Features - Fighting Corporate and Government Wrongdoing: A Research Guide to International and U.S. Federal Laws on White-Collar

Kumar Percy is the Head of Faculty Services for the Jamail Center for Legal Research, Tarlton Law Library, of The University of Texas at Austin School of Law. Mr. Percy received both his B.S. and J.D. with honors from Tulane Law School, New Orleans, and his M.L.I.S. at San Jose State University. Before joining the Tarlton Law Library he practiced law in San Francisco. He is a member of the State Bar of California.

Table of Contents
Introduction
I. Selected White-Collar Crime and Anti-Corruption Laws
A. Selected International Treaties and Other Agreements
    1. Regional and Non-Governmental Agreements
    2. United Nations Treaty and Declarations
          B. Selected Federal Substantive Crimes
    1. Selected Federal White-Collar Crimes with International Scope
    2. Selected Domestic Federal White-Collar Crimes
II. Selected Research Sources
A. Websites
    1. International Websites
    2. U.S.-Focused Websites
B. Research Texts
C. Selected Policy Publications
D. Selected Recent Journal Articles
1. Selected Journal Articles Regarding International Anti-Corruption Efforts
2. Selected Journal Articles Regarding U.S. White-Collar Criminal Law

Introduction

Corporate and government corruption is the largest financial story of the year. Federal prosecutors are currently investigating Enron officials and Arthur Andersen accountants for white-collar crimes such as fraud, misrepresentation and obstruction of justice. There are also reports that corruption is the root cause of the economic collapse in Argentina and financial problems of countries throughout the world. Corruption is in the thoughts of everyone who has a retirement fund which holds stocks.

The term "white-collar crime" refers to the corrupt business practices of individuals in powerful positions, especially corporate leaders and government officials. Edwin Sutherland first coined the phrase during the 1939 annual meeting of the American Sociological Society.2  He argued that corporate and governmental officials regularly commit crimes that are as destructive to society as those of violent blue-collar criminals. This same concept is the root of federal white-collar crimes, as well as international anti-corruption initiatives.

This bibliography will introduce the major sources of information about white-collar crimes and anti-corruption efforts. Section I will discuss international conventions to fight corruption and selected federal white-collar crimes. Section II will discuss online and print resources for information about corruption and white-collar crime.

I. Selected White-Collar Crime and Anti-Corruption Laws

A. Selected International Treaties and Other Agreements

1. Regional and Non-Governmental Agreements

The Convention calls for European states to create a common criminal policy against corruption. In that effort the convention created the Group of States Against Corruption (GRECO), which coordinates efforts to fight corruption.

The convention requires that nations create criminal laws against bribery in transnational business transactions.

The convention creates provisions to improve judicial cooperation between the 15 EU member states in the fight against corruption.

For more information about this convention see the "Explanatory Report on the Convention on the Fight Against Corruption Involving Officials of the European Communities or Officials of Member States of the European Union," Council Report 98/C 391/01, 1998 O.J. C 391, 1, also available at http://europa.eu.int/eur-lex/pri/en/oj/dat/1998/c_391/c_39119981215en00010012.pdf.

The treaty is designed to promote mechanisms that will stop corruption in each country that is a party to the agreement.

The International Chamber of Commerce proposes norms of business conduct that would help eliminate extortion, bribery and other acts of corporate corruption. The ICC also recommended national laws that will curb political and corporate corruption.

2. United Nations Treaty and Declarations

  • United Nations Convention Against Transnational Organized Crime, Doc. A/55/383, New York Nov. 15, 2000 (not yet in force) (temporarily available at http://untreaty.un.org/English/notpubl/18-12E.htm) The United States signed the convention on December 13, 2000 but has not ratified the convention.

The treaty will create provisions against money laundering, corruption, obstruction of justice, and other organized crimes.

