Philip M. Nichols

Philip M. Nichols, “Corporate Accountability for Corruption and the Business Case for Transparency”. In The Cambridge Companion to Business & Human Rights Law, edited by Ilias Bantekas & Michael Ashley Stein, (Cambridge: Cambridge University Press, 2021), pp. 260-282

Abstract: A robust global legal regime holds business firms accountable for engaging in corruption. This chapter explicates that regime. This chapter also puts forth a business case for not engaging in corruption. Corruption imposes real costs on businesses, and degrades the quantity and quality of relationships into which they might enter. The chapter concludes with a discussion of measures that all businesses should take to mitigate the likelihood that persons associated with them will engage in corruption. Before discussing any of these topics, however, this chapter first discusses the definition of corruption and describes the harms corruption inflicts.

Philip M. Nichols, “The Transnationalization of Anti-Corruption Law: An Introduction and Overview”. In The Transnationalization of Anticorruption Law, edited by Régis Bismuth, Jan Dunin-Wasowicz & Philip M. Nichols, (London: Routledge, 2021), pp. 1-27

Abstract: This chapter presents an overview of three concepts/phenomenon. First, the chapter discusses definitions and understandings of the phenomenon of corruption. Second, the chapter describes the global anticorruption regime, a network of laws and regulations that encompass international treaties, the administrative rules of intergovernmental organizations, arbitral rules, local law, and local administrative rules. Finally, this chapter introduces the concept of transnational law, the many ways in which the global anticorruption regime exemplifies transnational law, and how in turn the concept of transnational law can usefully illuminate the global anticorruption regime.

Philip M. Nichols (Ed.), The Transnationalization of Anticorruption Law (London: Routledge, 2021)

Abstract: The last twenty years have witnessed an astonishing transformation: the fight against corruption has grown from a handful of local undertakings into a truly global effort. Law occupies a central role in that effort and this timely book assesses the challenges faced in using law as it too morphs from a handful of local rules into a global regime. The book presents the perspectives of a global array of scholars, of policy makers, and of practitioners. Topics range from critical theoretical understandings of the global regime as a whole, to regional and local experiences in implementing and influencing the regime, including specific legal techniques such as deferred prosecution agreements, addressing corruption issues in dispute resolution, whistleblower protection, civil and administrative prosecutions, as well as blocking statutes. The book also includes discussions of the future shape of the global regime, the emergence of transnational compliance standards, and discussions by leaders of international organizations that take a leading role in the transnationalization of anti-corruption law. The Transnationalization of Anti-Corruption Law deals with the most salient aspects of the global anti-corruption regime. It is written by people who contribute to the structure of the regime, who practice within the regime, and who study the regime. It is written for anyone interested in corruption or corruption control in general, anyone with a general interest in jurisprudence or in international law, and especially anyone who is interested in critical thinking and analysis of how law can control corruption in a global context.

Philip M. Nichols (2020), Preventing the Corruption of Healthcare Algorithms, Notre Dame Journal on Emerging Technologies, 47.

Abstract: The intersection of technology and healthcare will radically change the provision of healthcare services.  The full extent of the changes cannot be known now, but the direction is clear: collection of voluminous data and tools powerful enough to analyze that data will facilitate the design of algorithms that will enable machines to make important decisions regarding diagnoses and treatments.  In addition to the possible benefits, policymakers and scholars have focused on issues of privacy and potential bias.  The potential for corruption of the design of healthcare algorithms has been ignored, but the potential for corruption is real and dangerous.  This article shows how healthcare algorithms could be corrupted by pharmaceutical and medical device firms and examines the possibility that such corruption will occur.  The article concludes that the likelihood, verging on certainty, of corruption requires transparent public review of healthcare algorithms.  Privacy and bias are more comfortable subjects, but new technologies require new thinking if the benefits of algorithmic healthcare are to be enjoyed.

Philip M. Nichols (2019), Bribing the Machine: Protecting the Integrity of Algorithms as the Revolution Begins, American Business Law Journal, 44. 10.1111/ablj.12151

Abstract: In the Industrial Revolution, machines took on the burden of physical labor; in the Big Data Revolution, machines are taking on the tasks of making decisions. Algorithms are the rules and processes that enable machines to make those decisions. Machines will make many decisions that affect general well-being. This article addresses a threat to the efficacy of those decisions: the intentional distortion or manipulation of the underlying algorithm so that machines make decisions that benefit self-interested third parties, rather than decisions that enhance public well-being. That threat has not been recognized or addressed by legal thinkers or policy makers. This article first examines the lifecycle of an algorithm, and then demonstrates the likelihood that self-interested third parties will attempt to corrupt the development and operation of algorithms. The article then argues that existing mechanisms cannot protect the integrity of algorithms. The article concludes with a discussion of policies that could protect the integrity of algorithms: transparency in both the development of and the content of algorithms that affect general well-being and holding persons who corrupt the integrity of such algorithms accountable. Just as the Industrial Revolution eventually improved the quality of life for many, so too does the Big Data Revolution offer enhancement of general well-being. That promise, however, will only be realized if policy makers take action to protect the integrity of underlying algorithms now, at the beginning of the revolution.

