Outsourcing immigration compliance

Fordham Law Review

Volumn 77, Issue 5, 2009, Pages 2475-2535

  Brown, Eleanor Marie Lawrence ^a  

^a NEW AMERICA FOUNDATION   (United States)

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EID: 66849122088     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (248)

1. "Anywhere you turn you will be stuck by thorns." This is a Jamaican proverb that is sometimes utilized to capture the sentiment that it is often an exercise in futility to create incentives for persons to play by the rules. DICTIONARY OF JAMAICAN ENGLISH 252, 284 (F. G. CASSIDY & R. B. LE PAGE eds., 2d ed. 2002) (providing definitions of the words).
2. Joseph Carroll, Iraq, Economy, Healthcare, Immigration Top Vote Issues, GALLUP, Dec. 10, 2007, http://www.gallup.com/poll/103132/Iraq- Economy-Healthcare-Immigration-Top-Vote-Issues.aspx.
3. The reader should be aware that the guest worker programs that are the subject of this Article raise profound questions of justice. There is an ongoing and well-documented tension between the state's interest in the provision of low-cost labor and its concern with the protection of human rights more generally and ideal citizenship in particular. These concerns include but are not limited to the following: whether the presence of a large-scale population of temporary guests institutionalizes the exclusion of noncitizens from the constitutional mainstream, undermines political community, and denigrates the value of citizenship; whether these programs undermine wages and workplace protections for both guests and native workers; and whether such programs legitimate the application of a broader "trade paradigm" to human beings that commodifies labor. Moreover, under the specific proposal contained in this Article, justice concerns would be arguably augmented by the high dependence of the United States on a non-U.S. actor. The question necessarily arises: can the United States expect a source-labor country to reliably incorporate human rights and antidiscrimination norms into administration of the program? I am fully cognizant of these concerns, which provide fertile ground for further work and will be given a full hearing in a later paper. The following is a partial list of references that address these concerns.
4. See, e.g., MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY 56-61 (1983) (opposing guest worker programs on the grounds that they do not conform to the liberal egalitarian principles that govern full membership in a just state);
5. see also CANADIAN POLITICAL PHILOSOPHY AT THE TURN OF THE CENTURY: EXEMPLARY ESSAYS (R. Beiner and W. Norman eds., 2000);
6. JOSEPH H. CARENS, CULTURE, CITIZENSHIP, AND COMMUNITY: A CONTEXTUAL EXPLORATION OF JUSTICE AS EVENHANDEDNESS (2000);
7. DUAL NATIONALITY, SOCIAL RIGHTS AND FEDERAL CITIZENSHIP IN THE U.S. AND EUROPE: THE REINVENTION OF CITIZENSHIP (Randall Hansen & Patrick Weil eds., 2002);
8. Louis Michael Seidman, Fear and Loathing at the Border, in JUSTICE IN IMMIGRATION 136, 140 (Warren F. Schwartz ed., 1995);
9. James Woodward, Commentary: Liberalism and Migration, in FREE MOVEMENT: ETHICAL ISSUES IN THE TRANSNATIONAL MIGRATION OF PEOPLE AND OF MONEY 59, 82 (Brian Barry & Robert E. Goodin eds., 1992). For a discussion of the impact of low-skilled alien workers on wages of citizen workers, see generally GEORGE BORJAS, FRIENDS OR STRANGERS: THE IMPACT OF IMMIGRANTS ON THE U.S. ECONOMY (1990) (noting the disproportionate impact on the most disadvantaged, including urban residents and African Americans). For broadly skeptical discussions of guest worker programs in the legal scholarship, see HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION & CITIZENSHIP IN THE UNITED STATES 15-37 (2006). For skeptical but more targeted critiques of guest worker programs (in their current configuration),
10. see Jennifer Gordon, Transnational Labor Citizenship, 80 S. CAL. L. REV. 503 (2007); Cristina M. Rodriguez, Guest Workers and Integration: Toward a Theory of What Immigrants and Americans Owe One Another, 2007 U. CHI. LEGAL F. 219.
11. This point has been made by Peter Schuck. See Peter H. Schuck, The Disconnect Between Public Attitudes and Policy Outcomes in Immigration, in DEBATING IMMIGRATION 17 (Carol M. Swain ed., 2007). Hiroshi Motomura has argued that this disconnect has received little attention in the law review literature because of the conventional emphasis on the postentry treatment of aliens. Hiroshi Motomura, Comment, Choosing Immigrants, Making Citizens, 59 STAN. L. REV. 857 (2007). This emphasis arises at least partially from the fact that aliens have virtually no legal personhood outside the United States, with limited access to constitutional protections. See, e.g., Galvan v. Press, 347 U.S. 522, 530-32 (1954);
12. Harisiades v. Shaughnessy, 342 U.S. 580, 592 (1952);
13. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950);
14. United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904). As such, the law review literature has been disproportionately focused on the treatment of aliens once they arrive in the United States. The primary exception to this scholarly silence on the pre-entry screening is Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 STAN. L. REV. 809 (2007).
15. See U.S. COMM. ON IMMIGRATION REFORM, EXECUTIVE SUMMARY, U.S. IMMIGRATION POLICY: RESTORING CREDIBILITY (1994), available at http;//www.utexas. edu/lbj/uscir/exesum94.pdf.
16. This figure is taken from the work of Douglas Massey, a leading authority on the size of the undocumented population.
17. See Douglas S. Massey, Borderline Madness: America's Counterproductive Immigration Policy, in DEBATING IMMIGRATION, supra note 4, at 129. Estimates generally indicate that there are between ten and fourteen million undocumented persons in the United States.
18. See DAVID A. MARTIN, MIGRATION POL'Y INST., TWILIGHT STATUSES: A CLOSER EXAMINATION OF THE UNAUTHORIZED POPULATION (2005); JEFFREY S. PASSEL, PEW HISPANIC CTR., UNAUTHORIZED MIGRANTS: NUMBERS AND CHARACTERISTICS 3 (2005), available at http://pewhispanic.org/files/reports/46.pdf.
19. 8 U.S.C. § 1101(a)(15)(H) (2006) (guest worker provisions). Failed guest worker programs are a primary contributor to the size of the undocumented population in several developed countries. The World Bank has argued in a recent annual report devoted to migration that worldwide labor mobility trends will lead guest worker programs to remain at the center of contentious political debates worldwide. See WORLD BANK, GLOBAL ECONOMIC PROSPECTS 2006: ECONOMIC IMPLICATIONS OF REMITTANCES AND MIGRATION 72 (2009). Nowhere is this observation truer than in the United States, the world's largest importer of unskilled persons.
20. See Philip L. Martin, Economic Integration and Migration: The Case of NAFTA, 3 UCLA J. INT'L L. & FOREIGN AFF. 419, 437 (1998).
21. See generally LANT PRITCHETT, LET THEIR PEOPLE COME: BREAKING THE GRIDLOCK ON GLOBAL LABOR MOBILITY (2006). In the last three decades, the population of migrants in high income countries has doubled, registering an annual growth rate of 3%. WORLD BANK, supra, at 26-27. Migrants now constitute nearly 2.9% of the population worldwide, and 8.3% of the population of industrialized countries. Id. Over 90% of these migrants are low-skilled persons who would typically only qualify for legal entry into developed countries as guest workers. Id. at 43.
22. For a summary of the reform proposal, see Press Release, Office of the White House Press Sec'y, Fact Sheet: Fair and Secure Immigration Reform Act (Jan. 7, 2004), available at http://web.archive.org/web/20040110025405/ www.whitehouse.gov/news/releases/2004 /01/20040107-l.html.
23. For a summary of the stakes involved for both Democrats and Republicans in the highly contentious debate, see David Nitkin & Matthew Hay Brown, Bush's Push for Compromise Is Greeted with Skepticism: President Encounters Wary Democrats and Some Republican Opposition, BALT. SUN, Feb. 2, 2007, at 2A;
24. see also Kerry Howley, Guests in the Machine, REASONONLINE, Jan. 2008, http://www.reason.com/news/show/123474.html (describing the controversy engulfing the guest worker program, not only among legislators but also more broadly). "Give the Senate some credit," James Suroweicki wrote in the June 11 New Yorker: "In shaping the current immigration-reform bill, it has come up with one idea that almost everybody hates." Hates was an understatement. President George W. Bush had been pushing for some sort of guest worker program since before the 9/11 attacks, and as that idea inched closer to realization in 2007, his critics grew more vitriolic. Right-wingers ⋯ excoriated Bush for his starry-eyed idealism, and left-wingers⋯ came out against the entrance of hundreds of thousands of new immigrants. The New York Times complained that no worker should be sent home; National Review complained that no worker would go home. The New Republic said the plan fell within "the tradition of the African slave ship" ⋯. Id.
25. Sara Sun Beale, What's Law Got to Do with It? The Political, Social, Psychological and Other Non-legal Factors Influencing the Development of (Federal) Criminal Law, 1 BUFF. CRTM. L. REV. 23 (1997).
26. Stephen Legomsky's work typifies this approach and provides a helpful summary of other sympathetic views. See Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 WASH. & LEE L. REV. 469 (2007).
27. The transnational nature of the alien population is a major theme in the sociological literature, but the law review literature generally appears not to have incorporated this insight. For a summary of the transnationahsm research, see Peggy Levitt, Salsa and Ketchup: Transnational Migrants Straddle Two Worlds, in THE CONTEXTS READER, AMERICAN SOCIOLOGICAL ASSOCIATION (Jeff Goodwin & James Jasper eds., 2008). I acknowledge that my utilization of the transnationalism concept is unconventional. The sociology literature generally refers to transnational migrants as citizens and/or permanent residents of two societies. However, the transnational lives of guest workers clearly raise similar issues. Kim Barry has made a similar point in the context of citizenship theory.
