The first part of the paper provides a background on Shari’ah, and Islamic Finance. Next, the paper introduces option contract, and briefly discusses its benefits. Third part of the paper introduces the pro-options and anti-options views among Muslim jurists. Lastly, the paper describes the common form of Shari’ah-compliant options available in the market. A brief discussion of the options in Islamic Finance, presented in this paper, shows that Islamic Finance industry and some Muslim jurists have appreciated the need for Shari’ah-compliant alternative to conventional options.
{"title":"Option Contract in Islamic Finance","authors":"Haroun Rahimi","doi":"10.2139/ssrn.2758359","DOIUrl":"https://doi.org/10.2139/ssrn.2758359","url":null,"abstract":"The first part of the paper provides a background on Shari’ah, and Islamic Finance. Next, the paper introduces option contract, and briefly discusses its benefits. Third part of the paper introduces the pro-options and anti-options views among Muslim jurists. Lastly, the paper describes the common form of Shari’ah-compliant options available in the market. \u0000A brief discussion of the options in Islamic Finance, presented in this paper, shows that Islamic Finance industry and some Muslim jurists have appreciated the need for Shari’ah-compliant alternative to conventional options.","PeriodicalId":102179,"journal":{"name":"University of Washington School of Law Legal Studies Research Paper Series","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126713338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In recent years the financial press has turned increasing attention to MNCs that shift income to low taxed jurisdictions overseas in order to avoid US taxation. What’s generally missing from these discussions is any serious focus on possible IRS attacks on these companies, most of which are CFCs. There’s little apparent concern by anyone that the IRS will try to disallow the profit-shifting structures that have moved so much taxable income out of the US and other countries and into low-taxed foreign jurisdictions.This is changing. Early this year Caterpillar Inc. in an SEC filing disclosed that the IRS had issued a Revenue Agent’s Report to currently tax certain income earned by one of its Swiss entities. Presumably this is income earned as a result of a certain restructuring conducted in the late 1990s and referred to as the Swiss Tax Strategy when examined in 2014 in hearings held by the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations (PSI). The IRS basis for its RAR, as disclosed by Caterpillar, is application of the ‘substance-over-form’ or ‘assignment-of-income’ judicial doctrines. This, however, is not the only approach that the IRS might have chosen to impose taxation on the shifted profits.Various Congressional hearing documents, the work of investigative journalists, and other sources (all publicly available) provide evidence that the businesses within some profit-shifting structures continue to be managed and substantially conducted from the U.S. and not from any business locations outside the U.S. Where this is the case, the IRS may have a strong case for imposing direct taxation on the effectively connected income (ECI) of these low-taxed foreign subsidiaries.Just the threat of imposing direct taxation may cause many MNCs to consider scaling back their profit shifting and for them and their outside auditors to start worrying about exposure on prior years. If the IRS were to sustain such direct taxation, it would mean:• The regular up-to-35% corporate tax,• The ‘branch profits tax’ applied at a flat 30% rate (unless lower by treaty),• A loss of deductions and credits for any tax year if the foreign corporation has not filed Form 1120-F for that year, and• An open statute of limitations on IRS assessment of tax for any tax year if the foreign corporation has never filed a US tax return on Form 1120-F for that year.The combined effect of the above is a 54.5% or higher effective tax rate (lower if tax treaty coverage reduces the 30% branch profits tax rate).Considering these terribly high effective tax rate percentages, where the IRS chooses to examine for possible ECI and develops a credible case, they can use the high effective tax rate as strong leverage to secure agreement for reversal of profit shifting structures. Such agreements would presumably see MNCs agreeing to current taxation within U.S. group members of the shifted profits that had originally been booked in low-taxed foreign subsid
