You Had Me At Hello or Let Them Go? : Law Firm Selection, Retention, and Defection in the Investment Banking Industry

Drawing upon the theoretical concepts of reputation and social networking, this article\u27s main objective is to assess how investment banks choose external law firms. Using qualitative methods, I show that investment banks, to varying degrees, rely on internal counsel, procurement specialists, and boards of directors to decide which firm to select. When choosing a specific law firm for the first time, corporate decision-makers are likely to evaluate law firms based on intangible factors like reputation and the word-of-mouth referrals of their colleagues. In subsequent selections of a law firm, these factors are transplanted by past results. Firm expertise and cost considerations impact procurement decisions regardless of whether a law firm has been previously retained. Despite claiming that the individual lawyers providing the service is a more important selection criterion than the firm that employs those lawyers, investment banks seem to experience a degree of embeddedness that keeps them using the same firms time after time

Supply Chains and Porous Boundaries: The Disaggregation of Legal Services

The economic downturn has had significant effects on law firms, and is causing many of them to rethink some basic assumptions about how they operate. In important respects, however, the downturn has simply intensified the effects of some deeper trends that preceded it, which are likely to continue after any recovery that may occur. This paper explores one of these trends, which is corporate client insistence that law firms “disaggregate” their services into discrete tasks that can be delegated to the least costly providers who can perform them. With advances in communications technology, there is increasing likelihood that some of these persons may be located outside the formal boundaries of the firm. This means that law firms may need increasingly to confront the make or buy decision that their corporate clients have regularly confronted for some time. The potential for vertical disintegration is a relatively recent development for legal services, but is well-established in other sectors of the global economy. Empirical work in several disciplines has identified a number of issues that arise for organizations as the make or buy decision becomes a potentially more salient feature of their operations. Much of this work has focused in particular on the implications of relying on outsourcing as an integral part of the production process. This paper discusses research on: (1) the challenges of ensuring that work performed outside the firm is fully integrated into the production process; (2) coordinating projects for which networks of organizations are responsible; (3) managing the transfer of knowledge inside and outside of firms that are participants in a supply chain; and (4) addressing the impact of using contingent workers on an organization’s workforce, structure, and culture. A review of this research suggests considerations that law firms will need to assess if they begin significantly to extend the process of providing services beyond their formal boundaries. Discussing the research also is intended to introduce concepts that may become increasingly relevant to law firms, but which currently are not commonly used to analyze their operations. Considering how these concepts are applicable to law firms may prompt us to rethink how to conceptualize these firms and what they do. This paper therefore is a preliminary attempt to explore: (1) the extent to which law firms may come to resemble the vertically disintegrated organizations that populate many other economic sectors and (2) the potential implications of this trend for the provision of legal services,the trajectory of legal careers, and lawyers’ sense of themselves as members of a distinct profession

The Law of Intimate Work

This Article introduces the concept of intimate work — intimate services provided by paid workers to a range of consumers — and seeks to unify its treatment in law. The concept explains multiple exceptions to work law that have previously been viewed as random and even contradictory. From the daycare worker to the divorce lawyer, the nurse to the hairstylist, intimate work introduces an intimate party — the consumer — into the arm’s-length employer-employee dyad on which work law is premised. This disruption leads to limited enforcement of non-compete agreements, the waiver or imposition of fiduciary duties, and exceptions to wage-and-hour law and antidiscrimination law, among other consequences. The current ad hoc approach to intimate work does harm. Law’s separate regulation of intimacy and work fails to recognize the special value and vulnerability generated when the two overlap. At times, law protects only a narrow subset of intimate work, as the existing approach to non-compete agreements reveals. At other times, law gets intimate work backward, taking away protection at precisely the moment more protection is needed, as is the case with antidiscrimination law. The resulting law permits employers to promote discrimination in the formation of intimate work bonds, to discipline intimate workers who act to benefit consumers, to expose intimate workers and consumers to the abuse of personal information, and to break valuable intimate work bonds with impunity. These harms are only magnified with the rise of intimate work. This Article proposes a unified law of intimate work sensitive to the value and vulnerability it generates. This law has implications for a wide swath of doctrines, and for gender equality, as women are especially harmed by the failure to value intimate work. Much of this law can be achieved by analogical adaptation of time-proven doctrines. For example, law should no longer ignore lost intimate work bonds as an injury when evaluating non-compete agreements or crafting remedies for termination. In other situations, new approaches are needed, such as limits on employers’ ability to cultivate discriminatory consumer preferences. In the end, this new law of intimate work is designed to protect intimate workers and consumers while valuing relationships that are central to everyday life