28. See Kim Barry, Home and Away: The Construction of Citizenship in an Emigration Context, 81 N.Y.U. L. REV. 11 (2006).
29. For an article that summarizes a broad range of interdisciplinary writing on compliance and deterrence issues, see Dan M. Kalian, Between Economics and Sociology: The New Path of Deterrence, 95 MICH. L. REV. 2477 (1997). One such classic ethnographic study, which has been highly influential in criminal law scholarship, is CLIFFORD R. SHAW & HENRY D. MCKAY, JUVENILE DELINQUENCY AND URBAN AREAS (1942). For an example of the influence of this work, see Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 AM. CRIM. L. REV. 191 (1998). Another such influential study is ELIJAH ANDERSON, STREETWISE: RACE, CLASS, AND CHANGE IN AN URBAN COMMUNITY (1990). For an example of the utilization of this work, see Tracey L. Meares & Dan M. Kahan, Law and (Norms of) Order in the Inner City, 32 LAW & Soc'YREV. 805, 809-13 (1998).
30. For a widely cited quasi-academic discussion of the challenges of sanctioning,
31. see Philip L. Martin & Michael S. Teitelbaum, The Mirage of Mexican Guest Workers, 80 FOREIGN AFF. 117, 131 (2001).
32. See also Martin, supra note 7.
33. 8U.S.C. § 1101(a)(15)(H)(2006).
34. For the key provisions of the guest worker reform proposal, see Press Release, Office of the White House Press Sec'y, supra note 8.
35. Id.; see also Press Release, The White House, President Signs Homeland Security Appropriation Act for 2006 (Oct. 18, 2005), available at http://merln.ndu.edu/archivepdf/hls/ WH/20051018-2.pdf ("You see, we got people sneaking into our country to work. They want to provide for their families. Family values do not stop at the Rio Grande River. People are coming to put food on the table. But because there is no legal way for them to do so, through a temporary worker program, they're putting pressure on our border. It makes sense to have a rational plan that says, you can come and work on a temporary basis if an employer can't find an American to do the job. It makes sense for the employer, it makes sense for the worker, and it makes sense for those good people trying to enforce our border." (statement of President George W. Bush)).
36. Consider the several manifestations of McCain/Kennedy comprehensive immigration reform bills of which this Article only mentions a few, including, for example, the Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong.; the Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong.; and the Secure America and Orderly Immigration Act, S. 1033, 109th Cong. (2005).
37. See also Comprehensive Enforcement and Immigration Reform Act of 2005, S. 1438, 109th Cong.; Save America Comprehensive Immigration Act of 2005, H.R. 2092, 109th Cong, (sponsored by Rep. Sheila Jackson-Lee).
38. For both Republican and Democratic critiques of President George W. Bush's guest worker proposal, see H.R. 2092; Press Release, Governor Mitt Romney on Immigration Reform (June 4, 2007), available at http://web.archive. org/web/20070607181345/www. mittroirmey.com/News/Press-Releases/Irnmigration- Reform-Statement.
39. Americans Against Illegal Immigration was among the opposition groups that organized the congressional phone calling program. See Americans Against Illegal Immigration, Stop the Illegals Now!, http://www. stoptheillegalsnow.com/help/callrep.php (last visited Mar. 21,2009).
40. Michelle Oddis, Immigration Reform: Makes Romney, Breaks McCain, HUMAN EVENTS.COM, May 25, 2007, http://www.humanevents.com/ article.php?id=20872.
41. The now-infamous Bracero ("farmhand") program was inaugurated under a bilateral agreement with Mexico during World War II to meet critical agricultural labor shortages and ultimately involved widespread visa overstays and deportations.
42. See KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION AND THE I.N.S. (1992);
43. BARBARA A. DRISCOLL, THE TRACKS NORTH: THE RAILROAD BRACERO PROGRAM OF WORLD WAR II, at 53-55 (1999);
44. ERNESTO GALARZA, MERCHANTS OF LABOR (1964). There are a few discussions of the Bracero program in the law review literature, which include Camille J. Bosworth, Guest Worker Policy: A Critical Analysis of President Bush's Proposed Reform, 56 HASTINGS L.J. 1095, 1100 (2005);
45. Maria Elena Bickerton, Note, Prospects for a Bilateral Immigration Agreement with Mexico: Lessons from the Bracero Program, 79 TEX. L. REV. 895, 909 (2001);
46. Merav Lichtenstein, Note, An Examination of Guest Worker Immigration Reform Policies in the United States, 5 CARDOZO PUB. L. POL' Y & ETHICS J. 689 (2007).
47. For a general discussion of the program's failings, see Douglas S. Massey & Zai Liang, The Long-Term Consequences of a Temporary Worker Program: The US Bracero Experience, 8 POPULATION RES. & POL'Y REV. 199 (1989).
48. Id. at 204; see also Martin & Teitelbaum, supra note 14.
49. Most of these persons are nonimmigrants, the overwhelming majority of whom enter under the B1-B2 category, which is referred to in shorthand as the visitor visa for business or pleasure. IRA J. KURZBAN, KURZBAN'S IMMIGRATION LAW SOURCEBOOK 413-18 (8th ed. 2002).
50. The World Bank annual report details the relevant characteristics of this population that pose difficulties in screening.
51. See WORLD BANK, supra note 7, at 57-58.
52. Id. at 59-60.
53. Id. at 73.
54. There are differing views about the difficulty of deploying sanctions against undocumented workers. For a summary of the differing views, see Tamar Jacoby, Immigration Nation, 85 FOREIGN AFF. 50 (2006);
55. see also Massey & Liang, supra note 23.
56. Jacoby, supra note 29.
57. Id.
58. See Motomura, supra note 4. The term "first order" is Adam Cox and Eric Posner's. See Cox & Posner, supra note 4, at 811.
59. See, e.g., Linda S. Bosniak, Exclusion and Membership: The Dual Identity of the Undocumented Worker Under United States Law, 1988 Wis. L. REV. 955; Karla M. Campbell, Guest Worker Programs and the Convergence of U.S. Immigration and Development Policies: A Two-Factor Economic Model, 21 GEO. IMMIGR. L.J. 663 (2007); Howard F. Chang, Immigration and the Workplace: Immigration Restrictions as Employment Discrimination, 78 CHI.-KENT. L. REV. 291 (2003);
60. Bradly J. Condon & J. Brad McBride, Do You Know the Way to San Jose? Resolving the Problem of Illegal Mexican Migration to the United States, 17 GEO. IMMIGR. L.J. 251 (2003);
61. Andrew J. Elmore, Egalitarianism and Exclusion: U.S. Guest Worker Programs and a Non-subordination Approach to the Labor-Based Admission of Nonprofessional Foreign Nationals, 2 1 GEO. IMMIGR. L.J. 521 (2007);
62. Ruben J. Garcia, Ghost Workers in an Interconnected World: Going Beyond the Dichotomies of Domestic Immigration and Labor Laws, 36 U. MICH. J.L. REFORM 737 (2003);
63. Philip Martin, Guest Workers: New Solution or New Problem?, 2007 U. CHI. LEGAL F. 289; Lori A. Nessel, Undocumented Immigrants in the Workplace: The Fallacy of Labor Protection and the Need for Reform, 36 HARV. C.R.-C.L. L. REV. 345 (2001);
64. Belinda I. Reyes, The Impact of U.S. Immigration Policy on Mexican Unauthorized Immigration, 2007 U. CHI. LEGAL F. 131; Michael J. Wishnie, Emerging Issues for Undocumented Workers, 6 U. PA. J. LAB. & EMP. L. 497 (2004).
65. Peter Schuck has made this point. See Schuck, supra note 4.
66. See Cox & Posner, supra note 4.
67. Cox and Posner's primary focus is on mechanisms of screening immigrants (that is, persons who are admitted for long-term residence and possibly citizenship). However, they point out that their analytical framework is also applicable to the challenges of admitting temporary guests. Id. at 813-14;
68. see also Michael J. Trebilcock, Immigration Policy, in PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 259 (Peter Newman ed., 1998); Michael J. Trebilcock, The Law and Economics of Immigration Policy, 5 AM. LAW & ECON. REV. 271 (2003).
69. See Cox & Posner, supra note 4, at 812.
70. Id. at 820.
71. Id. at 845.
72. Id.
73. Id. at 846.
74. Id. at 847.
75. Id.
76. Id.
77. ARISTIDE R. ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA 436 (2006).
78. Id.
79. For a good summary of the deterrence literature in the criminal law context, see Kahan, supra note 13.
80. There have been occasional allusions in the literature to this issue. For example, Peter Schuck wrote over a decade ago reflecting on the centrality of the deterrence question: The essential idea of a prevention strategy is quite simple and compelling. To the extent that aliens who are likely to be illegal at entry or to lose their legal status after entry can be deterred from attempting to come to the United States, or detected and prevented from entering the United States once they arrive, the necessity for detention-indeed, for any further enforcement activity-will be minimized. Peter H. Schuck, INS Detention and Removal: A "White Paper," 11 GEO. IMMIGR. L.J. 667, 678 (1997).
81. See Cox & Posner, supra note 4, at 847-848.
82. For a discussion of the increasing popularity of punitive measures in the name of deterrence, see DANIEL KANSTROOM, DEPORTATION NATION: OUTSIDERS IN AMERICAN HISTORY (2007); David Cole, Enemy Aliens, 54 STAN. L. REV. 953 (2002); Legomsky, supra note 11.
83. This has been recognized by a range of scholars from other diverse academic disciplines who advocate policy prescriptions that fall at differing points along the political spectrum.
