Accordingly, Part I explains deterrence theory, its grounding in the methodology of law and economics, and its status as the dominant contemporary theory of criminal punishment. It then proposes using anti-bribery law, particularly the U.S. Foreign Corrupt Practices Act, as a kind of case study in federal extraterritorial deterrence, and explains why the FCPA serves this purpose well. Using empirical evidence on the FCPA’s impact overseas, Part II builds a model to show why deterrence will tend to fail more generally in extraterritorial white-collar enforcement. It explains the unique conditions of international business and illustrates how these conditions will often produce an increase, rather than a decrease, in overseas crime. Part III then shows restorative justice to be a superior, if counterintuitive, paradigm for extraterritorial white-collar enforcement. It develops a new sentencing procedure that would promote the interests of the federal enforcement agencies, help the overseas victims of corporate crime, and requires no new legal authorization to implement.
Restorative justice for multinational corporations
from the article by Andrew Brady Spalding:
...This Article provides that theory. Quite ironically, it is restorative justice: an approach to criminal punishment whereby the victims, community, and perpetrator all participate in diagnosing the causes of the criminal act, determining the appropriate punishment, and seeking the defendant’s reintegration into the very community whose norms it once violated. And to those who may retort that restorative justice does not and could not apply to large-scale corporate crime, my answer may be surprising: it already does. The Organizational section of the U.S. Sentencing Guidelines authorizes, if not encourages, sentencing procedures founded on restorative justice principles. Moreover, federal sentencing practices do now, and have for several decades, applied those principles to a specific area of federal white-collar enforcement: domestic environmental law. The only remaining task is to adapt this practice to extraterritorial white-collar enforcement.