  • Measures Against Corrupt Practices of Transnational and Other Corporations, Their Intermediaries and Others Involved, G.A. Res. 3514, U.N. GAOR, 30th Sess., Supp. No. 34, at 69, U.N. Doc. A/10034 (1976) (Resolution of the United Nations).

The United Nations requests that all member states work to end transnational acts of bribery.

  • Declaration Against Corruption and Bribery in International Commercial Transactions, G.A. Res. 51/191, U.N. GAOR, 51st Sess., Annex, Agenda Item 12, para. 2, U.N. Doc. A/RES/51/191 (1997) (also available at http://www.un.org/documents/ga/res/51/a51r191.htm) (Declaration of the United Nations).

The Declaration proclaims that member states should take actions to end corruption in international commercial transactions. The provisions of the declarations specifically address bribery and related illicit practices.

  • Action Against Corruption and Bribery in International Commercial Transactions, G.A. Res. 53/176, U.N. GAOR, 53d Sess., 91st plen. mtg, para. 4, U.N. Doc. A/RES/53/176 para. 4 (1999) (also available at http://www.un.org/documents/ga/res/53/a53r176.pdf) (Resolution of the United Nations).

The General Assembly recognizes the ongoing international efforts to fight corruption and requests that the United Nations and its organs work to end worldwide corruption.

B. Selected Federal Substantive Crimes

1. Selected Federal White-Collar Crimes with International Scope

The law authorizes prosecution of bribery and other white-collar crimes committed by U.S. corporations while acting outside of the U.S.

This act implements the provisions of the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions. The act creates criminal penalties for American corporations that bribe foreign public officials in an effort to gain business advantages outside of the U.S.

The act creates systems for the United States to promote good government and help other countries fight corruption. The act requires the U. S. State Department to annually report on anti-corruption activities.

The Travelers Act was one of the first statutes created to fight organized crime. It is a crime to use the mail or any other facility of interstate or foreign commerce with intent to promote, direct or manage an illegal business.

2. Selected Domestic Federal White-Collar Crimes

  • New -- The Sarbanes-Oxley Act of 2002 (Public Law 107-204)

    The act primarily addresses securities fraud. It increases the enforcement power of the Securities and Exchange Commission and enhances criminal penalties for securities fraud, and mail and wire fraud. Corporate executives and auditors now face imprisonment for knowingly submitting false financial reports, altering or destroying company records or failing to maintain audit paperwork.

    The act also creates conflict of interest and self-dealing provisions. Under the act it is unlawful for a public accounting firm to audit a publicly-traded company while providing the same company with non-audit services such as bookkeeping, legal or management consultation. The act also includes provisions that make it unlawful for a publicly traded company to give personal loans to its officers or directors.

    Additionally, the act establishes the Public Company Accounting Oversight Board. The Board shall establish fair procedures to investigate and discipline public accounting firms and accountants.

Under U.S. antitrust law it is a crime to monopolize trade, otherwise restrain trade, or to conspire to restrain trade.

Bankruptcy statutes include criminal penalties for fraud and other misconduct. It is a crime to fraudulently conceal assets from the bankruptcy custodian, to make a false oath or account as part of the bankruptcy, or to influence or intimidate the officers in the bankruptcy proceedings. It is also illegal for the custodian to embezzle assets, or purchase assets of the estate.

Federal banking laws create criminal penalties for fraudulent acts by bank officials and customers alike. It is illegal for a bank official to embezzle or misapply bank funds. It is a crime to make false statements as part of an effort to acquire a loan or other extension of credit. It is a crime for a financial institution to make a false entry into bank records. It is a criminal offense to commit fraud against a federally insured financial institution.

In order to better control white-collar and other types of organized crime, this act requires that financial institutions report large cash financial transactions. It is a crime to willfully fail to report the transaction or to attempt to cause an institution to not report a transaction.

Bribery involves offering, promising, or giving something of value corruptly to a federal public official in order to influence an official.