Philip M. Nichols, “Promoting Creating Shared Value Strategies as a Tool for Controlling Corruption”. In Mastering Corruption: The Practitioner’s View, edited by Wolfgang Amann & Agata Stachowicz-Stanusch, (Charlotte, NC: Information Age Publishing, 2019), pp. 147-165

Abstract: Creating Shared Value is strategy an individual business firm may choose to adopt in an effort to improve its competitiveness and increase its profits. The essence of the strategy is to improve social structures in which the business is embedded or on which it relies. Corruption weakens social structures and degrades society. Corruption also adds expenses and difficulties to the conduct of business. Individual business firms, therefore, should consider undertaking projects to reduce corruption in order to make themselves more competitive and more profitable. This chapter applies research on successful implementation of Creating Shared Value strategies to the current state of knowledge about corruption and finds that corruption presents an easier path to implementation than strategies that deal with other social weaknesses. The chapter concludes with a brief hypothetical illustration.

Philip M. Nichols, “Article 39”. In The United Nations Convention Against Corruption: A Commentary, edited by Cecily Rose, Michael Kubiciel & Oliver Landwehr, (New York: Oxford University Press, 2019), pp. 389-395

Abstract: An explanation of Article 39 of the United Nations Convention Against Corruption. Article 39 is the third of three articles in the Convention, along with Articles 37 and 38, which oblige States Parties to facilitate cooperation with investigatory and prosecuting agencies. Article 39 obliges States Parties to facilitate cooperation between entities, and to consider facilitating cooperation between individuals, in the private sector and public investigatory and prosecuting agencies.

Philip M. Nichols, “Article 38”. In The United Nations Convention Against Corruption: A Commentary, edited by Cecily Rose, Michael Kubiciel & Oliver Landwehr, (New York: Oxford University Press, 2019), pp. 383-388

Abstract: This chapter explains Article 38 of the United Nations Convention Against Corruption. Article 38 is the second of three articles, along with Articles 37 and 39, which oblige States Parties to create measures to encourage cooperation among different parties in the detection and prosecution of corrupt acts. Article 38 obliges States Parties to facilitate cooperation between investigatory and prosecuting agencies and other parts of the government. Intragovernmental cooperation is generally recognized as an “essential” component of an undertaking to reduce public sector corruption.

Philip M. Nichols, “Article 37”. In The United Nations Convention Against Corruption: A Commentary, edited by Cecily Rose, Michael Kubiciel, and Oliver Landwehr, (New York: Oxford University Press, 2019), pp. 374-382

Abstract: This chapter explains Article 37 of the United Nations Convention Against Corruption. Article 37 is the first of three articles, along with Articles 38 and 39, which oblige States Parties to create measures to encourage cooperation among different parties in the detection and prosecution of corrupt acts. Article 37 requires States Parties to develop procedures to secure cooperation from parties to corruption. In many jurisdictions such parties are called “collaborators of justice,” in some jurisdictions they are called “cooperating witnesses.” Regardless of the appellation, these witnesses present special opportunities and special difficulties to investigators and prosecutors. They present special opportunities because they have unique knowledge of the hidden activities of organized criminal activity. However, the very fact of their involvement and association with the organized criminal activity subjects them to high risk of intimidation and punishment, and prosecutors must take care to protect the safety of such witnesses.

Philip M. Nichols (2019), Maximizing Stakeholder Trust as a Tool for Controlling Corruption, Crime, Law and Social Change, 71 (2), pp. 171-195. 10.1007/s10611-017-9767-2

Abstract: Corruption, particularly bribery of government officials, inflicts substantial damage on people, society, and the world, and warrants control. Collective efforts to control corruption tend to focus on rules and compliance with those rules. This paper suggests that collective action also consider the creation of strong ethical cultures in business firms. Implementation of such programs is impeded by the difficulty in prescribing a course of action and by the difficulty in measuring the strength of an ethical culture. This paper suggests the measurement and maximization of stakeholder trust as a proxy for measures of ethical culture. The qualities that engender stakeholder trust correspond with ethical behaviors. Stakeholder trust confers benefits on business firms, which will incentivize and justify its measurement. Implementation of a program focused on ethical culture would benefit from collective action both by normalizing behaviors and in the development of sophisticated measurement tools.