#efficient market hypothesis brain worms

[mostlysignssomeportents]

FTC vs surveillance pricing

Support me this summer on the Clarion Write-A-Thon and help raise money for the Clarion Science Fiction and Fantasy Writers' Workshop!

In the mystical cosmology of economics, "prices" are of transcendental significance, the means by which the living market knows and adapts itself, giving rise to "efficient" production and consumption.

At its most basic level, the metaphysics of pricing goes like this: if there is less of something for sale than people want to buy, the seller will raise the price until enough buyers drop out and demand equals supply. If the disappointed would-be buyers are sufficiently vocal about their plight, other sellers will enter the market (bankrolled by investors who sense an opportunity), causing supplies to increase and prices to fall until the system is in "equilibrium" – producing things as cheaply as possible in precisely the right quantities to meet demand. In the parlance of neoclassical economists, prices aren't "set": they are discovered.

In antitrust law, there are many sins, but they often boil down to "price setting." That is, if a company has enough "market power" that they can dictate prices to their customers, they are committing a crime and should be punished. This is such a bedrock of neoclassical economics that it's a tautology "market power" exists where companies can "set prices"; and to "set prices," you need "market power."

Prices are the blood cells of the market, shuttling nutrients (in the form of "information") around the sprawling colony organism composed of all the buyers, sellers, producers, consumers, intermediaries and other actors. Together, the components of this colony organism all act on the information contained in the "price signals" to pursue their own self-interest. Each self-interested action puts more information into the system, triggering more action. Together, price signals and the actions they evince eventually "discover" the price, an abstraction that is yanked out of the immaterial plane of pure ideas and into our grubby, physical world, causing mines to re-open, shipping containers and pipelines to spark to life, factories to retool, trucks to fan out across the nation, retailers to place ads and hoist SALE banners over their premises, and consumers to race to those displays and open their wallets.

When prices are "distorted," all of this comes to naught. During the notorious "socialist calculation debate" of 1920s Austria, right-wing archdukes of religious market fundamentalism, like Von Hayek and Von Mises, trounced their leftist opponents, arguing that the market was the only computational system capable of calculating how much of each thing should be made, where it should be sent, and how much it should be sold for.

Attempts to "plan" the economy – say, by subsidizing industries or limiting prices – may be well-intentioned, but they broke the market's computations and produced haywire swings of both over- and underproduction. Later, the USSR's planned economy did encounter these swings. These were sometimes very grave (famines that killed millions) and sometimes silly (periods when the only goods available in regional shops were forks, say, creating local bubbles in folk art made from forks).

Unplanned markets do this too. Most notoriously, capitalism has produced a vast oversupply of carbon-intensive goods and processes, and a huge undersupply of low-carbon alternatives, bringing the human civilization to the brink of collapse. Not only have capitalism's price signals failed to address this existential crisis to humans, it has also sown the seeds of its own ruin – the market computer's not going to be getting any "price signals" from people as they drown in floods or roast to death on sidewalks that deliver second-degree burns to anyone who touches them:

https://www.fastcompany.com/91151209/extreme-heat-southwest-phoenix-surface-burns-scorching-pavement-sidewalks-pets

For market true believers, these failures are just evidence that regulation is distorting markets, and that the answer is more unregulated markets to infuse the computer with more price signals. When it comes to carbon, the problem is that producers are "producing negative externalities" (that is, polluting and sticking us with the bill). If we can just get them to "internalize" those costs, they will become "economically rational" and switch to low-carbon alternatives.

That's the theory behind the creation and sale of carbon credits. Rather than ordering companies to stop risking civilizational collapse and mass extinction, we can incentivize them to do so by creating markets that reward clean tech and punish dirty practices. The buying and selling of carbon credits is supposed to create price signals reflecting the existential risk to the human race and the only habitable planet known to our species, which the market will then "bring into equilibrium."

