Degree of Doctor of Philosophy in Urban and Regional Planning
ABSTRACT This dissertation bridges the fields of international development, legal sociology, and organizational behavior to examine how Brazilian prosecutors enforce labor and environmental laws. Typically, the enforcement of protective regulations produces a range of outcomes. In some cases enforcers create major hurdles for business growth. In others, they overlook blatant violations and fail those interests they were supposed to protect. Yet, in some instances, enforcement agents find ways to reconcile compliance with competitiveness. What explains this variation? Why do these agents sometimes deepen existing conflicts and grant (temporary) victories to one of the parties, but in other occasions they engineer positive-sum outcomes?
To answer this question I spent 18 months in the field and immersed myself in the life of the Brazilian procuracy. I interviewed more than 50 prosecutors, attended internal proceedings, and accompanied them as they attempted to enforce protective regulations. I also interviewed more than 100 representatives from government agencies, NGOs, industry associations, private firms, and labor unions from a cross-section of sectors in which actors struggled over the enforcement of labor and environmental laws.
Eventually, I discovered that outcomes depended on prosecutors realizing that compliance requires costly and risky changes in business practices. Rather than prosecute, which they anticipate will eliminate jobs and undermine business profitability, or clarify the law, which they fear will be futile, these prosecutors reach out and assemble a network of institutions willing to cover some of the costs and insure some of the risks associated with compliance. They lead an effort of inter-institutional root-cause analysis and joint-problem solving, and through this method they strive to make compliance the easiest choice for all involved.
This study goes beyond showing that compliance can be reconciled with competitiveness. Rather, it hopes to redirect the attention of development experts away from pre-set ingredients, recipes, and best-practices and towards the organizational behavior of those front-line regulators who are out in the field, using their discretion to reshape businesses practices along more equitable and sustainable lines. These agents are the long arm of the state and their aggregate action can constitute the industrial policy of the 21st century.
Thesis Supervisor: Judith Tendler
Title: Professor of Political Economy
Compliance and Competitiveness:
How prosecutors enforce labor and environmental laws and promote economic development in Brazil TABLE OF CONTENTS
1 – INTRODUCTION 7
1.1 – The interplay between protective regulations and economic competitiveness 7
1.2 – Setting the stage: Brazil and its prosecutors 9
1.3 – Conflicting opinions and perspectives on the Ministério Público 13
1.4 – The MP in a broader canvass: literature review 17
1.5 – Methodology and research design 24
1.6 – Structure of the dissertation 33
2 – the prosecutor in action: STITCHING a solution TOGETHER 34
2.1 - Introduction 34
2.2 – Case Studies 42
2.3 – Stitching a solution together 84
3 – the making of the new ministério público: a reassessment 89
3.1 - The first wave of transformation 91
3.2 - A second wave of transformation 94
3.3 – Stunted reform 102
3.4 – A mismatched organization 108
4 – the organizational basis of creative law enforcement 112
4.1 - The formal and explicit organizational environment 113
4.2 – Managing the workload 132
4.3 – The organizational basis of innovative law enforcement 140
4.4 – Two concurrent organizational logics 158
5 – CONCLUSIONS 162
5.1 - The prosecutor-in-action 163
5.2 - The organizational roots of prosecutorial action 170
5.3 – Policy Implications 174
6 – BIBLIOGRAPHY 177
ACKNOWLEDGMENTS A dissertation is a group effort. Naturally, I am responsible for the final version of this document and all the errors it contains, but I would not have arrived at this point if not for the abundant help, support, and encouragement of a very large group of special people. First of all, I want to thank my team of academic advisors at MIT. Judith Tendler, the chair of my dissertation committee, agreed to meet with me even before I applied to the program and then embraced my candidacy and supported my education with unparalleled dedication. From the first day she treated me like a colleague and helped transform my incipient ideas into something that I could be proud of. Richard Locke played a central role in my education and in making this dissertation happen. His pragmatism, enthusiasm, and ability to see nuggets of innovation in a jumble of sometimes confusing facts saved the day more often than I care to admit. I feel very fortunate to count him as a friend. Susan Silbey was a godsend, rigorous and generous, she taught me about ethnography, how to gather good quotes, and how to link them to larger theories. Michael Piore provided the inspiration for my research, and every time I went to his office I secretly hoped that some of his creativity and commitment would rub off on me. I also owe a lot to Suzanne Berger, who could often see where I was going before I could see it myself, and then she made sure to point me in the right way. These five gifted people form the dream team of qualitative research and doctoral training at MIT, and I feel extremely lucky to have learned from them. And if that was not enough, I have also received valuable feedback from and shared an occasional meal and drink with Peter Houtzager, Andrew Schrank, Elio Gaspari, Charles Sabel, and Bish Sanyal. Their questions and suggestions influenced my research for the better.