The Hobbs Act was the first statute to define extortion: obtaining the property of another with his/her consent, "induced by wrongful use of actual or threatening force, violence or fear, or under color of official right."

It is a crime to make knowing false statements in matters related to the United States government.

With some exceptions, financial institutions may be criminally liable for revealing a customer’s personal finances.

It is a crime to make false statements while selling goods or otherwise engaging in commercial trade.

It is a crime to use mail or wire services as part of a "scheme to defraud." The law includes the use of private carriers as well as government mail and wire services.

The obstruction of justice statutes covers the obstruction of court proceedings, enforcement of court orders and the obstruction of investigation. It includes criminal penalties for the destruction, theft or alteration of certain records and proceedings (18 U.S.C. § 1506).

It is a crime to knowingly and while under oath make false material statements to a government officer or during a proceeding before a court, tribunal, or grand jury.

RICO is a broad act focused on organized crime and other enterprises that create a pattern of racketeering.

The securities statutes create criminal penalties for corrupt actions such as:

  • willful violation of securities laws or regulations,

  • making untrue statements or omissions regarding material facts related to securities,

  • making false or misleading statements on any document or report required by securities law to be filed.

The U.S. Securities and Exchange Commission typically refers criminal matters to the Department of Justice for prosecution.

Tax crime statutes are common tools to control organized crime. The different crimes include evading taxes, failing to file a tax return, aiding another file a false tax return, and delivering a fraudulent tax return.

II. Selected Research Sources

A. Websites

1. International Websites

The Group of States Against Corruption is a cooperative multi-national organization of states devoted to a multi-disciplinary effort to stop government corruption and organized crime.

The ICC has created a model code of corporate conduct to avoid acts of corruption, especially extortion and bribery.

The IMF website contains publications regarding corruption. The information in the publications includes statistics, reports and theoretical discussions.

CLAD is an inter-governmental organization of countries in the Americas and the Caribbean. The organization is devoted to the promotion of information regarding state reform and modernization of public administration. CLAD maintains a website called the Network of Institutions for the Fight against Corruption and the Recovery of Public Ethics (RICOREP).

The OAS maintains the Inter-American Anti-Corruption Network, which contains the text of OAS anti-corruption efforts, resolutions and other documents. It contains databases of anti-corruption national laws of American states and anti-corruption initiatives of other international organizations. It also includes information for the ongoing First Round Review of the Implementation of the Inter-American Convention Against Corruption. <http://www.oas.org/juridico/english/FightCur.html>.

OECD Anti-Corruption Division supports the OECD’s efforts to fight against bribery and corruption in international business transactions. The website contains information regarding the organization’s anti-corruption efforts. <http://www.oecd.org/EN/home/0,,EN-home-86-3-no-no-no,00.html>.

The website also includes the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

This UK-based organization helps provide grants for anti-corruption efforts.

Transparency International is a non-governmental organization devoted to fighting corruption in corporate and governmental organizations. The organization publishes anti-corruption resources, such as the TI Sourcebook and the Global Corruption Report. The website also contains useful links to other anti-corruption organizations.

The organization maintains the Corruption Online Research and Information System, (CORIS), which contains a database of anti-corruption provisions from around the world, as well as statistics and reports about worldwide corruption. <http://www.transparency.org/coris/>.

The UNDB section for Economic and Financial Management Documents contains publications regarding corruption and good governance.

This international organization consists of United Nations Center for International Crime Prevention (CICP) and the United Nations International Drug Control Programme (UNDCP). The organization also includes the UN Commission on Crime Prevention and Criminal Justice. The website contains reports and other information about white-collar crime topics.

The USAID maintains an anti-corruption website with links to reports and other sources of anti-corruption information. <http://www.usaid.gov/democracy/anticorruption/>.

The USAID also supports Respondanet a database with information about worldwide efforts to fight corruption. <http://www.respondanet.com/english/>.

The World Bank maintains information about the cost of corruption and provides help in anti-corruption efforts.

