Pathways of Legal Strategy

Abstract

Strategy is a hot topic. Entire journals are dedicated to publishing business strategy articles and the study of it comprises a major subfield in the management discipline. Almost every source of competitive advantage imaginable – marketing resources, organizational capital, financial planning, company culture, information technology, and many others – has been examined except law. This is likely because most strategists are not legally trained and most lawyers graduate without a single course in business strategy. Thus a discipline that attracts the focus of almost half of key Wall Street Journal articles and consumes up to a quarter of executives’ available time remains unaddressed.

A vast gap lies between law and strategy, and this article presents a first and modest effort to bridge the disciplinary divide. This article proposes that there are five pathways that firms pursue when interacting with their legal environment. Some firms treat laws as just a nuisance to be ignored. Others implement prevention programs to avoid litigation. Only a few firms apply a genuine legal strategy to capture value in the marketplace. This article shows the benefits and costs of each pathway through the lenses of fit (consistency with internal resources), strategy (consistency with external environment), and sustainability (defensibility against competing rivals). This article offers research opportunities to further the embryonic study of law and strategy and concludes with recommendations.

Keywords: legal strategy, competitive advantage