Professor Koehler is an active writer on all aspects of the FCPA and related topics and his work has been cited in legal briefs, judicial decisions, policy papers, Congressional testimony, and the media.
This page provides an overview of Professor Koehler’s books and other writings that a must reads for anyone seeking to elevate their FCPA knowledge.
In writing on bribery and corruption topics, it is tempting to take the position that because bribery (however defined) is inherently bad, all attempts to enforce bribery laws must therefore be inherently good. This is not a position advanced by Professor Koehler as corporate bribery is not, as Congress recognized in passing the FCPA, the “simple, safe issue it seemed at first blush.”
Professor Koehler’s FCPA views can be summarized as follows.
- The FCPA is a fundamentally sound statute, albeit one that could be improved upon.
- Actual legal authority defines what the FCPA means, not non-legal sources of information such as enforcement agency guidance or resolved enforcement actions.
- In a legal system founded on the rule of law, success is best measured when an enforcement agency is put to its burden of proof in the context of an adversarial system, not when an enforcement agency exercises its leverage to secure settlements against risk-averse business organizations through resolution vehicles not subjected to any meaningful judicial scrutiny.
- Prosecuting individuals achieves greater deterrence than corporate-only enforcement.
- Trade barriers and distortions are often the root causes of bribery and a reduction in bribery will not be achieved without a reduction in trade barriers and distortions.
- The U.S. crusade against bribery suffers from several uncomfortable truths, including a double standard regarding corporate interaction with “foreign officials” under the FCPA and corporate interaction with U.S. officials under other U.S. laws.
THE FOREIGN CORRUPT PRACTICES ACT IN A NEW ERA
Understanding the FCPA’s new era is a fundamental skill-set for a diverse group of professionals navigating the global marketplace. This book provides a toolkit that will assist readers from the boardroom to the courtroom to the classroom better understand the FCPA, FCPA enforcement, FCPA compliance strategies, and the many legal and policy issues present in this new era.
This book is the first of its kind as it injects innovative concepts into the study of the FCPA and FCPA enforcement and it places an emphasis on learning FCPA issues incrementally in the belief that various foundational knowledge will best enhance understanding and comprehension of specific FCPA topics.
What Others Are Saying
Michael Mukasey, former U.S. Attorney General
“Professor Koehler has brought to this volume the clear-eyed perspective that has made his FCPA Professor website the most authoritative source for those seeking to understand and apply the FCPA. This is a uniquely useful book, laying out systematically the history and rationale of the FCPA, as well as its evolution into a structure governed as much by lore as by law. It will be valuable both to those who counsel international corporations, whether in connection with immediate crises or long-term strategies; and to those who contemplate what the FCPA has become, and how it can be improved.”
Professor Daniel Chow, The Ohio State University Moritz College of Law
“This is the single most comprehensive academic treatment of the Foreign Corrupt Practices available. Professor Koehler’s book will become the authoritative standard for the field. The book not only treats the history of the FCPA, but analyzes the statute’s elements in detail, discusses current cases, and makes proposals for reforms where the current law is deficient. The book is written in a clear, accessible style and I will use it often as a resource for my own scholarly work.”
Richard Alderman, former Director of the UK Serious Fraud Office
“An excellent and thought-provoking book by a great expert. Backed up by rigorous analysis of cases, Professor Koehler constantly challenges those involved in anti-corruption work by asking the question ‘why?’ He puts forward many constructive and well-argued suggestions for improvements that need to be considered. I have learned a lot from Professor Koehler over the years and I can thoroughly recommend this book.”
For additional reviews of “The Foreign Corrupt Practices Act in a New Era”
See here “[The FCPA in a New Era] should become one of the standard texts for any FCPA compliance practitioner, law student studying the FCPA or anyone else interested in anti-bribery and anti-corruption. It should be on your FCPA library bookshelf”
See here – “Mike Koehler’s new book is probably the best book we’ve read about the FCPA. […] For those wanting a pair of ‘FCPA goggles’ no book is, in our opinion, better.”
See here – “If you care about the rule of law [The FCPA in a New Era] is one of the most important books you can read – to learn how it is being eroded. Professor Koehler’s book … is a must read for people who care about law reform.”
Leading law reviews, journals and other publications have published Professor Koehler’s scholarship and all of his writings can be downloaded here. Professor Koehler’s scholarship includes the following articles.
This article is the most extensive piece ever written about the history of the FCPA and it weaves together information and events scattered in the FCPA’s voluminous legislative record to tell the FCPA’s story through original voices of actual participants who shaped the law.
Much is written about the Foreign Corrupt Practices Act. However, amid the clutter of enforcement agency rhetoric and resolution documents not subjected to any meaningful judicial scrutiny as well as the mountains of FCPA Inc. marketing material touting the next compliance risk, there are certain FCPA facts that are seldom discussed. Yet such facts, covering the entire span of the FCPA — from the statute’s enactment, to its statutory provisions, to FCPA enforcement, to FCPA reform, to the FCPA industry itself — occasionally bear repeating. This article does that by highlighting ten seldom discussed FCPA facts that you need to know.
