Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure under the Foreign Corrupt Practices Act

In 1977, the U.S. Securities and Exchange Commission (SEC) discovered that hundreds of U.S. companies had spent hundreds of millions of dollars in bribes to improve business overseas. In response, Congress passed the Foreign Corrupt Practices Act (FCPA), thereby making it illegal to bribe foreign officials to obtain a business advantage. A major tension has emerged between the federal agencies charged with enforcing the FCPA (i.e., the U.S. Department of Justice (DOJ) and the SEC), and the corporate entities trying to stay within the legal and regulatory bounds of the statute. Specifically, while the government appears to be trying to maximize discretion and flexibility in carrying out its enforcement duties, companies are calling for more transparency and guidance. Unfortunately, the government\u27s FCPA Resource Guide, published in 2012 to provide the public with more direction, fails to shed enough light on how to successfully conform to this complicated statute. This Article focuses on the difficult and strategic decision of whether a company should self-report to the government a potential FCPA violation. After reviewing the advantages and disadvantages of self-reporting, this Article argues that the government needs to be more transparent and forthcoming regarding the potential benefits of doing so; it argues that the government must provide greater transparency regarding specific and calculable benefits that can be achieved through self-reporting and cooperation in the face of possible FCPA violations. Finally, this Article concludes that companies will be more likely to self-report such violations- and thereby assist in eradicating the scourge of transnational bribery worldwide-only if there is more certainty that the benefits achieved from self-reporting will outweigh the risks and costs involved

Border Carbon Adjustments and the Potential for Protectionism

Balancing legitimate fears that carbon leakage could undermine the impact of any global climate change agreement are countervailing fears that leakage will be the excuse for protectionism in the guise of “Border Carbon Adjustments”. This would have dangers for the world trading system, risking disputes due to ambiguities in the details of WTO rules over what types of border measures are potentially and actually admissible. Even with good quality data, there is considerable potential for judgemental discretion, and hence opportunistic manipulation, in estimating the carbon charges to levy on an imported product. This is even with agreement on whether to use importer or exporter coefficients. A clear distinction needs to be made between environmental and competitiveness motives for border adjustments. The key argument is that the traditional symmetry between origin based taxes (production) and other charges and those based on the destination (consumption) principle breaks down in the case of carbon charges. This paper explores the potential for regional agreements to ensure origin as the basis for carbon levies in the aftermath of the Copenhagen Accord, while recognising the challenges that this poses for the mutual recognition of emissions regimes in particular.Competitiveness, carbon leakage, cap-and-trade (C&T), trade policy, WTO and regionalism.

Resistance Is Not Futile: Harnessing the Power of Counter-Offensive Tactics in Legal Persuasion

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of academic writing on negotiation has ignored the element of interpersonal influence. This Article was written to help correct this glaring omission.This Article underscores the notion that throughout each day, people move rapidly and fluently between the roles of persuasion “agent” (that is, one who attempts to persuade others) and persuasion “target” (that is, one whom others attempt to persuade). If an agent” party is attempting to persuade, the receiving or “target” party must understand the various tactics, strategies, and techniques being employed in those attempts, as well as ways to resist and defend against them. This Article provides this knowledge and understanding so that all parties, whether agents or targets, can be more effective negotiators. Those who are not aware that these techniques exist and who cannot recognize them and resist them place themselves (and their clients) at a clear disadvantage with respect to negotiation outcomes and final settlement results. It is only by recognizing and responding to various strategies and techniques of influence and persuasion that negotiators can begin to resist their powers and nullify their impacts

Corporate Deferred Prosecution as Discretionary Injustice

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate court ruling is that if the law surrounding corporate DPAs is permitted to develop on its current course, federal prosecutors will continue to use these agreements in a discretionary manner that both subordinates public interest and undermines separation of power principles

