Industrialization and the Rule of Law

Industrialization produces so-called goods (things presumed to be good) by means of a combination of machinery and humans. Machinery and people are typically organized into factories, which achieve efficiency by means of routine, predictable processes. Machinery is predictable and efficient. For the productive system to work well, the human workers must work well with the machines; thus they must become machine-like. Assembly lines need robots: workers who perform their assigned tasks with predictability and efficiency matching that of the machines. Thus artisans are replaced by robotic humans. As technology advances, robotic humans are replaced by mechanical robots, raising the question of whether there is any satisfactory role for the humans no longer needed, but that is a topic for another time.

Industrialization is not limited to production of goods. Industrialization of production is accompanied by what might be called the industrialization of other realms of human activity. Much as the activities of workers are governed by the rule of the assembly line, other activities are governed by the rule of law. The unpredictability of free creative individuals gives way to people predictably following legislated rules and regulations. Walking, and even horse and buggy traffic could be unregulated, but the efficient speed of automobiles requires drivers to follow rules and obey traffic lights. The efficiency that corresponds to the regulation is a strong argument in its favor.

But the mechanisms of industrial efficiency are seriously flawed. Barry Schwartz, in Why We Work, explains how rules and monetary incentives tend to destroy the meaningfulness of work. American education has adopted the factory model. Teachers are given detailed scripts to follow; success is measured by standard tests. The rules are designed to be idiot-proof; the consequence of designing a system that does not depend on good judgment and intelligence in its teachers is that creative and talented ones are driven away.

The New York Board of Education required teachers in low-performing schools to follow a rigid curriculum, as has become common in many school systems. In some systems, teachers’ annual evaluations, and even pay, are based on their students’ performance on standardized tests, and the scripted curricula are written to prepare students to pass these tests. ...
One of the chief criticisms many teachers make is that the system is dumbing down their teaching. It is de-skilling them. It is not allowing them to use their judgment, nor is it helping them to develop the judgment they need to teach well.

- Schwartz, Barry (2015-09-01). Why We Work (TED Books) (pp. 44-45). Simon & Schuster/ TED. Kindle Edition.

Teachers teach to the test. Students learn to the test. Students learn to focus on grades, SAT scores, and credentials; few care about getting educated. The purpose and value of education are forgotten. For an excellent analysis of the unintended consequences of using Value Added Models (VAMs) to measure teacher effectiveness, see Evaluating Teacher Evaluation by Darling-Hammond, Beardsley, Haertel, & Rothstein, 2011. The prevalence of teaching to the test is suggested by the following excerpt from Shavelson et al.'s Problems with the use of student test scores to evaluate teachers:

After the first few years of an exam’s use, teachers can anticipate which of these topics are more likely to appear, and focus their instruction on these likely-to-be-tested topics, to be learned in the format of common test questions. Although specific questions may vary from year to year, great variation in the format of test questions is not practical because the expense of developing and field-testing significantly different exams each year is too costly and would undermine statistical equating procedures used to ensure the comparability of tests from one year to the next. As a result, increasing scores on students’ mathematics exams may reflect, in part, greater skill by their teachers in predicting the topics and types of questions, if not necessarily the precise questions, likely to be covered by the exam. This practice is commonly called “teaching to the test.” It is a rational response to incentives and is not unlawful, provided teachers do not gain illicit access to specific forthcoming test questions and prepare students for them.

Such test preparation has become conventional in American education and is reported without embarrassment by educators.
- Richard J. Shavelson et al., Problems with the use of student test scores to evaluate teachers, Economic Policy Institute, August 27, 2010

Generally, the rule of law is designed to guarantee that people act in an acceptable way. But once following the law replaces using good judgment, and relying on profit as the measure of success replaces moral motivation to do good, intelligence and goodwill give way to gaming the system and greed.

Measurement plays a central role in physics. Science generally is based on predictions and measurement of results to see if they match predictions. Recognition of the importance of measurement and the development of "scientific" management theory led to a focus on measurable results, reflected in the popular slogan "If you can measure it you can manage it."

The tendency for metrics to pervert the conduct they aim to optimize is suggested by Goodhart's Law and Campbell's Law:

Goodhart's Law: "When a measure becomes a target, it ceases to be a good measure."

Campbell's Law: "The more any quantitative social indicator is used for social decision-making, the more subject it will be to corruption pressures and the more apt it will be to distort and corrupt the social processes it is intended to monitor."

In the plainest reading of federal law, a kingpin-size haul like that would be punished with a kingpin-size sentence: from a minimum of 10 years in prison to life without parole.

But the drugs were not his — he said he thought he was smuggling marijuana — and there was no evidence that he played any role other than as a one-time courier. The man, Kevin Mejia, was poor and had a pregnant girlfriend, and he had been promised $1,000 to drive the car.

In 2013, Eric H. Holder Jr., the attorney general under President Barack Obama, told prosecutors not to use mandatory minimum sentences for defendants like this — low-level, nonviolent, no prior offenses to speak of.

In a memo, Mr. Holder even gave prosecutors a simple alternative: omit the weight of the drugs from the indictment, because mandatory minimums are triggered by quantity. Judges then would have considerable leeway in sentencing. ...