This article guides readers (using specific examples) through how various FCPA Inc. participants use creative and haphazard counting methods that infect the quality and reliability of FCPA enforcement and related statistics of interest to many in the legal and business communities. After exposing distorted FCPA enforcement statistics, the article proposes a FCPA common language that can improve the quality and reliability of FCPA statistics and thus allow a more cogent conversation to take place regarding FCPA issues.
This article demonstrates that alternative resolution vehicles have become the dominant way the DOJ resolves corporate FCPA scrutiny and serve as an obvious reason for the general increase in FCPA enforcement over the past decade. To the many cheerleaders of increased FCPA enforcement, NPAs and DPAs are thus worthy of applause. Yet in a legal system based on the rule of law, quality of enforcement is more important than quantity of enforcement. Through empirical data and various case studies, this article measures the impact NPAs and DPAs have on the quality of FCPA enforcement and concludes that NPAs and DPAs — while resulting in higher quantity of FCPA enforcement — result in lower quality of FCPA enforcement.
This Article highlights that settlement amounts in an actual FCPA enforcement action are often only a relatively minor component of the overall financial consequences that can result from FCPA scrutiny or enforcement in this new era.
This article asserts that the current FCPA enforcement environment does not adequately recognize a company’s good faith commitment to FCPA compliance and does not provide good corporate citizens a sufficient return on their compliance investments.
This article discusses various pillars that contribute to the facade of FCPA enforcement and highlights that the FCPA, during its decade of resurgence, is being enforced like no other law.
This Article explores through various case studies and examples whether the United States’s crusade against bribery suffers from uncomfortable truths and double standards. Through these case studies and examples, readers can decide for themselves whether the U.S. government “practices what it preaches” when it comes to the enforcement of bribery laws and whether the United States is indeed “in a unique position to spread the gospel of anti-corruption.”
“In 2017, the DOJ issued a policy document titled “FCPA Corporate Enforcement Policy.” Like previous DOJ FCPA efforts, the policy is “aimed at providing additional benefits to companies based on their corporate behavior once they learn of misconduct.” This article grades the Corporate Enforcement Policy (CEP) and highlights the following issues: (i) the obvious logical gap in the CEP; (ii) how the CEP, both in terms of rhetoric and substance, is really nothing new; (iii) ten specific reasons why the corporate community should take the CEP with a grain of salt; and (iv) how the CEP falls short of accomplishing the laudable goals articulated by the DOJ compared to other alternatives previously advanced.”
In 2016, the DOJ issued a policy document titled “The Fraud Section’s FCPA Enforcement Plan and Guidance.” The document outlined various steps in the DOJ’s “enhanced FCPA enforcement strategy” including a “pilot program” intended to “encourage companies to disclose FCPA misconduct to permit the prosecution of individuals whose criminal wrongdoing might otherwise never be uncovered or disclosed to law enforcement.” This article grades the pilot program by addressing the following issues: (i) the obvious logical gap in the pilot program; (ii) how the pilot program, both in terms of rhetoric and substance, is really nothing new; (iii) why the corporate community should take the pilot program with a grain of salt; and (iv) how the pilot program falls short of accomplishing the laudable goals articulated by the DOJ compared to other alternatives previously advanced.
This article analyzes the FCPA Guidance released by the DOJ and SEC in 2012. Among other things, the following topics are discussed: (i) the enforcement agencies’ motivations in issuing the Guidance and the fact that it should have been issued years ago; (ii) the utility of the Guidance from an access-of-information perspective and how the Guidance can be used as a measuring stick for future enforcement agency activity; and (iii) how the Guidance is an advocacy piece and not a well-balanced portrayal of the FCPA as it is replete with selective information, half-truths, and, worse information that is demonstratively false.
What does the most high-profile instance of FCPA scrutiny in history tells us about the current FCPA enforcement environment? Quite a lot actually.
The FCPA has specific elements that must be met in order for there to be a violation. However, with increasing frequency it appears that the DOJ and SEC have transformed FCPA enforcement into a free-for-all corporate ethics statute in which any conduct the enforcement agencies find objectionable is fair game to extract a multi-million dollar settlement from a risk-averse corporation. This article highlights why the SEC’s enforcement action against JPMorgan, based on alleged improper hiring and internship practices in the Asia-Pacific region, represents a trifecta of off-the-rails FCPA enforcement.
Certain FCPA enforcement actions should legitimately cause many to wonder whether the enforcement agencies have transformed FCPA enforcement into a free-for-all in which any conduct the agencies find objectionable is fair game to extract a multimillion-dollar settlement from a risk-averse corporation. This article profiles just one enforcement action (among others that could be cited) and highlights why anyone who values the rule of law should be alarmed.
Bringing criminal charges and marshalling the full resources of law enforcement against an individual is an awesome power that our government possess. Because that power alters the lives of real people and their families, sidetracks real careers, empties real bank accounts in mounting a defense, and causes often irreversible damage to real reputations, it ought to be exercised with real discipline and prudence. It is fact that during this new era of FCPA enforcement the DOJ has an overall losing record in FCPA enforcement actions when actually put to its ultimate burden of proof and this article poses the question: what percentage of DOJ FCPA losses is acceptable?
Each year Professor Koehler publishes an extensive FCPA year in review. Put them all together and you will have an extensive collection of FCPA statistics, trends, and analysis over time.