GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2006

Status

Accepted

Abstract

This article shows how the enlistment of private monitors can overcome the limits of public enforcers in overseeing gatekeeper compliance with liability-induced duties. Gatekeepers are private actors who possess skills or advantages that allow them to detect and prevent wrongdoing in a more cost-effective way than the state. The problem enforcers face is that the same skills or advantages that equip gatekeepers with the ability to identify wrongdoing often provide them with the means and incentives to subvert their duties and to evade public oversight. Policymakers have largely attempted to remedy this challenge by increasing sanctions against gatekeepers and have ignored the potential for heightened monitoring of compliance. This article shows how governments may overcome their inability to oversee gatekeepers by providing private actors, such as victims, qui tam litigants, informants, or even the targeted wrongdoers, with incentives to monitor gatekeeper compliance.

This article puts this private monitoring approach to the test by showing how private monitoring of gatekeepers can redress the chronic failure of efforts to enlist employers as verifiers of employees' immigration status. It suggests that the most effective way to induce employer compliance is to divide the interests of undocumented aliens from employers by offering undocumented aliens immunity and temporary worker status in exchange for reporting their illegal employment. This decentralized, de facto sting operation would make large-scale amnesty serve a productive enforcement purpose. The article also suggests how competitors may serve a similar function as in anti-trust law by serving as qui tam litigants who are empowered to prosecute wayward competitors.

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