Last week, however, President Trump’s attorney general, Jeff Sessions, did an about-face.

He issued his own memo, directing prosecutors to level the most serious charges with the longest possible sentences. Prosecutors must seek approval for any exceptions.

This policy, Mr. Sessions said, “is simply the right and moral thing to do.”
- SHAILA DEWAN, 5 Years, or 20? How Sessions’ Get-Tough Order Would Extend Prison Stays, NYT, MAY 18, 2017

For Mr. Trump and his circle, what matters is not what’s right but what you can get away with. ...
If there aren’t rules to cover these excesses, it’s because no one ever thought they would be needed. The federal ethics program was designed with the expectation that the president would throw his authority behind it, and strengthen it through example.
- THE EDITORIAL BOARD, Rule-Benders Require New Rules, NYT, JUNE 1, 2017

If Aristotle, Livy, and Harrington knew what a republic was, the British constitution is much more like a republic than an empire. They define a republic to be a government of laws, and not of men.
- John Adams, Novanglus Essay No. VII

Fewer patients meant fewer chances of bad outcomes and better scores for a ranking system that grades all veterans hospitals on a scale of one to five stars. In 2016, administrators began cherry-picking cases against the advice of doctors — turning away complicated patients and admitting only the lowest-risk ones in order to improve metrics, according to multiple interviews with doctors and nurses at the hospital and a review of documents.

Those metrics helped determine both the Roseburg hospital’s rating and the leadership’s bonus checks. By denying veterans care, the ratings climbed rapidly from one star to two in 2016 and the director earned a bonus of $8,120.
- DAVE PHILIPPS, At Veterans Hospital in Oregon, a Push for Better Ratings Puts Patients at Risk, Doctors Say, NYT, JAN. 1, 2018

Interestingly, in developing this theme, Reich favorably cites so-called “virtue conservatives” of the 1980s and 1990s. For example, he quotes William J. Bennett, the education secretary in the Reagan administration, who warned that “nonjudgmentalism … has permeated our culture, encouraging a paralysis of the moral faculty.” He also cites the conservative political scientist James Q. Wilson, who argued that neglecting broken windows in poor communities conveys a message of moral license, leading to an unraveling of social restraints and increased crime. Reich contends that people who get rich by exploiting norms of social trust — by evading taxes, say, or devising barely legal schemes of financial trickery — generate a similar unraveling.
- MICHAEL J. SANDEL, Robert B. Reich’s Recipe for a Just Society, APRIL 2, 2018

For centuries, conservatives have repeated a specific critique against state power. Statism, conservatives have argued, has a tendency to become brutalist and inhumane because a bureaucracy can’t see or account for the complexity of reality. It tries to impose uniform rules on the organic intricacy of human relationships. Statist social engineering projects cause horrific suffering because in the mind of statists, the abstract rule is more important than the human being in front of them. The person must be crushed for the sake of the abstraction.
- David Brooks, The Rise of the Amnesty Thugs, NYT, June 18, 2018

As a psychologist I am privileged to hear people’s uncensored opinions about the world in the context of their lives. Almost everyone I speak to believes he or she is being victimized by “big business” or “big government,” depending on which cable news stations they watch.

The problem is not with business or government itself, but how “big” institutions tend to objectify people.
- John G. Cottone, Stony Brook, N.Y., Letter to the Editor in The View Across the Trump Political Divide[letters to the editor], NYT, July 26, 2018

It's a reflection of this century, with its concern for machines and technology. People are further away than ever from nature and from genuine human feelings and are gradually turning into machines themselves.
- Bruno Monsaingeon, Sviatoslav Richter: Notebooks and Conversations, Princeton University Press, 2001, pp. 183-184.

And yet in another way, Sestan had long since passed any known boundaries. Cellularly revived dead tissue is “an in-between category,” said Nita Farahany, a law scholar and ethicist at Duke University. “It’s a total gray zone.” There were no rules in place to follow, and no rules to break.

For Sestan, the thorniest issue centered on consciousness and whether the Yale team, inadvertently, might somehow have figured out a way to elicit it from dead flesh.
- Matthew Shaer, Scientists Are Giving Dead Brains New Life. What Could Go Wrong?, NYT, July 2, 2019

In January 1999, Robert Clarence Potts III was sentenced to life in prison. He was 28, and had been convicted of drug and weapons charges. The federal judge sentencing him seemed to express some regret at the gravity of the penalty. But under the law at the time, Mr. Potts faced a mandatory sentence of life imprisonment without release because of the type of offenses and his two previous convictions for drug and other offenses.

“You are facing a very tough sentence here, and it is very regrettable that you are,” the judge, James C. Paine of the United States District Court of the Southern District of Florida, told him. The judge added that “we are governed by the law and the guidelines and we are going to have to go by those.” And the law and sentencing guidelines meant “a term of life imprisonment,” he explained.
- Robin Rosenberg, In ’99 He Was Sentenced to Life. Twenty Years Later, I Set Him Free., NYT, July 18, 2019 [See also Qualification of Teachers and Immaturity.]

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