Anti-Money Laundering: An Inquiry into a Disciplinary Transnational Legal Order

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This Article enquires into the case of one of the most comprehensive,far-reaching, most deeply penetrating, and most punitive of TLOs: anti money 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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