The Four Corners of Law

At the intersection of Broad and Market Streets in downtown Charleston one will find the Four Corners of the Law.

On the northeast side of the intersection, representing municipal law, is Charleston’s City Hall, built in 1800 and serving as the City Hall since 1818.

On the northwest corner, symbolizing state law, stands the Charleston County Courthouse completed in 1792. The courthouse was designed by architect James Hoban, who is best known for designing the White House.

On the southwest corner, the U.S. Courthouse and Post Office, designed by John Henry Devereux in the Renaissance Revival style and completed in 1896, embodies federal law.

On the southeast corner sits St. Michael's Church which was built between 1751 and 1761 on the site of an earlier 1681 wooden church that had been damaged in a hurricane in 1710. This structure stands for ecclesiastical law.

According to Ripley’s Believe It or Not, which popularized the notion of the Four Corners of Law in the 1930’s, this configuration is unique in US city planning. If anyone knows of a similar convergence of legal structures, please let me know.

Ordo ex Chao

Back in July, Rees Morrison, one of the leading thinkers in Law Department management, kindly quoted a comment of mine to his blog:

A theory of in-house lawyers between the devil client and the deep blue sea

A few days ago, Jon Olson, the thoughtful general counsel of Blackbaud,commented on my post about legal departments as multi-dimensional (mathematical) spaces. He explained his own theory:

“One theory that I find useful is the idea that law departments essentially manage the externalities of a business. That is to say, law departments manage the friction point where the untrammeled corporate will meets the greater society. It happens that many of these friction points are legal in nature; and the many that aren't strictly legal still benefit from good "lawyering" skills (e.g., the ability to communicate clearly, analyze an issue, build consensus). As such, the "space" is at the intersection of corporate strategy and the outside world, with all the layers of politics, culture, personal preference, laws, legal delivery systems, internal process and policy, risk appetite, and technology that entails. Multi-dimensional, indeed !”

Olson certainly envisions a transcendent, fundamental role for legal departments, on the ramparts between clients and the world with the protection going both ways. My image of in-house legal teams is less grand, to be sure, but Olson certainly sketches a fascinating perspective about the attributes lawyers can bring to bear and the contribution they can make.

Posted by Rees Morrison on July 29, 2010

Earlier that month, I had responded to another of Rees Morrison’s posts on positivism and law department management:

Positivism and its perspectives on knowledge about law department management

The set of philosophical beliefs known as “positivism” holds that objective truth exists, that humans can accurately understand those truths, and that scientific tools best enable us to do so. Measurement, rationality, certainty, and comprehension are neither ironic nor useless terms; they connote reliable and effective beliefs that are backed up by known truths. Those who put metrics and benchmarks on a pedestal adhere to positivistic beliefs. This blogger believes that we can actually know and understand much about legal departments and how they operate.

In opposition to positivistic views of knowledge are postmodern views (See my post of Sept. 22, 2008: postmodern critiques of best practices.). Postmods do not believe in objective facts or that ways of thinking have primacy over other ways of thinking. Much or all of what we perceive and think we comprehend is mere social construction, relative to a time and a place, subject to epistemological weaknesses of all kinds. This blogger sort of understands postmodernism, intellectually, but feels that as a way of coming to grips with effective management of legal departments it offers nothing constructive. My bent is pragmatism shot through with positivism.

Posted by Rees Morrison on July 8, 2010

My response:

I think that in-house counsel are necessarly positivists- not too many C-level executives or Board members are keen on having strategic plans, risk assessments, and financial forecasts deconstructed through a prism of relativism.

That said, many of the foibles of corporate life, sometimes irrational and occasionally ironic, do seem amenable to a post-modern interpretation.

Perhaps in-house counsel are the ultimate positivists, creating Ordo ex Chao, even where there is little order to be found.

Thanks for the food for thought.

-Jon W. Olson
GC, Blackbaud, Inc.

I offer these two items to shed further light on my philosophy of the role of in-house counsel. I do have a rather expansive concept of the role that law departments can play, but it does give us something to aspire to. And as Rees Morrison wrote me, Ordo ex Chao sounds like the motto for a coat of arms for GCs everywhere. Perhaps someone should design the coat of arms shield.

One other note- as summer officially ends, I will resume my previous schedule of one post weekly, usually on Monday.

Deconstructing Contracts

As it is for most in-house counsel, much of what I do involves negotiating contracts. Handling contracts is a task that needs to be taken seriously. “Contract in haste, repent at leisure,” I often say.

However, there is a distinct oddness to negotiating contracts. The issues that arise are often less about the substance of the matter and more about form. I’ve seem parties choose to make life-or-death issues out of the most apparently meaningless items. Parties will propose awkward language then rationalize that the most oblique, obfuscating phrase somehow satisfies their concerns. Negotiators will predict the future with a certainty that exceeds their ability to describe the present. So what’s it all about?

To me, contract negotiating is a ritual; the process is designed to test and build trust between counterparties, and is designed to build consensus between the stakeholders within a party.

Trust and consensus- the easier your contracts lead to this result, the quicker and more effective will be your negotiations.

I don’t mean to minimize the risk control aspects of contracts, but in large part, the most important concern to an enterprise is less the nuance of a choice of law provision and more often the iron law of the market- that a company’s fortunes will rise or fall on the relationships it forges with its customers.

As such, I contend that a well-conceived contract negotiation methodology can be an effective sales tool and a competitive advantage to companies that do it well.

Labor Day

He who labors diligently need never despair; for all things are accomplished by diligence and labor. - Menander (342 BC – 291 BC)

In honor of Labor Day, I will be taking a brief vacation from this blog.

For an excellent history of Labor Day, please visit the U.S. Department of Labor’s History of Labor Day webpage, http://www.dol.gov/opa/aboutdol/laborday.htm, which closes by affirming, “The vital force of labor added materially to the highest standard of living and the greatest production the world has ever known and has brought us closer to the realization of our traditional ideals of economic and political democracy. It is appropriate, therefore, that the nation pay tribute on Labor Day to the creator of so much of the nation’s strength, freedom, and leadership - the American worker.”

Happy Labor Day to all !