Today’s post is a book review by Professor Peter Reilly (Texas A&M University School of Law and author of several FCPA articles) of my book “The Foreign Corrupt Practices Act In A New Era.” The review originally appeared in a recent volume of International Trade Law and Regulation.
The Foreign Corrupt Practices Act in a New Era, by law professor Mike Koehler, provides a fascinating and thorough analysis of the Foreign Corrupt Practices Act (“FCPA”). But the book does far more than that; this volume attempts to educate readers in such a manner that they understand not only the motivation and thought processes behind the initial passage of the Act, but also the ongoing policy debates surrounding this important and controversial piece of legislation.
While some books on the FCPA appear to target a particular audience, such as academics for example, this volume will prove useful to anyone, in whatever field, who wants to thoroughly understand the past, present, and future of the FCPA, whether that person is engaged in business, law, government, academia, public policy, or any other pursuit or profession.
Professor Koehler’s insightful presentation and analysis of material on the FCPA likely comes from his unique background in the field. Prior to academia, Koehler was an FCPA attorney in private practice where he advised clients on FCPA compliance matters, conducted FCPA investigations around the globe, and negotiated resolutions to FCPA enforcement actions with government agencies including the U.S. Department of Justice and the U.S. Securities and Exchange Commission. Professor Koehler explains how his work in private practice led to an intense interest in “asking the why questions” regarding the FCPA and “injecting a candid and informed scholarly voice into the issues.”
This, in turn, led to a career in academia with a near-singular focus on mastering the complex and fascinating topics surrounding the FCPA and other anti-corruption laws and initiatives. In this capacity, Koehler has testified before the U.S. Congress on the FCPA, published articles on the topic in leading law reviews and journals, been cited in legal briefs, judicial decisions, policy papers, and Congressional testimony, and been a featured source in various national and international media. In short, Professor Koehler has become one of the most knowledgeable and influential thinkers in the field, both domestically and internationally, and this volume represents the fruit of a number of years of thoughtful research, writing, and teaching on the subject.
The depth and breadth of material covered in the book is ambitious, including the FCPA’s legislative history; enforcement agency policies and practices, including various alternative dispute resolution vehicles commonly used by enforcement agencies; FCPA legal authority, as well as administrative and other sources of guidance concerning the law; the FCPA’s anti-bribery provisions, as well as its books and records and internal controls provisions; reasons for the increase in FCPA enforcement during the past decade; compliance and best practices information; and suggested FCPA reform measures.
At the beginning of the book, Professor Koehler sets forth numerous questions, many of which could take an entire law review article to answer. These questions include: (1) Who decides what bribery is? (2) Are business organizations that are subject to FCPA scrutiny ‘bad’ or ‘unethical’? (3) Is it still ‘bribery’ if the conduct in question was supported by the highest levels of the U.S. government? (4) If bribery is ‘bad,’ does that mean that all attempts to punish bribery and deter future misconduct are ‘good’? (5) Why has FCPA enforcement increased to the point that it is now a top legal and compliance concern for companies doing business in the global marketplace? (6) Has the quantity of FCPA enforcement actions become a higher priority for enforcement agencies than the quality of those actions? (7) Why does FCPA compliance remain difficult for even the most well-managed and well-intentioned companies? (8) Has this ‘new era’ of FCPA enforcement actually resulted in wasteful over compliance, with companies viewing every foreign business partner with irrational suspicion? (9) Is this ‘new era’ of FCPA enforcement—along with the ‘thriving and lucrative anti-bribery complex’ that has emerged simultaneously—desirable from a legal or policy perspective? (10) Has this ‘new era’ of FCPA enforcement been successful in actually reducing bribery? And if not, could the FCPA be amended, or could certain enforcement agency policies and procedures be revised, in order to better achieve the original aims of the FCPA?
The book addresses the issues surrounding these questions at a surprisingly detailed and in-depth level, especially with respect to those questions requiring answers that are more subtle and complex in nature. The fact is there can be strong disagreement regarding the answers to many of these questions. One of the more interesting aspects of studying the FCPA is to consider how much a person’s political or economic interests can influence his or her reasoning in answering the various questions posed by Koehler. The key is that Professor Koehler, ever the law school teacher who is more fond of questioning, probing, and analyzing an issue than of trying to force feed his own conclusions in the matter, concentrates on building knowledge and skill-level within readers so they themselves can successfully grapple with the questions presented in the book, as well as their own questions involving the FCPA.
Specifically, Professor Koehler relies on numerous vehicles and texts to build what he calls “FCPA goggles” for readers, enabling them to understand the FCPA to the extent necessary to make their own assessments of the strengths and weaknesses of the law, and to be able to pinpoint areas where the FCPA might be changed for improvement. Readers are introduced to the FCPA’s statutory text, legislative history, judicial decisions, enforcement agency guidance, and various enforcement actions. Koehler believes that analyzing these various authorities, and figuring out their impact upon how the FCPA is understood and enforced, are key aspects of providing readers with the knowledge they need to continue their own questioning, probing, and analyzing of this controversial law. As Professor Koehler says to the reader, “[W]ith your FCPA goggles you now have a sharper focus to critically analyze various aspects of this new era, including whether the current FCPA and its enforcement best advance the laudable objectives of the FCPA.”
It is these ‘FCPA goggles’ that allow readers to judge the two suggestions for reform put forth by Professor Koehler toward the end of the volume: a compliance defense, as well as the abolition of Non-Prosecution and Deferred Prosecution Agreements (NPAs and DPAs) within the context of FCPA enforcement. I will leave it to readers of the book to determine for themselves, through their own ‘FCPA goggles,’ whether Koehler has made a strong case for either suggested reform measure. I will say, however, that Professor Koehler seems to be aware that he has well-equipped readers to subject his ideas to deep and knowledgeable scrutiny based upon what he has taught them to that point in the book. With that in mind, Koehler has to carefully explain why, for example, a compliance defense is neither a new nor novel idea; how in some respects the Department of Justice already recognizes a ‘de facto’ compliance defense; how numerous former high-ranking government officials support such a defense; and which important policy objectives would be advanced through an FCPA compliance defense. Koehler builds and bolsters his argument by relying upon various testimony and legal and policy authority. It almost feels like an academic ‘capstone’ exercise for the book, where the Professor puts forth his arguments and then turns to the reader/student and asks, “Have I done what I set out to do in this project? Are you now able to thoroughly question, analyze, and criticize my arguments based upon what you have learned through this book?”
The answer is unequivocally yes; and the contribution this new volume makes to the field is unequivocally substantial.
For additional reviews of the book, see here.