This dissertation is all about the prosecutors and the people with whom they interact. All that is reported here I learned from them. It took me a long time to understand what they were trying to tell me, but I hope that, in the end, they will recognize themselves in these pages. To thank all the professionals, public servants, managers, and activists who generously agreed to talk to me and to teach me about their professional tribulations, I single out two prosecutors, Ronaldo Porto Macedo Junior and Liliane Garcia Ferreira. Ronaldo, an accomplished prosecutor, provided me with a roadmap to understand the procuracy, introduced me to his colleagues, commented on my drafts, and gave me access to his private library. He showed me what to look for, and when I could not find it, he took me there. Liliane has already accomplished so much in her career – not only accolades, but plenty of actual results that protect the environment and increase standards of living – that I can only say that she continues to be an inspiration.
At MIT, I was lucky to have splendid colleagues. They read many of my drafts, attended my talks, suggested citations, provided feedback, and helped me become a better scholar. I am thankful to Roberto Pires, Mansueto Almeida, Matthew Amengual, Seth Pipkin and Jason Jay for all their support. I also thank Phil Sunde, Sandy Wellford, and Laura Gay for excellent administrative support and for often going well beyond the call of duty to make sure I had what I needed.
Prior to starting my doctoral education, I had the privilege of working alongside a gifted group of public-spirited individuals. They have showed me how public service, both in and out of government, is about principles, creativity, and commitment. In this realm, Marina Silva, Carlos Vicente, Tasso Azevedo, Beto Verissimo, Joao Paulo Capobianco, and Garo Batmanian have been my role models.
No research gets done with funding, a congenial workplace, and logistical support. In Brazil, Instituto de Pesquisa e Ensino (INSPER, formerly known as IBMEC) hosted me while I was conducting fieldwork in Sao Paulo, and the Instituto do Homem e Meio Ambiente da Amazonia (IMAZON) hosted me in Belém. At MIT, the Department of Urban Studies, the Presidential Fellowship, the Lloyd and Nadine Rodwin Fellowship, the Program in Human Rights and Justice, the Carroll L. Wilson Award, the Martin Family Society of Fellows for Sustainability, and the Sloan School’s program on Globalization and Labor Standards provided a substantial part of the funding I needed to complete my doctoral education. The research reported on this dissertation grew out of an MIT project named “The Rule of Law, Economic Development, and the Modernization of the State in Brazil: Lessons from Existing Experience for Policy and Practice”, directed by Judith Tendler and funded in large part by the Brasília offices of the U.K.’s Department for International Development (DFID) and the World Bank. At DFID I thank Miranda Munro, Ernesto Jeger and Ana Doria Galvão, and at the World Bank I thank John Briscoe and Deborah Wetzel for their generous support.
Finally, one of my earliest memories growing up is my dad telling me that ‘to buy books, there will always be money’. I am not sure he knew what he was getting himself into, but both my parents, Ruth and Ivo, have upheld much more than their end of this promise. They have been my most ardent supporters, cheering me on, taking me in, and celebrating even minor achievements. More recently they have been joined by Julia, my life partner, who not only proof-read most of this document, but also provided me with discipline, nourishment, and unmitigated love when I needed it most. I dedicate this dissertation to them.
1 – INTRODUCTION
1.1 – The interplay between protective regulations and economic competitiveness
During the 1980s and 1990s, three global trends – namely trade liberalization, democratization, and decentralization of government functions – have created a problem that did not exist before. On one side, private sector firms, thrust into the global marketplace, started protesting that restrictive labor and environmental regulations limited their ability to compete. On the other side, workers, activists, and concerned citizens responded by pointing out that no one should be subjected to an unhealthy, hazardous, and depleted environment to promote an economic development that can be limited in duration and scope (Tendler 2006).
