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«The Good Bribe Philip M. Nichols* Bribery is justifiably condemned, and is the object of a global legal campaign. This article asks whether payment ...»

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The Good Bribe 2015] 657 measureable. Judge Noonan’s scholarship, however, retains relevance.

When contemplating explanations for the universality of the condemnation of and moral recoil over bribery, one need turn no further than the moral evolution described by Judge Noonan and the clear condemnation found expressed by each of the major religions and faiths.

B. Robert Klitgaard: An Agency Analysis of Bribery The concept of agency is central to law and to modern life.51 As Paula Dalley points out, “[i]t would be difficult to function in a modern economy for more than a few hours without interacting with an agent of some kind. The atmosphere is so thick with agents that most people rarely think about them.”52 Legal theorists, understandably, also use concepts of agency when describing government.53 Robert Klitgaard’s Controlling Corruption, published shortly after John Noonan’s Bribes, also describes government using concepts of agency.54 Professor Klitgaard is an accomplished political scientist and his book constitutes a major contribution to the understanding of corruption.55 In contrast to Judge Noonan, who turns to notions of morality to elucidate bribery, Klitgaard describes bribery as an agency problem.56 Bribery is unacceptable because it subverts the relationship between the Principal (the public) and the Agent (the bureaucrat), and bribery exists because the institutions that support that agency relationship are weak or are poorly supported.57 51 See Eric Rasmusen, Agency Law and Contract Formation, 6 AM. L. & ECON. REV.

369, 369-370 (2004) (discussing the centrality of agency to law and numerous aspects of life).

52 Paula J. Dalley, A Theory of Agency Law, 72 U. PITT. L. REV. 495, 497 (2011).

53 See Seth Davis, The False Promise of Fiduciary Government, 89 NOTRE DAME L.

REV. 1145, 1154 (2014) (describing fiduciary theorists).

54 See ROBERT KLITGAARD, CONTROLLING CORRUPTION 22-24 (1988); see also Philip M. Nichols, United States v Lazarenko: The Trial and Conviction of Two Former Prime Ministers of Ukraine, 2012 U. CHI. LEGAL F. 41, 46 (referring to Klitgaard’s use of agency to describe bribery). See generally Earle & Cava, supra note 19, at 66 (discussing scholarship regarding corruption, including Klitgaard’s Controlling Corruption).

55 See Herbert V. Morais, Fighting International Crime and Its Financing: The Importance of Following a Coherent Global Strategy Based on the Rule of Law, 50 VILL. L.

REV. 583, 614 n.143 (2005) (extolling Klitgaard’s credentials and describing Controlling Corruption as one “of the best publications available”).

56 See KLITGAARD, supra note 54, at 22-24.

57 Klitgaard suggests that:

University of California, Davis 658 [Vol. 49:647 Not surprisingly, agency conceptualizations of bribery have taken strong hold among legal scholars. The most persistent definition used in legal scholarship suggests that corruption occurs when a position of trust or authority is used for personal benefit rather than the purpose for which that trust or authority was granted.58 Although first promulgated by a political scientist, this definition has become so standard in legal scholarship that Patrick Delaney refers to it as the “classic definition.”59 Some legal scholarship refers explicitly to Klitgaard.60 More important than explicit reference to Klitgaard, however, is recognition of the importance of the relationship between people and their government, and the damage that bribery can inflict on that relationship. Bruce Ackerman notes that “Bureaucracy cannot work if bureaucratic decisions are up for sale to the highest bidder.”61 This is because “a failure to control [corruption] undermines the very legitimacy of democratic government. If payoffs are a routine part of life, ordinary people will despair of the very idea that they, together with their fellow citizens, can control their destinies through the democratic rule of law.”62 Viewed through this lens, the purpose of [C]orruption may be represented as following a formula: C = M + D - A.

Corruption equals monopoly plus discretion minus accountability. Whether the activity is public, private, or nonprofit... one will tend to find corruption when an organization or person has monopoly power over a good or service, has the discretion to decide who will receive it and how much that person will get, and is not accountable.

Robert Klitgaard, International Cooperation Against Corruption, 35 FIN. & DEV. 3, 4 (Mar. 1998), available at https://www.imf.org/external/pubs/ft/fandd/1998/03/pdf/ klitgaar.pdf.

58 This definition is usually attributed to another political scientist, Joseph Nye, rather than to Klitgaard. See J.S. Nye, Corruption and Political Development: A CostBenefit Analysis, 61 AM. POL. SCI. REV. 417, 419 (1967).

59 Patrick X. Delaney, Transnational Corruption: Regulation Across Borders, 47 VA.

J. INT’L L. 413, 417 (2007) (referring to Nye’s as the “classic definition”).

60 See, e.g., Indira Carr, Corruption, the Southern African Development Community Anti-corruption Protocol and the Principal-agent-client Model, 5 INT’L J.L. CONTEXT 147, 151 n.23 (2009) (citing Klitgaard when developing a theoretical model to describe anti-corruption legislation in southern Africa); Andrew Brady Spalding, The Irony of International Business Law: U.S. Progressivism and China’s New Laissez-Faire, 59 UCLA L. REV. 354, 392 n.206 (2011) (using Klitgaard to explain the findings of a study in China).

61 Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 694 (2000).

62 Id.

The Good Bribe 2015] 659 bribery laws could then be characterized as protecting the relationship between people and their government.