Unfortunately, reality has a distinct and unfair leftist bias. Carbon credits are a market for lemons. The carbon credits you buy to "offset" your car or flight are apt to come from a forest that has already burned down, or that had already been put in a perpetual trust as a wildlife preserve and could never be logged:

https://pluralistic.net/2022/03/18/greshams-carbon-law/#papal-indulgences

Carbon credits produce the most perverse outcomes imaginable. For example, much of Tesla's profitability has been derived from the sale of carbon credits to the manufacturers of the dirtiest, most polluting SUVs on Earth; without those Tesla credits, those SUVs would have been too expensive to sell, and would not have existed:

https://pluralistic.net/2021/11/24/no-puedo-pagar-no-pagara/#Rat

What's more, carbon credits aren't part of an "all of the above" strategy that incorporates direct action to prevent our species downfall. These market solutions are incompatible with muscular direct action, and if we do credits, we can't do other stuff that would actually work:

https://pluralistic.net/2023/10/31/carbon-upsets/#big-tradeoff

Even though price signals have repeatedly proven themselves to be an insufficient mechanism for producing "efficient" or even "survivable," they remain the uppermost spiritual value in the capitalist pantheon. Even through the last 40 years of unrelenting assaults on antitrust and competition law, the one form of corporate power that has remained both formally and practically prohibited is "pricing power."

That's why the DoJ was able to block tech companies and major movie studios from secretly colluding to suppress their employees' wages, and why those employees were able to get huge sums out of their employers:

https://en.wikipedia.org/wiki/High-Tech_Employee_Antitrust_Litigation

It's also why the Big Six (now Big Five) publishers and Apple got into so much trouble for colluding to set a floor on the price of ebooks:

https://en.wikipedia.org/wiki/United_States_v._Apple_(2012)

When it comes to monopoly, even the most Bork-pilled, Manne-poisoned federal judges and agencies have taken a hard line on price-fixing, because "distortions" of prices make the market computer crash.

But despite this horror of price distortions, America's monopolists have found so many ways to manipulate prices. Last month, The American Prospect devoted an entire issue to the many ways that monopolies and cartels have rigged the prices we pay, pushing them higher and higher, even as our wages stagnated and credit became more expensive:

https://prospect.org/pricing

For example, there's the plague of junk fees (AKA "drip pricing," or, if you're competing to be first up against the wall come the revolution, "ancillary revenue"), everything from baggage fees from airlines to resort fees at hotels to the fee your landlord charges if you pay your rent by check, or by card, or in cash:

https://pluralistic.net/2024/06/07/drip-drip-drip/#drip-off

There's the fake transparency gambit, so beloved of America's hospitals:

https://pluralistic.net/2024/06/13/a-punch-in-the-guts/#hayek-pilled

The "greedflation" that saw grocery prices skyrocketing, which billionaire grocery plutes blamed on covid stimulus checks, even as they boasted to their shareholders about their pricing power:

https://prospect.org/economy/2024-06-12-war-in-the-aisles/

There's the the tens of billions the banks rake in with usurious interest rates, far in excess of the hikes to the central banks' prime rates (which are, in turn, justified in light of the supposed excesses of covid relief checks):

https://prospect.org/economy/2024-06-11-what-we-owe/

There are the scams that companies like Amazon pull with their user interfaces, tricking you into signing up for subscriptions or upsells, which they grandiosely term "dark patterns," but which are really just open fraud:

https://prospect.org/economy/2024-06-10-one-click-economy/

There are "surge fees," which are supposed to tempt more producers (e.g. Uber drivers) into the market when demand is high, but which are really just an excuse to gouge you – like when Wendy's threatens to surge-price its hamburgers:

https://prospect.org/economy/2024-06-07-urge-to-surge/

And then there's surveillance pricing, the most insidious and profitable way to jack up prices. At its core, surveillance pricing uses nonconsensually harvested private information to inform an algorithm that reprices the things you buy – from lattes to rent – in real-time:

https://pluralistic.net/2024/06/05/your-price-named/#privacy-first-again

Companies like Plexure – partially owned by McDonald's – boasts that it can use surveillance data to figure out what your payday is and then hike the price of the breakfast sandwich or after-work soda you buy every day.

