Fla. L. Rev. Forum

Andy Spalding
On Maximizing Deterrence Per Dollar
Response to Peter R. Reilly, Incentivizing Corporate America to Eradicate Transnational Bribery Worldwide: Federal Transparency and Voluntary Disclosure Under the Foreign Corrupt Practices Act

Professor Peter Reilly argues that the government “must provide greater transparency regarding specific and calculable benefits that can be achieved through self-reporting and cooperation” in FCPA settlements. And indeed, it may be powerful evidence of his argument’s force that very recently, the government has taken measures to do that very thing. Put another way, Professor Reilly’s is an idea whose time has come. This Essay provides both background and foreground to Professor Reilly’s article. It first explains the role of self-reporting and cooperation in anti-bribery enforcement, suggesting that the government is essentially seeking to adjust both the numerator and denominator of a ratio that might be called Deterrence Per Dollar. This Essay will then describe and endorse Professor Reilly’s critique of FCPA enforcement, and show how the government seems to have recently responded to that critique with a flurry of important reforms. Finally, I briefly discuss the prospects of adopting additional reforms, and conclude by sounding a hopeful note that these would likewise command Professor Reilly’s support. Read more.