{"title":"Attacking Profit Shifting: The Approach Everyone Forgets","authors":"Jeffery M. Kadet","doi":"10.2139/SSRN.2636073","DOIUrl":"https://doi.org/10.2139/SSRN.2636073","url":null,"abstract":"In recent years the financial press has turned increasing attention to MNCs that shift income to low taxed jurisdictions overseas in order to avoid US taxation. What’s generally missing from these discussions is any serious focus on possible IRS attacks on these companies, most of which are CFCs. There’s little apparent concern by anyone that the IRS will try to disallow the profit-shifting structures that have moved so much taxable income out of the US and other countries and into low-taxed foreign jurisdictions.This is changing. Early this year Caterpillar Inc. in an SEC filing disclosed that the IRS had issued a Revenue Agent’s Report to currently tax certain income earned by one of its Swiss entities. Presumably this is income earned as a result of a certain restructuring conducted in the late 1990s and referred to as the Swiss Tax Strategy when examined in 2014 in hearings held by the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations (PSI). The IRS basis for its RAR, as disclosed by Caterpillar, is application of the ‘substance-over-form’ or ‘assignment-of-income’ judicial doctrines. This, however, is not the only approach that the IRS might have chosen to impose taxation on the shifted profits.Various Congressional hearing documents, the work of investigative journalists, and other sources (all publicly available) provide evidence that the businesses within some profit-shifting structures continue to be managed and substantially conducted from the U.S. and not from any business locations outside the U.S. Where this is the case, the IRS may have a strong case for imposing direct taxation on the effectively connected income (ECI) of these low-taxed foreign subsidiaries.Just the threat of imposing direct taxation may cause many MNCs to consider scaling back their profit shifting and for them and their outside auditors to start worrying about exposure on prior years. If the IRS were to sustain such direct taxation, it would mean:• The regular up-to-35% corporate tax,• The ‘branch profits tax’ applied at a flat 30% rate (unless lower by treaty),• A loss of deductions and credits for any tax year if the foreign corporation has not filed Form 1120-F for that year, and• An open statute of limitations on IRS assessment of tax for any tax year if the foreign corporation has never filed a US tax return on Form 1120-F for that year.The combined effect of the above is a 54.5% or higher effective tax rate (lower if tax treaty coverage reduces the 30% branch profits tax rate).Considering these terribly high effective tax rate percentages, where the IRS chooses to examine for possible ECI and develops a credible case, they can use the high effective tax rate as strong leverage to secure agreement for reversal of profit shifting structures. Such agreements would presumably see MNCs agreeing to current taxation within U.S. group members of the shifted profits that had originally been booked in low-taxed foreign subsid","PeriodicalId":102179,"journal":{"name":"University of Washington School of Law Legal Studies Research Paper Series","volume":"1612 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-07-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129223826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 1945, the Supreme Court blessed a lesser known type of agency deference in Bowles v. Seminole Rock. Also known as Auer deference, it affords deference to agency interpretations of their own regulations. Courts regularly defer to agencies under this doctrine, regardless of where the interpretations first appear or how long-standing they are. Recently members of the Supreme Court have signaled a willingness to reconsider, and perhaps jettison, Seminole Rock. We agree. Seminole Rock has been widely accepted but surprisingly disconnected from any analysis of its origins and justifications. This Article — the first historical explication of Seminole Rock deference — argues that Seminole Rock cannot support the theoretical weight that subsequent courts and evolving administrative law doctrines have complacently put upon it. Seminole Rock was the product of its time — the 1940s, an era of war-time price controls and a new age of administrative law. Later cases wrongly divorced Seminole Rock from that context.This Article documents the untethering of Seminole Rock. It shows how, in the 1960s and 1970s, alongside an expanding administrative state, the doctrine transformed into a more mechanical, and highly deferential form of agency deference. It further shows this transformation is marked by a consistent lack of scholarly or judicial reflection on its underpinnings. In doing so, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.
