Enthusiastic Enforcement, Informal Legislation: The Unruly Expansion of the Foreign Corrupt Practices Act
The Foreign Corrupt Practices Act (FCPA) was enacted
over thirty years ago to prohibit bribery of foreign officials
by U.S. persons. In the last few years, the Department of
Justice (DOJ) and the Securities and Exchange
Commission (SEC) have dramatically expanded the FCPA
through a surge in its enforcement. Responding to
complex developments in law, the global economy, and
agency politics, the DOJ and the SEC have brought ten
times as many cases as in prior years, and assessed
hundreds of millions of dollars in penalties. At the same
time, the substantive reach of the law has been extended
through the increased enforcement. Thus, ad hoc
enforcement actions, rather than legislation, regulation, or
judicial decision, have transformed the FCPA. In the
absence of formal process or reasoned articulation, the
scope of the law is currently unclear. Businesses have
little official guidance in designing effective compliance
programs and may be more likely to violate the FCPA.
Unruly enforcement, and the resulting lack of clarity
about what the FCPA requires, may compromise the law's
efficacy. Therefore the DOJ and the SEC should
encourage compliance by providing clear, general
guidance about the scope of the FCPA. The Article
concludes with specific questions about the FCPA that
such guidance should resolve.
Westbrook, Amy D.
"Enthusiastic Enforcement, Informal Legislation: The Unruly Expansion of the Foreign Corrupt Practices Act,"
Georgia Law Review: Vol. 45:
2, Article 4.
Available at: https://digitalcommons.law.uga.edu/glr/vol45/iss2/4