U.S. Court of Appeals to the Hague war crimes court.
Robert Pitofsky was intimately associated with this award's namesake, former FTC Chairman Miles Kirkpatrick, as was our first honoree from last year, Basil Mezines, who is also with us today. This award bears the Kirkpatrick name because of Miles' association with one of the most successful and enduring examples of government reform of which I am aware. By reform I mean a whole painstaking process of study of government operations. This process began with constructive criticism of defects in the organization, programs, and policies, together with a formula for remedying and revitalizing the institution without destroying it. It was then Miles' role as FTC Chairman to implement reforms and bring in the personnel and resources needed to promote consumer welfare and a competitive marketplace effectively. The influence of Miles Kirkpatrick's work has endured for over thirty years, through seven presidents. Today's FTC is a determined and focused protector of the freedom of consumer choice, and an attractive place to work for so many of our talented staff. That legacy owes much to Miles Kirkpatrick.
Miles did not accomplish all of this alone, for his "invisible hand" guided the very visible hands and creative minds of those he brought into the FTC. Chief among these was our honoree, Bob Pitofsky. If the legends are to be believed, our honored guest speaker, Ira Millstein, first recruited Bob to assist Miles in the landmark 1969 American Bar Association study of the FTC that led eventually to Kirkpatrick's 1970- 1973 Chairmanship. Bob Pitofsky, then a law professor at NYU, became the Director of the newly named Bureau of Consumer Protection. After this experience, Bob began his long association with the Georgetown Law faculty and with his law firm, Arnold & Porter. Bob returned as an FTC Commissioner from 1978 to 1981, then returning to Georgetown and becoming Dean of the law school.
Most of us remember Bob best for his six years as FTC Chairman, from 1995 to 2001, a position in which he served with great distinction. Last year, I spoke about Bob's FTC career, especially his Chairmanship. I referred to his "resounding success" in implementing a coherent, principled vision for the agency, based on his understanding that consumer welfare is the agency's reason for being. That speech reflects my deep admiration for Bob, as a person, scholar, and government official. Because the speech is available on our website, and has been published in a law review, I will not repeat its premises here. I will note that whatever success the current Commission may be having stems from the enormous debt we owe to Bob and his talented associates. They left this agency in extremely good shape.
Bob is now back at both Georgetown and Arnold & Porter, but he lays rightful claim to the FTC as his home as well. We even have moved much of our staff to a building across the street from Georgetown Law School, reflecting perhaps the continued magnetic attraction Bob has for us at the FTC.
If I may be permitted to reminisce, let me share with you the first time I ever saw Bob up close and personal. It was 1976, and I attended an AEI panel at which Bob presented an early version of one of his best articles, his Harvard Law Review "Beyond Nader" piece. My FTC boss, the late Jim Liebeler, asked me to join him, Bob Bork, and Bob Pitofsky for dinner. Being the rookie in that group, I can tell you, was an honor, and still one of my fondest memories at the outset of my own career. Conversation over dinner by those three was scintillating and animated, to say the least.
The second time I worked closely with Bob was just as memorable, but for different reasons. Ken Clarkson and I were teaching at Miami and working on our FTC book that we published in 1981. A few winters before, Ken and I came up from sunny Florida to interview Commissioner Pitofsky for the book. We encountered the remains of a massive storm that had dumped over two feet of snow. After getting downtown though the empty streets, we talked for hours with Bob, who was virtually the only person who made it into work at the FTC- or anywhere else in the government- that day.
I have remained friends with Bob over the years. I continue to listen to his counsel and, from time to time, tell him what I think as well. Bob's academic bent has served him well in obtaining different view in forming his own opinions, and I've tried to emulate his example.
When I informed Bob that I wanted him to receive this award, he asked us to contact our honored guest speaker, Ira Millstein. Bob wanted Ira in Washington to publicly take the blame for getting Bob involved with the FTC in the first place. If Ira had not been so persuasive, Bob says, he might have pursued an entirely different life- one filled with the enjoyment of art, good literature, good friends, card games, professional baseball, the wonders of science, the history of Roman Civil Law, or even, maybe, modern tort reform. Instead, Bob was destined to destroy whole forests in his pursuit of straightening out the road the FTC has taken on its way to sound antitrust and consumer protection policy.
Ira Millstein is justly noted for his silver tongue. From his lofty perch as a senior partner at Weil, Gotschall & Manges in New York, over a long and distinguished public and private career, he has influenced the course of many events and institutions. He has been the Chairman of the Antitrust Law Section of both the New York and American Bar Associations. He has served for years in teaching or senior advisory positions at his alma mater, Columbia University, and at Yale, Harvard, and New York Universities. He has published and lectured widely in a number of fields, notably corporate governance.
He has advised countless corporate boards in this field, including such entities as General Motors, where he was influential in forcing a change in management, Empire Blue Cross, and the California Public Employees' Retirement System. He has been an advisor to the World Bank, the OECD, and in 1997, was appointed to the joint U.S.- Russia Capital Markets Forum Working Group on Investor Protection. His honors and titles go on and on, and extend well beyond the realm of business law. For example, he was recently appointed as pro bono counsel to the Board of Directors of the Lower Manhattan Development Corporation, overseeing the redevelopment of lower Manhattan.
I could continue at some length on Ira's remarkable work. For the moment, however, I want to illustrate the insightfulness that Bob and Ira individually brought to bear in understanding the work of the FTC and the unique suitability of a "commissioner" to perform his or her statutory role.
During the debate 20 years ago whether the Commission should restrain itself to only reasonable interpretations of advertising, I often quoted Ira's 1964 article that:
The Federal Trade Commissioners themselves are not chosen for their expertise in ascertaining the meaning of advertisements, or for some general intuitive knowledge of the public's understanding of sights and sounds. Of the five present Commissioners, not one has had prior experience in business, let alone advertising. Nor is such expertise invested with the robe.
I also often quoted Bob's "Beyond Nader" piece, in which he echoed these observations, stating:
Why questions of meaning should be submitted to the virtually unreviewable discretion of five Commissioners of the FTC has never been articulated. Unlike other instances of deference to regulators as part of the administrative process, there is no reason to believe that commissioners of the FTC have unusual capacity or experience in coping with questions of meaning, nor any indication that successful regulation of advertising requires a balance of related regulatory considerations that commissioners are in a special position to handle.
Needless to say, no doubt most of the distinguished past and present members of the Commission here today stand ready to challenge such heretical views. Putting that challenge to the side, such constructive criticism is typical of the work of Ira and Bob. We are indebted to them.