Scrappy or Strategic? Law Firm Decision-Making in Light of Executive Orders

Authors

• Nancy B. Rapoport

Abstract

Some of President Donald J. Trump’s early 2025 Executive Orders targeted specific law firms.  These Executive Orders have created a stir within our legal community.  Why did some firms fight those Executive Orders and other firms agree to quick settlements with the Trump administration?  In this article, I use some rudimentary concepts taken from game theory (as in, “I won’t use numbers or mathematical proofs,” so I expect actual game theorists to roll their eyes at my analysis) to analyze two games:  the game of “who within the firm will decide whether to fight or settle” and the game of “whether our firm should fight or settle.”  I conclude that Paul, Weiss’s decision to settle with the Trump administration was predictable, given the structure and values of BigLaw, and that the other firms that settled were factoring in that a united front was a pipe dream.

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

       —A Man For All Seasons

Starting on Inauguration Day—January 20, 2025—President Trump began issuing a flurry of Executive Orders covering everything from diversity, equity, and inclusion (DEI) programs to renaming landmarks to higher education to ending the “weaponization of the Federal Government.” I’ll discuss the law firm Executive Orders (and the EEOC letters targeting twenty law firms), but I’m not going to turn this article into a commentary about the first several months of the Trump administration. Instead, I want to focus on the administration’s targeting of law firms via Executive Orders. In particular, I want to explore why some law firms chose to fight those orders and others chose to settle with the administration.  And I’m going to discuss those decisions by using a rudimentary understanding of game theory to help explain the decisions that transpired.

Recommended Citation

Nancy B. Rapoport, Scrappy or Strategic? Law Firm Decision-Making in Light of Executive Orders, 13 Emory Corp. Governance & Accountability Rev. 76 (2026).
Available at: https://scholarlycommons.law.emory.edu/ecgar/vol13/iss1/3