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About Matthew Stephenson

Professor of Law, Harvard Law School

Should Governments Subsidize Corporate Compliance?

Several months ago I did a couple of posts (here and here) on the Transparency International USA report from a couple months back on verification of corporate anti-corruption compliance programs. That report also got me thinking about a more general question: Should governments provide a subsidy (perhaps in the form of a tax credit) for businesses — particularly small and medium-sized enterprises — to support spending on the design, evaluation, and testing of their anti-bribery compliance programs?

I haven’t yet come across anything that advocates for something like this, so let me make a tentative case for why it might be a good idea:

Continue reading

Guest Post: Evaluations Can Reduce Corruption Costs–If You Let Them!

Jesper Johnsøn, a Senior Adviser at the the U4 Anti-Corruption Resource Centre who leads the Centre’s “evaluation and measurement” theme, contributes the following guest post:

In development policy jargon, a “program evaluation” is a systematic and objective assessment of an ongoing or completed project or policy, including its design, implementation, and results. Very few aid agencies have incorporated corruption considerations into their standard program evaluations–despite the fact that these same agencies have focused heavily on corruption measurement (as a separate endeavor) since the mid-1990s. This is a mistake: A good evaluation should include consideration of corruption, given that program success can be threatened by waste, leakage, and outright theft of resources, and also that evaluations can be useful tools for corruption risk management, accountability, and learning about how to build better anticorruption mechanisms. Part of the explanation for the failure to integrate corruption considerations into program evaluation may be the difficulty of rigorously measuring corruption levels and impact, yet as I have argued elsewhere, this difficulty should not be used as an excuse for not evaluating anticorruption efforts systematically.

Aid organizations can and should incorporate corruption issues into their standard evaluation policies. But not all program evaluators are anticorruption experts, and so the anticorruption community needs to provide more guidance on how to integrate anticorruption analysis into program evaluation. This is one of the things we are trying to do at U4. Based on our work, and helpful discussions with other experts, here are some suggestions for how this can be achieved: Continue reading

Announcement: Upcoming Conference on Fighting Corruption in “Global Cities”

Though most academic and policy discussion about anticorruption tends to focus on national or international level initiatives, there have been a number of interesting developments in recent years at the sub-national level, particularly in large urban areas. Fortunately, the fight against corruption at the municipal level is finally getting some more attention. Those who are interested in this topic, particularly those in the New York City area, may be particularly interested in a conference next month, organized by the Center for the Advancement of Public Integrity (CAPI) at Columbia Law School, on “Global Cities: Joining Forces Against Corruption.”  The conference, which will feature a keynote address by Mexico City Mayor Miguel Angel Mancera and Athens Mayor Giorgos Kaminis, will (according to the official conference blurb) “bring together high-level integrity officials from cities worldwide to discuss the challenges of fighting municipal corruption, strategize, and share best practices.” The conference will be held from April 23-25 at Columbia Law School, and it is free and open to the public. You can find more information (and register online) here.

Why Do People Care So Much About the Proposed FCPA Compliance Defense?

A while back I posted a commentary on the proposal to add a so-called “compliance defense” to liability under the Foreign Corrupt Practices Act (FCPA). My basic take was that despite all the attention and controversy surrounding this proposal, in fact it would not make very much difference in practice. Without rehashing all the arguments in detail, my reasoning was basically as follows: First, corporate defendants (the only ones who would benefit from a compliance defense) are so reluctant even to be indicted—independent of the likely outcome if a case were actually to go to trial—that the addition of a formal compliance defense to liability would not significantly alter the bargaining game between the government and the corporate defendant. Second, the government already takes compliance efforts into account at several other stages in the process (and believes it is doing so appropriately), so the addition of the formal defense wouldn’t have much of an effect on the government’s position in settlement negotiations (which, as Jordan emphasized in a post from a few months ago, is really where all the action is).

I recently had an opportunity to discuss my hypothesis that the compliance defense wouldn’t actually matter much at a Duke Law School conference, where a bunch of white collar crime and FCPA experts who know much more about this subject than I do—including Duke Law Professor Sam Buell and Richmond Law Professor (and occasional GAB contributor) Andrew Spalding—pushed back against my argument. Among their many cogent criticisms, I wanted to address one in particular: If an FCPA compliance defense would make as little practical difference as I suggest, then why do the interested parties seem to care so much about it? Why (Professor Buell asks) have the Chamber of Commerce and the defense bar made this such a high priority on their FCPA reform agenda? And why (Professor Spalding asks) is the DOJ so dead set against it?