84. See, e.g., DOUGLAS S. MASSEY, JORGE DURAND & NOLAN J. MALONE, BEYOND SMOKE AND MIRRORS: MEXICAN IMMIGRATION IN AN ERA OF ECONOMIC INTEGRATION (2002); Jacoby, supra note 29; Martin, supra note 7; Martin & Teitelbaum, supra note 14; Demitrios G. Papademetriou, Philip L. Martin & Mark J. Miller, U.S. Immigration Policy: The Guestworker Option Revisited, 2 1 INT' L MIGRATION 39(1983).
85. MASSEYETAL., supra note 51.
86. CNN commentator Lou Dobbs is perhaps the best-known proponent of such views. For commentary on Lou Dobbs's approach, which is comedic but nevertheless elucidates the skepticism toward such proposals, see Andy Borowitz, Illegal Immigrants to Write Immigration Bill, HUFFINGTON POST, June 13, 2007, http://www.huffingtonpost.com/andy-borowitz/congress-hires- illegal-im-b-51903 .html.
87. See The Immigration and Nationality Act, 8 U.S.C. § 1324(a) (2006) (codifying employer sanctions); Bosniak, supra note 33 (discussing the history of employer sanctions).
88. ZOLBERG, supra note 45.
89. For a general discussion of carrier sanctions, see Erika Feller, Carrier Sanctions and International Law, 1 INT'L J. REFUGEE L. 48, 55-63 (1989).
90. See, e.g., Meares, supra note 13.
91. It is not my intention to engage the long-standing debate arising out of the law and society movement about what law "is," but simply to make the point that it has long been recognized in the criminal law context that social norms have a significant impact on how persons debate criminal law. For a summary of work about what constitutes "law" from a law and society perspective, see Brian Z. Tamanaha, A Non-essentialist Version of Legal Pluralism, 27 J. L. & Soc'Y 296 (2000). For a widely cited example of norms enthusiasm in the criminal context, see Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA.L. REV. 349 (1997).
92. Building on Jeremy Bentham's classic conception of deterrence, the recognition of the impact of norms on deterrence (normative deterrence) is a recognized concept in the criminal law; it does not appear to have been applied to immigration law. Examples of such work include Katharine K. Baker, Sex, Rape, and Shame, 79 B.U. L. REV. 663 (1999); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591 (1996) [hereinafter Alternative Sanctions]. For a critique of proposals arising from a norms-based approach to deterrence, see Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, The Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 MICH. L. REV. 291 (1998). For other discussions which recognize the importance of norms in discussions of deterrence, see Paul H. Robinson & John M. Darley, The Utility of Desert, 91 Nw. U. L. REV. 453,471-88 (1997) (contending that the classical utilitarian conception of deterrence fails to appreciate the importance of norms in governing the willingness of citizens to obey the law); see also Alvin K. KJevorick, On the Economic Theory of Crime, in CRIMINAL JUSTICE, NOMOS XXVII, at 289, 292-94, 301-04 (J. Roland Pennock & John W. Chapman eds., 1985) (maintaining that the economic theory of deterrence fails to account for the role of societal norms).
93. See generally ZOLBERG, supra note 45, at 432-59.
94. Id. at 436.
95. Id.
96. See Jacoby, supra note 29, at 50 ("In fact, the nation is far less divided on immigration ⋯ than the current debate suggests.").
97. Id. ("Some legislators ⋯ insist that any new slots be strictly temporary: workers would be admitted, perhaps without family, for a period of two or three or six years and would then go home ⋯.") .
98. See, e.g., Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cong.; Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong.; Secure America and Orderly Immigration Act, S. 1033, 109th Cong. (2005); Save America Comprehensive Immigration Act of 2005, H.R. 2092, 109th Cong.
99. For a general discussion of the clear preference for certain types of talent, see Ayelet Shachar, The Race for Talent: Highly Skilled Migrants and Competitive Immigration Regimes, 81 N.Y.U. L. REV. 148 (2006). For example, in many developed economies there is a clear preference for migrants with particular technical skills (e.g., computer scientists) who can contribute to the high-growth technical sectors of the economy.
100. See, e.g., Cox & Posner, supra note 4, at 824 ("A central second-order design question is how to sort applicants for immigration, so that only the desired types are admitted, where the desired type is just the type of person who satisfies the criteria derived from a state's first-order immigration goals.").
101. See Jacoby, supra note 29, at 50-51 ("[Virtually every major media outlet has surveyed public attitudes on the issue, and the results have been remarkably consistent⋯. [A]n overwhelming majority ⋯ would like to see Congress address the problem with⋯ tougher enforcement. ⋯").
102. Transparency concerns are also significant in light of the partial outsourcing proposal, particularly given extensive evidence that corruption was rife in previous iterations of such programs, such as the Bracero program, and also that there was systematic exclusion of particular groups of persons who were disenfranchised within their own societies.
103. See generally CALAVITA, supra note 22; DRISCOLL, supra note 22; GALARZA, supra note 22. This subject is a fertile area for further research, but to remain true to its own liberal egalitarian principles and to mitigate such concerns, it seems clear that, at a minimum, the United States should only enter into bilateral labor agreements with liberal egalitarian democracies. Although the academic literature widely acknowledges that democratic mechanisms of accountability are at best imperfect, democratic mechanisms are helpful in holding both political and administrative actors accountable for transparent noncorrupt administration. For a discussion of the imperfections of liberal democracies in monitoring the actions of politicians and administrators, see MATTHEW R. CLEARY & SUSAN C. STOKES, DEMOCRACY AND THE CULTURE OF SKEPTICISM: POLITICAL TRUST IN ARGENTINA AND MEXICO (2006);
104. R. Douglas Arnold, Can Inattentive Citizens Control Their Elected Representatives?, in CONGRESS RECONSIDERED (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 1993). This is particularly the case if the contracting country has a vibrant civil society with a network of interest groups, which function alongside a free press to monitor politicians and administrators. This has certainly been the case in Jamaica, where political actors are disinclined to interfere with the program given its overwhelming popularity with the electorate.
105. This Article focuses on the community for generating norm entrepreneurs and enforcers. Yet simultaneously it focuses on the nation for screening and compliance. This leads to an obvious question: is the nation the best unit for generating the norms that are necessary to a model of normative deterrence? It bears emphasizing that in all of the
106. I do not address the issue of how the costs associated with administering this model should be shared between guest workers, employers, the source-labor country, and the United States. This is a potentially rich area for later research, but a reasonable initial response would be to note that there generally will be significant differentials in the capability of the source-labor nations and the United States to bear the costs, and that the principles of distributive justice (embodied in the work of a range of liberal theorists including Bruce Ackerman, Michael Walzer, and John Rawls) should apply. BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE (1980); JOHN RAWLS, A THEORY OF JUSTICE (1971); WALZER, supra note 3. It seems reasonable to argue that the labor-importing countries, which are undoubtedly richer as measured by a variety of indices (and who arguably benefit disproportionately from labor importation) should bear the more significant proportion of the costs associated with the administration of such programs
107. In this regard, there are similarities to Ian Ayres and John Braithwaites's concept of regulatory pyramids of enforcement. IAN AYRES & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE (1992).
108. Daryl J. Levinson, Collective Sanctions, 56 STAN. L. REV. 345, 349 (2003). Daryl Levinson provides a brief overview of the utilization of collective sanctions both historically and in modern times, with an emphasis on functional rationales for collective sanctioning, emphasizing that central features of modern legal systems, including vicarious, joint and several, and corporate liability, are justified utilizing similar functional rationales. For a further discussion in the law review literature of the moral and functional justifications for collective sanctions, see also Saul Levmore, Rethinking Group Responsibility and Strategic Threats in Biblical Texts and Modern Law, 71 CHI.-KENT L. REV. 85, 89-90 (1995). Beyond the law review literature, the economics literature also has an extensive discussion of functional rationales for collective sanctioning. For example, economic historians credit collective sanctioning for facilitating a commercial revolution in late medieval times by allowing long-distance commercial exchange between parties who had no prior knowledge of each other.
109. See Avner Greif, Contract Enforceability and Economic Institutions in Early Trade: The Maghribi Traders' Coalition, 83 AM. ECON. REV. 525 (1993);
110. Avner Greif, Reputation and Coalitions in Medieval Trade: Evidence on the Maghribi Traders, 49 J. ECON. HIST. 857 (1989). In the Jamaican context, collective sanctioning appears to work well when applied to microlending. For a broader discussion of the importance of collective sanctioning to microfinance (in the form of joint liability lending), see Maitreesh Ghatak, Screening by the Company You Keep: Joint Liability Lending and the Peer Selection Effect, 110 ECON. J. 601, 602 (2000).
