But we can never say that

“But we can never say that” was attributed to Supreme Court Justice Hugo Black in an issue of the Wilson Quarterly,  a journal I subscribed to about 1990.  The issue containing Black’s comment was about 2000 or 2001.

Black’s comment was supposed to be about the Law School hypothetical – would you torture someone to prevent 5 million people being killed by a nuclear device?  He said, “Of course we would but we can never say that.”

Recently, a lot of children were migrating to the US.  Hillary Rodham Clinton, being aware of the “we can never say that” guidance said that all the children have to be sent back.   http://www.huffingtonpost.com/entry/hillary-clinton-child-migrants_us_55d4a5c5e4b055a6dab24c2f

We can never say that lawbreakers will be given amnesty.  Otherwise, we are flooded with illegal immigrants.

Donald J. Trump knows that "amnesty" is a bad thing for our country.  Hillary used to know that we have to say that even unaccompanied children must be sent back.

We may torture or we may grant amnesty but WE CAN NEVER SAY THAT.

Guidance for Do Gooders

The nation exhibits a growing sense of futility as it repeatedly attacks deficiencies in our social system while the symptoms continue to worsen. Legislation is debated and passed with great promise and hope. But many programs prove to be ineffective. Results often seem unrelated to those expected when the programs were planned. At times programs cause exactly the reverse of desired results.

Jay W. Forrester, "Counterintuitive Behavior of Social Systems", 
Technology Review, Vol. 73, No. 3, Jan. 1971, pp. 52-68.

Good Intentions

A search for “good intentions” at www.google.com led to a review of The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice.  The book is by Paul Craig Roberts and Lawrence M. Stratton.  The review was by John J. Miller.

Miller states, ”The authors of The New Color Line return with another libertarian polemic, this time taking aim at a justice system that has lost sight of its most important goals.  Paul Craig Roberts and Lawrence M. Stratton warn of a ‘police state that is creeping up on us from many directions.’  There's the war on drugs, which makes it possible for federal agents to investigate people simply for carrying large amounts of cash.  There's the crusade against white-collar crime, which has turned the plea bargain into an enemy of the truth.  And there's outright misconduct, abetted by prosecutors more interested in compiling long lists of indictments than ensuring the fair treatment of all suspects.  The Tyranny of Good Intentions is replete with examples of how government treads on freedom through ill-willed prosecution and faceless bureaucracy.  The book's overpowering sense of disaffection sometimes leads to alarmist prose:  ‘We the People have vanished.  Our place has been taken by wise men and anointed elites.’  The authors are swift to suggest that America, barring ‘an intellectual rebirth,’ may yet go the way of ‘German Nazis and Soviet communists.’”

Miller continues, “Yet The Tyranny of Good Intentions is nothing if not well intended; it is full of passion and always on the attack, whether the writers are taking on racial quotas, wetland regulations, or any number of policies they find objectionable.  In a jacket blurb, libertarian icon Milton Friedman calls it ‘a devastating indictment of our current system of justice.’  Roberts and Stratton, although right-leaning in many of their political sympathies, will probably find plenty of fans on ACLU-left--and anybody who cringes at the thought of unbridled state power.  If the road to hell is indeed paved with good intentions, consider this book an atlas.”

Whether you are “right leaning” or “ACLU-left” you must occasionally have noticed that society becomes frustrated as repeated attacks on deficiencies in social systems lead only to worse symptoms.  Legislation is debated and passed with great hope, but many programs prove to be ineffective.  Results are often far short of expectations.  Indeed, government programs often cause exactly the reverse of desired results.  Similar observations were made by Jay W. Forrester in 1971.  A somewhat updated version of his classic “Counterintuitive Behavior of Social Systems” is available at http://web.mit.edu/sdg/www/D-4468-2.Counterintuitive.pdf.

Perhaps one reason good intentions often lead us astray is that the human mind is not adapted to interpreting how social systems behave.  Forrester states that social systems belong to the class called multi-loop nonlinear feedback systems.  Until very recent historical times, it was not necessary to understand complex feedback systems.  Forrester believes that new methods developed over the last 30 years will lead to a better understanding of social systems and thereby to more effective policies for guiding the future.

