The core of Schiltz's argument with which I most disagree is that large firms are all alike, or, to put it in its more modest, plausible, and compelling form, that big firms and big-firm lawyers are be- coming more alike. The claim of what academics call isomorphism-- in this case, that large-firm practices converge ultimately in similarity-- is his principal descriptive claim. It is also the primary rhetorical device that allows Schiltz to attack large law firms as if they were one, to transpose the caricature of the managing partner in his third marriage to all large law practices. Schiltz's convergence thesis does not mean that all firms are alike, but that they are being driven by the competitive forces and motivations Schiltz describes to a funda- mental identity. So, what might otherwise be deemed internal contradictions of the article-his suggestions, for example, that there are firms he recommends to students and there are ways to find and screen the better firms-are resolved because the better firms are only a temporary phenomena. Ultimately even the better firms, he would argue, will succumb to relentless social and economic forces. It is this claim that requires law students and lawyers in any form of private practice to move beyond the rhetorical flourishes of the tanned trophy wife and the home never seen in daylight and ask themselves whether there is any truth to his argument.
I cannot disprove Schiltz's claims about the convergence occurring in large law firms. After all, there is evidence and intelligent speculation that supports it. Galanter and Palay's hypothesis, cited by Schiltz, is that in a culture that values autonomy, money is the one measure of the many goods of a practice upon which it is easiest to agree (or the least difficult to avoid) and therefore emerges as the prime focus of most partnership understandings. The vast majority of formulae or weighting systems for compensation in law firms reward those who strengthen the business and deploy to its full potential the firm's leverage by bringing in clients and servicing or retaining important clients. Schiltz's analysis of the relationship among billing rates, billable hours, and partnership compensation seems to me entirely accurate as an explanation of the pressure on firms to increase billable hours.
So why am I so skeptical of the convergence thesis? One response is perhaps only tempermental: I am deeply suspicious of iron laws, particularly when it comes to organizations. Firms are human constructs. The character of an organization is determined by people, not solely by competitive pressures to which people respond. Who is to say that the better firms, presumably the exceptions to the model Schiltz describes, will not thrive?
Michael J. Kelly,
Thinking About the Business of Practicing Law,
52 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol52/iss4/5