111. One could argue that the country and the community are standing behind the guest worker as guarantors in a very loose utilization of the term. There are analogies to the economic rationales for using guarantees, with the community playing an analogous role. See Avery Weiner Katz, An Economic Analysis of the Guaranty Contract, 66 U. CHI. L. REV. 47 (1999). The utilization of the term "guaranty& quot; is controversial; indeed, this proposal may call to mind Soviet-era "guest worker" programs in which threats against communities were used to secure the return of guest workers. See, e.g., Oliver E. Williamson, Credible Commitments: Using Hostages to Support Exchange, 73 AM. ECON. REV. 519, 519-40 (1983). It bears emphasizing that the program discussed herein recommends the "soft" utilization of group accountability, and, as such, the proposal would not countenance any such abuses. In any event, the issue of ensuring individual human rights protections in programs such as these is a fertile area for future work. As a preliminary matter, this Article recommends that the United States enter into outsourcing programs only with liberal egalitarian democracies, partly in an effort to guard against such abuses. It bears emphasizing that there is an evolving international norm against collective punishment. See Levinson, supra note 73. The question becomes: does it matter whether the sanction recommended really involves the selection of a country for the privilege of involvement in a guest worker program, rather than exclusion of a country from generally available migration privileges? I would argue that the key difference is that a collective reward is being withheld (as opposed to a collective punishment being imposed), although the literature uses the term sanctioning more broadly to reference both group punishments and rewards. See, e.g., id. at 376. Nevertheless, the utilization of group accountability principles raises significant justice concerns, which present a fertile area for later work. In the philosophy literature, there is a general view that collective sanctioning conflicts with the liberal obligation to prioritize individuals as moral agents. See generally, e.g., COLLECTIVE RESPONSIBILITY: FIVE DECADES IN THEORETICAL AND APPLIED ETHICS (Larry May & Stacey Hoffman eds., 1991);
112. PETER A. FRENCH, COLLECTIVE AND CORPORATE RESPONSIBILITY (1984);
113. GROUPS AND GROUP RIGHTS (Christine Sistare, Larry May & Leslie Francis eds., 2001);
114. LARRY MAY, THE MORALITY OF GROUPS: COLLECTIVE RESPONSIBILITY, GROUP-BASED HARM, AND CORPORATE RIGHTS (1987);
115. Joel Feinberg, Collective Responsibility, 65 J. PHIL. 674 (1968).
116. The term intermediary is influenced by the utilization of the term "intermediary in trust" in the sociology literature. See generally JAMES S. COLEMAN, FOUNDATIONS OF SOCIAL THEORY 197-240 (1990).
117. This model is influenced by the norms literature in its recognition that subjects feel obligated to follow certain rules, irrespective of formal legal arrangements, because of an internalized moral commitment or fear of informal sanctions. Surprisingly, immigration law appears largely untouched by the norms scholarship. It is an account of legal influence (as opposed to legal centralism). Although the economics literature appears to be most influential in modern discussions of "norms" scholarship, the discussion of "norms" has a distinguished heritage that predates this contribution with interdisciplinary contributions from the fields of anthropology and sociology. For a summary of anthropological and sociological work in this area, see SALLY FALK MOORE, LAW AS PROCESS: AN ANTHROPOLOGICAL APPROACH (1978); Richard Abel, What We Talk About When We Talk About Law, in THE LAW AND SOCIETY READER 1, 1-10 (Richard L. Abel ed., 1995); Sally Falk Moore, General Introduction, in LAW AND ANTHROPOLOGY: A READER 1,2 (Sally Falk Moore ed., 2005) [hereinafter Moore, LAW AND ANTHROPOLOGY]. The landmark text in the law and economics literature is ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991).
118. Notably, sanctioning and screening are separate and analytically distinct functions that should be distinguished and need not necessarily be coupled. Moreover, there are other potential sanctions that could be added to the model that are not derivative of the power to screen.
119. See Legomsky, supra note 11 (providing examples of these punitive trends);
120. see also Jacoby, supra note 29; Martin & Teitelbaum, supra note 14.
121. See Kahan, supra note 59 (articulating the importance of the "expressive" function of punishment).
122. Bentham's classic definition of deterrence compared the utility of benefits to the disutility of losses. As long as losses exceed benefits, or pain exceeds pleasure, then the actor is deterred from undertaking the activity. JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (Oxford, Clarendon Press 1823) (1789).
123. Dan M. Kahan, Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem, 67 U. CHI. L. REV. 607, 645 (2000).
124. There are few academic studies of Jamaican guest workers in Canada. The exceptions are R. G. Cecil & G. E. Ebanks, The Caribbean Migrant Farm Worker Programme in Ontario: Seasonal Expansion of West Indian Economic Spaces, 30 INT'L MIGRATION 19 (1992);
125. R. G. Cecil & G. E. Ebanks, The Human Condition of West Indian Migrant Farm Labour in Southwestern Ontario, 29 INT'L MIGRATION 389 (1991).
126. Jamaicans are believed to have the highest representation on a per capita basis in the undocumented population in Canada. This information was garnered from an interview with the Chief Technical Officer in the Ministry of National Security in Jamaica. For a broader discussion of high levels of noncompliance by Jamaicans with immigration laws in the United States, see Zagros Madjd-Sadjadi & Dillon Alleyne, The Potential Jamaican Impact of Criminal Deportees from the United States, 5 J. ETHNICITY & CRIM. JUST. 29 (2007). Utilizing statistical modeling, the authors provide indicative statistics on the number of Jamaicans in the undocumented population. The preliminary estimates regarding the representation of Jamaicans among the low-skilled documented and undocumented population in both Canada and the United States arise from conversations with researchers in the Remittance Research Project in the Department of Economics at the Jamaica Mona Campus of the University of the West Indies.
127. See also Milton Vickerman, Jamaica, in THE NEW AMERICANS: A GUIDE TO IMMIGRATION SINCE 1965, at 479 (Mary C. Waters & Reed Ueda eds., 2007). Milton Vickerman notes that the Jamaicans consistently express a high desire to migrate and that the emigration rate is propelled "by an entrenched tradition of migration and economic hardship." Id. Taking into account the population size, the emigration rate is very high, with migrant Jamaicans constituting a third of Jamaica's population. Id. In 2001, Jamaicans were the second-most-likely population on a per capita basis to migrate to the United States. Id.
128. For a comparative discussion of American and Canadian historical approaches to immigration generally, see WILL KYMLICKA, FINDING OUR WAY: RETHINKING ETHNOCULTURAL RELATIONS IN CANADA (1998).
129. See generally MARTIN COLLACOTT, CANADA'S IMMIGRATION POLICY: THE NEED FOR MAJOR REFORM (2002).
130. I acknowledge the work of Mr. Densil Reid, who has significant experience in fieldwork in rural populations. He conducted thirteen of the guest work interviews and participated in twenty-two others.
131. Kathryn Edin and Laura Lein, whose work has been utilized in the law review scholarship on entitlement programs, employed a similar methodology in their landmark study of a difficult to reach population, namely, single mothers on welfare. See Matthew Diller, The Revolution in Welfare Administration: Rules, Discretion and Entrepreneurial Government, 75 N.Y.U. L. REV. 1121, 1171-72 (2000) (citing KATHRYN EDIN & LAURA LEIN, MAKING ENDS MEET: How SINGLE MOTHERS SURVIVE WELFARE AND LOW-WAGE WORK (1997)). The methodology of this study was influenced by grounded theory approaches to qualitative research. See ANSELM STRAUSS & JULIET CORBIN, BASICS OF QUALITATIVE RESEARCH: GROUNDED THEORY PROCEDURES AND TECHNIQUES (1990).
132. Although tourism workers and certain tradespersons in construction are now eligible to access the Canadian labor market under more recently developed Canadian visa programs, in the Jamaican context, these persons are not understood to be low-skilled since they have received some formal training in trade schools and completed tests to gain certifications. As such, I restricted the sample to persons who are understood in the Jamaican context to be "low-skilled," namely, agricultural workers. Their access to overseas labor markets is most restricted, since they are considered high risks for immigration infractions. They typically lack formal training, are low-income, and are poorly situated to provide the collateral that is required to demonstrate their suitability for visas. Across a broad range of temporary visa categories, Canadian consulates have the discretion to require aliens to provide evidence of their educational levels, of real property ownership, or ownership of other items of value. These are taken as evidence of financial or professional ties to the country of origin. Low-skilled Jamaicans do not have such "capital," and have typically not had legal access to Canada outside of family sponsorship programs. As such, participants in the Jamaica-Canada program are trendsetters
133. Notably, in addition to the small sample size, a limitation of the study is that I was unable to locate any persons who have not complied with the visa terms, since these persons have presumably disappeared into the underground economy in violation of Canadian laws and interview subjects were either unwilling or unable to provide access to them. An online counterpart to this Article contains more detailed statistical analyses. I hold detailed transcripts of all the interviews with guest workers on file.
134. The Jamaican Seasonal Agricultural Workers Program operates within a tripartite institutional framework. At the federal level, the program is implemented within the framework of the Immigration Refugee and Protection Act and Regulations, which is premised on the "Canadians First" principle. See Commentary to the Immigration and Refugee Protection Act, intro., at 13, reprinted in LORNE WALDMAN, CANADIAN IMMIGRATION & REFUGEE LAW PRACTICE 13 (2004). At the provincial level, the program is governed by employment, labor, and health regulations. The program also operates within bilateral administrative arrangements between Canada and Jamaica. Employment contracts between Canadian employers and migrant workers are also important; they are subject to review by both Canada and Jamaica. See VEENA VERMA, N. S. INST., THE MEXICAN AND CARIBBEAN SEASONAL AGRICULTURAL WORKERS PROGRAM (2003).
135. Memorandum of Understanding Between the Government of Canada and the Government of Jamaica Concerning the Commonwealth Caribbean Seasonal Agricultural Workers Program, Dec. 5, 1994 [hereinafter Can.-Jam. MOU] (on file with author);
136. see also Irving Andre, The Genesis and Persistence of the Commonwealth Caribbean Seasonal Agricultural Workers Program in Canada, 28 OsGOODE HALL L.J. 243 (1990). The Memorandum of Understanding (MOU) continues in force unless terminated by either party giving three months notice in writing to the other party. If such notice has not been provided, the MOU remains in force. The MOU is typically updated by administrative agreements. The most recent administrative agreement is the 2008 Agreement for the Employment in Canada of Commonwealth Caribbean Seasonal Agricultural Workers
137. See JAMAICAN MINISTRY OF LABOUR, JAMAICA-CANADA PROGRAM HANDBOOK (n.d) (on file with author).
138. If guest workers are involved in (non-immigration) crimes that have the potential to compromise the program (such as narcotics trafficking), the Ministry of Labour and Social Security (MOL or Ministry of Labour) has, in the past, invoked a severe penalty by formally barring consideration of the entire community of origin for limited time periods. Indeed, in one highly publicized incident in which two guest workers were found transporting drugs, the MOL barred the entire community of origin. Administrators argued that it was highly likely that community members were aware of these drug crimes, and, as such, it was reasonable to expect that they would have so warned the MOL. Citing justice concerns, MOL officials indicated that such bans typically were time-limited.