Like every bad pricing practice, surveillance pricing has its origins in the aviation industry, which invested early on and heavily in spying on fliers to figure out how much they could each afford for their plane tickets and jacking up prices accordingly. Architects of these systems then went on to found companies like Realpage, a data-brokerage that helps landlords illegally collude to rig rent prices.

Algorithmic middlemen like Realpage and ATPCO – which coordinates price-fixing among the airlines – are what Dan Davies calls "accountability sinks." A cartel sends all its data to a separate third party, which then compares those prices and tells everyone how much to jack them up in order to screw us all:

https://profilebooks.com/work/the-unaccountability-machine/

These price-fixing middlemen are everywhere, and they predate the boom in commercial surveillance. For example, Agri-Stats has been helping meatpackers rig the price of meat for 40 years:

https://pluralistic.net/2023/10/04/dont-let-your-meat-loaf/#meaty-beaty-big-and-bouncy

But when you add commercial surveillance to algorithmic pricing, you get a hybrid more terrifying than any cocaine-sharks (or, indeed, meth-gators):

https://www.nbcnews.com/news/us-news/tennessee-police-warn-locals-not-flush-drugs-fear-meth-gators-n1030291

Apologists for these meth-gators insist that surveillance pricing's true purpose is to let companies offer discounts. A streaming service can't afford to offer $0.99 subscriptions to the poor because then all the rich people would stop paying $19.99. But with surveillance pricing, every customer gets a different price, titrated to their capacity to pay, and everyone wins.

But that's not how it cashes out in the real world. In the real world, rich people who get ripped off have the wherewithal to shop around, complain effectively to a state AG, or punish companies by taking their business elsewhere. Meanwhile, poor people aren't just cash-poor, they're also time-poor and political influence-poor.

When the dollar store duopoly forces all the mom-and-pop grocers in your town out of business with predatory pricing, and creating food deserts that only they serve, no one cares, because state AGs and politicians don't care about people who shop at dollar stores. Then, the dollar stores can collude with manufacturers to get shrunken "cheater sized" products that sell for a dollar, but cost double or triple the grocery store price by weight or quantity:

https://pluralistic.net/2023/03/27/walmarts-jackals/#cheater-sizes

Yes, fliers who seem to be flying on business (last-minute purchasers who don't have a Saturday stay) get charged more than people whose purchase makes them seem to be someone flying away for a vacation. But that's only because aviation prices haven't yet fully transitioned to surveillance pricing. If an airline can correctly calculate that you are taking a trip because you're a grad student who must attend a conference in order to secure a job, and if they know precisely how much room you have left on your credit card, they can charge you everything you can afford, to the cent.

Your ability to resist pricing power isn't merely a function of a company's market power – it's also a function of your political power. Poor people may have less to steal, but no one cares when they get robbed:

https://pluralistic.net/2024/07/19/martha-wright-reed/#capitalists-hate-capitalism

So surveillance pricing, supercharged by algorithms, represent a serious threat to "prices," which is the one thing that the econo-religious fundamentalists of the capitalist class value above all else. That makes surveillance pricing low-hanging fruit for regulatory enforcement: a bipartisan crime that has few champions on either side of the aisle.

