An Informed Analysis of U.S. Supreme Court Usages of 'Entrepreneur': Meaning and Characterization Toward a Theory of Entrepreneurship Law
Emile Loza de Siles
Technology Law Group
September 18, 2010
Although other academies have studied entrepreneurship for some thirty years, legal scholarship on the subject is zygotic. Few inquiries, however, are more compellingly needed to illuminate domestic efforts directed toward economic recovery and growth, innovation acceleration, equal opportunities for women and minorities, and national security and toward international efforts to foster and sustain rule of law, security, gender equality, economic transition and recovery, and climate change-related innovation initiatives.
To-date, legal scholars have ignored entrepreneurship or treated it only as a context for small business practice or skills training. No unified theory exists as to what or who an entrepreneur is, rendering comparative, empirical, and interdisciplinary analyses impossible. Rather, the term “entrepreneur” is used with great variability and ensuing confusion. This definitional dissonance undermines the efficiency and effectiveness of economic initiatives, institutional and corporate innovation programs, law and policy developments, and legal practice and education.
Toward a proposed theory of entrepreneurship law, the author examines the Supreme Court’s usage of “entrepreneur” throughout its history and through February 2010. The Court has used “entrepreneur” in eighty-five (85) decisions to which the author applies five (5) relevance filters to arrive at an analysis set of fifty (50) cases. She then classifies these cases based upon whether the Court used value-neutral descriptive language to refer to entrepreneurs or language indicating value judgments by the Court to label entrepreneurs as “good” or “bad” or a combination of any of the foregoing. Loza analyzes each usage of “entrepreneur” in detail, identifying descriptive language, value judgments, and public policy objectives recognized in statutory or regulatory language or affixed by the Court as to “entrepreneur” and informing this examination with observations from practice.
The author then distills, compiles, and elaborates upon some twenty (~20) attributes of entrepreneurs. These attributes include, for example, actor type and status as market competitors; operational descriptors, such as profit-seeking and employer status; a variety in intrinsic drivers motivating entrepreneurship; creativity and innovativeness; independence and control; risk-taking; opportunism; and market pricing and other indicia of entrepreneurs’ essential functions within free markets.
Loza closes with suggestions for future legal inquiry including her work toward a proposed theory of entrepreneurship law.
Keywords: innovation, technology, entrepreneur, entrepreneurship, intellectual property, antitrust, labor, union, economic development, female entrepreneur, minority entrepreneur, patent license
JEL Classification: O3, M13, K00, K2, K31, K1, L1, L5, O31, O34working papers series
Date posted: July 2, 2010 ; Last revised: January 3, 2011
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