The WTO includes reports and other documents regarding the effects of corruption.

2. U.S.-Focused Websites

This is a U.S.-based organization that tracks political fundraising efforts in the U.S.

The FBI website maintains information about crime and crime prevention. In the "Library and Reference" section there are reports about white-collar crime, including the FBI report: Cynthia Barnett, "The Measurement of White-Collar Crime Using Uniform Crime Reporting (UCR) Data <http://www.fbi.gov/ucr/whitecollarforweb.pdf>.

This independent federal agency enforces laws that protect U.S. commercial markets. The FTC investigates and attempts to eliminate unfair or deceptive acts in the marketplace. The website contains information about the legal framework of the FTC and information about investigations and other agency actions.

This organization protects the interests of employees who report corrupt or illegal practices observed on the job.

This organization is the result of a partnership between the FBI and the National White-Collar Crime Center. The IFCC focuses on fraud committed over the Internet. The website includes statistics about Internet fraud, especially Internet auction fraud.

This federally funded website contains information about criminal issues, juvenile justice, and drug control. The site maintains a collection of criminal reports, research, and statistics regarding white-collar crime: <http://virlib.ncjrs.org/more.asp?category=51&subcategory=152>.

Funded through grants from the Bureau of Justice Assistance and the U.S. Department of Justice, this organization provides research and support for state and local law enforcement agencies fighting white-collar crime.

The SEC is the U.S. agency that maintains the integrity of the U.S. securities market. The agency investigates securities fraud and prosecutes all civil litigation for fraud. The website contains securities laws and regulations, as well as the text of SEC regulatory actions.

The SEC Enforcement Division maintains a website with information about various investigations into violations of securities laws. <http://www.sec.gov/divisions/enforce.shtml>.

B. Research Texts

  • Androphy, Joel M., White-Collar Crime (2d. ed. 2001).
    This publication is a four-volume loose-leaf set that includes a detailed discussion of several white-collar criminal statutes. The publication has a CD-ROM with sample forms.

  • Bailey, F Lee & Rothblatt, Henry B., Defending Business & White-Collar Crime  
    (1984 loose-leaf with 2000 Supp.).
    This publication is a two-volume practical loose-leaf set that contains strategic and substantive information relevant to handling white-collar crime litigation. It contains an index to the most significant federal acts.

  • Podgor, Ellen S. & Israel, Jerold H., White-Collar Crime In A Nutshell (2d. ed. 1997).
    This publication contains a basic and thorough discussion of white-collar crime.

  • Sherman, Mark, White-Collar Crime (2001).
    This is a publication of the Federal Judicial Center.

C. Selected Policy Publications

  • Sutherland, Edwin, White-Collar Crime: The Uncut Version (Ed: Gilbert Geis and Colin Goff, 1983).
    The original monograph which proposed creating the category of white-collar crime. This text studied the criminal behavior of major U.S. corporations.

  • Clinard, Marshall B. & Yeager, Peter C., Corporate Crime (1980).

  • Coleman, James William, The Criminal Elite: The Sociology of White Collar Crime (5th ed. 2002).

  • Geis, Gilbert, On White-Collar Crime (1982).

D. Selected Recent Journal Articles

    1. Selected Journal Articles Regarding International Anti-Corruption Efforts

  • Abbott, Kenneth W., "Rule-Making in the WTO: Lessons from the Case of Bribery and Corruption," 41 Journal of International Economic Law 275 (2001).

  • Brown, H. Lowell, "Extraterritorial Jurisdiction Under the 1998 Amendments to the Foreign Corrupt Practices Act: Does The Government's Reach Now Exceed Its Grasp?" 26 North Carolina Journal of International Law & Comparative Regulation 239 (2001).

  • Boswell, Nancy Zucker, "The Law, Expectation, and Reality in the Marketplace: The Problems of and Responses to Corruption," 31 Law and Policy in International Business 139 (2000).

