Monthly Archives: April 2011

Understanding the International Players with the Potential to Shape Global Fiscal Policy

Jan Wouters and Katrien Meuwissen, Global Tax Governance:  Work in Progress?, Leuven Center for Global Governance Studies, Working Paper No. 59 (Feb. 2011), available at SSRN.

The international financial crisis has captured the attention of legal scholars across many fields.  By virtue of the “international” dimension of the crisis – a function of both its scale and the interconnectedness of commercial and financial flows – specific focus has been directed to the role of international organizations, bodies, and agencies in preventing (or failing to prevent) the crisis.  But underlying this attention to international organizations remain a host of unanswered questions about the ways in which states and organizations navigate issues of power, influence, priorities, and resources.  A recent working paper by Jan Wouters and Katrien Meuwissen, Global Tax Governance: Work in Progress?, begins the process of linking financial concerns, interlocking international organizations, and related tax policy.  The paper offers a window onto the landscape of major actors exercising influence in the current global economic environment and the differing ways in which they advocate on tax policy.

The paper argues that following the 2008 financial crisis fiscal sustainability emerged as a central goal worldwide, and that in addition to domestic measures, countries pursued policies on a global, more coordinated scale.   Tax policy was considered crucial to national efforts to take control of the fiscal arena  — and coordination was  considered essential to successful tax policy.   Wouters and Meuwissen ultimately conclude that “no single international forum can be accepted as a fully effective and legitimate global tax policy-maker.”  Urging that we may be witnessing a developing global tax governance, the authors nonetheless caution that “integrat[ion] [of] standards into binding agreements is necessary to translate ‘governance’ into ‘law.’”  But how exactly does this coordination and policy development take place within and among organizations? Continue reading "Understanding the International Players with the Potential to Shape Global Fiscal Policy"

Who Controls Immigration Policy?

Rick Su, Local Fragmentation as Immigration Regulation, 47 Hous. L. Rev. 367 (2010), available at SSRN.

The borders of immigration law are incredibly porous.  Although immigration law, strictly defined, encompasses the rules that govern the terms of admission into and exclusion or expulsion from the country, immigration law is in fact inextricably intertwined with a whole host of other legal regimes.  This includes obvious examples like naturalization and alienage laws, as well as labor law, criminal law and economic policy.  But it also includes a host of less obvious candidates.

In his recent article in the Houston Law Review, Rick Su examines an area of law that is not often thought about in conjunction with immigration law: local government law.  The connection between immigration law and local government law is not intuitive.  Since the late Nineteenth Century, courts have found that the national government has the exclusive power to regulate immigration law, and that Congress’ power to enact immigration legislation is plenary.  States and localities, therefore, must limit their own efforts to regulate immigration to areas of the law that are not preempted by Congress’ fairly comprehensive immigration regulation.  Although state and local governments recently have played a larger role in enforcing federal immigration law than has historically been the case, courts generally have rejected efforts on the part of states and localities to directly regulate immigration through their own laws.  This can be seen in the largely unsuccessful efforts of localities like Hazelton, Pennsylvania and states like Arizona to pass immigration-related ordinances that withstand constitutional scrutiny. Continue reading "Who Controls Immigration Policy?"

Strengthening Intelligence Through Administrative Law

Samuel J. Rascoff, Domesticating Intelligence, 83 S. Cal. L. Rev. 575 (2010).

Having taught some version of “separation of powers law” since 1982, I think I can say with some certainty that few problems of democratic accountability are more vexing than the general subject of “intelligence oversight.”  For half a century, scandal after scandal has exposed an intelligence apparatus that is too often unreliable and susceptible to gross abuse.

Against this background, one might be forgiven a certain amount of pessimism for the future of reform.  But it is not as if we are lacking for ideas.  Samuel Rascoff’s article, Domesticating Intelligence, 83 S. Cal. L. Rev. 575 (2010), takes an especially thoughtful and creative approach with regard to domestic intelligence gathering, basically urging the application of familiar administrative law principles to achieve both “full compliance with the law, but also intelligence that is accurate, efficient, and useful to policymakers.”  Professor Rascoff’s core argument is that “an expansive approach to cost-benefit analysis that [he refers] to as rationality review, judicial review, and public participation made possible by increased transparency ought to play significant roles in reconfiguring the governance of domestic intelligence.”  Taking administrative law into this unaccustomed domain is an important scholarly contribution. Continue reading "Strengthening Intelligence Through Administrative Law"

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