Chapter Two - Why Do Transnational Legal Orders Persist?

Summary

There are vexing puzzles about one of the most comprehensive, far-reaching, most deeply penetrating and punitive of TLOs: anti-money laundering (AML). 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. Given these failings, what explains its persistence? Could it also be the case that the pervasiveness and penetration of the AML TLO indicates it may constitute a particular species of “disciplinary” TLOs? Drawing on an intensive study at a moment when the TLO’s 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 chapter brings rich empirical evidence to address these questions: first, by briefly sketching the thirty-year development and workings of the AML TLO; second, by considering its benefits, costs, deficiencies and harms; third, by appraising explanations for its persistence, including the fact that it (1) works in some degree, (2) harms are felt most by weak domestic actors, (3) costs are largely hidden from the public, (4) the TLO has surface plausibility, (5) it is difficult to critique a TLO that purports to control terrorism, and (5) it is sustained by geopolitics; and, fourth, by arguing that the AML TLO may be distinctive insofar as it is a disciplinary TLO. 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 21^st century settings.