Retheorizing Corporate Compliance
This Article proposes a fundamental shift in how corporate law and governance scholars approach corporate compliance, the set of internal processes used by firms to adapt their behavior to legal and ethical norms. Traditionally, compliance has been viewed narrowly through a legal liability avoidance frame, whereby compliance investments are evaluated primarily by projected cost savings to the firm through lessened legal risk. This defensive theorization of compliance has stifled academic exploration and practical application, resulting in the compliance field’s anemic standing. Drawing on institutional law and economics, namely the concept of nonmarket strategies, this Article retheorizes compliance as a proactive offensive vehicle — one that is integral to gaining market share in competitive environments. This novel approach to compliance identifies three key nonmarket strategies — adaptive, additive, and transformative — and demonstrates how compliance can effectively embody each through real world examples. Understanding compliance and broader notions of corporate governance in this way creates new avenues for compliance and law and economics scholarship, advancing both literatures. Companies, business leaders, and corporate stakeholders also gain from this retheorization, allowing them to move beyond mere legal liability risk avoidance and embrace the full potential of compliance as offensive strategy.