These are fair questions. I don’t have good answers, but in the interest of moving the conversation forward, let me suggest a few possibilities—and maybe folks out there in the blogosphere can react or offer their own explanations. Continue reading

“The Global Movement Against Transnational Corruption” — Panel Discussion at Columbia Law School

Last month, the Columbia University Center for the Advancement of Public Integrity (CAPI)–a relatively new research and center headed by the superb Jennifer Rogers and Gabriel Kuris–organized a panel on “The Global Movement Against Transnational Corruption,” in collaboration with the Columbia Society of International Law. GAB was well-represented, as both Rick and I were able to appear, along with the distinguished attorney Steven Michaels of Debevoise & Plimpton, on a panel moderated by David Hawkes from the World Bank’s Integrity Vice Presidency. For those who are interested, a video of the event is here. A quick guide to the prepared remarks:

  • Rick discusses the rarely-appreciated good news about the significant progress that has been made in the fight against transnational corruption (3:55-18:20 on the video).
  • Mr. Michaels discusses the existing legal architecture for addressing transnational bribery, along with trends in enforcement and corporate compliance (19:00-34:15).
  • I discuss legal tools that developed countries and international organizations can use for taking or encouraging more aggressive action against bribe-taking public officials (37:15-55:30).

I’m grateful to CAPI and the Columbia Society for International Law for organizing this event, and I hope some readers out there may find the video of the discussion interesting.

Can Universities Teach People Not To Be Corrupt? Reflections on the Poznan Declaration

Some months back, I came across the Poznan Declaration on “Whole-of-University Promotion of Social Capital, Health and Development,” which its proponents describe as “a formal statement aimed at mainstreaming ethics and anti-corruption in higher education.” (I’d meant to write about it earlier, but I got sidetracked by a relatively peripheral reference in the Declaration to changes in national corruption levels.) In general, I like the idea of promoting anticorruption norms through education, and as a university professor I’m naturally sympathetic to (and flattered by) the idea that university education could make a big difference here. And insofar as the main objective of the Poznan Declaration’s supporters is to promote more discussion among university faculty and administrators in different countries about these issues, I’m all for it.

Yet in reading the Declaration, I couldn’t help but feel a bit of nagging skepticism about some of the implicit premises behind the enterprise. Let me see if I can try to articulate some of the reasons, and perhaps invite some of the proponents of the Poznan Declaration, and the more general push to incorporate “anticorruption education” in the university curriculum, to respond. Continue reading

Anticorruption Bibliography–March 2015 Update

An updated version of my anticorruption bibliography is available from my faculty webpage.  A direct link to the pdf of the full bibliography is here, and a list of the new sources added in this update is here.  As always, I welcome suggestions for other sources that are not yet included, including any papers GAB readers have written.

There Is No “East Asian Paradox” of Corruption and Development

Imagine that you’re talking to a friend, and you mention that smoking shortens average life expectancy, and that smokers should therefore be encouraged to quit. Suppose your friend replies, “Well, but my uncle Fred smoked every day, and he lived into his 80s.” If your friend means this either (a) as a serious challenge to your empirical claim that smoking is bad for you, or (b) as a critique of your prescriptive argument that smokers should therefore be encouraged to quit, then you would probably find his response absurd on its face. And if your friend were to say that he has posed a serious conceptual conundrum—say he calls it the “Uncle Fred Paradox”—you would probably laugh at him. His argument might seem marginally less ridiculous if he pointed not to his Uncle Fred but to, say, France—which has relatively high smoking rates and relatively high life expectancy—but we probably still wouldn’t view this as a serious challenge to the view that smoking is bad for you, nor would we spend a lot of time wringing our hands worrying about the “France Paradox” in the smoking-health relationship.

Yet for some reason, in serious discussions about the relationship between corruption and economic development, people seem to make precisely this sort of specious argument, and the argument gets taken very seriously by people who should know better. The form the argument takes in this context goes something like this: “It may be true that high corruption seems to be correlated with lower levels of economic development on average. However, many countries in East and Southeast Asia—such as China, South Korea, Japan, Taiwan, Thailand, and Indonesia—either achieved or currently are achieving impressively rapid economic growth despite widespread corruption.” This is the so-called “East Asian Paradox” (a term coined, as far as I know, by Professor Andrew Wedeman — see also his recent book). The somewhat more sophisticated version of the argument, developed most prominently in an article by Professor Michael Rock and Heidi Bonnett, notes that although perceived corruption has a negative relationship with growth and investment in most countries (especially small developing countries), this relationship becomes positive in a subsample consisting of five large, newly-industrializing Asian countries (China, Indonesia, South Korea, Thailand, and Japan), using data drawn from the early 1980s through the mid-1990s.

