Abstracts on Enforcement
Beyond Bureaucracy: How prosecutors and public defenders enforce urban planning laws in Sao Paulo, Brazil.
Cities need law to thrive, but it is not clear how abstract texts become tangible policy outcomes. Existing research on the role of law in urban affairs conceives law as either an algorithm that shapes urban life or a reflection of political disputes. The former assumes that the meaning of law is obvious; the latter claims it is irrelevant. In contrast to these views, I argue that laws are multipurpose instruments that acquire a specific function when enforced by those government agents who operate at the frontlines of public service. To understand what these agents do and why, I conducted a qualitative study of the Ministério Público and the Defensoria Pública in São Paulo, Brazil. Through this process, I found that these government agencies are not cohesive bureaucracies but heterarchies composed of distinct internal factions with different evaluative principles. Moreover, officials within them are not isolated from other entities in society but tightly entangled with them, and these connections influence what these officials do. Finally, enforcement agents are not always resigned to solving conflicts as they arise. Rather, they strive to find acceptable solutions in the interstices of existing conditions or even change the circumstances that created the conflict in the first place.
Coercive vs. Cooperative Enforcement: Effect of Enforcement Approach On Environmental Management
Scholars often rely on static and distant images of 'decoupling' to describe the limited influence of 'corporate social responsibility' (CSR), among other organizational and global scripts. New insights can be gained by looking closely at how local advocates seek to leverage symbolic commitments. Leveraging can be a route to what we call 'contingent coupling', a circumstantial shrinking of the gap between legitimating symbols and concrete conditions. Based on interview data, this article maps several modes of leveraging by examining how unions in apparel/footwear factories in Indonesia sought to use foreign brands'/retailers' CSR commitments. The modes include not only cross-border activist campaigns but also more subtle and previously overlooked forms of negotiation. Our qualitative accounts and a quantitative analysis of factories suggest that CSR has been a platform for some modest gains for Indonesian unions, but it has not allowed robust, transformative changes. This elucidation of leveraging suggests hypotheses about conditions for tighter coupling.
The Duty to Criminalize
Alon Harel, The Hebrew University of Jerusalem
The state has a duty to protect individuals from violations of their basic rights to life and liberty. But does the state have a duty to criminalize such violations? Further, if there is a duty on the part of the state to criminalize violations, should the duty be constitutionally entrenched? This paper argues that the answer to both questions is positive. The state has a duty not merely to effectively prevent violations of our rights to life and liberty, but also to criminalize such violations. Further, the duty to criminalize ought to be constitutionally entrenched. In the absence of criminal prohibitions on violations of the right to life and liberty individuals live ‘at the mercy’ of others. In the absence of a constitutional duty to criminalize, life and liberty of individuals is contingent upon the judgments and inclinations of the legislature. In both cases citizens’ rights are ‘at the mercy of others’. I also show that the decisions of the German Constitutional Court concerning abortion can be justified on such grounds
Does Peer Review Work? An Experiment of Experimentalism
Daniel E. Ho, Stanford Law School
Ensuring the accuracy and consistency of highly decentralized and discretionary decisionmaking is a core challenge for the administrative state. The widely influential school of “democratic experimentalism” posits that peer review—the direct and deliberative evaluation of work product by peers in the discipline—provides a way forward, but systematic evidence remains limited. This Article provides the first empirical study of the feasibility and effects of peer review as a governance mechanism based on a unique randomized controlled trial conducted with the largest health department in Washington State (Public Health—Seattle and King County). We randomly assigned half of the food safety inspection staff to engage in an intensive peer review process for over four months. Pairs of inspectors jointly visited establishments, separately assessed health code violations, and deliberated about divergences on health code implementation. Our findings are threefold. First, observing identical conditions, inspectors disagreed 60% of the time. These joint inspection results in turn helped to pinpoint challenging code items and to develop training and guidance documents efficiently during weekly sessions. Second, analyzing over 28,000 independently conducted inspections across the peer review and control groups, we find that the intervention caused an increase in violations detected and scored by 17% to 19%. Third, peer review appeared to decrease variability across inspectors, thereby improving the consistency of inspections. As a result of this trial, King County has now instituted peer review as a standard practice. Our study has rich implications for the feasibility, promise, practice, and pitfalls of peer review, democratic experimentalism, and the administrative state.
Human Resource Practices for Labor Inspectorates in Developing Countries
John Mendeloff, University of Pittsburgh
This report examines the literature on labor inspection in developing countries in order to learn how human resource practices in labor enforcement agencies influence the performance of labor inspectorates in developing countries. As a supplement to a substantial literature about the advantages and disadvantages of alternative labor law regimes and the effectiveness of alternative inspection strategies, this review highlights the state of knowledge about the conditions, competencies, and incentives needed for labor inspectors in developing countries to successfully carry out their work. This report focuses on two relatively narrow questions: What qualifications and personal characteristics are necessary for individual labor inspectors in developing countries to perform their jobs well, and what human resource policies are important for creating an inspectorate with the necessary skills to function effectively?
