Law in Contemporary Society
As i took a 6 hour train to upstate new york this weekend, I had a lot of time to ponder my property readings from this semester. Then, I had an idea which I immediately wanted to put in writing so we could discuss it as a class.

Michael Heller, Professor of Property et al here at Columbia (and probably one of the best professors I have ever had) is well known for his accalimed tragedy of the anti-commons theories. Where as the tragedy of the commons can be basbarically boiled down to the premis that rational individuals, acting separately, may collectively over-utilize a scarce resource, the tragedy of the anti commons, for those who have not had the benefit of reading some of Heller's work, boils down to the idea that individuals may under-utilize a resource. For example, if too many different individuals hold patents for various inputs necessary for a certain drug's production, the drug maker may not be able to bargain and acquire every patent that he needs and thus, the drug is not produced.

Here, our resource is us. The resource is all lawyers' technical expertise/time/etc. I really do take to heart Eben's comments regarding his aversion to Biglaw and why we should all strive to charter our own courses and find meaningful work. However, what if we, as in all lawyers, suddenly (hypothetically speaking) took this advice and opened independent, indiviudal law firms. No more big firms, just small, one person (or maybe a two person partnership). Applying Heller's anti-commons theory: would this scenario not show the harms possible of reversing the flow of the biglaw fountain? Some big firms built their practices on the grounds of being the best at something. For exmaple, if you break up Firm X, ranked number one in M&A work by Vault or some such ranking, would it not be the case that a valuable pool of knowledge, experience and expertise (and logistical infrastructure for that matter) would be lost?

I do not purport to have the answers. However, my intuition tells me that in many cases, the individual parts do NOT equal the sum. If I am a drug maker and I had to run around to 35 different law shops to get the service I would normally be able to get from one big law firm, I would not be running to embrace the call for all lawyers to chart their own courses independently.

Now remember, this is just a hypo so please do not bother rebutting with: well not every lawyer would open an independent shop etc. BUT, any comments or additional hypos are welcome and appreciated. -- AdamGold - 12 Apr 2008

I think a key point is that lawyering is collaborative. I don't think that hanging your own shingle and attempting to do an M&A deal by yourself is going to work. Could a small specialized partnership between you and a few of your merger-loving friends pull it off? Could you, working indpendantly, bring other independant lawyers onto the team for the project?

While it easier to envision smaller offices providing a better work environmnent, in many ways size has nothing to do with the problems of large corporate firms. Anywhere that destroys your autonomy is likely a bad place to work, whether it be Cravath or your overbearing uncle's electronics store. The point, I think, is not to go small, but to go independant, even if independance means a collaborative relationship with your partners and colleagues.

-- AdamCarlis - 12 Apr 2008

I'm not sure that Heller's anticommons theory is quite on point. His theory seems to focus on the right to exclude. Here, lawyers wouldn't have the right to exclude. Unlike patents which give monopolies, no lawyer has a monopoly over a client's problem. If various small offices can't agree on a solution, the client can always find different lawyers who will collaborate better (lawyers are plentiful, substitutes are readily available). Whereas a drug company may need a certain patent, which probably has few if any substitutes, a client should be able to assemble a team of lawyers from the available pool of individuals. If you believe lawyers pooled from various offices will have a hard time collaborating, raising the transaction costs, then I suppose the result is the same as the anticommons problem exists (ie, too many chefs spoil the soup)

If collaboration is the problem, I don't think big firms are the sollution. Just because 2 lawyers work for the same firm doesn't mean they'll work well together, it just means they have to work together. It might even be more efficient if lawyers chose who they work with, rather than being forced to work with other lawyers in their firm.

-- JaredBaumgart - 12 Apr 2008

Adam, your points are well taken. But to what degree can we exlcude human nature from the calculation? Sure its easy to say size does not matter, its how collaborative you are, but I think the question we should be asking in the abstract is: can lawyers ever really collaborate to the point where they work together in a small/medium/large setting and still enjoy all of the benefits in terms of what Eben wants us to strive for? Eben made if very clear that Partners have to watch whose toes they step on and which clients they can or cannot take etc. Maybe I am a little too Hobbesian, but I believe that greed and money can eventually ruin even the most collaborative partnership.

-- AdamGold - 13 Apr 2008

Jared, I am not sure you are right about "no lawyer has a monopoly over a client's problem." I find it hard to believe that a, say, big bio tech company picks a random law firm's name out of a hat to see who they want to handle their patent issues. I have a hunch that there is a select few IP firms in the world that would be in the running for the job, and more importantly for the context you raise, that would be able to handle such a job.

Big firms with certain specialties have logistical power and experience that smaller firms cannot compete with (at least very easily). My point regarding the anti commons idea is not to hypothesize how law firms relate to patents, but how the breaking up of legal knowledge and expertise can lead to the under utilization of certain economic and social capital in society.

thanks for commenting guys, I am interested to hear what you have to say (and how you can tear my argument apart)

-- AdamGold - 13 Apr 2008



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r7 - 07 Jan 2010 - 23:03:17 - IanSullivan
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