Unsure on how to proceed, governments often alternate between two equally objectionable extremes. In some occasions, they try to encourage private sector growth by offering businesses a range of benefits, including tax breaks, firm-specific infrastructure, and – crucially – formal and/or informal exemptions from labor and environmental regulations, either by repealing laws or by weakening the agencies responsible for enforcing the regulations. In other occasions, governments take the opposite stance and tighten protective regulations, hoping that firms will adjust. Naturally, none of these courses of action is fully satisfactory. Those governments that scrap protective regulations abandon some of the core functions they are supposed to perform; and those that crack down hard also force private sector enterprises to downsize, move underground, outsource, and sometimes even pack up and leave (Tendler 2002).
Scholars and commentators have been debating the relative merits of each of these approaches at both national and international levels. Some argue that regulations should be eliminated at once to spur economic growth, in whose wake labor and environmental standards will rise (Baghwati 1995; Krugman 1997; Myerson 1997; Djankov et al 2003, Alesina 2005, Kristof 2009). Others contest this logic (Tendler 2002) and claim that governments ought to enforce labor and environmental regulations first, as it attracts superior kinds of investment, reduces inequality, promotes innovation, and pushes the whole economy along a ‘higher’ road (Bourguignon 2003; Freeman and Elliott 2003; Shrank 2007, and Locke and Romis 2007).
As foretold by Karl Polanyi’s (1944) ‘double-movement’, it is unlikely that this debate will ever be resolved. But while it goes on, a large share of these real-life conflicts are being adjudicated locally and on a daily basis by public officials responsible for enforcing regulations. Every day, an army of public and private inspectors, auditors, monitors, surveyors, and assessors visit private enterprises to check on their production practices, assess whether they are complying with pertinent legal codes, and decide whether to impose a fine, issue a warning, demonstrate a technical solution, grant an exemption, refer for prosecution, or follow another course of action. These agents operate at the “street-level” (Lipsky 1980) and are arguably the most pervasive, flexible, and fine-grained tool that governments can have as they try to influence the economy in the global age.
As for any tool, outcomes will depend on how expertly the instrument is deployed, and so far the dominant pattern is variation. In some cases, enforcement agents act in an unreasonably strict and legalistic manner and create serious hurdles for business growth (Bardach and Kagan 1982). In other cases, they take the opposite stance and retreat, overlooking blatant violations and failing those they are supposed to protect. In both these scenarios, the result is a zero-sum or a trade-off in which one side gains at the expense of the other. Still, there is a third option: in some cases, enforcement agents use their discretion to produce positive-sum outcomes in which compliance with protective regulations coexists or even reinforce the private sector’s ability to compete (Tendler 2006, Pires 2008, Schrank 2007, Locke, Amengual and Mangla 2009).
What explains this variation? Why, in some occasions, enforcement agents deepen existing conflicts and/or grant a (temporary) victory to one of the parties, but in other occasions they produce consensual solutions in which compliance coexists or even becomes a source of competitiveness? In broader terms, how can the state be developmental and regulatory at the same time? To answer these questions, I examine the role of public prosecutors in Brazil.
1.2 – Setting the stage: Brazil and its prosecutors
Brazil provides the ideal setting in which to investigate the reconciling of compliance and competitiveness. It is a large and diversified country, and one in which the clash between these two imperatives is both widespread and acute. On one side, Brazil has a very large and active civil society, with plenty of unions, NGOs, social movements, and other civic groups devoted to improving labor and environmental standards. These activists often join forces with a fairly large and professional public bureaucracy, including tax, labor, and environmental inspectors who devote themselves to advocating for and then enforcing a wide array of fairly strict regulations (French 2004).
Naturally, other actors see this situation from a different angle, and Brazilian private firms regularly point out that existing laws and regulations create a maze that severely detracts from their ability to compete. Labor laws are a frequent target of protest (Rezende, Silveira and Kreter 2008), accused of increasing operational costs, causing unemployment, and preventing firms from adjusting to dynamic economic conditions. And that is just the tip of a much larger iceberg. According to an industry source (Amaral et al 2008), from 1998 to 2008 the Brazilian government published 3,776,364 new rules, and 471,290 of those remained in force in 2008. The bulk of these norms (2,628,962) were issued by one of the 5,565 municipal governments in the country, and the remaining ones by either a state or the federal government. Considering that few businesses have a truly national presence, the same source estimates that private firms operating in Brazil must comply, on average, with 3,207 different norms with 17 articles each.
