Academic journal article Law & Society Review

Implications of "Third-Party" Involvement in Enforcement: The INS, Illegal Travelers, and International Airlines

Academic journal article Law & Society Review

Implications of "Third-Party" Involvement in Enforcement: The INS, Illegal Travelers, and International Airlines

Article excerpt

This article is part of a larger study about the factors shaping the exercise of discretion by Immigration and Naturalization Service (INS) inspectors. It focuses on an infrequently examined topic: how agency behavior is affected when government depends on private enterprise to help enforce legal requirements. My examination of the INS's relationship with international airlines reveals that airlines are part of a third-party liability system. Airlines are mandated by law to screen foreign travelers prior to transporting them to the United States, in order to ensure foreign travelers' admissibility to the country, as well as required to remove all inadmissible travelers at airline cost. The study shows how third-party liability requirements generate a complex system of exchange relations and dependence between the INS and international airlines, a system that affects in important ways how the INS handles the cases of suspected inadmissible travelers.

Law enforcers cannot be everywhere policing activity. It is often more cost efficient and effective for government agencies to deter misconduct by enlisting the assistance of private entities. I here explore one such situation-the Immigration and Naturalization Service's (INS) use of international airlines in enforcement.

Today in a wide variety of contexts we use private parties as de facto "cops on the beat" (Kraakman 1986:53; Gilboy 1996). The Internal Revenue Service, for instance, requires lawyers, accountants, real estate brokers, and boat and car dealers to report large cash transactions possibly indicative of money laundering (Holmes 1990; Glaberson 1990). Physicians, social workers, and school principals are mandated by law to report suspected child abuse to government child protective agencies (Zellman 1990). Still other laws require businesses to make payroll deductions to ensure that workers pay court-ordered child support or outstanding debts (Chambers 1979:ch.11; Shellenbarger 1992). Typically, government imposes civil or criminal sanctions on private parties to compel their assistance in detecting deviance or ensuring compliance with legal requirements.

These private entities or third parties whose help the government enlists are neither the principal authors nor beneficiaries of the illegal conduct they police (Kraakman 1986). Their assistance, however, can be invaluable in supplementing government efforts at direct deterrence of wrongdoers. Particularly when illegal behavior cannot be detected except at great public cost, private parties can assist in enforcement by disclosing private information or by withholding support or services essential to wrongdoers' activities (ibid.).

Most theoretical1 and empirical discussions of third-party liability systems focus on the behavior of the third parties themselves. Their actions are of scholarly and practical interest because, unlike some third-party enforcers who stand to benefit from compliance (e.g., consumer complainants, workers concerned with health and safety violations),2 private entities in liability systems often are compelled to assist without benefit or compensation. Their behavior is thought to vary with the costs imposed by the scope of legal requirements and possible penalties (Kraakman 1986:75, 94). Both compliant behaviors (Kagan & Skolnick 1993) as well as forms of noncompliance are reported, including complacency in policing (Calavita 1990; Rolph & Robyn 1990:45), avoidance of legal responsibilities (Shellenbarger 1992; Whitford 1979:1050), and withholding of cooperation (Levi 1991:112).

This literature, however, does not exhaust examination of behavior in third-party liability systems. The meeting of the worlds of third parties and government enforcers raises a seldom explored issue. Government agencies seeking to augment their enforcement powers are not just the bearers of liability or merely watchdogs of private sector performance of imposed obligations. …

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