I’m coming to GUELPH, ONTARIO THIS FRIDAY (May 8) to deliver the Musagetes Lecture.
One of my bedrock beliefs is that capitalists really hate capitalism. They may name their beloved institutes after the likes of Adam Smith, but they ignore everything Smith had to say about the necessity of competition to keep markets from turning into monopolies:
The theory of capitalism holds that markets are a kind of distributed computer that aggregates trillions of decisions from billions of market participants in order to optimize production and distribution of goods and services, creating a "Pareto-optimal" world where no one can be made better off without making someone else worse off.
Whether or not you believe that this computer exists and functions as predicted, one indisputable fact about it is that it requires the freedom to choose in order to work. The point of market-as-computer is that it aggregates decisions, so it can only work if everyone is as free as possible to decide.
But that's not the world capitalists want. For capitalists, the point is to restrict other people's choices in order to maximize your own freedom. That's how we get economic doctrines like "revealed preferences": the idea that if a person says they want one thing, but does another thing, then you can tell what they really prefer by looking at the latter and disregarding the former. This is the kind of doctrine you can only fully embrace after sustaining the kind of highly specific neurological injury that is induced by taking an economics degree, an injury that makes you incapable of perceiving or reasoning about power. Under the doctrine of revealed preferences, someone who sells their kidney to make the rent has a revealed preference for only having one kidney:
Capitalism is supposed to run on risk: the risk of being overtaken by a competitor drives businesses to deliver better services more efficiently, thus producing a bounty for all. But capitalists really hate risk, hence the drive to monopoly: Mark Zuckerberg admitted, in writing, that he only bought Instagram so that he wouldn't have to compete with it ("It is better to buy than to compete" -M. Zuckerberg):
Capitalists hate capitalism, but they love feudalism. Feudalism is like capitalism, in that you have a ruling class that creams off the surplus generated by labor; but under feudalism, society is organized to protect rents (money you get from owning stuff) over profits (money you get from doing stuff). The beauty of rents is that they are insulated from risk: if you own a coffee shop, you're in constant danger of being put out of business by a better coffee shop. But if you own the building and your coffee shop tenant goes under, well, you've still got the building, and hey, now it's on the same hot block as the amazing new cafe that's driving its competitors out of business:
Douglas Rushkoff calls this "going meta": don't drive a taxi, rent a medallion to a taxi driver. Don't rent a medallion, start a ride-hailing app company. Don't start a ride-hailing company, invest in the company. Don't invest in the company, but options on the company's shares. Each layer of indirection takes you further from the delivery of a useful service – and insulates you further from risk:
Monopoly is to capitalism as gerrymandering is to democracy, a way to strip out any meaningful choice. Think of the two giant packaged goods companies that fill your grocery aisles: Procter & Gamble and Unilever. Practically everything on your grocer's shelves is made by a division of one of these two massive conglomerates. If you try to "vote with your wallet" by buying a low-packaging version of a product, it's going to be sold to you by the same company that sells the high-packaging version. If you switch to an artisanal brand of cookies made by a local family business, Unilever or P&G will buy that company and issue a press release declaring that they made the acquisition because they know "their customers value choice":
Gerrymandering strips your vote of any impact on political outcomes. Monopoly strips your purchases of any ability to influence economic outcomes. Wrap both of them in "revealed preferences" and you get a system that endlessly narrates its ability to deliver choice, and then blames your misery on your having chosen badly.
This is the method of the entire conservative project. As Dan Savage says: the thing that unites conservative assaults on voting, birth control, abortion and no-fault divorce is the stripping away of choice. Conservatives are trying to create a world populated by husbands you can't divorce, pregnancies you can't prevent or terminate, and politicians you can't vote out of office. Add to that Trump's assault on the National Labor Relations Board, his reversal of the FTC's ban on noncompetes, and his protection of "TRAP" agreements that force employees to pay thousands of dollars if they quit their jobs, and you get "jobs you can't quit":
Conservative strongmen like Trump and Musk exalt the value of self-determination – for themselves, at everyone else's expense. Trump's ability to stiff the contractors that built his hotels and Musk's ability to rain flaming rocket debris down on the people who live near his company town require that everyone else be stripped of protections. They get to determine their own course in life by taking away your ability to determine your own. Their right to swing their fists ends two inches past your nose:
Cheaters and bullies hate the rule of law, hence Trump's endless repetition of Nixon's mantra: "When the president does it, that means it is not illegal." But not everyone can be president, and the world is full of would-be Trumps in positions of power who would like to be able to commit crimes without fear of legal repercussions. For these people, we have something called "binding arbitration."
"Binding arbitration" is a widely used contractual term that forces you to surrender your right to sue a company that wrongs you. Instead of suing, binding arbitration forces you to take your case to an "arbitrator"; that is, a lawyer who is paid by the company that cheated you or maimed you or killed your loved one. The arbitrator decides whether their client is guilty, and, if so, how much that client owes you. The entire process is confidential and it is non-precedential, meaning that if a company rips off millions of people in the same way, each of them has to arbitrate their claims separately, and people who are successful can't share their tactical notes with the people who are next in line to plead for justice.