{"title":"Unearthing the Lost History of Seminole Rock","authors":"Sanne H. Knudsen, Amy J. Wildermuth","doi":"10.2139/SSRN.2555718","DOIUrl":"https://doi.org/10.2139/SSRN.2555718","url":null,"abstract":"In 1945, the Supreme Court blessed a lesser known type of agency deference in Bowles v. Seminole Rock. Also known as Auer deference, it affords deference to agency interpretations of their own regulations. Courts regularly defer to agencies under this doctrine, regardless of where the interpretations first appear or how long-standing they are. Recently members of the Supreme Court have signaled a willingness to reconsider, and perhaps jettison, Seminole Rock. We agree. Seminole Rock has been widely accepted but surprisingly disconnected from any analysis of its origins and justifications. This Article — the first historical explication of Seminole Rock deference — argues that Seminole Rock cannot support the theoretical weight that subsequent courts and evolving administrative law doctrines have complacently put upon it. Seminole Rock was the product of its time — the 1940s, an era of war-time price controls and a new age of administrative law. Later cases wrongly divorced Seminole Rock from that context.This Article documents the untethering of Seminole Rock. It shows how, in the 1960s and 1970s, alongside an expanding administrative state, the doctrine transformed into a more mechanical, and highly deferential form of agency deference. It further shows this transformation is marked by a consistent lack of scholarly or judicial reflection on its underpinnings. In doing so, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.","PeriodicalId":102179,"journal":{"name":"University of Washington School of Law Legal Studies Research Paper Series","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131023728","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Millions of people are trafficked all over the world and enslaved in forced labor in a broad range of industries. Yet, the global community’s efforts to mitigate trafficking have fallen short. This Article argues that the lack of success in fighting human trafficking is to a large extent the result of framing the existing discourse of human trafficking as a matter of criminal law and human rights of women and children, rather than addressing the economic and global market conditions within which human trafficking thrives. Human trafficking is a multi-dimensional issue exacerbated by poverty and disparities in economic opportunities vis-a-vis unmet labor demands and strict migration laws in wealthier countries. It thrives on the vulnerability of certain individuals and populations to exploitation, and particularly those who may desire to migrate in hope of better economic opportunities. Human trafficking is also very much a manifestation of the feminization of both poverty and migration. The dominant gendered narrative, however, continues to marginalize both the impact on and the role of women, children and migrant workers in the global economy, and ignores the complex structural, social and economic aspects of women’s labor migration.The Article specifically highlights vulnerabilities to trafficking and exploitation brought upon by globalization, the feminization of labor migration, and the links between irregular migration and human trafficking. Migrant workers, particularly migrant women, are playing an increasingly critical role in sustaining the global economy. Poor women (of color) in developing countries comprise most of those emigrating for survival, and relatedly, the overwhelming majority among those who are exploited in the process and subject to trafficking. Nonetheless, the international community has been reluctant to fully investigate and act upon the linkage between trafficking and migrant labor. Even more importantly, the current discourse on trafficking fails to admit that human trafficking is the "underside of globalization." There is no commitment to reframe trafficking as a global migratory response to a global market that seeks out cheap, unregulated, and exploitable labor and the goods and services that such labor can produce. Instead, this Article argues, we need to develop an economic analysis of human trafficking–one which primarily looks at globalization, trade liberalization and labor migration as the core areas that need to be explored to advance the prevention of human trafficking.
{"title":"Economic Migration Gone Wrong: Trafficking in Persons Through the Lens of Gender, Labor and Globalization","authors":"Dana Raigrodski","doi":"10.18060/7909.0006","DOIUrl":"https://doi.org/10.18060/7909.0006","url":null,"abstract":"Millions of people are trafficked all over the world and enslaved in forced labor in a broad range of industries. Yet, the global community’s efforts to mitigate trafficking have fallen short. This Article argues that the lack of success in fighting human trafficking is to a large extent the result of framing the existing discourse of human trafficking as a matter of criminal law and human rights of women and children, rather than addressing the economic and global market conditions within which human trafficking thrives. Human trafficking is a multi-dimensional issue exacerbated by poverty and disparities in economic opportunities vis-a-vis unmet labor demands and strict migration laws in wealthier countries. It thrives on the vulnerability of certain individuals and populations to exploitation, and particularly those who may desire to migrate in hope of better economic opportunities. Human trafficking is also very much a manifestation of the feminization of both poverty and migration. The dominant gendered narrative, however, continues to marginalize both the impact on and the role of women, children and migrant workers in the global economy, and ignores the complex structural, social and economic aspects of women’s labor migration.The Article specifically highlights vulnerabilities to trafficking and exploitation brought upon by globalization, the feminization of labor migration, and the links between irregular migration and human trafficking. Migrant workers, particularly migrant women, are playing an increasingly critical role in sustaining the global economy. Poor women (of color) in developing countries comprise most of those emigrating for survival, and relatedly, the overwhelming majority among those who are exploited in the process and subject to trafficking. Nonetheless, the international community has been reluctant to fully investigate and act upon the linkage between trafficking and migrant labor. Even more importantly, the current discourse on trafficking fails to admit that human trafficking is the \"underside of globalization.