Article

Enforcing the FCPA: International Resonance and Domestic Strategy

The Foreign Corrupt Practices Act (“FCPA”), which bans corporations from offering bribes to foreign government officials, was enacted during the Watergate era’s crackdown on political corruption but remained only weakly enforced for its first two decades. American industry argued that the law created an uneven playing field in global commerce, which made robust enforcement politically unpopular. This Article documents how the executive branch strategically under-enforced the FCPA, while Congress and the President pushed for an international agreement that would bind other countries to rules similar to those of the United States. The Article establishes that U.S. officials ramped up enforcement only after the United States successfully concluded the Organisation for Economic Co-operation and Development (“OECD”) Anti-Bribery Convention in 1997, twenty years after the enactment of the FCPA. Afterward, U.S. officials, desiring to maintain industry support for the FCPA, prosecuted both foreign and domestic corporations, thereby minimizing the statute’s competitive costs for American companies.

This Article argues that the OECD Convention was critical to the dramatic expansion of FCPA enforcement because it allowed American prosecutors to adopt an “international-competition neutral” enforcement strategy, investigating domestic corporations and their foreign rivals alike. The existence of the treaty was decisive because it established anti-bribery as a binding legal principle and legitimized U.S. prosecutions of foreign corporations. Today, seven of the ten highest FCPA penalties have been against foreign corporations.

This Article advocates, on a theoretical level, for a reevaluation of the multidirectional relationship between international and domestic law in transnational issue areas, such as foreign bribery. National laws are most often viewed as self-contained legal rules that develop or decline based on domestic officials’ policy decisions. The evolution of the FCPA, however, demonstrates that some statutes may require “international resonance” to be meaningfully enforced: a domestic statute can create pressure for national leaders to conclude an international agreement, and then that agreement provides the means for the national law to develop into a robust national policy. As this Article establishes, the OECD Convention owed its existence to the FCPA and, in turn, the FCPA owes much of its development and strength to the OECD Convention. A greater appreciation for international resonance’s feedback mechanisms is essential to understanding national enforcement of a wide range of transnational commercial, financial, and environmental statutes.

Legislative Underwrites

This Article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions when they disagree with judicial rulings and doctrine, they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites, which reflect more collaborative dimensions of interbranch interaction. This Article begins to fill that void, and in so doing, frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, this Article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels.

Justice, Interrupted: The Effect of Gender, Ideology, and Seniority at Supreme Court Oral Arguments

Oral arguments at the U.S. Supreme Court are important—they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the Justices of the highest court. This Article studies how the Justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but also because, as we show, conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female Justices learning over time how to behave more like male Justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men.

We use two separate databases to examine how robust these findings are: a publicly available database of Roberts Court oral arguments, and another that we created, providing in-depth analysis of the 1990, 2002, and 2015 Terms. This latter data allows us to see whether the same patterns held when there were one, two, and three female Justices on the Court, respectively. These two sets of analyses allow us to show that the effects of gender, ideology, and seniority on interruptions have occurred fairly consistently over time. It also reveals that the increase in interruptions over time is not a product of Justice Scalia’s particularly disruptive style, as some have theorized, nor of the political polarization in the country generally arising from the 1994 Republican Revolution. We also find some evidence that judicial divisions based on legal methodology, as well as ideology, lead to greater interruptions.

©Virginia Law Review Association. All rights reserved.