At this cross-fire between private sector pressures for deregulation and an “improved business environment”, and civil society’s counter-pressures for more stringent labor and environmental regulations, sit the public prosecutors. Prosecutors are those public officials who represent the state in criminal proceedings. They are the state in the standard courtroom formulation “the state versus …”. A prosecutor’s core function is to receive reports and/or complaints on alleged criminal violations, gather additional data, and then decide whether to indict or drop the case. Of course, in most places prosecutors do more than that. In some locales, they are affiliated with the Executive branch and also defend the government in civil suits. In other places, they oversee the functioning of prisons and police. In still others, they investigate politicians and government bureaucrats to prosecute alleged cases of corruption. And in some jurisdictions, including both Brazil and the US, they can initiate criminal and civil lawsuits against public and private institutions to “defend society”.
There are approximately 10,000 prosecutors1 in Brazil and they are aided by almost 20,000 clerks and support staff (Ministerio da Justica 2006 and MPSP 2006). These prosecutors are organized into 26 separate and independent state-level agencies, plus a set of four specialized federal-level counterparts; one of them devoted solely to enforcing labor laws. There are some minor differences in the way each of these entities organize its internal affairs, but they all bear the same name - Ministério Público (MP) - and follow the same national and constitutional guidelines concerning prosecutors’ rights, powers, attributions, duties, and career paths.
The Ministério Público is a deconcentrated organization, and a large proportion of its prosecutors work in field offices spread out throughout the national territory. The Sao Paulo State Ministério Público is the largest in the country and employs 1,700 prosecutors who operate out of 250 different municipalities (MPSP 2006). The average age for newly hired prosecutors in that state is 28 years old, and the average age for all practicing prosecutors in Sao Paulo is 42 years old. Most of them (68%) are men, but the gender distribution is becoming more balanced over time (MPSP 2006).
Brazilian law grants prosecutors a series of professional prerogatives that gives them high status, insulates them from typical external pressures, and provides them with large amounts of professional autonomy. These prerogatives include:
“Independencia funcional” prosecutors are entitled to act on their own legal opinion and do not have to follow directives coming from above;2
“Vitaliciedade” after a probationary period of approximately two years, prosecutors acquire full job security and can only be fired by a final court order;
“Inamovibilidade” they cannot be transferred or promoted against their will;
“Irredutibilidade de vencimentos” salaries are fixed and cannot be reduced; and
“Princípio do promotor natural” cases are automatically distributed to prosecutors according to pre-determined rules, i.e. prosecutors have full authority over certain types of cases occurring within a certain territory (no cherry-picking)
To counter-balance these prerogatives and to avoid conflicts of interest, prosecutors are barred from acting as private attorneys, operating private businesses, running for office, or taking up posts in the executive branch.3
Finally, prosecutors have a range of exceedingly powerful legal weapons at their disposal. In practice, they can (a) bring legal suits against both private firms and/or public bureaucracies, (b) subpoena documents (through “inquérito civil”), (c) request that defendants repair the harm, pay monetary damages, and/or change their conduct (“obrigação de fazer e não-fazer”), and (d) deploy an instrument akin to a deferred prosecution agreement to settle cases as they see fit (“Termo de Ajustamento de Conduta – TAC”)4. Moreover, prosecutors have a legal monopoly over criminal cases (i.e. only a prosecutor can indict and request that someone be sent to jail), and in Brazil they also have a virtual monopoly over civil class-action suits (an estimated 95% of all class-actions in the country are brought by prosecutors5). This means that they are the gatekeepers of the judicial system, and this privileged position gives them one of their most powerful, subtle, and therefore unexamined weapons: by deciding not to bring a case, the prosecutor is, to all effects, declaring a situation legal. Together, these prerogatives and legal tools make Brazilian prosecutors powerful arbiters of all types of disputes and veritable regulators-of-last-resort.
Being so powerful, independent, and omnipresent, prosecutors elicit heated and conflicting opinions. The next section describes the most representative of these perspectives and then puts the differing viewpoints in the context of the larger literature on organizational behavior and the enforcement of regulations.
Many commentators see Brazilian prosecutors as impediments for economic development. In 2007, a leading Brazilian business magazine gave voice to this view in an article whose title could be translated as “The Powerpuff Boys”6 and that depicted prosecutors as “young and autonomous agents who flex their muscles and jam the development of infra-structure in Brazil” (Paul 2007). A similar perspective surfaced in many of the interviews I conducted with business leaders and other representatives of private-sector interests. For example, the head of a business association in Minas Gerais claimed that “prosecutors are doing their job, and they are very active at it” but “from our point of view, they represent a major obstacle to business and they really mess things up”. The manager of a large sugar and ethanol operation corroborated this view: “the prosecutors, they think they are like god. They do as they please and that’s it. No discussion, it is their way or the highway”.7And the head of a business association in Sao Paulo was even blunter: “here we have to contend with a prosecutor who is a lunatic, completely deranged and intent on destroying our sector”.