\" There is no commitment to reframe trafficking as a global migratory response to a global market that seeks out cheap, unregulated, and exploitable labor and the goods and services that such labor can produce. Instead, this Article argues, we need to develop an economic analysis of human trafficking–one which primarily looks at globalization, trade liberalization and labor migration as the core areas that need to be explored to advance the prevention of human trafficking.","PeriodicalId":102179,"journal":{"name":"University of Washington School of Law Legal Studies Research Paper Series","volume":"151 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132676986","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The “IP Clause” of the U.S. Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “science” and “useful arts” do not cleanly map onto the subject matter of current intellectual property systems. As the Supreme Court has noted, under current popular usage of “arts” and “science,” one would expect patents to promote science and copyright to promote arts, yet we know from the historical record that it is exactly the opposite. Other terms, such as “progress” and “discoveries” remain contested. IP Clause interpretations to date rely exclusively on British legal and intellectual antecedents. I argue that the great French Encyclopedie project — a landmark of the mid - eighteenth century Enlightenment — provides crucial context. James Madison, a drafter of the IP Clause, owned and approvingly cited the work. Founding Fathers Thomas Jefferson and Benjamin Franklin were enthusiastic advocates of it. The Encyclopedie has as its two twin goals the promotion of progress in science and in mechanical (useful) arts. I argue that the reliance of early courts and commentators on British antecedents to interpret the federal patent and copyright statutes led to an improperly narrow sense of the context of the IP Clause. Using entries from the Encyclopedie on “Art,” “Science,” “Discoveries,” “Inventions,” “Writers/Authors,” and other relevant topics, I propose a new interpretation of the IP Clause that is more coherent and compelling than existing accounts.
{"title":"The Overlooked French Influence on the Intellectual Property Clause","authors":"Sean M. O'Connor","doi":"10.2139/ssrn.2409796","DOIUrl":"https://doi.org/10.2139/ssrn.2409796","url":null,"abstract":"The “IP Clause” of the U.S. Constitution has long been a puzzle for courts and commentators. It authorizes Congress to secure exclusive rights for authors and inventors, but it does not use the terms “patent” or “copyright,” and its objects of “science” and “useful arts” do not cleanly map onto the subject matter of current intellectual property systems. As the Supreme Court has noted, under current popular usage of “arts” and “science,” one would expect patents to promote science and copyright to promote arts, yet we know from the historical record that it is exactly the opposite. Other terms, such as “progress” and “discoveries” remain contested. IP Clause interpretations to date rely exclusively on British legal and intellectual antecedents. I argue that the great French Encyclopedie project — a landmark of the mid - eighteenth century Enlightenment — provides crucial context. James Madison, a drafter of the IP Clause, owned and approvingly cited the work. Founding Fathers Thomas Jefferson and Benjamin Franklin were enthusiastic advocates of it. The Encyclopedie has as its two twin goals the promotion of progress in science and in mechanical (useful) arts. I argue that the reliance of early courts and commentators on British antecedents to interpret the federal patent and copyright statutes led to an improperly narrow sense of the context of the IP Clause. Using entries from the Encyclopedie on “Art,” “Science,” “Discoveries,” “Inventions,” “Writers/Authors,” and other relevant topics, I propose a new interpretation of the IP Clause that is more coherent and compelling than existing accounts.","PeriodicalId":102179,"journal":{"name":"University of Washington School of Law Legal Studies Research Paper Series","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131812291","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entity-centric, therefore, when the specific requirements and obligations they comprise are addressed only to an abstract and solitary “firm,” with little or no contemplation of affiliates, parent companies, subsidiaries, or multi-entity enterprises. Regulatory entity-centrism is not an isolated phenomenon, as it permeates the laws and rules governing many facets of a firm’s operations. Moreover, it can be discerned in laws and rules covering many types of financial services activities. In other words, entity-centrism in financial services regulation is pervasive. It is also deeply problematic.This Article calls attention to entity-centrism as manifested in financial services regulation, shows why entity-centrism counters regulatory objectives, and assesses possible explanations for the phenomenon. It does so primarily by evaluating two recent regulatory failures that reveal how entity-focused laws and rules privilege entity boundaries over the various ways in which multiple entities (or entities and individuals) work together as a common enterprise. Accordingly, the Article contends that financial services regulation should look past entity boundaries and that lawmakers and regulators should think more broadly, critically, and creatively to address the persistent and significant regulatory difficulties that entity-centrism has spawned.
