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Foreign Corrupt Practices Act and The Elusive Question of Intent

NCJ Number
American Criminal Law Review Volume: 47 Issue: 4 Dated: Fall 2010 Pages: 1463-1489
Gregory M. Lipper
Date Published
27 pages
This study provides comprehensive analysis of the Foreign Corrupt Practices Act's (FCPA's) mens rea requirements.
Findings suggest that as FCPA prosecutions increase, questions surrounding the Act's mens rea requirements will proliferate. Courts are shortchanging the Act's willfulness requirement, and the actual application of the conscious avoidance standard continues to risk criminalizing negligence. Courts need to take more seriously both the textual and practical arguments for a heightened willfulness requirements that requires specific knowledge that the conduct, at minimum, violated U.S. law. Finally, courts must more aggressively restrict the introduction of generalized evidence that sounds more in due diligence than criminal knowledge. This study proceeds in three parts: part 1 sketches the FCPA's key criminal provisions, including its multiple layers of intent requirements; part 2 describes how courts have yet to meaningfully grapple with the textual and practical implications of the FCPA's requirement that individual criminal violations be committed willfully and therefore have yet to give sufficient effect to this provision; and part 3 explains that Congress's attempt to protect investors from negligence-based prosecutions risk falling short; whereas the legal standard of knowingly is sufficiently clear, courts must police the Government's evidence more rigorously to protect defendants from criminal responsibility for mere negligence.


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