Public officials also complain about prosecutorial interference. An urban planner employed by the city of Sao Paulo said that “prosecutors are concerned solely with formalities, legalisms, laws, and deadlines; they don’t care about what is good for the city. There is absolutely nothing [good] a public servant can do that a prosecutor will not show up and spoil things”. The CEO of a public development bank took a subtler and more diplomatic but no less revealing approach: “prosecutors are central actors; for good or for evil” [emphasis added].
Even President Lula, a historic ally of unions, social movements, and environmental activists has found reasons to complain about the prosecutors. Soon after launching a country-wide infrastructure initiative named ‘Plan for the acceleration of economic growth’, he said:
“I’m devoting myself … to identifying all the pending snags that I have with the environment, the Ministério Público [my emphasis], the indigenous people, the maroon communities, and the General Accounting Office and then I will prepare a package, take it to Congress and tell them: ‘look, this is not a problem for the president to solve, this is a problem for the country”8
This view is buttressed by scholars who, even if sympathetic to the MP in the abstract, still reprimand the institution for being too independent and democratically unaccountable. For instance, Fabio Kerche (2007) argues that the Ministério Público’s “considerable autonomy is not counteracted by a significant amount of accountability”. Then, he observes that this is “a rare occurrence in Brazil and in other democracies”. Likewise, Maria Teresa Sadek and Rosangela Cavalcanti (2003) argue that “the large degree of freedom and autonomy given to members of the Public Prosecution … constitutes the most important problem facing the institution”. Flavianne Nobrega (2007) is more explicit about her judgment when she points out that prosecutorial discretion “ends up leading to negative results of the practical point of view to democracy [sic]”.9 A high-level official from a multilateral development bank, also speaking more in theory than on facts, expressed a similar dissatisfaction: “I look at the MP and say wow! There is no oversight, and prosecutors can act as they please. And how do they act? They implement the laws selectively. This is a horrifying thought”.
Naturally, there is another side to this coin, and many observers, including some of the scholars mentioned above, see prosecutors in a much more favorable light. According to a recent poll, a staggering 85% of Brazil’s population think MP’s performance is either good or excellent, 75% think it should either maintain or expand its scope of action, and 58% hold the MP in high esteem, in contrast to Judiciary’s 48%, Executive’s 40%, and Legislative’s 35% (IBOPE 2004).
Likewise, many scholars portray the Brazilian prosecutors as commendable agents of accountability. For instance, Benjamin Hensler (2005) points out that the MP has become “one of the country’s most vital weapons for combating corruption in the public sector”. Lesley McAllister (2008) concurs and points out that, thanks to prosecutors, “Brazil stands as a model of how developing countries can empower their legal institutions to act in ways that make environmental law matter”. Bernardo Mueller (2006) also agrees and indicates that prosecutors “enforce enforcement”, i.e. thanks to a personal devotion to selfless public service whose origins are “difficult to ascertain” (Mueller calls it “zealotry”), prosecutors solve the thorny ‘who will guard the guardians?’ conundrum.
In the interstices of these two camps, some NGOs and activists complain that prosecutors can be too lenient with wrongdoers. For instance, Brenda Brito and Paulo Barreto (2006) analyzed a sample of 55 environmental infractions in the Amazon and found that in 83% of these cases federal prosecutors dropped the charges in exchange for small and inconsequential donations of food and/or medicine (“transação penal”). Conversely, some business people, particularly those who have already invested in labor and environmentally-friendly practices, praise and support the prosecutors’ stern actions against those who infringe these same laws.
Amidst all these controversies, one finds cases in which prosecutors’ actions are admired across the board. For instance, they have been responsible, alongside other institutions, for a decline in illegal logging in the Brazilian Amazon; the cleaning up of Cubatão, a municipality once so polluted by a cluster of petrochemical plants that it was known as ‘the valley of death’; the retrofitting of pig-sties to reduce river contamination in the Brazilian South, and many other cases – some reported in this study – in which private enterprises started complying with protective regulations and either maintained or even increased their competitiveness because of it (for additional cases, see Almeida 2004, Sant’anna 2004, and Lazarte 2005).