{"title":"Escaping Entity-Centrism in Financial Services Regulation","authors":"Anita K. Krug","doi":"10.2139/SSRN.2243052","DOIUrl":"https://doi.org/10.2139/SSRN.2243052","url":null,"abstract":"In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric when they assume that a financial services firm is a stand-alone entity, operating separately from and independently of any other entity. They are entity-centric, therefore, when the specific requirements and obligations they comprise are addressed only to an abstract and solitary “firm,” with little or no contemplation of affiliates, parent companies, subsidiaries, or multi-entity enterprises. Regulatory entity-centrism is not an isolated phenomenon, as it permeates the laws and rules governing many facets of a firm’s operations. Moreover, it can be discerned in laws and rules covering many types of financial services activities. In other words, entity-centrism in financial services regulation is pervasive. It is also deeply problematic.This Article calls attention to entity-centrism as manifested in financial services regulation, shows why entity-centrism counters regulatory objectives, and assesses possible explanations for the phenomenon. It does so primarily by evaluating two recent regulatory failures that reveal how entity-focused laws and rules privilege entity boundaries over the various ways in which multiple entities (or entities and individuals) work together as a common enterprise. Accordingly, the Article contends that financial services regulation should look past entity boundaries and that lawmakers and regulators should think more broadly, critically, and creatively to address the persistent and significant regulatory difficulties that entity-centrism has spawned.","PeriodicalId":102179,"journal":{"name":"University of Washington School of Law Legal Studies Research Paper Series","volume":"4 11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124778090","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2002-08-15DOI: 10.1016/S0193-5895(02)20007-X
R. Zerbe
{"title":"Can Law and Economics Stand the Purchase of Moral Satisfaction?","authors":"R. Zerbe","doi":"10.1016/S0193-5895(02)20007-X","DOIUrl":"https://doi.org/10.1016/S0193-5895(02)20007-X","url":null,"abstract":"","PeriodicalId":102179,"journal":{"name":"University of Washington School of Law Legal Studies Research Paper Series","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122519075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Use of deadly force by the U.S. Border Patrol (and other immigration officers) and other forms of violence against border-crossing migrants has captured the attention of the agency's leadership, although the response remains equivocal and erratic. In 1993, the then Acting Commissioner of the Immigration and Naturalization Service (INS) pledged to "aggressively pursue[ ]" claims of misconduct and "strictly adhere" to investigative and disciplinary procedures. However, the INS stopped short of endorsing changes in complaint review procedures, such as the call for civilian oversight. A decade has passed since the U.S. Commission on Civil Rights identified serious problems in the INS procedures and recommended changes in a report to the President and Congress. Problems include delays in investigation, lack of public awareness of the process, no acknowledgment of receipt of complaints, deficiencies in the selection of investigators and investigative procedures and an inadequate statistical record of complaints and disposition. The same problems plague the system today, and almost none of the recommendations have been implemented. In this article, the author first documents examples of misconduct by the Border Patrol and other immigration and customs agents and examines the current INS internal complaint system. Next, he sets out some of the necessary features of a civilian or external review process, many of which are embodied in legislation recently introduced in the U.S. House of Representatives, with an emphasis on those features unique to immigrants or immigration enforcement. (An Appendix contains proposed model regulations for an Immigration Law Enforcement Civilian Review Board).Finally, the author lays out some of the alternatives, or complements, to external review and how they are useful or limited in mitigating abusive behavior. Any system must be perceived as accessible, confidential, prompt, impartial and even-handed and policymakers will need to ask themselves how to measure the success of any review board. A review board alone cannot always deter misconduct or provide adequate remedies. Despite the obstacles, lawyers must persevere with civil suits for damages and criminal prosecutions. Nongovernmental organizations must petition human rights tribunals and continue to "mobilize shame" against 'the immigration authorities and the U.S. government in all available forums.