Cannily, the FTC has just declared war on surveillance pricing, ordering eight key players in the industry (including capitalism's arch-villains, McKinsey and Jpmorgan Chase) to turn over data that can be used to prosecute them for price-fixing within 45 days:

https://www.ftc.gov/news-events/news/press-releases/2024/07/ftc-issues-orders-eight-companies-seeking-information-surveillance-pricing

As American Prospect editor-in-chief David Dayen notes in his article on the order, the FTC is doing what he and his journalistic partners couldn't: forcing these companies to cough up internal data:

https://prospect.org/economy/2024-07-24-ftc-opens-surveillance-pricing-inquiry/

This is important, and not just because of the wriggly critters the FTC will reveal as they use their powers to turn over this rock. Administrative agencies can't just do whatever they want. Long before the agencies were neutered by the Supreme Court, they had strict rules requiring them to gather evidence, solicit comment and counter-comment, and so on, before enacting any rules:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

Doubtless, the Supreme Court's Loper decision (which overturned "Chevron deference" and cut off the agencies' power to take actions that they don't have detailed, specific authorization to take) will embolden the surveillance pricing industry to take the FTC to court on this. It's hard to say whether the courts will find in the FTC's favor. Section 6(b) of the FTC Act clearly lets the FTC compel these disclosures as part of an enforcement action, but they can't start an enforcement action until they have evidence, and through the whole history of the FTC, these kinds of orders have been a common prelude to enforcement.

One thing this has going for it is that it is bipartisan: all five FTC commissioners, including both Republicans (including the Republican who votes against everything) voted in favor of it. Price gouging is the kind of easy-to-grasp corporate crime that everyone hates, irrespective of political tendency.

In the Prospect piece on Ticketmaster's pricing scam, Dayen and Groundwork's Lindsay Owens called this the "Age of Recoupment":

https://pluralistic.net/2024/06/03/aoi-aoi-oh/#concentrated-gains-vast-diffused-losses

For 40 years, neoclassical economics' focus on "consumer welfare" meant that companies could cheat and squeeze their workers and suppliers as hard as they wanted, so long as prices didn't go up. But after 40 years, there's nothing more to squeeze out of workers or suppliers, so it's time for the cartels to recoup by turning on us, their customers.

They believe – perhaps correctly – that they have amassed so much market power through mergers and lobbying that they can cross the single bright line in neoliberal economics' theory of antitrust: price-gouging. No matter how sincere the economics profession's worship of prices might be, it still might not trump companies that are too big to fail and thus too big to jail.

The FTC just took an important step in defense of all of our economic wellbeing, and it's a step that even the most right-wing economist should applaud. They're calling the question: "Do you really think that price-distortion is a cardinal sin? If so, you must back our play." Support me this summer on the Clarion Write-A-Thon and help raise money for the Clarion Science Fiction and Fantasy Writers' Workshop!

https://clarionwriteathon.com/members/profile.php?writerid=293388

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:

https://pluralistic.net/2024/07/24/gouging-the-all-seeing-eye/#i-spy

[mostlysignssomeportents]

Meatspace twiddling

I'm on tour with my new, nationally bestselling novel The Bezzle! Catch me next weekend (Mar 30/31) in ANAHEIM at WONDERCON, then in Boston with Randall "XKCD" Munroe (Apr 11), then Providence (Apr 12), and beyond!

"Enshittification" isn't just a way of describing the symptoms of platform decay: it's also a theory of the mechanism of decay – the means by which platforms get shittier and shittier until they are a giant pile of shit.

I call that mechanism "twiddling": this is the ability of digital services to alter their business-logic – the prices they charge, the payouts they offer, the particulars of the deal – from instant to instant, for each user, continuously:

https://pluralistic.net/2023/02/19/twiddler/

Contrary to Big Tech's own boasting about its operations, the tricks that tech firms play to siphon value away from business customers and end-users aren't very sophisticated. They're crude gimmicks, like offering a higher per-hour wage to Uber drivers whom the algorithm judges to be picky about which rides they'll clock in for, and then lowering the wage by small increments as a way of lulling the driver into gradually accepting a permanent lower rate:

https://pluralistic.net/2023/04/12/algorithmic-wage-discrimination/#fishers-of-men

This is a simple trick. The difference is that tech platforms like Uber can play it over and over, and very quickly. There's plenty of wage-stealing scumbag bosses who'd have loved to have shaved pennies off their workers' paychecks, then added a few cents back in if a worker cried foul, then started shaving the pennies again. The thing that stopped those bosses was the bottleneck of payroll clerks, who couldn't make the changes fast enough.

