Legal Entrepreneurship and the Strategic Virtues of Legal Uncertainty |
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| Authors: | Justin W. Evans Anthony L. Gabel |
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| Affiliation: | 1. Assistant Professor of Legal Studies, Parker College of Business, Georgia Southern University (juwevans@alumni.iu.edu). We thank Mark Bannister, Greg Weisenborn, Tim Crowley, and Chris Crawford for funding our data collection;2. the FHSU OSSP and its peer reviewers for providing an Undergraduate Research Experience Grant;3. the dedicated students who accompanied us to China—Seth Gooding, Amanda Groff, Matthew Whitmore, and Adam Wilbur—and our superb GA, Aaron York III. We are indebted to the exemplary professionals we interviewed in China, all of whom are leading figures in their areas. (Per our IRB agreements, these participants will remain anonymous.) We presented earlier versions of this article at the ALSB annual meeting in Savannah, Georgia (August 2017), the Seventeenth Huber Hurst Research Seminar at the University of Florida (February 2018), the National Business Law Scholars Conference at the University of Georgia (June 2018), and the SEALSB annual meeting in Chattanooga, Tennessee (October 2018), and thank the participants for their feedback. The insights of Christopher M. Bruner, Larry A. DiMatteo, Stephen Park, and Mike Schuster were particularly extensive and insightful. We gratefully acknowledge the editors and peer reviewers of the ABLJ—and especially Susan Park—for their improvements. This was one of two articles awarded the 2020 ABLJ Hoeber Memorial Award for Excellence in Research. I thank Jennifer, Emma, and Anna for their love and support. Any errors are ours.;4. Associate Professor of Business Law, Fort Hays State University Robbins College of Business and Entrepreneurship. I thank the William E. and Anita M. Lusk Family for their generosity. Proceeds from the William E. and Anita M. Lusk Family Endowed Professorship Award supported a portion of the travel costs associated with this research effort for me and our undergraduate assistants. I thank Justin Evans for his excellent example and wonderful friendship. In a special way, I thank my now-deceased mother, Mary Ann, who worried about and prayed for the safety of Justin, me, and our students as we traveled in China to collect the interview data for this article. I especially thank Chris for her patient encouragement and love. |
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| Abstract: | The field of law and strategy (LAS) has advanced our understanding of the law's role in competitive advantage. To date, however, LAS has neglected low rule of law environments—countries characterized by expansive degrees of legal uncertainty. LAS should account for these settings, too, since environmental uncertainty is a strategically significant factor for any company. This article situates the strategic relevance of legal uncertainty in the Chinese context and fills an important gap by illustrating how LAS principles apply in low rule of law jurisdictions. Specifically, this article develops the construct of legal entrepreneurship—the notion that attorneys may apply an entrepreneurial mind-set and skill set to position the client favorably and legitimately within the uncertainties of the legal landscape, thereby creating legal competitive advantages for the client. Drawing upon interviews with expert attorneys and executives, this article presents a typology of legal strategies available to U.S. companies in China, uniquely modeling these approaches along the two fundamental dimensions of legal strategy. Additionally, this article identifies two basic types of legal uncertainty in the cross-border context and offers guidelines for the exercise of legal entrepreneurship. Together, these arguments demonstrate that legal entrepreneurship is an empirically viable construct within the LAS project. In low rule of law jurisdictions that have embraced foreign enterprise, legal entrepreneurship will generally optimize the American company's pursuit of both legal value creation and legal risk management. |
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