Immigration’s Family Values

This Article takes an institutional approach to analyzing how the law determines parentage in diverse doctrinal contexts. We argue that immigration and citizenship law use different parentage tests than family law not because lawmakers have failed to properly incorporate family law principles but because lawmakers’ interests are not the same in the immigration context. State family law’s primary interests are protecting children, preserving well-functioning parent-child relationships, and ensuring that each child has two parents who are designated as legally and financially responsible. Immigration and citizenship law, in contrast, implicate the federal government’s interest in achieving optimal numbers of immigrants and citizens. In addition, because the benefits of lawful immigrant status and U.S. citizenship are so extensive, an important state interest in determining parentage in the immigration and citizenship context is the ferreting out and prevention of fraud. As a general rule, the context in which parentage disputes arise in immigration and citizenship cases differs greatly from the circumstances that lead to custody or divorce proceedings. Thus, the “family values” espoused by immigration and citizenship law are very different from those we are accustomed to seeing in family court.

Where immigration and citizenship law fail, they fail on their own terms, and we must understand their core values in order to critique them and to offer workable solutions. For example, current federal policy privileges interests in optimal citizenship and immigration and in fraud prevention at the expense of allowing U.S. citizens and lawful permanent residents to exercise their own liberty interests in preserving parent-child relationships. We critique this policy, however, not because it deviates from state family law principles but because it fails to recognize the government’s interests in preserving the family relationships of its citizens.

The Monitor-“Client” Relationship

After the government discovers wrongdoing by a corporation, the corporation and the government often enter into an agreement stating that the corporation will retain a “monitor.” A corporate compliance monitor, unlike the gatekeeper, is not charged with “monitoring” the corporation in an attempt to detect and prevent wrongdoing. A monitor, unlike the probation officer, is not solely charged with ensuring that the corporation complies with a previously determined set of requirements. Instead, a corporate compliance monitor is responsible for (1) investigating the extent of the wrongdoing already detected and reported to the government; (2) discovering the cause of the corporation’s compliance failure; and (3) analyzing the corporation’s business needs against the appropriate legal and regulatory requirements. A monitor then provides recommendations to the corporation and the government meant to assist the corporation in its efforts to improve its legal and regulatory compliance—the monitor engages in legal counseling. The ad hoc structure of monitorships has, however, failed to facilitate the monitor’s function as a legal counselor. This failure is largely the result of structuring monitorships in an environment lacking binding rules and conceiving of monitorships as if a monitor’s only function is that of a governmental agent.

Yet the current monitorship structure is not necessary to achieve the monitorship’s goal, which is to establish a corporate compliance structure that deters and prevents future misconduct. This Article argues that providing a set of clear, enforceable, predictable rules regarding the scope of monitorships that facilitate a monitor’s function as a legal counselor will improve the long-term effectiveness of monitorships. This Article suggests one mechanism for achieving this goal—a statutory privilege—aimed at encouraging a formalized relationship amongst a monitor, the government, and the corporation, which re-conceptualizes the relationship as “The Monitor-‘Client’ Relationship.”

The Hidden Nature of Executive Retirement Pay

There are two competing theories of why public companies pay executives generous retirement benefits. One is that retirement pay is easier to hide from shareholders than other forms of compensation. The other is that retirement benefits align executives’ interests with those of long-term creditors, since the executives may not receive their payouts if the firm goes bankrupt. The latter view depends on the assumption that retirement benefits put executives in a similar contractual position as the company’s creditors. Yet no previous work has tested that assumption.

This Article provides the first systematic study of the contractual structure of executive retirement payouts. Using retirement pay data for thousands of executives, we show that a large proportion of executives link the value of their payouts to the company’s stock price and receive the bulk of these payouts immediately following their departure—features that contradict the incentive-alignment theory of retirement pay. The evidence also shows that the full amount and structure of retirement pay are undisclosed—findings consistent with the camouflage theory. While the structure of some executives’ payouts can be reconciled with the incentive-alignment theory, current rules do not give investors the information they need to tell the difference between payouts that align incentives and those that camouflage compensation. Lawmakers should require companies to reveal the structure of these payouts, and neither regulators nor commentators should assume that retirement benefits suppress top managers’ appetite for risk.