Forrester’s approach utilizes “system dynamics.”  His approach uses computer models extensively.  One of the founding members of the Operations Research Society of America (now INFORMS), Russell L. Ackoff described large complex problems as messes in his 1974 book Redesigning the Future.  The book is out of print but used copies are available at Amazon.com.  Another book by Ackoff, Ackoff’s Fables:  Irreverent Reflections on Business and Bureaucracy, is available at Amazon.com.  The publisher, John Wiley & Sons, describes it as “’Nothing is as obstructive to satisfaction of human needs and desires, let alone human progress, as bureaucracies.'  So goes Russell Ackoff's philosophy on human development. While relating wry observations made during a long career promoting human development, Ackoff demonstrates how most systems created to foster development actually prevent or retard it. You'll laugh at these war stories, but more importantly, you'll learn how to maximize your own personal development or that of your company by beating obstructive systems.”

The common theme is that “good intentions” are a poor guide to good policy in today’s world.

The first two paragraphs of  Forrester's 1971 paper appear very relevant for today:

This paper addresses several issues of broad concern in the United States: population trends; the quality of urban life; national policy for urban growth; and the unexpected, ineffective, or detrimental results often generated by government programs in these areas.

The nation exhibits a growing sense of futility as it repeatedly attacks deficiencies in our social system while the symptoms continue to worsen. Legislation is debated and passed with great promise and hope. But many programs prove to be ineffective. Results often seem unrelated to those expected when the programs were planned. At times programs cause exactly the reverse of desired results.

We should go slow and try to avoid knee jerk reactions which lead to counter-productive government actions.  

1962 PSAC Report

In 1962 the President's Science Advisory Committee published a report entitled Meeting Manpower Needs in Science and Technology.  The "PSAC Report" declared that the acceleration of graduate training in engineering, mathematics, and physical sciences, especially at the doctoral level, was a matter of urgent national priority requiring immediate action, without which severe shortages of engineers and scientists would occur. Engineering was identified as an especially crucial area. The federal government was to provide the funds needed, through increased research expenditures, provision of training grants, and fostering of new centers of scientific excellence. The country was, of course, reacting to shocks to its prestige caused by the success of Sputnik, and was also riding the crest of the greatest economic boom in its history, and these events simultaneously provided both the motive and the means for a major expansion in engineering graduate programs. Engineering education responded immediately, and the numbers of graduate students rose to unprecedented heights. (Just eight years later, the magnificent declarations of the PSAC Report were negated by a new conventional wisdom—that Ph.D.s were a drug on the market.)

Will Joe Run?

Not far.

Proposed ABA Code of Ethics

Members of the IEEE (Engineers) are ethically required to correct errors.  The IEEE Code of Ethics is available at http://www.ieee.org/about/corporate/governance/p7-8.html  .  The major change in adapting it for lawyers was removing the decision making responsibility which was mentioned as the first part of #1.

We, the members of the ABA, in recognition of the importance of our laws and regulations in affecting the quality of life throughout the world, and in accepting a personal obligation to our profession, its members and the communities we serve, do hereby commit ourselves to the highest ethical and professional conduct and agree:

 

1.    to disclose promptly factors that might endanger the public or the environment;

2.    to avoid real or perceived conflicts of interest whenever possible, and to disclose them to affected parties when they do exist;

3.    to be honest and realistic in stating claims or estimates based on available data;  

4.    to reject bribery in all its forms;  

5.    to improve the understanding of law; its appropriate application, and potential consequences;  

6.    to maintain and improve our legal competence and to undertake legal tasks for others only if qualified by training or experience, or after full disclosure of pertinent limitations;  

7.    to seek, accept, and offer honest criticism of technical work, to acknowledge and correct errors, and to credit properly the contributions of others;  

8.    to treat fairly all persons and to not engage in acts of discrimination based on race, religion, gender, disability, age, national origin, sexual orientation, gender identity, or gender expression;

9.    to avoid injuring others, their property, reputation, or employment by false or malicious action;  

10.  to assist colleagues and co-workers in their professional development and to support them in following this code of ethics.

 

Engineers are not particularly appreciative of having (not so technical) errors pointed out to them but learn to tolerate it gracefully.