139. Interview with Chief Liaison Officer, Can.; Permanent Sec'y, Ministry of Labour, Jam.; Former Senior Advisor, Office of the Prime Minister; and Former Permanent Sec'y, Ministry of Labour, Jam. (Aug.-Nov. 2007) (notes on file with author).
140. The ideal approach would be a comparative study of U.S. and Canadian guest worker programs, with the appropriate statistical controls to attempt to account for the relative contribution of competing explanatory factors to the success of the program. Agricultural guest workers who travel to Canada and the United States appear broadly similar in that they originate from similar communities, have similar skill sets, and fill similar agricultural jobs; systemic differences in program design might lead the programs to attract different categories of applicants. As intimated earlier, there is clearly the need for a comprehensive comparative study of similarly situated guest workers who participate in the U.S. and Canadian programs, with appropriate controls, in an attempt to isolate the relative contributions of a series of factors that might account for differential compliance rates.
141. See 8 U.S.C. § 1101(a)(15)(H) (2000). Changes to the program currently are being considered. See Press Release, Dep't of Homeland Sec, DHS Proposes Changes txo Improve H-2A Temporary Agricultural Worker Program (Feb. 6, 2008), available at http://www.dhs.gov/xnews/releases/pr- 1202308094416.shtm.
142. In the past, there has been intervention by the Jamaican authorities, who, on the basis of unscrupulous actions by some private recruiters, now require all private recruiters to register with the government
143. THE UNITED FOOD & COMMERCIAL WORKERS UNION, THE STATUS OF MIGRANT FARM WORKERS IN CANADA: 2006-2007, at 6 (2008) [hereinafter STATUS OF MIGRANT FARM WORKERS]. It is also worth noting that data received from the Canadian High Commission in Jamaica indicates that migrant workers generally constitute between 35 and 50% of the total number of Jamaicans who receive nonimmigrant visas to Canada annually (the overwhelming majority of other recipients are temporary visitor visa holders). This contrasts with the United States, where guest workers constitute a much smaller percentage of the total number of Jamaicans who receive nonimmigrant visas. See infra note 99 and accompanying text.
144. See Press Release, Office of the Press Sec'y, Dep't of Homeland Sec, Department of Homeland Security Fact Sheet: H-2A Temporary Agricultural Worker Program (Feb. 6, 2008), available at http://www.dhs.gov/xnews/ releases/pr-1202308216365.shtm. Notably, Jamaican H-2A visa recipients constitute a small percentage of Jamaicans who travel to the United States on nonimmigrant visas each year. H-2A visa recipients generally constitute less than 10% of the total number of Jamaicans who receive nonimmigrant visas to the United States annually. For a general sense of the number of Jamaicans who apply and receive nonimmigrant visas on an annual basis, see Dionne Rose, Post-911 Visa-Application Boom, JAM. GLEANER, July 20, 2008, http://www.jamaica-gleaner.com/gleaner/20080720/news/news7.html.
145. Going Absent Without Leave (AWOL) is in itself a violation of Canadian law, since under the terms of the visa, persons are only to remain in Canada as long as they are working with a specific employer (or for seven days beyond the final date of their labor contract). See Can.-Jam. MOU, supra note 91. These workers were comprised overwhelmingly (though not exclusively) of agricultural workers, in which there was some Jamaican governmental involvement (if only minimal as described above) since workers registered with the MOL, even if the MOL had more limited power over their selection and return arrangements.
146. See Eleanor Marie Lawrence Brown, Outsourcing Immigration Compliance Appendices tbl.l (n.d), available at www. outsourcingimmigrationcompliance.com (enter username "guestworker& quot; and password "guestworker" to access the website). Given the passage of the major immigration reform legislation in 1986, the Immigration Reform and Control Act (IRCA), the analysis was done utilizing figures after that date. The figures were compiled from source data that was provided by the Jamaican Ministry of Labour and Social Security through its archives and statistical bulletins. See id. tbl.l, nn.1-4. Discrepancies were identified in the AWOL numbers over the years 1997-2001, where U.S. AWOL numbers were extremely low in comparison to other years. Administrators in both the U.S. and Canadian programs agreed that the figures for these years appear to be atypical and, notably, were not prepared to eliminate the possibility of deficiencies in record keeping, due to resource constraints at the MOL. As such, AWOL numbers for 1997-2001 were imputed using Maximum Likelihood (EM) Estimation. See id. tbl.l, nn.l^L The Statistical Package for the Social Sciences (SPSS 16.0) was used to carry out this analysis.
147. Id. tbl.l.
148. See Massey & Liang, supra note 23.
149. This percent (1.8%) represents the difference between the average U.S. AWOL rate of 5.3% and the average Canadian AWOL rate of 3.5% for the twenty-year period of analysis.
150. The analysis was carried out using the SSPS 16.0. SPSS is a widely recognized statistical package utilized in social science research. See, e.g., INTER-UNIV. CONSORTIUM FOR POLITICAL & Soc. RESEARCH, GUIDE TO SOCIAL SCIENCE DATA PREPARATION AND ARCHIVING: BEST PRACTICE THROUGHOUT THE DATA LIFE CYCLE (2005), available at http://www.icpsr.umich.edu/access/ dataprep.pdf.
151. The AWOL rates for guest workers in Canada and the United States were inputted into SPSS 16.0. See Brown, supra note 101, tbl.l. An independent samples t-test was performed using "country" as the grouping variable (i.e., the United States and Canada) and the AWOL rates as the test variable. The means of the test variable (i.e., AWOL rates) were compared based on the specified values (i.e., Canada and the United States) of the grouping variable. This test was carried out to determine whether there was a statistically significant difference between the two sample means. The null hypothesis that was tested is that the difference between the means of the AWOL rates for guest workers in U.S. and Canadian programs over the period in review is zero. The alternative hypothesis tested is that the difference between the means is not zero. Given the results of the t-test, the null hypothesis was rejected, in other words, there is a statistically significant difference between the means (using a significance level of 5%). Imputed data was used in this analysis. See id. tbl.l, nn.l-l.
152. See id. tbl.3.
153. For a comprehensive discussion of competing rationales for migratory trends, please see Douglas Massey, Social Structure, Household Strategies and the Cumulative Causation of Migration, 56 POPULATION INDEX 3 (1990). A more detailed note on the methodology in this section, which relies primarily on interviews with guest workers, is appropriate. The data was collected in two segments. The first segment focused on the legal framework that governs the Jamaica-Canada program, and exploratory interviews were conducted with key administrators who draft and enforce the rules that govern the movement of guest workers. In an effort to include a diverse range of experiences, interviewees included administrators with varying levels of seniority. I also conducted a focus group with key administrators. The second phase focused on the factors that influence the visa-compliance decisions of guest workers. Detailed interviews were done with dozens of guest workers. I acknowledge concerns regarding whether the inclination of persons to share candidly might have been compromised by the absence of anonymity. Given the small size of Jamaica, the program in particular, and the referral methodology, faculty at the University of the West Indies, with experience in studying similar populations, indicated that it would be difficult to credibly assure persons of anonymity. Given this concern, I spent significant amounts of time cultivating confidence among individual guest worker subjects. The number of guest workers interviewed was restricted on this basis. More specifically, I conducted detailed interviews with a small sample of guest workers, many of whom had been introduced by a member of a rural agricultural development agency, who regularly interacts with this population for research purposes. Although this person was employed by the government, he clearly had independently earned the trust of guest workers through repeated interactions with them over decades. Having cultivated relationships through his introductions with this smaller pool, the initial interviewees then provided me with introductions to a larger pool. The criteria for selecting persons for interviews were reviewed with the assistance of a researcher at the University of the West Indies, who had previously studied the guest worker population
154. A finding by Catherine Colby with respect to Mexican farm workers in Canada may be relevant in this regard. She interviewed Mexican guest workers and found that they did not wish to remain in Canada, primarily because the small, rural Ontario towns where they worked had no Mexican communities into which they could easily assimilate. CATHERINE COLBY, FROM OAXACA TO ONTARIO: MEXICAN CONTRACT LABOR IN CANADA AND THE IMPACT AT HOME (1997).
155. Farm workers travel primarily to Canadian agricultural communities, many of which have historically been rural, although some have become more urban in recent times. Reflecting the program's historical genesis in Ontario, the representation is particularly strong in agricultural communities in southwestern Ontario. Tanya Basok, He Came, He Saw, He ⋯ Stayed. Guest Worker Programmes and the Issue of Non-return, 38 INT'L MIGRATION 215, 216 (2000). There are far lower representations of farm workers in other provinces, but numbers have been increasing in recent years in other provinces. STATUS OF MIGRANT FARM WORKERS, supra note 98, at 6.
156. Please note that I am utilizing the term risk aversion in a general sense and not in the more specific academic sense in which it is conventionally utilized in economics and finance to refer to the behavior of consumers in conditions of uncertainty. Interview with Dillon Alleyne, Ctr. for Global Dev.; Univ. of the W. Indies (Oct. 2007); Interview with Claremont Kirton, Univ. of the W. Indies (Mar. 2008); Interview with Claremont Kirton, Univ. of the W. Indies (June 2007); Interview with Darron Thomas, Univ. of the W. Indies (Mar. 2008); Interview with Michael Witter, Univ. of the W. Indies (Mar. 2008).