Was Machiavelli Right? Lying in Negotiation and the Art of Defensive Self-Help

The majority of law review articles addressing lying and deception in negotiation have argued, in one form or another, that liars and deceivers could be successfully reined in and controlled if only the applicable ethics rules were strengthened, and if corresponding enforcement powers were sufficiently beefed up and effectively executed. This article takes a different approach, arguing that the applicable ethics rules will likely never be strengthened, and, furthermore, that even if they were, they would be difficult to enforce in any meaningful way, at least in the context of negotiation. The article concludes that lawyers, businesspeople, and everyone else who engages in negotiation should learn how to carefully and purposefully implement mindsets, strategies, and tactics to defend themselves against others who lie and deceive. The article sets forth those defensive devices and offers prescriptive advice for minimizing one\u27s risk of being exploited in a negotiation should other parties lie

Corporate Deferred Prosecution as Discretionary Injustice

A recent federal appellate court ruling of first impression permits the resolution of allegations of serious corporate criminal wrongdoing by way of an Alternative Dispute Resolution mechanism called Deferred Prosecution, without appropriate judicial review. This Article describes why this ruling is ill-advised, and suggests how other courts might address these same legal issues while arriving at different conclusions. This Article argues that if federal prosecutors are going to continue using Deferred Prosecution Agreements (“DPAs”) in addressing allegations of corporate criminal misconduct, then that discretionary power must be confined and checked through meaningful judicial review. The overriding concern with the appellate court ruling is that if the law surrounding corporate DPAs is permitted to develop on its current course, federal prosecutors will continue to use these agreements in a discretionary manner that both subordinates public interest and undermines separation of power principles

Sweetheart Deals, Deferred Prosecution, and Making a Mockery of the Criminal Justice System: U.S. Corporate DPAs Rejected on Many Fronts

Corporate Deferred Prosecution Agreements (DPAs) are contracts negotiated between the federal government and defendants to address allegations of corporate misconduct without going to trial. The agreements are hailed as a model of speedy and efficient law enforcement, but also derided as making a “mockery” of America’s criminal justice system stemming from lenient deals being offered to some defendants. This Article questions why corporate DPAs are not given meaningful judicial review when such protection is required for other alternative dispute resolution (ADR) tools, including plea bargains, settlement agreements, and consent decrees. The Article also analyzes several cases in which federal district courts express misgivings about having to approve, in accordance with recent appellate court rulings, DPAs they would otherwise have likely rejected for being overly lenient. Finally, the Article describes how several foreign countries have turned away from using U.S.-style corporate DPAs in favor of fashioning their own programs with mechanisms to ensure effective transparency, judicial oversight, and public interest accountability. The Article tracks the myriad ways in which critical rule-of-law elements have been integrated into these burgeoning corporate DPA programs worldwide, thereby providing models of how the United States and other countries can work to ensure their own programs conform with rule-of-law and separation-of-power principles

Justice Deferred is Justice Denied: We Must End Our Failed Experiment in Deferring Corporate Criminal Prosecutions

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.” However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth the argument that this alternative dispute resolution vehicle makes a mockery of the criminal justice system by serving as a disturbing wellspring of unfairness, double standards, and potential abuse of power. The article concludes by recommending that Congress pass legislation to halt DOJ’s ability to use deferred prosecution agreements in the context of corporate criminal law enforcement. The article suggests that if this goal cannot be realized, these agreements will continue to greatly compromise the pursuit of justice, consistency in the rule of law, and basic notions of fairness

Resistance Is Not Futile:Harnessing the Power of Counter-Offensive Tactics in Legal Persuasion

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of academic writing on negotiation has ignored the element of interpersonal influence. This Article was written to help correct this glaring omission.This Article underscores the notion that throughout each day, people move rapidly and fluently between the roles of persuasion “agent” (that is, one who attempts to persuade others) and persuasion “target” (that is, one whom others attempt to persuade). If an “agent” party is attempting to persuade, the receiving or “target” party must understand the various tactics, strategies, and techniques being employed in those attempts, as well as ways to resist and defend against them. This Article provides this knowledge and understanding so that all parties, whether agents or targets, can be more effective negotiators. Those who are not aware that these techniques exist and who cannot recognize them and resist them place themselves (and their clients) at a clear disadvantage with respect to negotiation outcomes and final settlement results. It is only by recognizing and responding to various strategies and techniques of influence and persuasion that negotiators can begin to resist their powers and nullify their impacts