The Ties That Bind: The Relationship Between Law Firm Growth and Law Firm Survival

For the better part of the twentieth century, law firms hired, trained, and grew through a stable and predictable pattern: hire new law school graduates, monitor and evaluate their work, and pick promising attorneys from among their ranks and elevate them to partner. Rinse, lather, repeat. A combination of professional norms and organizational inertia made this approach the dominant method of growth among large corporate law firms until changes in legal market broke down these customary practices, ushering in a new era of lawyer mobility. Now, it has become commonplace for lawyers to leave for greener pastures as more law firms seek to grow their practices through lateral hiring. The question that this Article seeks to answer is: what (if any) effect has this change had on the stability of these law firms? Conventional wisdom holds that law firms that grow through entry-level hiring and training young attorneys (a practice long associated with the most prestigious “white shoe” firms) are more stable in the long run than law firms that poach attorneys from other firms via lateral acquisition. But why should hiring inexperienced and untested lawyers result in greater success for the firm than hiring lawyers that are proven to be competent and successful? This Article presents a comprehensive analysis of the relationship between law firm profits, firm growth strategy, and the life course of large American corporate law firms. I draw on an original longitudinal dataset to provide new insights on the determinants and effects of firm growth over a quarter of a century, from 1985 to 2011. I hypothesize that (1) “organic” growth, which relies on entry-level hiring and internal promotion, helps successful firms protect their positions by creating dense firm networks that allow the firm to survive threats to the organization, while (2) “mimetic” growth, which relies on firm merger or mass lateral hiring fails to create these dense networks and thus fails to provide long-term benefit to these firms. Ultimately, my findings both corroborate and complicate the conventional wisdom, with special resonances for what predicts the longevity of corporate law firms. I find that less profitable firms pursued mimetic growth in response to the organic growth of their more successful peers. In addition, controlling for observed potential confounders, those firms that grew organically in response to organizational need were at lower risk for dissolution than firms that intentionally pursued a growth strategy involving mergers and acquisitions. Furthermore, the increase in risk associated with this mimetic growth strategy hits low-status law firms the hardest. I conclude that mimetic growth has the potential to damage firm cohesion and upset the unique internal dynamics of law firms, thus fraying the professional ties that bind clients and lawyers alike to the firm

The Law of Intimate Work

This Article introduces the concept of intimate work—intimate services provided by paid workers to a range of consumers—and seeks to unify its treatment in law. The concept explains multiple exceptions to work law that have previously been viewed as random and even contradictory. From the daycare worker to the divorce lawyer, the nurse to the hairstylist, intimate work introduces an intimate party—the consumer—into the arm’s-length employer-employee dyad on which work law is premised. This disruption leads to limited enforcement of non-compete agreements, the waiver or imposition of fiduciary duties, and exceptions to wage-and-hour and antidiscrimination law, among other consequences. The current ad hoc approach to intimate work does harm. Law’s separate regulation of intimacy and work fails to recognize the special value and vulnerability generated when the two overlap. At times, law protects only a narrow subset of intimate work, as the existing approach to non-compete agreements reveals. At other times, law gets intimate work backward, taking away protection at precisely the moment more protection is needed, as is the case with antidiscrimination law. The resulting law permits employers to promote discrimination in the formation of intimate work bonds, to discipline intimate workers who act to benefit consumers, to expose intimate workers and consumers to the abuse of personal information, and to break valuable intimate work bonds with impunity. These harms are only magnified with the rise of intimate work. This Article proposes a unified law of intimate work sensitive to the value and vulnerability it generates. This law has implications for a wide swath of doctrines, and for gender equality, as women are especially harmed by the failure to value intimate work. Much of this law can be achieved by analogical adaptation of time-proven doctrines. For example, law should no longer ignore lost intimate work bonds as an injury when evaluating non-compete agreements or crafting remedies for termination. In other situations, new approaches are needed, such as limits on employers’ ability to cultivate discriminatory consumer preferences. In the end, this new law of intimate work is designed to protect intimate workers and consumers while valuing relationships that are central to everyday life