157. Interviews with members of Jamaica Farm Work Programme in Jam. (Sept.-Nov. 2007) [hereinafter Programme Interviews] (subjects include AM, AS, AS, CB, CG, CH, CS, DB, DD, DD, DJ, DR, DT, DT, DW, EC, EW, FC, G, GB, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RB, RC, RJ, RK, RR, S, SB, SP, VH, WD).
158. Id. (subjects include DR, EC, FC, RB).
159. Id. (subjects include AM, AS, AS, CB, CG, CH, CS, DB, DD, DD, DJ, DT, DT, DW, DR, EC, EW, FC, G, GB, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RB, RC, RJ, RK, RR, S, SB, SP, VH, WD).
160. Id. (subjects include DR, EC, FC, RB, RC).
161. Id. (subjects include CG, DT, DW, GB, MH, RB, RJ, SP).
162. Id. (subjects include AM, AS, CB, CG, CH, DB, DD, DJ, DR, DT, EC, FC, G, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RC, RK, RR, S, SB, VH).
163. Id. (subjects include AM, AS, CB, CG, CH, DB, DD, DJ, DR, DT, EC, FC, G, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RC, RR, RH, S, SB).
164. Id. (subjects include AM, AS, CB, CG, CH, DB, DD, DJ, DR, DT, EC, FC, G, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RC, RR, RH, S, SB).
165. Id. (subjects include AM, AS, CB, CG, CS, DB, DD, DJ, DT, DT, DR, DW, EC, EW, FC, G, GB, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RB, RC, RJ, RR, S, SB, SP, WD).
166. Id. (subjects include AM, AS, CB, CG, CH, DB, DD, DJ, DR, DT, EC, FC, G, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RC, RH, RR, S, SB, VH).
167. Id. (subjects include AM, CG, DJ, DT, G, H, HR, J, MH, MS, OM, RB, RC, RR, SB, VH).
168. Id. (subjects include AM, CG, HR, J, MH, MS, OM, RB, RC, RR).
169. Id. (subject DD).
170. Id. (subject DW).
171. Id. (subject CG).
172. Id. (subjects include AM, AS, CB, CG, CH, DB, DD, DJ, DR, DT, EC, FC, G, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RC, RK, RR, S, SB, VH).
173. Id. (subject DW).
174. Id. (subjects include AM, CH, DB, DR, EC, FC, G, H, HR, J, L, M, MS, OM, P, RB, RB, RC, RR, S, SB, WD).
175. Id. (subjects include AM, AS, CB, CG, CS, DD, DJ, DT, DT, DW, EW, FC, G, GB, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RC, RJ, RR, S, SB, SP, WD).
176. Id. (subjects include AM, CB, CG, DD, DJ, DT, HR, MH, OM).
177. Id. (subjects include AM, AS, AS, CB, CG, CH, CS, DB, DD, DJ, DR, DT, DT, DW, EC, EQ, FC, G, GB, H, HR, J, L, M, MH, MS, OM, P, RB, RB, RB, RC, RJ, RK, RR, S, SB, SP, VH, WD).
178. Id. (subjects include AS, CB, CG, CH, DB, DD, DJ, DR., DT, DW, EC, FC, G, G, H, J, L, M, MH, MS, OM, P, RB, RB, RC, RK, RR, S, SB, SB, VH).
179. Id. (subject VH) (translation).
180. Id. (subjects include AS, CB, CG, CH, DB, DD, DJ, DR, DT, DW, EC, FC, G, L, M, MH, P, RB, RH, S, SB, VH).
181. Id. (subject MH).
182. The subjects clearly understood deportation to be a sanction, although one might question the basis on which deportation might reasonably be construed as a sanction. If a guest worker overstays his visa, and the host country deports him, why is this not simply an enforcement of a contractual obligation that the guest worker agreed to (as a condition of his visa) in the first place? This question seems particularly pertinent in light of the longtime debate in the immigration law literature as to whether deportation should in fact be viewed as a punishment. See Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893) (holding that "an order of deportation is not a punishment for crime"); cf. Legomsky, supra note 11 (arguing that theories of deportation overlap so substantially with those of criminal punishment that deportation should at least sometimes be regarded as a form of punishment). See generally Annmarie Barnes, Transnational Dislocations: The Use of Deportation as Crime Control (2007) (unpublished manuscript, on file with the Fordham Law Review).
183. Programme Interviews, supra note 112 (subjects include DT, SP).
184. Programme Interviews, supra note 112 (subjects include AS, CH, DB, DR, EC, FC, G, H, L, M, P, RB, RH, S, SB, VH). This message is clearly communicated in the MOL's orientation literature. JAMAICAN MINISTRY OF LABOUR, supra note 92.
185. Insiders are referred to as intermediaries in trust in the next section.
186. The concept of an intermediary in trust is captured in the following: Suppose Party A and Party B are considering a relationship that will be based at least partially on trust but have no reason to trust each other. A and B may be willing to enter into such a relationship if there is an intermediary (Party C) with whom they both have a trusting relationship (that is, A comes to trust B because both A and B trust C).
187. See COLEMAN, supra note 75, at 180- 85
188. For excellent summaries of the anthropological and sociological contributions to the norms literature, see MOORE, LAW AND ANTHROPOLOGY, supra note 76.
189. See also ABEL, supra note 76; Robert C. Ellickson, A Critique of Economic and Sociological Theories of Social Control, 16 J. LEGAL STUD. 67 (1987); Robert C. Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County, 38 STAN. L. REV. 623 (1986). Richard McAdams's article contains a discussion of the secondary economics-influenced norms literature. See Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338, 339-50 (1997);
190. see also ERIC A. POSNER, LAW AND SOCIAL NORMS (2000); Robert Cooter, Expressive Law and Economics, 27 J. LEGAL STUD. 585 (1998); Lawrence Lessig, The New Chicago School, 27 J. LEGAL STUD. 661 (1998); Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 962-91 (1995); Lawrence Lessig, Social Meaning and Social Norms, 144 U. PA. L. REV. 2181 (1996); Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903 (1996). For an example of norms enthusiasm in the criminal context, see Kalian, supra note 58
191. McAdams, supra note 142, at 342.
192. The sociology literature refers to these persons as " intermediaries in trust." See generally COLEMAN, supra note 75, ch. 8.
193. For example, some interviewees cited the importance of religious leaders and coaches in guiding their decision making more generally, and in this area in particular.
194. Malcolm Gladwell has offered a theory of how fads reach a tipping point and then cascade. MALCOLM GLADWELL, THE TIPPING POINT: How LITTLE THINGS CAN MAKE A BIG DIFFERENCE 140-46 (2000). In Gladwell's terminology, a "maven" finds her participation in the norm-generation process intrinsically rewarding and is incentivized to learn about emerging norms and then share that knowledge freely with others. As such, information is spread widely and at a low cost. Id. at 62. A "connector," on the other hand, contributes to the norm-generation process simply by virtue of her large number of personal contacts and relationships that allows her to "connect" to large numbers of persons. Id. at 38. Gladwell's argument is that fads spread through mavens and connectors until they reach a "tipping point." Id. at 255-56. This argument clearly has implications for the norm-generation process. See also Randal C. Picker, Simple Games in a Complex World: A Generative Approach to the Adoption of Norms, 64 U. CHI. L. REV. 1225, 1228 (1997) (developing game theoretic models of normative cascades); Sunstein, supra note 142, at 929-30 (on the role of norm-entrepreneurs).
195. These persons are referred to in the law review literature utilizing a variety of terms. For example, Cass Sunstein uses the term norm entrepreneurs to speak of actors who promote the change of norms. Sunstein, supra note 142. Robert Ellickson utilizes a variety of terms to distinguish between the differing roles of those who supply and enforce new norms. See Robert C. Ellickson, The Market for Social Norms, 3 AM. L. & ECON. REV. 1, 10- 12 (2001). For example, "change agents" are relatively early suppliers and enforcers of new norms. Id. Within change agents, Ellickson distinguishes among several categories of persons, including self-motivated leaders, norm entrepreneurs, and opinion leaders. Id.; see also Lior Jacob Strahilevitz, Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping Networks, 89 VA. L. REV. 505 (2003); Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U. CHI. L. REV. 919 (2005).
196. As James Coleman notes, "the advisor's only stock in trade is the credibility of his advice, and if his advice proves incorrect, his loss is in the trustworthiness of his judgment in the eyes of those he has advised." COLEMAN, supra note 75, at 181.
197. As such, although they do not experience the financial loss typically associated with a guarantor, they do experience loss in their primary currency, namely, credibility, and the loss is nevertheless significant
198. The anthropologist of law, Sally Merry, has contended that lawmaking in ex-colonial societies remains deeply influenced by a colonial infrastructure, and the purpose that law had served in such an infrastructure, namely, policing social boundaries, has undermined the legitimacy of law in the wider population. See Sally Engle Merry, The Criminalization of Everyday Life, in EVERYDAY PRACTICES AND TROUBLE CASES 14 (Austin Sarat et al. eds., 1998). It is in this broader historical context that the Jamaican attitudes toward law abidance generally have been contextualized. While there has not been comprehensive survey data on Jamaican attitudes toward law abidance, there is extensive evidence that lawmaking suffers from a legitimacy gap in urban communities, which manifests itself at least partly in dismissive attitudes toward law abidance. See generally ANTHONY HARRIOTT, POLICE AND CRIME CONTROL IN JAMAICA: PROBLEMS OF REFORMING EX-COLONIAL CONSTABULARIES (2000); see also DENIS BENN, THE CARIBBEAN-AN INTELLECTUAL HISTORY 1774-2003 (2004); GORDON K. LEWIS, MAIN CURRENTS IN CARIBBEAN THOUGHT: THE HISTORICAL EVOLUTION OF CARIBBEAN SOCIETY IN ITS IDEOLOGICAL ASPECTS, 1492-1900 (1983); BRIAN MEEKS, NARRATIVES OF RESISTANCE: JAMAICA, TRINIDAD, THE CARIBBEAN (2000).
