Note
An Empirical Analysis of the Foreign Corrupt Practices Act
This Note undertakes an empirical analysis of the effects of the Foreign Corrupt Practices Act on corruption and U.S. investment abroad. It also examines macroeconomic variables to analyze the law’s distributional effects across countries. To date, no quantitative research has been conducted on the effect of the FCPA in combatting corruption. Using multiple linear regression models, this Note uses a dataset comprised of up to 118 countries and focuses on the 2000 to 2011 time period. The results of this research find a negative correlation between the growth rate of perceptions of corruption and the incidence of prosecuted FCPA violations in a given country. This finding may provide some support for, and is at least consistent with, the idea that the FCPA has been effective in reducing corruption. The data, however, do not show a significant relationship between the growth of U.S. investment and the frequency of FCPA violations. Therefore, the empirical results of this Note do not appear to provide support for the idea that the FCPA has been an impediment to U.S. investment abroad. Finally, the results also find that firms operating in overseas markets with certain characteristics are more exposed to FCPA enforcement actions than others. Even after controlling for initial levels of corruption and U.S. investment, violations are more likely to occur in fuel-exporting economies, manufacturing economies, and economies with relatively small governments. This insight is useful for firms in creating risk-based compliance programs.
Malicious Prosecution Claims in Section 1983 Lawsuits
There is little certainty among the federal courts as to how the tort of malicious prosecution and 42 U.S.C. § 1983 interact. In Albright v. Oliver, the Supreme Court suggested that the Fourth Amendment was the proper vehicle for analyzing malicious prosecution claims in Section 1983 actions. But the continuing confusion among the lower courts is some evidence that the Court’s answer was unsatisfactory. This Note hopes to provide some clarity to this muddied area of the law and explain why the Court’s decision in Albright was wrong. Part I surveys the history of malicious prosecution and Section 1983, as well as the Supreme Court’s opinion in Albright and the subsequent circuit split among the Courts of Appeals. Part II then proceeds to explain why the Court’s decision to use the Fourth Amendment to incorporate malicious prosecution made little sense, and why the Fifth and Fourteenth Amendments provide better alternatives. It also examines the implications of using the different amendments, and whether it matters if these questions are resolved by federal courts. Finally, Part III analyzes two distinct claims made in the literature which rest on the premise that Albright was correct, and explains why there are critical flaws in each of these arguments.