One encounters more-or-less sophisticated versions of the “East Asian Paradox” argument all the time when talking about the adverse impact of corruption on development. When someone says something like, “Corruption is a major threat to economic development,” someone almost invariably responds with something like, “But what about China? It has achieved impressive economic growth despite widespread corruption.” As far as I’m concerned, this is equivalent to saying, “But what about my Uncle Fred, the lifelong smoker who lived into his 80s?” But in case this is not completely obvious, let me explain why I think the “East Asian Paradox” argument, at least in its usual crude form, is mostly bogus. Continue reading

The New Head of the DOJ’s Fraud Unit Advocated Gutting the FCPA: Shouldn’t We Be More Upset About That?

Two months ago, the U.S. Department of Justice announced that Andrew Weissmann would take over as chief of Fraud Section in the DOJ’s Criminal Division, a position that involves responsibility for, among other things, the DOJ’s enforcement of the Foreign Corrupt Practices Act (FCPA). Mr. Weissmann has had a distinguished professional career, with previous stints in private practice and in government, including prior positions as Special Counsel to the Director of the FBI, and as the director of the DOJ’s Enron Task Force. But for those of us who care about maintaining the US government’s aggressive enforcement of the FCPA and its leadership in the global fight against corruption, Mr. Weissmann’s appointment should be cause for concern. The reason? Mr. Weissmann was one of the principal authors of the U.S. Chamber of Commerce’s 2010 report, Restoring Balance: Proposed Amendments to the Foreign Corrupt Practices Act. That report is notable principally for three things: (1) its strident attack on aggressive FCPA enforcement, (2) its proposal of a series of amendments to the statute that would gut the FCPA, and (3) its misleading manipulation (and sometimes outright misrepresentation) of both facts and law in making its case.

Fortunately, Professor Dan Danielsen at Northeastern School of Law and my Harvard colleague Professor David Kennedy provided an exceptionally thorough take-down of the Chamber of Commerce’s arguments in a report for the Open Society Foundations (OSF), called Busting Bribery: Sustaining the Global Momentum of the Foreign Corrupt Practices Act. Aside from a few small (but admittedly important) errors, the OSF report provides a sufficiently thorough rebuttal that I won’t attempt to summarize it all here; rather, I urge readers to follow the links above. But let me just highlight a few aspects of Mr. Weissmann’s report for the Chamber of Commerce to explain why I think it deserves the harsh language I used. Continue reading

Guest Post: Targeted Sanctions and Corruption–Legal Obstacles to a Magnitsky Act for the EU

Anton Moiseienko, PhD candidate at the Criminal Justice Centre, Queen Mary University of London, contributes the following guest post:

So-called targeted sanctions—imposing travel restrictions on, or freezing the assets of, a select group of people—remain in vogue as an instrument of foreign policy and as a supplement to criminal justice in many areas, such as counterterrorism, and yet targeted sanctions have not been widely used in counteracting corruption. The United States, however, is a notable exception, with its Presidential Proclamation 7750, which authorizes the US Secretary of State to issue entry bans against corrupt foreign officials (subject to a caveat that such determinations must be informed by US national interests), and the Magnitsky Act of 2012, enacted by the US Congress in response to the death of Sergei Magnitsky, a Russian lawyer-turned-whistleblower, in a Moscow prison after he reported the embezzlement of US$230 million by high-ranked law enforcement officers. Strictly speaking, the Magnitsky Act is a human rights law rather than an anticorruption law. It authorizes the US President to blacklist (1) the individuals responsible for the prosecution and death of Mr. Magnitsky, and (2) those responsible for “gross violations of internationally recognized human rights” if committed against the persons trying to expose the illegal activity of Russian officials or against human rights activists. Yet pervasive corruption is at the heart of Magnitsky’s case, as it appears that a ring of corrupt officials was complicit in his death.

The European reaction to the Magnitsky Act was ambivalent. The OSCE Parliamentary Assembly adopted a non-binding resolution in 2012 calling upon member states to deny entry to, and freeze the assets of, the individuals on the US Magnitsky List––but to little effect. In contrast, a report by the Parliamentary Assembly of the Council of Europe (CoE) deemed US-style sanctions to be “a means of last resort” and advised against them. But despite the lack of governmental action, the public debate in Europe is not over (see, for example, here and here). With EU sanctions against Russia expanding continuously, it may be time to revisit the European debate on whether the EU should draw up its own Magnitsky List, or perhaps adopt a more general policy on targeted anticorruption sanctions.

If the EU or its individual member states proceed with Magnitsky List-style sanctions, they will have to reckon with their human rights laws—including the EU Charger of Fundamental Rights and the European Convention on Human Rights. The most important potential legal difficulties are as follows: Continue reading