Rees Morrison, a longstanding observer of all matters law and business,
vis-a-vis in-house law departments, at least, there is no such thing
as management by following "best practices," because they simply do
To buttress his thesis, he cites no less than philosophy, economics,
psychology, and sociology. Never let it be said that I shy from
a deep conversation, so let’s plunge in and evaluate Rees’ arguments.
Philosophy: Here he makes essentially an epistemological argument:
That no one can define the "best" to begin with ("despite thousands
of years of effort,…we cannot reach consensus on what it means to
lead a ‘good’ life"), that determining cause and effect is elusive,
and [oddly enough—I would have thought this belonged under "economics"]
that lawyer productivity is notoriously difficult to measure.
Economics: First, he observes non-controversially that every
management practice involves "trade-offs." Indeed,
this is a paraphrase of the textbook definition of economics as the
study of the allocation of scarce resources. Yes, you can use
your first-round draft pick on a quarterback or an offensive lineman
but not both, and if your department chooses to spend its annual IT
allocation on knowledge management rather than document management,
you have in some tautological sense "traded off" DM for KM. Next,
he notes that in a competitive marketplace today’s innovative best
practices will be copied by the competition (thus failing to provide
enduring competitive advantage), and also, as something of a non sequitur,
that the "law of diminishing returns" means the spread of a "best practice"
to every corner of the department will not be as valuable as its initial
introduction. Innovation can indeed be copied, but that scarcely
implies one shouldn’t try. Who out there thinks DuPont’s decade-long
lead in introducing the "DuPont
Legal Model" hasn’t conferred a lasting
advantage? As far as "diminishing returns" goes, he’s simply
confused. Sure, learning curves flatten and [the rate of increase
in] returns diminishes, but both the fat part of the learning curve
and the fat part of the returns are genuine.
Psychology: As I understand him here, he’s essentially arguing
that because human decision-making is flawed (we over-emote and under-reason,
hate cognitive dissonance, tend to prefer confirmation of pre-existing
attitudes over genuine receptivity to new information), then no decision-making
can be trusted. This is a bridge too nihilistic for me: If
he’s really serious on this score, then his column is meaningless because
everyone will choose to see in it what they want to see, and he in
fact only wrote it at the urging of some ill-understood subconscious
drive. Whoa, boy!
Sociology: Group think, peer pressure, and dysfunctional group
dynamics all infect decision-making, so who’s to say that the chosen
course is "optimal" and not merely "politically feasible?" Reasonable
questions all, but I’ve worked in offices with an open, collaborative,
"think out loud" dynamic, and in offices where the playbook was "Lord
of the Flies." Guess what? You can tell the difference,
and act accordingly.
What does this add up to? To a degree, the argument that there
is no such thing as [enduring] "best practices" is obvious and non-controversial.
The goalposts are always receding, after all. IBM Selectrics
justifiably had a corner on the market in their day. But ultimately
I must conclude that the essay fails the essential test of common sense.
That we cannot know everything does not mean we know nothing;
that we make mistakes does not mean we’re incapable of enlightened judgment;
that decision-making under uncertainty can get things wrong does not
entitle us to wait until all the facts are in.
And that you read it from the pen of a distinguished observer of this
landscape, or an analytically minded economist/blogger, does not mean