The bottom-line is that there is enormous variation in how prosecutors act and in the results they achieve, and this variation begs two questions: what are the styles or strategies that they adopt in producing these varying outcomes? And which organizational features allow for, or even propel, their behavior?
The standard answer is that their actions and results vary because prosecutors are independent. As stated by a senior prosecutor, critical of his colleagues’ excessive autonomy: “what do prosecutors do every day? They do whatever they want”. And yet, anyone who studies organizations knows that nobody is unconstrained. The Ministério Público is not a formless agglomeration of prosecutors operating in a vacuum. Rather, it is a rigidly structured organization, with numerous internal councils, committees, and caucuses. The official manual of procedures of the Sao Paulo MP (MPSP) is more than 100 pages long, and MP’s internal dynamics are also regulated by a series of laws, most notably the “Lei Orgânica do Ministério Público”. Moreover, prosecutors are selected, trained, assessed, and promoted according to some criteria that inevitably influence what they do. They face an external task environment that also conditions how they respond. And the organization provides prosecutors with certain forms of support and guidance that make some activities ‘easy’ while others become ‘difficult’ and the former type is bound to prevail over the latter. In the end, all these variables play a major role in influencing what prosecutors do and how they do it.
Before tackling these concrete questions, and to put the Brazilian prosecutors in context, I examine two bodies of scholarly work, namely (a) the literature on the enforcement of regulations and (b) the literature on the organizational behavior of public sector bureaucracies – most notably street-level bureaucracies.
Since the late 1970s scholars from around the world have been trying to understand how public agents enforce protective regulations, the variables that determine their behavior, and the results that they achieve. At the core of this literature lies a methodological challenge concerning aggregation: the only observable manifestation of regulatory enforcement is the ‘enforcement act’, i.e. the discrete signal conveyed by an inspector in his or her interaction with the regulated enterprise, such as a site visit, a verbal admonishment, a phone call, a written warning, or the imposition of a fine. Susan Hunter and Richard Waterman (1992) studied how EPA enforces water regulation and discovered that regulatory agents deployed sixty different enforcement techniques. Of course, no regulatory act means much by itself, isolated from other acts and from the context in which they are deployed. The real challenge is to make a forest out of these trees.
To this end, scholars of regulatory enforcement have been aggregating enforcement acts into either static, hard-wired “styles” and/or into dynamic, interactional “strategies”. This task, which was pioneered by, and proceeds along, the same analytical line as the inquiry on police behavior (Wilson 1968, Muir 1979), can be divided into three separate steps or challenges.
The first challenge concerns the determination of the appropriate unit of analysis, i.e. whether one ought to study the individual agent (for instance Muir 1979, May and Burby 1998, May and Winter 2000, and Locke, Amengual and Mangla 2009), the enforcement agency (Wilson 1968, Silbey 1981, Hawkins 1984, Braithwaite 1985), the country (Kelman 1981, Badaracco 1985, Brickman, Jasanoff and Ilgen 1986, Vogel 1986) or an even more encompassing ‘legal tradition’ (Piore and Schrank 2006).
The second challenge concerns the determination of the dimensions of variation. Initially, researchers assumed a single axis of variation and debated what the axis was. Some distinguished between means-oriented and results-oriented approaches (Silbey 1981, Bardach and Kagan 1982, Scholz 1984); others distinguished between the arms’ length detection and punishment of violations – the so-called “deterrence”, “sanctioning”, “adversarial” or “policing” model of enforcement – from the interactive processes of cooperation and negotiation – the “compliance”, “cooperation”, “pedagogic”, “bargaining” or “persuasive” model (Hawkins 1984, Braithwaite 1985, Day and Klein 1987, Hutter 1989, Hunter and Waterman 1992, Zinn 2002, Piore and Schrank 2006, Locke, Amengual and Mangla 2009).
A subsequent wave of studies started proposing that enforcers’ behavior varies in more than one axis / dimension at a time, and suggested that scholars consider a bidimensional space: one axis would reflect how enforcers interpret the legal code, ranging from a narrow-legalistic to a broad-cooperative approach, and the other axis would reflect how facilitative (or “friendly”) the enforcers are when acting on their interpretation, i.e. whether they emphasize the correction or the punishment of the perceived violations (Braithwaite, Walker and Grabosky 1987; May and Burby 1998; May and Winter 2000).