Nearly every country in the world prohibits the bribery of its own officials.63 Examination of discrete examples finds language that makes reference to the functioning of government officials. Germany’s laws, for example, prohibit payments to a government official “in return for the fact that [the official] performed or would in the future perform an official act and thereby violates or would violate his official duties.”64 Similarly, the laws of the United States prohibit payments “to induce [a] public official or [a] person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person.”65 China provides an example of a country that has very specifically tied the enforcement of bribery laws to the functioning of government.

The President of China, Xi Jinping, has announced that the Chinese government has made the enforcement of bribery laws a national priority.66 The Chinese government has explained the need for better enforcement with statements including “‘improving public credibility’ of justice organs, ‘to ensure lawful, independent and fair use of its judicial and procuratorial authority’ in order to guarantee ‘unified and accurate law implementation.’”67 Significantly, the Chinese government seems committed to improving governance by enforcing laws against bribery.68 An agency-based understanding of bribery plausibly explains the criminalization of domestic bribery. It might not, however, explain the criminalization by one country of the payment of bribes to officials in 63 See Spahn, Local Law Provisions, supra note 3, at 257.

64 STRAFGESETZBUCH [STGB] [PENAL CODE], Nov. 13, 1998, BUNDESGESETZBLATT, Teil I [BGBL I] 945, as amended, § 334(1) (Ger.) available at http://germanlawarchive.iuscomp.org/?p=752#334.

65 18 U.S.C. § 201(b)(1)(c) (2012).

66 See Tim Donovan, China’s Crackdown on Corruption and Government Spending: A Timeline, CHINA BUS. REV. (Jan. 23, 2014), http://www.chinabusinessreview.com/ chinas-crackdown-on-corruption-and-government-spending-a-timeline/.

67 Susan Trevaskes, Mapping the Political Terrain of Justice Reform in China, 2 GRIFFITH ASIA Q. 18, 19 (2014).

68 See Andrew Wedeman, Xi Jinping’s Tiger Hunt and the Politics of Corruption, CHINA RES. CENTER (Oct. 15, 2014), http://www.chinacenter.net/2014/china_currents/ 13-2/xi-jinpings-tiger-hunt-and-the-politics-of-corruption/ (“[I]t appears that far from a smoke and mirrors attempt to create the impression of action, Xi Jinping’s anticorruption campaign may well be the most sustained and intensive drive against corruption since the start of the reform era.”).

University of California, Davis 660 [Vol. 49:647 another country. Explanation of those laws might better lie in an understanding that focuses on the harms caused by bribery.

C. Susan Rose-Ackerman: The Consequences of Bribery Susan Rose-Ackerman published Corruption and Government nearly a decade after Noonan and Klitgaard released their works.69 Although Professor Rose-Ackerman is a professor of law, she is a distinguished political economist with many years of service to international organizations, all of which are reflected in her seminal work.70 RoseAckerman focuses on the harms inflicted by corruption; in particular she “explore[s] the interaction between productive economic activity and unproductive rent seeking by focusing on the universal phenomenon of corruption in the public sector.”71 While Noonan illustrates the law as an embodiment of morality and Klitgaard illustrates the law as protective of the relationship between a government and its citizens, Rose-Ackerman illustrates the law as a means of preventing harm. The “harm principle” — the notion that criminal law may only be imposed in order to prevent the infliction of harm by persons on others — engenders substantial debate with those who believe that law can also reflect morality.72 As is the case with the debate over the relationship between law and morality, however, the empirics do not depend on the philosophical debate; regardless of whether the law justifiably may do more, the legal environment is replete with the use of law to prevent harms. Antitrust laws prevent harm to markets.73 Criminal law prevents harm to members of society.74 Environmental law is intended to prevent harm to the



70 See Earle & Cava, supra note 19, at 67 (describing Corruption and Government as “seminal” and discussing trends in scholarship discussing bribery); Fred S.

McChesney, Ever the Twain Shall Meet, 99 MICH. L. REV. 1348, 1348 (2001) (reviewing ROSE-ACKERMAN, CORRUPTION AND GOVERNMENT, supra note 69) (discussing Professor Rose-Ackerman’s work and accomplishments).


72 See Avani Mehta Sood & John M. Darley, The Plasticity of Harm in the Service of Criminalization Goals, 100 CALIF. L. REV. 1313, 1317 (2012) (discussing the harm principle and the morality debate).

73 See Eleanor M. Fox, Trade, Competition, and Intellectual Property — TRIPS and its Antitrust Counterparts, 29 VAND. J. TRANSNAT’L L. 481, 485 (1996) (stating that under international law, “nations are allowed to adopt antitrust laws to prevent harm to themselves in their internal markets”).

74 E.g., Jennifer Ann Drobac & Leslie A. Hulvershorn, The Neurobiology of Decision Making in High-Risk Youth and the Law of Consent to Sex, 17 NEW CRIM. L. REV. 502, The Good Bribe 2015] 661 environment.75 Food and drug regulations protect the health of consumers of food and drugs.76 For many years, significant actors in the international community avoided discussion of the harms inflicted by bribery. Prior to 1996, international financial institutions and development organizations assiduously avoided the topic of corruption — the “c word” — as political and therefore outside of their jurisdictions.77 In 1996, World Bank President James Wolfensohn vigorously announced a change in


[L]et’s not mince words: we need to deal with the cancer of corruption.

In country after country, it is the people who are demanding action on this issue. They know that corruption diverts resources from the poor to the rich, increases the cost of running businesses, distorts public expenditures, and deters foreign investors. They also know that it erodes the constituency for aid programs and humanitarian relief.78 After Wolfensohn’s speech, the World Bank began development of “a comprehensive strategy to address corruption.”79 Professor RoseCriminal law prevents harm to society, as well as to individuals within society.”).

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