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UC Irvine Journal of International, Transnational, and Comparative Law

Abstract

This Article enquires into the case of one of the most comprehensive,

far-reaching, most deeply penetrating, and most punitive of TLOs: antimoney

laundering. Drawing on an intensive study at a moment when its

governing norms and methodologies of implementation were undergoing

revision and expansion, as well as on observation and participation in

AML/CFT activities over three decades, the Article brings rich empirical

evidence to bear on two theoretical issues. First, despite its seemingly

successful institutionalization, the AML TLO exhibits many deficiencies

and imposes extensive costs on the private and public sectors, and harms

upon the public. Why doesn’t it fail? Second, the pervasiveness and

penetration of the AML TLO indicates it may constitute a particular

species of “disciplinary” TLOs. To address these issues, the Article, first,

briefly sketches the thirty-year development and workings of the AML

TLO; second, considers its benefits, costs, deficiencies and harms; third,

confronts the puzzle of its persistence; and, fourth, concludes by arguing that

the AML TLO may be distinctive insofar as (1) it has a foundational

assumption of recalcitrant actors who must be monitored to reduce social

harms which (2) legitimates a pervasive surveillance apparatus that is (3)

yoked to punitive criminal institutions and practices which (4) lead to an

elaborate repertoire of discipline that (5) has been multiplied to include

states, financial institutions (e.g. banks), non-state collective actors such as

charities, organized crime families, and individuals such as lawyers,

accountants, and everyday participants in their myriads of transactions in

an integrated global financial system. Those singular properties may in fact

be shared substantially by other TLOs directed at crime. The site of criminal

justice thereby encourages a more differentiated understanding of TLOs in

21st century settings.

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