Immigration’s Family Values

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

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

A Market-Based Tool to Reduce Systematic Undervaluation of Collateral in Residential Mortgage Foreclosures

This Note addresses the problem of the systematic undervaluation of collateral in residential mortgage foreclosures. Public policymakers have been wrestling with this problem for nearly a century. As a result of the perceived flaws in the typical foreclosure auction, public authorities have tried to supplement the auctions with various rules intended to encourage higher sale prices or to protect against substantial undervaluation. While each of the supplemental devices promulgated by public policymakers has its strengths and weaknesses, none of them has completely solved the undervaluation problem.

This Note uses the underlying principles of credit bidding in bankruptcy proceedings to develop a new market-based tool that can deter the systematic undervaluation of collateral in residential mortgage foreclosures. Deficiency forfeiture sales options—the tool developed in this Note—target the two main problems with foreclosure auctions: (1) accurately determining the fair market value of the underlying property and (2) incentivizing lenders to bid that value at the auction. Similar to credit bidding, the new tool proposed by this Note will result in a transfer of wealth from lenders to borrowers, but only if lenders bid or collude with or tolerate third-party bidders who bid below the fair market value of the underlying property at the foreclosure auction. The threat of this permanent transfer of wealth from the lender to the borrower should be an effective and efficient deterrent of systematic undervaluation of collateral in residential mortgage foreclosures, just as the threat of a transfer of value from a bankrupt estate to a secured creditor as a result of credit bidding deters undervaluation in bankruptcy proceedings.

The Monitor-“Client” Relationship

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

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