That makes binding arbitration another key weapon in the conservative movement's war on choice: not just jobs you can't quit and politicians you can't vote out of office, but also companies you can't sue. Binding arbitration is a creation of the Federalist Society and their champion Antonin Scalia, who authored a series of Supreme Court dissents and (ultimately) decisions that opened the door for binding arbitration everywhere:
Given the Fedsoc's role in shoving binding arbitration down every worker and shopper's throat, it's decidedly odd that they invited Ashley Keller to be their keynote debater in 2021, where he argued that "concentrated corporate power is a greater threat than government power":
https://www.youtube.com/watch?v=aY5MrHGjVT8
Keller is a powerhouse lawyer, and an avowed conservative, who has pioneered many tactics for overcoming binding arbitration clauses. He helped create "mass arbitration," bringing thousands of arbitration cases on behalf of Uber drivers who'd had their wages stolen by the company. Since Uber has to pay the arbitrators in each of those cases, they faced a much larger bill than they would face in any possible class action suit:
Mass arbitration cases spread to all kinds of large firms that used petty grifts to steal from thousands or even millions of people, like Intuit, who deceive – and rip off – millions of Americans every year with their fake Turbotax "free file" system:
Mass arbitration worked so well that Amazon actually revised its terms of service to remove binding arbitration from their terms of service, because they realized that they'd be better off facing class action suits:
Of course, the point of binding arbitration was never to create a streamlined system of justice – it was to bring about a world of no justice, where you have no right to sue. It's part of the decades-old "tort reform" movement that the business lobby has used to take away your right to sue altogether. Any time you hear about a seemingly crazy lawsuit (like the urban legends about the McDonald's "hot coffee" case), you're being propagandized for a world without legal consequences for companies that defraud you, steal from you, injure you, or kill you:
That's why companies (like Bluesky) are now trying terms of service that also ban you from mass arbitration, while retaining the right to consolidate claims into a mass arbitration case if that's advantageous to them:
But Keller keeps finding creative ways around binding arbitration. He's currently bringing thousands of arbitration claims against Google, on behalf of advertisers whom Google stole from (Google is a thrice-convicted monopolist, and they lost a case last year over their monopolization of ad-tech, where they were found to have defrauded advertisers).
He also just argued before the Supreme Court in a case against Monsanto over the company's attempt to escape liability for causing cancer in farmworkers with their Roundup pesticide:
Keller appears in the latest episode of the Organized Money podcast, for a fascinating interview about his work and outlook, and how he reconciles his work fighting corporate power with his identity as a movement conservative:
Keller's first big, important point is that (basically), capitalists hate capitalism (see above). He cites Milton Friedman, who "always said that the tort system is the best way to ensure that companies behave and follow the rules." For Keller (and Friedman) the alternative to private litigation against bad businesses is "government regulation and the alphabet soup of Washington, DC agencies [that] try and police these companies."
But, of course, the businesses that want binding arbitration and tort reform (so they can't be sued) also want to "dismantle the administrative state" (so they can't be regulated). They're the impunity movement, the "when the president does it, that means it is not illegal" movement, the "heads I win, tails you lose" movement. They're the caveat emptor movement, the "that makes me smart" movement:
They don't want efficient markets, with the ever-present threat of a better competitor putting them out of business. They want feudalism. They want to go meta. They want to have the kind of self-determination you can only achieve by taking away everyone else's self-determination.
I was very struck by Keller's claim to be engaged in an exercise that Milton Friedman identified as the best one for making markets work. One of Keller's most forceful points is that class action suits are especially important for reining in petty, recurrent grifts, the junk fees that are the hallmark of enshittification.
He quotes his old boss, the archconservative judge Richard Posner, who said "Only a lunatic or a fanatic sues for $20." But if you multiply a $20 junk fee by ten million purchases, a company can use that fact to make hundreds of millions of dollars. That's real folding money, which is why every company has figured out a way to whack you for a $20 junk fee.
There are two ways to end this racket: one is litigation, the other is regulation, and the capitalism-hating-capitalists who run the world want to kill both. That's why the business lobby smears lawyers like Keller as being "vultures." But as Matt Stoller says, "vultures look aggressive and whatnot, but when you actually get rid of vultures out of an ecosystem, all sorts of things go haywire."
I love this point. Vultures live off the disgusting, rotting crap that would otherwise pile up around us, breeding disease and emitting an unbearable stench. If plaintiff-side, no-win/no-fee lawyers are vultures, then junk fees, wage theft, and the million petty frauds they fight are the disgusting, rotting crap that vultures feed off of – and the harder we make it for our noble vulture lawyers, the more disgusting, rotting crap we have to live with, hence the unbearable stench that is all around us.
Listening to Keller was a fascinating exercise. I thoroughly disagree with him about many things – the way he characterized Section 230 of the Communications Decency Act couldn't have been more wrong – but it's quite bracing to hear a capitalist who doesn't hate capitalism defend it against the vast majority of capitalists, who hate capitalism more than any socialist ever did.
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