199. HARRIOTT, supra note 150, at xvii. Anthony Harriott's work bears similarities to the landmark ethnographic study that was conducted by Elijah Anderson in Philadelphia. See ANDERSON, supra note 13; see also MEEKS, supra note 150. Randall Kennedy and Regina Austin have offered comparable arguments to account partially for high levels of crime in American urban centers. RANDALL KENNEDY, RACE, CRIME AND THE LAW (1997); Regina Austin, "The Black Community," Its Lawbreakers, and a Politics of Identification, 65 S. CAL.L. REV. 1769(1992).
200. HARRIOTT, supra note 150.
201. Id.
202. Interview with Chief Technical Officer, Ministry of Nat'l Sec, Jam. (Nov. 2007); see also ANNEMARIE BARNES & ANDREA MCCALLA, A STUDY ON CRIMINAL DEPORTATION, PREPARED FOR THE MINISTRY OF NATIONAL SECURITY AND THE PLANNING INSTITUTE OF JAMAICA (2006). The figures for the United Kingdom are similarly high.
203. For a broader discussion of high levels of noncompliance by Jamaicans with immigration laws, see Madjd-Sadjadi & Alleyne, supra note 83.
204. Jamaica and other Caribbean countries are often referred to as part of the larger Latin American region given their proximity to Latin American neighbors. Other Latin American counties whose nationals appear to have very high rates of noncompliance with immigration laws as indicated by rates of deportation include Honduras, El Salvador, Colombia, Mexico, Guatemala, Haiti, and the Dominican Republic. See David Brotherton, The Deportees, 37(2) NACLA REPORT ON THE AMS., Sept./Oct. 2003, at 8, 8-11; Donna DeCesare, Deported 'Home' to Haiti, 32(3) NACLA REPORT ON THE AMS., Nov./Dec. 1998, at 6, 6-10.
205. See Madjd-Sadjadi & Alleyne, supra note 83.
206. A former Jamaican Prime Minister has argued that this tendency to discount deportation-related offenses has had profoundly negative implications for Jamaica's social and economic development. See Honorable Prime Minister P. J. Patterson, Address at the Opening of the Twenty-Fifth Meeting of the Conference of Heads of Government of the Caribbean Community (July 4, 2004), available at http://www.caricom.org/jsp/speeches/25 hgc-patterson.jsp; see also Marc Lacey, No Paradise for Criminals Deported to Jamaica, N.Y. TIMES, Mar. 21, 2007, at A13; Most Honorable Portia Simpson-Miller, Jamaican Prime Minister, Keynote Address to the Conference on the Caribbean, Wash., D.C. (June 19, 2007) (on file with author).
207. Eric A. Posner, Symbols, Signals, and Social Norms in Politics and the Law, 27 J. LEGAL STUD. 765(1998).
208. Id. at 767.
209. In so doing, at the risk of stating the obvious, by imposing group accountability rules (even indirectly), the government is also increasing the (perceived) payoff that both senders and receivers will gain from cooperation
210. Moreover, the success of the program may also be influenced by the close historical relationship between Jamaica and Canada. Both Jamaica and Canada share a commonwealth bond and a history of cooperation arising out of the British colonial experience. This concern ideally would be addressed though comparative empirical study of the effectiveness of similar programs in diverse labor-importing contexts.
211. For a good summary of some of the research in this area, see Abigail Barr, Marleen Dekker & Marcel Fafchamps, Risk Sharing Relations and Enforcement Mechanisms (Ctr. for the Study of African Economies, Working Paper No. 2008-14, 2008), available at http://www.csae.ox.ac.uk/ workingpapers/wps-list.html. For a good summary of the literature on Rotating Savings and Credit Associations (ROSCAs) see Timothy Besley et al., The Economics of Rotating Savings and Credit Associations, in READINGS IN THE THEORY OF ECONOMIC DEVELOPMENT 386 (Dilip Mookherjee & Debraj Roy eds., 2001).
212. For a discussion of microcredit in the context of the risk-pooling literature, see BEATRIZ ARMENDARIZ DE AGHION & JONATHAN MORDUCH, THE ECONOMICS OF MICROFINANCE 147-77 (2005).
213. The most comprehensive discussion of Common Pool Resources (CPR) including an introduction for the nontechnical reader is contained in ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION 30-33 (1990).
214. A good summary can be found in FOUNDATIONS OF HUMAN SOCIALITY: ECONOMIC EXPERIMENTS AND ETHNOGRAPHIC EVIDENCE FROM FIFTEEN SMALL-SCALE SOCIETIES, (Joseph Henrich et al. eds., 2004).
215. Simultaneously, there may be differences in the applicability of this model to different societies, depending on a variety of factors including the
216. For a general discussion of the implications of corruption in guest worker programs see PRITCHETT, supra note 7.
217. This point is particularly well made in the concluding chapter of Christiaan Grootaert & Thierry van Bastelaer, Conclusion: Measuring Impact and Drawing Policy Implications, in THE ROLE OF SOCIAL CAPITAL IN DEVELOPMENT: AN EMPIRICAL ASSESSMENT 341,341-50 (Christiaan Grootaert & Thierry van Bastelaer eds., 2002).
218. Francis Fukuyama, Address at the Conference on Social Capital and Poverty Reduction in Latin America and the Caribbean: Towards a New Paradigm, Santiago, Chile (Sept. 24-26, 2001), in Francis Fukuyama, Social Capital and Development: The Coming Agenda, in SOCIAL CAPITAL AND POVERTY REDUCTION IN LATIN AMERICA AND THE CARIBBEAN: TOWARDS A NEW PARADIGM 45 (Raul Atria et al, compilers (2004)).
219. Officials acknowledged a concern among Canadians that visa slots might be awarded to politically connected persons, particularly if visas are construed by partner government officials as a form of political patronage to reward loyal constituents. Simultaneously, officials and guest workers expressed the view that the program appeared to be free of the corruption that characterized other guest worker programs such as the Bracero program. In an effort to maintain this record, officials argued that the bilateral agreements should institutionalize the obligations to publish the numbers of visas available and persons responsible for visa allocation, as well as the informal monitoring arrangements by Canadian embassy officials "on the ground" in Jamaica. Officials cited the widely publicized conviction of a minister and permanent secretary who were found to be accepting bribes for placements in the program as evidence of the commitment to nip any problems in the bud. For details of this conviction, see JAG Smith Loses Appeal, DAILY GLEANER (Jam.), Oct. 28, 1992, at A2; Barbara Gayle, Smith's Sentence Reduced, DAILY GLEANER (Jam.), Oct. 9, 1990, at Al.
220. Social networks can easily morph into a basis for discrimination. The reader should be aware that this is among the questions of justice I raised in footnote 3, which will be the subject of a later paper. In recognition of the discrimination concern that inevitably accompanies programs that leverage social networks for developmental ends, the World Bank has also developed a list of institutional design and administrative reform recommendations. These include the enactment and enforcement of antidiscrimination rules, but also in limited circumstances, the enactment and enforcement of "affirmative discrimination" rules to mandate the inclusion of historically excluded minorities in these programs.
221. This point is particularly well made in THE ROLE OF SOCIAL CAPITAL IN DEVELOPMENT, supra note 169, at 1-15.
222. The background to this suggested modification is as follows: one successful Indian microcredit program does not allow group borrowers to access external credit unless they have previously demonstrated that they have successfully operated a group in which members bear the risk of default by other members. More specifically, persons are only able to borrow if they have previously been members of ROSCAs. For a summary of the program, see Kumar Aniket, Self Help Group Linkage Programme: A Case-Study (Nov. 15, 2006), available at www.aniket.co.uk/research/casestudy.pdf. There is an extensive literature from the microcredit context as to whether low-risk participants end up with low-risk participants as partners, whether high-risk participants end up with high-risk participants as partners, and so forth. For a good summary of this literature, see Ghatak, supra note 73. A brief background on ROSCAs is as follows. ROSCAs provide a systematic mechanism of pooling resources within a broad group of neighbors and friends. ROSCAs share certain basic characteristics that are summarized as follows: a group of people gather on a regular basis to meet; at each meeting each of the members contributes a fixed amount to a common pot; at each meeting, this pot is given to one member of the group who is determined either randomly or through a bidding process; this member is then unable to receive the pot in future meetings, although she is still obliged to contribute. This process is repeated until each member has received the pot, completing a cycle, which may or may not begin again. ROSCA participation entails costs since members forgo the flexibility of saving on their own, do not receive interest, and undertake the risk of default by other members. Nevertheless in environments in which access to financial mediation is poor, individuals join ROSCAs rather than saving on their own as a mechanism of quickly financing the purchase of durable goods, as a commitment device against self-control problems or as an informal mechanism of insurance (since some ROSCAs permit members to take loans against the pot). ROSCAs are arguably the most pervasive form of informal financial mediation among the poor in developing countries. Indeed, a broad range of studies indicate that they are among the most prevalent forms of informal financial mediation in developing countries. They are also prevalent among recent migrants in developed countries. One study found that at least half of the rural residents in Cameroon, Cote d'lvoire, Congo, Nigeria, Liberia, and Togo were participants in ROSCAs. Another study found that fully 20% of the bank deposits in the Indian state of Kerala derived from ROSCAs. Yet another study found that roughly 20% of Taiwanese had been ROSCA participants. There is also evidence that ROSCAs are popular in Mexico and Chile. Sixty-five percent of Jamaicans surveyed were currently participants in a ROSCA. A good summary is contained in AGHION & MORDUCH, supra note 164, ch. 3. The Jamaican figures are contained in Claremont Kirton, Rotating Savings and Credit Associations in Jamaica: Some Empirical Findings on Partner, 45 Soc. & ECON. STUD. 195 (1996); Sudhanshi Handa & Claremont Kirton, The Economics of Rotating Savings and Credit Associations: Evidence from the Jamaican "Partner," 60 J. DEV.ECON. 173(1999).