Coordinating Compliance Incentives
Veronica Root, University of Notre Dame
In today’s regulatory environment, a corporation engaged in wrongdoing can be sure of one thing: regulators will point to an ineffective compliance program as a key cause of institutional misconduct. The explosion in the importance of compliance is unsurprising given the emphasis that governmental actors — from the Department of Justice, to the Securities and Exchange Commission, to even the Commerce Department — place on the need for institutions to adopt “effective compliance programs.” The governmental actors that demand effective compliance programs, however, have narrow scopes of authority. DOJ Fraud handles violations of the Foreign Corrupt Practices Act, while the SEC adjudicates claims of misconduct under the securities laws, and the Federal Trade Commission deals with concerns regarding anticompetitive behavior. This segmentation of enforcement authority has created an information and coordination problem amongst regulators, resulting in an enforcement regime where institutional misconduct is adjudicated in a piecemeal fashion. Enforcement actions focus on compliance with a particular set of laws instead of on whether the corporate wrongdoing is a result of a systematic compliance failure that requires a comprehensive, firm-wide, compliance overhaul. As a result, the government’s goal of incentivizing companies to implement “effective ethics and compliance programs” appears at odds with its current enforcement approach.
Formal and Social Enforcement of Individual vs. Corporate Transgressions
Doron Teichman, The Hebrew University of Jerusalem
One of the primary instruments which people use to retaliate against unfair practices is social enforcement: the decentralized action of monitoring, identifying, and reporting misconducts. Social enforcement is widely recognized as a key incentive of good practices by service providers. Technological advancement and the rise of the internet and social networks have increased the accessibility and expanded the variety of available sanctions against violators of business relationships. Whereas in the past, the primary route for applying such sanctions was the formal, state-sanction route (e.g., law suits, complaints to regulatory agencies), today, aggrieved parties are also offered a range of informal, privatized means (e.g., publicizing the transgressions, mobilizing social action and consumer action via online outlets). This new route can promote efficient enforcement and increase compliance. However, it also presents risks by weakening the accused party’s ability to defend itself, or even know the identity of the accuser in some cases. The current research investigates people’s attitudes toward applying different means of enforcement on individual and corporate transgressors. We conducted three scenario-based experiments, which presented participants with transgressions committed by either individuals or corporations. These transgressions included maximizing ambiguities in the contractual requirements for one’s self-interest at the expense of the counterparty, exploiting one's bargaining position to make unreasonable demands, and negligent behavior. Participants assessed the likelihood they would, in response to these transgressions, take either formal action, using either legal means or regulatory institutions, or social action via the internet and social networks. The evaluated scenarios depicted purchase of land for purposes of development (Experiment 1), the purchase of an apartment from a building contractor (Experiment 2) and employer HR policies (Experiment 3). We find that willingness to apply sanctions in response to violation of the contractual relationship depends on both the identity of the violator and the nature of the violation. First, the identity of the target of enforcement affected people’s willingness to use it: consistent with prior research, participants’ willingness to take action against a corporation depended on a clear violation of a law or a norm, whereas their willingness to take action against a person was not sensitive to this condition. Second, the type of violation had an effect on assessments of taking formal action, whereas assessments of privatized action remained relatively stable across different violations. This suggests that social and formal enforcement are not necessarily complementary in the sense that reduction in formal enforcement lead to an increase in social enforcement. We found that cases without an unambiguous violation of the law were characterized by a lower willingness to apply formal enforcement, but did not observe a change in willingness to apply social enforcement. Finally, we found that cases of negligence are met with a clear preference for formal over privatized action, regardless of the target of the sanction. However, in cases of exploiting contractual flexibility, there was a preference for formal means of enforcement against persons, but not against corporations.
On the Wrong Side of the Law - Causes and Consequences of a Corrupt Judiciary
Stefan Voigt, Hamburg University
Empirical research on the determinants of corruption has made substantial progress over the last decade. To date, the consequences of different structures of the legal enforcement institutions have, however, only played a marginal role. This contribution deals with both the determinants of corruption in the judiciary and the consequences of judicial organization for corruption at large. Regarding the latter, it is shown that the actual independence of the judiciary as well as that of prosecution agencies is correlated with lower levels of corruption. This is also true for a third indicator that measures the degree to which judges are held accountable for their decisions (“judicial accountability”). Furthermore, independence and accountability function as complements in preventing corruption – judicial accountability without independence appears to be ineffective, whereas judicial or prosecutorial independence alone can even have adverse effects.