Regulatory Enforcement: Accommodation and Conflict in Four States

The choice of tools is a central part of every regulatory inspector's task. In any given situation, an inspector may choose to encourage or compel compliance, to improvise or go by the book, to fix a problem or initiate a legal process, to move quietly or call in the cavalry. In making these decisions, the inspector may be guided by legal requirements, political expectations, administrative resources, the nature of the provocation, or some combination of the above. Two techniques are commonly employed to study these important decisions. The first is to distinguish between broad enforcement strategies, such as persuasion versus deterrence, and to gather evidence (usually through interviews) to determine which strategy is generally preferred (Hawkins, 1984; Braithwaite, 1985). The second is to focus on certain sanctions for which official records are kept (e.g., fines or license revocations) and to make comparisons based on those tangible outputs (Thompson and Scicchitano, 1985; Scholz and Wei, 1986). Each approach has its merits, but neither is fully satisfactory. The first technique collapses the most interesting and widely used tools under the broad heading of persuasion. Although this appropriately underscores the greater importance of persuasion and the lesser importance of deterrence in modern regulatory enforcement, it deprives us of opportunities to understand the nuances of persuasion. The second technique, in contrast, downplays persuasion, focusing instead on the more punitive approaches because they have been measured and recorded. Although this permits quantitative comparisons, they rest primarily on tools that are seldom used. In this article, I seek to advance the debate by asking how child care inspectors in four different states would handle an identical set of hypothetical situations. This permits me to examine a wide range of enforcement styles (some persuasive, some punitive), including styles that rely upon tools that never appear in official records. It also permits me to make meaningful comparisons across states with different characteristics by holding constant the provocations that inspectors face. Two questions are of central importance in this research. First, what kinds of tools do child care inspectors in the United States prefer as they confront a range of regulatory situations? Second, do child care inspectors in different states prefer different kinds of tools or the same tools? Alternative Perspectives The first question focuses on regulatory roles and tools within the United States as a whole. How willing are inspectors to play an enforcer role in their dealings with child care providers? Do they play other roles as well? If so, which enforcement tools do they select and how often do they select them? According to several critics, regulatory enforcement in the United States is commonly characterized by the absence of common sense. In their classic study of regulatory enforcement, Bardach and Kagan (1982) found that inspectors in diverse policy domains tend to go by the book, focusing so obsessively on relatively minor rule infractions that they lose sight of the broader goal of error correction. Although Bardach and Kagan found some examples of regulatory reasonableness, their overall assessment was bleak. Other scholars reached similar conclusions. For example, Kelman (1981) found that OSHA inspectors are strikingly adversarial, particularly in comparison to their Swedish counterparts. Similarly, Vogel (1986) found that EPA inspectors are much more combative than their British counterparts. In fact, a considerable body of literature suggests that American regulators tend to be rigid and overzealous (Howard, 1994). They overreact to code violations and choose blunt instruments to accomplish regulatory tasks. This image of regulatory enforcement in the United States clashes sharply with that conveyed by the U. …