223. In the Indian microcredit program, prior to applying for access to external financing, group members must successfully demonstrate that they belong to a ROSCA that has been operational for some specified time period. There are strong incentives to monitor compliance in ROSCAs since early recipients of the pot can always default, leaving later recipients holding the bag. Indeed, it is for this reason that ROSCAs are often found to include a formal meeting component; this provides an institutionalized mechanism of members "checking up" that other members are on track to meet their financial commitments. For a summary of the program, see Aniket, supra note 174. A further innovation is that groups are only permitted to borrow if their ROSCA has been modified from simply a saving ROSCA to a saving and borrowing ROSCA. The primary innovation is that the savings are allowed to accumulate with a moratorium on any member taking from the pot for some specified time period. After this time period, members are permitted to borrow against it in accordance with a tightly structured repayment schedule, with the interest being shared equally among all ROSCA members. If payments are late, all members suffer reduced earnings on their contribution to the pot. In the early stages of a group's life, given the small size of the overall pot, borrowing is generally sequential with the order of borrowing determined by a consensus among the group members. A ROSCA is deemed to be successful when all members receive their portion of the pot, with no default by early takers of the pot. Successful participation in a ROSCA is evidence that members have successfully screened their fellow group members and audited their compliance
224. The CNN commentator, Lou Dobbs, is particularly well-known for a pejorative use of the term outsourcing generally and, more specifically, in the immigration context.
225. See Borowitz, supra note 53. For a similarly critical use of the term outsourcing in the immigration context in congressional testimony, see Implementing the 9/11 Act Mandates for Enhancing the VISA Waiver Program: Hearing Before Subcomm. on Border, Maritime, and Global Counterterrorism, 110th Cong. (2008) (testimony of Douglas E. Lavin, Regional Vice President, International Air Transport Association).
226. See Jacoby, supra note 29.
227. In the economics literature, an agency relationship is defined as "a contract under which one or more persons (the principal(s)) engage another person (the agent) to perform some service on their behalf which involves delegating some decision making authority to the agent." Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. FIN. ECON. 305, 308 (1976). This definition is much broader than the common-law definition in which agency is the "fiduciary relationship that arises when one person (a 'principal') manifests assent to another person (an 'agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act." RESTATEMENT (THIRD) OF AGENCY § 1.01 (2006).
228. The relationship between Actor X and Actor A calls to mind a classic iterated prisoners' dilemma, in which the game is played repeatedly. In the classic form of a prisoners' dilemma, rational choice leads each of the two players to defect even though each player's individual reward would be greater if she cooperated. As in broader game theory, each player is strictly concerned with maximizing her own payoff; however, one player will always maximize her payoff by defecting, irrespective of what the other player does. As such, cooperation is overwhelmed by defection, so that the resulting equilibrium for the game is for all players to defect. In contrast to a conventional prisoners' dilemma, in which defection is always more beneficial than cooperation, in an iterated prisoners' dilemma, which is played over several games, each player has an opportunity to sanction the other player for prior noncooperative behavior. Cooperation may arise as an equilibrium outcome since the incentive to defect may be outweighed by the threat of sanction. See JOEL WATSON, STRATEGY: AN INTRODUCTION TO GAME THEORY ch. 1 (2002) (providing a good summary for the nontechnical reader).
229. Indeed, there are clear analogies to certain aspects of the United States' current consular relationships. It is precisely such challenges that have led the United States to rely heavily on outsourcing in its overseas consular arrangements. Notably, there is a burgeoning literature on the difficulties that the United States has faced in its consular arrangements overseas, in which commentators have noted the difficulties associated with the United States managing myriad retail relationships in a foreign environment. See ZOLBERG, supra note 45.
230. Richard Lewis's text contains a good general summary of such measures. See RICHARD LEWIS, CONTRACT SURETYSHIP: FROM PRINCIPLE TO PRACTICE (2000).
231. A good summary of this literature is contained in Andre Shleifer, State Versus Private Ownership, 12 J. ECON. PERSP. 133 (1998).
232. See also generally Ronald A. Cass, Damage Suits Against Public Officers, 129 U. PA. L. REV. 1110, 1164-68 (1981);
233. John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47, 72, 75-76 (1998);.
234. Daryl Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345 (2002) (acknowledging the difficulties in incentivizing government employees, particularly low-level officials).
235. See WATSON, supra note 179, at 29-37, for a good summary for the nontechnical reader.
236. GRAHAM EVANS, THE PENGUIN DICTIONARY OF INTERNATIONAL RELATIONS (2000);.
237. Daniel Lutzker, Internationalism as a Predictor of Cooperative Behavior, 4 J. CONFLICT RESOL. 426 (1960);.
238. Charles G. McClintlock et al., Internationalism-Isolationism, Strategy of the Other Player, and Two-Person Game Behavior, 67 J. ABNORMAL & Soc. PSYCHOL. 631 (1963); Glenn Snyder, Deterrence and Power, 4 J. CONFLICT RESOL. 163 (1960).
239. ROBERT 0. KEOHANE & JOSEPH S. NYE, POWER AND INTERDEPENDENCE: WORLD POLITICS IN TRANSITION 23 (1977);
240. see also ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL ECONOMY (1984); Robert O. Keohane & Lisa L. Martin, The Promise of Institutionalist Theory, 20 INT'L SECURITY 39,47 (1995).
241. Diana Thorburn, The "Patch" and the "Backyard": Caribbean and Pacific Small Islands and Their Regional Hegemons, 56 Soc. & ECON. STUD. 240, 244 (2007) (discussing SECURITY IN OCEANIA IN THE 2 1ST CENTURY (Eric Shibuya & Jim Rolfe eds., 2003));.
242. see also SMALL STATES IN WORLD POLITICS: EXPLAINING FOREIGN POLICY BEHAVIOR (Jeanne A. K. Hey ed., 2003).
243. Thorburn, supra note 186, at 244.
244. Notably, this is not only the case with Jamaica, but with many other developing countries including the other top eight labor-exporting countries for undocumented aliens to the United States. The other members of the "top eight" are Honduras, El Salvador, Colombia, Mexico, Guatemala, Haiti, and the Dominican Republic. See Brotherton, supra note 156, at 8-11. Indeed, multilateral development institutions have noted that developing countries place great stock on the access that their nationals have to developed markets because remittances constitute such a significant percentage of the Gross Domestic Product (GDP) in so many countries. This is significant because developing countries are aware that their nationals are fungible and can be replaced with nationals from another country in a competitive globalized labor market. For a discussion of the economic impact of remittances and the global competition among countries to provide access to "first world" markets for their nationals so as to augment remittances, see WORLD BANK, supra note 7.
245. An individual's preference scheme is self-regarding if he or she "cares only about the amount of goods and services that he or she consumes." DONALD E. CAMPBELL, INCENTIVES, MOTIVATION AND THE ECONOMICS AND INFORMATION 26 (2006).
246. A definition that succinctly captures "other-regarding" preferences is as follows: The theoretical literature on other-regarding preferences has focused on three departures from the standard self-interest model. In addition to the material resources allocated to him, a person may also care about: (i) The material resources allocated to other agents in relevant reference group, (ii) The fairness of the behavior of the relevant reference agents, (iii) The "type" of reference agents, i.e.[,] whether the agents have selfish, altruistic, spiteful or fair-minded preferences. Ernst Fehr & Klaus M. Schmidt, The Economics of Fairness, Reciprocity and Altriusm - Experimental Evidence and New Theories, in 1 HANDBOOK OF THE ECONOMICS OF GIVING, ALTRUISM AND RECIPROCITY 616, 619 (Serge-Christophe Kolm & Jean Mercier Ythier eds., 2006).
247. Samuel Bowles, Social Preferences and Public Economics: Are Good Laws a Substitute for Good Citizens?, in SANTA FE INSTITUTE AND UNIVERSITA DEGLI STUDI DI SIENA 1 (2007).
248. Id. Samuel Bowles suggests that the utilization of incentives appealing to self-regarding preferences may pervert intrinsic motivation for myriad reasons, including reasons having to do with how incentives "frame" appropriate behavior (which he refers to in shorthand as "framing"), how incentives communicate " information about intent or type," and how incentives affect perceived "self-determination." Id. at 3. With respect to "framing," he notes that "[incentives may signal appropriate behavior[,] shifting the frame from ethical and other-regarding to instrumental and self-regarding." Id. Moreover, "because the incentives provide a signal of the cost (to another) of the individual's behavior, . . . self-regarding behavior modified by the incentive would seem appropriate behavior." Id. With respect to "information about intent or type," he notes that "[e]xplicit incentives may provide a negative signal about the principal's type or beliefs, either in the form of lack of concern about the agent's well being or lack of trust." Id. Finally, self-regarding incentives may undermine perceived "self- determination" because, "where intrinsic motivation is present, incentives may 'overjustify' the activity and reduce the individual's sense of autonomy." Id.