Some researchers took this endeavor a step further and incorporated contextual variables into their models. So, instead of proposing a taxonomy of static styles, they started identifying (and sometimes prescribing) dynamic strategies in which regulatory agents choose their enforcement actions in a way that counterbalances the enterprises’ intrinsic inclinations and prior responses (Scholz 1984, Ayres and Braithwaite 1992, Sparrow 2000, Baldwin and Black 2007).
And then, once this analytical space is drawn, the third and final challenge is to aggregate myriad enforcement acts into actual styles or strategies and to place them in relation to one another. The vastness of the fields’ vocabulary highlights the complexity of the task: according to the literature, enforcers can be accommodative, flexible, insistent, strict, legalistic, persuasive, retreatist, creative, and more. Some temper their cooperation with the credible threat of punishment (Zinn 2002) while others adopt a tit-for-tat approach (Scholz 1984). Firms deemed to be ‘amoral calculators’ could be met with increasingly stiffer fines, while those that are ‘organizationally incompetent’ responded better to a gentler, more educative approach (Kagan and Scholz 1984). In all cases, enforcers are supposed to be at their best when they start with a cooperative and friendly approach and toughen up and deploy increasingly more punitive measures whenever cooperation fails to deliver appropriate results – this is the logic of the multi-layered responsive10 strategy devised by Ayres and Braithwaite (1992).
This whole analysis dovetails seamlessly with the study of public sector organizations in general (Wilson 1989) and with studies of front-line public organizations in particular.
The organizational behavior of public sector organizations
Arguably the most influential piece on the behavior of front-line government officials is Michael Lipsky’s (1980) “Street-Level Bureaucracy”. According to Lipsky, “street-level bureaucracies are the schools, police and welfare departments, lower courts, legal service offices, and other agencies whose workers interact with and have wide discretion over the dispensation of benefits or the allocation of sanctions”. Thanks to their inherent discretion, street-level bureaucrats do not simply enact policies conceived by others but rather make policy themselves.
Also important, street-level bureaucrats always have to contend with a demand for services that vastly overwhelms the supply. As a result, and according to Lipsky, these bureaucrats replace both their own preferences concerning public service and any official directives they may receive from above with routines, categories, and informal rules of thumb that allow them to cope. In Lipsky’s words, “they create routines to make tasks manageable”.11
In an ironic and sad twist, these routines dominate their occupational lives and create a crucial problem: even if discretion is intrinsic to their jobs, the overwhelming nature and amounts of work prevent them from using it. As stated by Lipsky, “the existential problem for street-level bureaucrats is that with any single client they probably could interact flexibly and responsively. But if they did this with too many clients their capacity to respond flexibly would disappear”. The result is a “dilemma”, and also a level of service that falls way short of everybody’s expectations.
This view was developed at a time when the US was in the grip of considerable social and economic turmoil and many of its public agencies were seen as hopelessly flawed. In this setting, Michael Lipsky developed a sympathetic but pessimistic portrait of the street-level bureaucrat: similar to the public at large, these government officials are prisoners of the system in which they work and can not do much to improve their own status, the agency in which they work, and/or the public services that they provide.
However, Lipsky’s is not the only – or final – word on the organizational behavior of front-line officials. Other perspectives try to explain why street-level bureaucracies fail (or succeed) in their tasks, and one alternative is the public choice theory of bureaucracy. This theory is based on the assumption that discretion is an undesirable trait that opens the door for corruption and other types of undesirable (“rent-seeking”) behavior (Niskanen 1975, Buchanan and Tullock 1962, Rose-Ackerman 1986). The way forward, according to proponents of this view, is for government agencies to align incentives and adopt checks and balances that will eliminate discretion. If done right, potentially unruly front-line workers will become obedient bureaucrats.
A third alternative is provided by Herbert Kaufman’s analysis of the US Forest Rangers (1960). Similar to Michael Lipsky, and contrary to rational choice theorists, Herbert Kaufman roots his study on the recognition that discretion is inherent to front-line work. Yet Kaufman does not assume that prevailing work conditions will always force workers to abandon their discretion in favor of the same suboptimal routines and rules of thumb, or that front-line officials will inevitably abuse their discretion for private gain. Instead, he posits that it is up to the organization and its management system to encourage front-line workers to use their discretion to further the goals of the organization.