In his blog post of February 16, 2012, entitled “The Justice Department’s Slippery Slope — Enforcement Versus Regulation”, Mike Volkov takes the Department of Justice (DOJ) to task for “hubris and insensitivity to the business community” in their enforcement of the Foreign Corrupt Practices Act (FCPA). I believe that he correctly notes that companies do want to comply with the FCPA but want more guidance so that they do not have to “read the tea leaves” on what the DOJ may believe is conduct violative of the FCPA.

However, I do not believe the “hubris or insensitivity” of the DOJ is the genesis of this perceived problem. Rather, I would argue that it is the nature of system in place. I need to credit my colleague Doug Jacobson for this next insight. For those of you who do not know him, Doug is a well-experienced international trade lawyer, who blogs at International Trade Law News. Doug’s observation was that the FCPA is similar to a regulatory system which, in this case, is being administered by DOJ lawyers. He contrasted this with his international trade law practice, in which he frequently interfaces with regulators from the Departments of Commerce and Treasury on issues related to trade control. Of course if a legal violation occurs, trade control issues can and do go to the DOJ for enforcement, but as counsel representing companies, he can interact with regulators to develop best practices programs, policies and procedures.