美国边境巡逻队(和其他移民官员)对越境移民使用致命武力和其他形式的暴力已经引起了该机构领导层的注意，尽管回应仍然模棱两可和不稳定。1993年，当时的移民归化局代理局长承诺“积极追查”不当行为的指控，并“严格遵守”调查和纪律程序。然而，移民归国局并没有支持改变投诉审查程序，比如呼吁民间监督。10年前，美国民权委员会(U.S. Commission on Civil Rights)在一份提交给总统和国会的报告中发现了移民归化局程序中的严重问题，并建议进行改革。问题包括调查拖延、公众对程序缺乏认识、不承认收到投诉、在选择调查人员和调查程序方面存在缺陷以及投诉和处理的统计记录不充分。同样的问题困扰着今天的系统，几乎没有一项建议得到实施。在这篇文章中，作者首先记录了边境巡逻队和其他移民和海关人员不当行为的例子，并审查了目前的移民局内部投诉系统。接下来，他列出了民事或外部审查程序的一些必要特征，其中许多体现在美国众议院最近提出的立法中，并强调了移民或移民执法所特有的特征。(附录包含移民法执法民事审查委员会的拟议示范条例)。最后，作者列出了外部审查的一些替代方案或补充方案，以及它们在减轻虐待行为方面是如何有用或有限的。任何系统都必须被认为是可访问的、保密的、及时的、公正的和公平的，政策制定者需要问自己如何衡量任何审查委员会的成功。仅靠审查委员会不能总是阻止不当行为或提供适当的补救措施。尽管障碍重重，律师们必须坚持不懈地处理民事损害赔偿诉讼和刑事诉讼。非政府组织必须向人权法庭请愿，并在所有可用的论坛上继续对移民当局和美国政府进行“动员羞辱”。
{"title":"Keeping an Eye on the I.N.S.: A Case for Civilian Review of Uncivil Conduct","authors":"Stephen A. Rosenbaum","doi":"10.15779/Z38H65J","DOIUrl":"https://doi.org/10.15779/Z38H65J","url":null,"abstract":"Use of deadly force by the U.S. Border Patrol (and other immigration officers) and other forms of violence against border-crossing migrants has captured the attention of the agency's leadership, although the response remains equivocal and erratic. In 1993, the then Acting Commissioner of the Immigration and Naturalization Service (INS) pledged to \"aggressively pursue[ ]\" claims of misconduct and \"strictly adhere\" to investigative and disciplinary procedures. However, the INS stopped short of endorsing changes in complaint review procedures, such as the call for civilian oversight. A decade has passed since the U.S. Commission on Civil Rights identified serious problems in the INS procedures and recommended changes in a report to the President and Congress. Problems include delays in investigation, lack of public awareness of the process, no acknowledgment of receipt of complaints, deficiencies in the selection of investigators and investigative procedures and an inadequate statistical record of complaints and disposition. The same problems plague the system today, and almost none of the recommendations have been implemented. In this article, the author first documents examples of misconduct by the Border Patrol and other immigration and customs agents and examines the current INS internal complaint system. Next, he sets out some of the necessary features of a civilian or external review process, many of which are embodied in legislation recently introduced in the U.S. House of Representatives, with an emphasis on those features unique to immigrants or immigration enforcement. (An Appendix contains proposed model regulations for an Immigration Law Enforcement Civilian Review Board).Finally, the author lays out some of the alternatives, or complements, to external review and how they are useful or limited in mitigating abusive behavior. Any system must be perceived as accessible, confidential, prompt, impartial and even-handed and policymakers will need to ask themselves how to measure the success of any review board. A review board alone cannot always deter misconduct or provide adequate remedies. Despite the obstacles, lawyers must persevere with civil suits for damages and criminal prosecutions. Nongovernmental organizations must petition human rights tribunals and continue to \"mobilize shame\" against 'the immigration authorities and the U.S. government in all available forums.","PeriodicalId":102179,"journal":{"name":"University of Washington School of Law Legal Studies Research Paper Series","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1994-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121726914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.1007/978-94-011-5350-8_11
R. Zerbe, Steven G. Medema
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