  • Bushell, Simon, "UK's Anti-Corruption Law - Filling in the Gaps," 28 International Business Lawyer 435 (2000).

  • Dunfee, Thomas W. & Hess, David, "Getting from Salbu to the ‘Tipping Point’: The Role of Corporate Action with a Portfolio of Anti-Corruption Strategies (Response to Article by Steven R. Salbu in this Issue, p. 435)," 21 Northwestern Journal of International Law & Business 471 (2001).

  • Fendo, Julie, "Attacking the Tools of Corruption: The Foreign Money Laundering Deterrence and Anticorruption Act of 1999 (International Law Enforcement, Extradition, and Mutual Legal Assistance in the 21st Century)," 23 Fordham International Law Journal 1540 (2000).

  • George, Barbara Crutchfield, et al., "The 1998 OECD Convention: An Impetus for Worldwide Changes in Attitudes Toward Corruption in Business Transactions," 37 American Business Law Journal 485 (2000).

  • George, Barbara Crutchfield & Lacey, Kathleen A., "A Coalition of Industrialized Nations, Developing Nations, Multilateral Development Banks, and Nongovernmental Organizations: A Pivotal Complement to Current Anti-Corruption Initiatives," 33 Cornell International Law Journal 547 (2000).

  • Goldbarg, Andrea, "The Foreign Corrupt Practices Act and Structural Corruption," 18 Boston University International Law Journal 273 (2000).

  • Grossman, Claudio, et al., "The Experts Roundtable: A Hemispheric Approach to Combating Corruption," 15 American University International Law Review 759 (2000).

  • Guymon, CarrieLyn Donigan, "International Legal Mechanisms for Combating Transnational Organized Crime: The Need for a Multilateral Convention," 18 Berkeley Journal of International Law 53 (2000).

  • Hess, David & Dunfee, Thomas W., "Fighting Corruption: A Principled Approach," 33 Cornell International Law Journal 593 (2000).

  • Henning, Peter J., "Public corruption: A Comparative Analysis of International Corruption Conventions and United States Law," 18 Arizona Journal of International & Comparative Law 793 (2001).

  • Kofele-Kale, Ndiva, "The Right to a Corruption-Free Society as an Individual and Collective Human Right: Elevating Official Corruption to a Crime Under International Law," 34 International Lawyer 149 (2000).

  • Li, Kelly, "Recommendations for The Curbing Of Corruption, Cronyism, Nepotism, and Fraud in The European Commission," 24 Boston College International & Comparative Law Review 161 (2000).

  • Nichols, Philip M., "The Myth of Anti-Bribery Laws as Transnational Intrusion," 33 Cornell International Law Journal 627 (2000).

  • Posadas, Alejandro, "Combating Corruption Under International Law," 10 Duke Journal of Comparative & International Law 345 (2000).

  • Salbu, Steven R., "A Delicate Balance: Legislation, Institutional Change, and Transnational Bribery," 33 Cornell International Law Journal 657 (2000).

  • Salbu, Steven R., "Information Technology in the War Against International Bribery and Corruption: The Next Frontier of Institutional Reform," 38 Harvard Journal on Legislation 67 (2001).

  • Shaw, Bill, "The Foreign Corrupt Practices Act and Progeny: Morally Unassailable," 33 Cornell International Law Journal 689 (2000).

  • Unzicker, Andrea D. Bontrager, "From Corruption to Cooperation: Globalization Brings A Multilateral Agreement Against Foreign Bribery," 7 Indiana Journal of Global Legal Studies 655 (2000).

  • Windsor, Duane; Getz, Kathleen A., "Multilateral Cooperation to Combat Corruption: Normative Regimes Despite Mixed Motives and Diverse Values," 33 Cornell International Law Journal 731 (2000).

  • Zagaris, Bruce & Lakhani, Sheila, "The Emergence of an International Enforcement Regime on Transnational Corruption in the Americas," 31 Law and Policy in International Business 53 (1999-2000).

