Kyle Sheahen (University of California, Los Angeles (UCLA) – School of Law) has posted I'm Not Going to Disneyland: Illusory Affirmative Defenses Under the Foreign Corrupt Practices Act (Wisconsin International Law Journal, Forthcoming) on SSRN. Here is the abstract:
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This article analyzes the two affirmative defenses provided by the Foreign Corrupt Practices Act (FCPA) and argues that the defenses are virtually useless in practice. Recent restrictive judicial interpretation, developing international business customs and the statutory language itself have rendered the defenses – the local law defense and the promotional expenses defense – meaningless for FCPA defendants at trial. This article describes the problems with the defenses and suggests that Congress modify existing law to allow for greater fairness in FCPA prosecutions.