Private Order Under Dysfunctional Public Order

Businesspeople need contractual assurance. Most transactions are less straightforward than a cash sale of an easily identifiable item. Buyers need assurance of the quality of what they are purchasing, and sellers need assurance that bills will be paid. The legal system may not always be available to provide contractual assurance - and when the law is dysfunctional, private order might arise in its place. Many developing and transition economies have dysfunctional legal systems, either because the laws do not exist or because the machinery for enforcing them is inadequate. In such countries, bilateral relationships, communal norms, trade associations, or market intermediaries may work in place of the legal system. In this Article, we use data obtained from surveys of firms in five transition economies in Eastern Europe and the former Soviet Union as well as Vietnam to show that, at least in these economies, social networks and informal gossip substitute for the formal legal system, while business networks and trade associations work in conjunction with it. These transition countries provide an informative place to examine the interaction between the formal legal system and private-order mechanisms because both are in a state of flux. Although market-oriented laws have begun to replace the bureaucratic controls of the old planned economy, private firms\u27 access to the courts varies, from almost no access in Vietnam to considerable access in Poland and Romania. Even within these countries, the transitional state of the legal system means that managers vary in their perceptions of the courts\u27 usefulness, and ultimately it is their willingness or unwillingness to utilize the formal legal system that shapes the development of private order. Because the data from these economies contain more variation than would be found in a steady-state economy, we can run meaningful regressions relating firms\u27 behavior to their perceptions of the courts\u27 workability

Relational Tax Planning Under Risk-Based Rules

Risk-based rules are the tax system\u27s primary response to aggressive tax planning. They usually grant benefits only to those taxpayers who accept risk of changes in market prices (market risk) or business opportunities (business risk). Attempts to circumvent these rules by hedging, contractual safeguards, and diversification are well-understood. The same cannot be said about a very different type of tax planning. Instead of reducing risk directly, some taxpayers change the nature of risk. They enter into informal, legally unenforceable agreements with contractual counterparties that are designed to eliminate market or business risk entirely. The new uncertainty these tax planners inevitably accept, however, is the risk (counterparty risk) that the counterparties will violate the implicit agreements and betray taxpayers\u27 trust. A deliberate substitution of counterparty risk for market or business risk is what this Article calls relational tax planning. The Article offers an economic analysis of different risks and considers two responses to the relational tax planning problem. The analysis suggests that business risk is superior to both market and counterparty risks. Counterparty risk is the most complex of the three. In addition to risk-bearing losses produced by all risks, it reduces transaction costs of future exchanges between relational tax planners, but only if they manage to overcome bargaining obstacles caused by opportunism and asymmetric information. These insights suggest two very different responses. A sweeping reform will allow – and even encourage – taxpayers to engage in relational tax planning, but will also ensure that counterparty risk they incur is sufficiently high. If only incremental improvements are pursued, courts should increase their scrutiny of relational tax planning involving extensive dyadic business relationships and interactions based on social norms

The Law, Economics, and Medicine of Off-Label Prescribing

There is a major dissonance in the current structure of regulating new drugs that have more than one medical indication. Physicians are authorized to prescribe these drugs for all indications including those beyond their approved purposes. However, product manufacturers are expressly prohibited from marketing or promoting their drugs for any purpose other than those which have been specifically indicated. While prescribing physicians are encouraged to gain medical information on any additional indications, they cannot obtain it from one of its most likely sources: the drug’s supplier. The Second Circuit Court of Appeals’ recent opinion in United States v. Caronia has challenged this regulatory structure. For the three states in the Second Circuit, although not the rest of the country, the FDA’s regulations prohibiting promotion of non-approved indications have been restricted. In this Article, we review the legal, economic, and medical aspects of the FDA’s current regulatory approach, and explore the likely consequences of a widespread adoption of the Caronia rule