    2. Selected Journal Articles Regarding U.S. White-Collar Criminal Law

  • Annual Survey of White-Collar Crime, American Criminal Law Review (the journal published the most recent survey in the Summer 2001 issue).

  • Adams, Teresa E., "Tacking on Money Laundering Charges to White-Collar Crimes: What Did Congress Intend, and What are the Courts Doing?" 17 Georgia State University Law Review 531 (2000).

  • Bay, Darlene, "Ethical and Legal Implications of White Collar Crime: What Students Need to Know," 18 Journal of Legal Studies Education 257 (2000).

  • Bennett, J. Bradley, "White-Collar Crime, Blue Collar Tactics: A Defense Lawyer's Perspective (White-Collar Crime Symposium)," 28 Western State University Law Review 65 (2000).

  • Benson, Michael L., "Investigating Corporate Crime: Local Responses to Fraud and Environmental Offenses (White-Collar Crime Symposium)," 28 Western State University Law Review 87 (2000).

  • Bougen, Philip D., "Organizational Crime, Auditors, and Liberal Government," 28 International Journal of the Sociology of the Law 69 (2000).

  • Brown, Darryl K., "Street Crime, Corporate Crime, and the Contingency of Criminal Liability," 149 University of Pennsylvania Law Review 1295 (2001).

  • Cline, John D., "Calculation of Loss Under the Sentencing Guidelines (Federal Sentencing Policy For Economic Crimes and Technology offenses Symposium)," 9 George Mason Law Review 357 (2000).
     

  • Dimento, Joseph F.C., et al., "Corporate Criminal Liability: A Bibliography (White-Collar Crime Symposium)," 28 Western State University Law Review 1 (2000).

  • Ellis, Alan & Feldman, James H., Jr., "Representing the White-Collar Client At Sentencing" 14 Criminal Justice 41 (2000).

  • Hecht, Jonathan H., "Airing the Dirty Laundry: the Application of the United States Sentencing Guidelines to White-Collar Money Laundering Offenses," 49 American University Law Review 289 (1999).

  • Kahan, Dan M. & Posner, Eric A., "Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines (Penalties: Public and Private)," 42 Journal of Law and Economics 365 (1999).

  • Orentlicher, David, "Representing Defendants on Charges of Economic Crime: Unethical When Done For A Fee," 48 Emory Law Journal 1339 (1999).

  • Owens, John B., "Have We No Shame?: Thoughts on Shaming, 'White-Collar' Criminals and the Federal Sentencing Guidelines," 49 American University Law Review 1047 (2000).

  • Ruhl, Christopher A., "Corporate and Economic Espionage: A Model Penal Approach For Legal Deterrence to Theft of Corporate Trade Secrets and Proprietary Business Information," 33 Valparaiso University Law Review 763 (1999).

  • Schlegel, Kip, et al., "Are White-Collar Crimes Overcriminalized? Some Evidence on the Use of Criminal Sanctions Against Securities Violators (White-Collar Crime Symposium)," 28 Western State University Law Review 117 (2000).

  • Strader, J. Kelly, "The Judicial Politics of White-Collar Crime," 50 Hastings Law Journal 1199 (1999).

  • Szockyj, Elizabeth, "Imprisoning White-Collar Criminals? (Symposium: A Fork In the Road Build More Prisons or Develop New Strategies to Deal With Offenders)," 23 Southern Illinois University Law Journal 485 (1999).

Footnotes

1.  Originally drafted to supplement the presentation entitled "Technology and the United States Legal System: Increasing Accessibility" given by Prof. Roy M. Mersky during the 5th Seminar on American Law: Fighting Economic and Organized Crime, held in Brazil during August 7-14, 2002.

2.  "See, Gilbert Geis and Colin Goff, Introduction in Edwin H. Sutherland, White Collar Crime: The Uncut Version (1983)."

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