Uber plays crude tricks – like claiming that a driver isn't an employee because the control is mediated through an app – and then piles more crude tricks on top – this algorithmic wage discrimination gambit.

Have you ever watched a shell-game performed very slowly?

https://www.masterclass.com/articles/how-to-do-penn-tellers-famous-cups-and-balls-trick-in-12-steps

It's a series of very simple gimmicks, performed very quickly and smoothly. Computers are very quick and very smooth. The quickness of the hand deceives the eye: do crude tricks with superhuman speed and they'll seem sophisticated.

The one bright spot in the Great Enshittening that we're living through is that many firms are not sufficiently digitized to to these crude tricks very quickly. Take grocery stores: they can get up to a lot of the same tricks as Amazon – for example, they can charge suppliers for placement on the most prominent, easiest-to-reach shelves, reorganizing your shopping based on which companies pay the biggest bribes, rather than offering the best products and prices.

But Amazon takes this to a whole different level – beyond simply organizing their product pages based on payola, they do this for search. You ask Amazon, "What's your cheapest batteries?" and it lies to you. If you click the first link in a search-results page, you'll pay 29% more than you would if you got the best product – a product that is, on average, 17 places down on the results page. Amazon makes $38b/year taking bribes to lie to you:

https://pluralistic.net/2023/11/06/attention-rents/#consumer-welfare-queens

Amazon can do more than that. Thanks to its digital nature, it can continuously reprice its offerings – indeed, it can simply make up each price displayed on every product at the instant you look at it – based on its surveillance data about you, estimating your willingness to pay. For sellers, Amazon can continuously re-weight the likelihood that a given product will be shown to a customer based on the seller's willingness to discount their products, even to the point where they go out of business:

https://www.businessinsider.com/sadistic-amazon-treated-book-sellers-the-way-a-cheetah-would-pursue-a-sickly-gazelle-2013-10

Twiddling, in other words, lets digital services honeycomb their servers with sneaky wormholes that let them siphon value away from one kind of platform user and give it to another (as when Apple silently began spying on Iphone owners to create profiles for advertisers), or to themselves.

But hard-goods businesses struggle to do this kind of twiddling. Not for lack of desire – but for lack of capacity. Jeff Bezos, owner of Amazon Fresh – an online grocery store – can change prices and layout millions of times per day, at effectively zero cost. Jeff Bezos, owner of Whole Foods – a brick-and-mortar grocer – needs a army of teenagers on rollerskates with pricing guns to achieve a fraction of this agility.

So hard-goods businesses are somewhat enshittification-resistant. It's not that their owners are more interested in the welfare of their customers, workers and suppliers – they merely lack the capacity to continuously rejigger the way their business runs.

Well, about that.

Grocers have been experimenting with "electronic shelf labels" in order to do "dynamic pricing" – that means that prices change quickly, in response to circumstances:

https://www.npr.org/2024/03/06/1197958433/dynamic-pricing-grocery-supermarkets

This doesn't have to be bad! As @planetmoney points out, it's a little weird that grocers don't discount milk whose sell-by date is drawing near. That milk is worth less to shoppers, because they have to use it more quickly lest it expire. Instead of marking down the price of perishable goods – day-old lettuce, yesterday's bread, etc – grocers put them on the shelves next to fresher, more valuable products, leading to billions of dollars' worth of food-waste and and unimaginable quantities of methane-producing, planet-cooking landfill.

In Norway, ESLs are pretty well established and – at least according to Planet Money's reporting – they are used exclusively to offer discounts in order to reduce waste. They make everyone better off.

But towards the end of the story, they note that Norway's grocery sector – which alters prices up to 2,000 times per day – has been accused of using ESLs to rig prices, hiking them and blaming them on pandemic supply-chain problems and loose monetary policy. Greedflation, in other words.

Greedflation is rampant in the grocery sector, all around the world. Remember when the price of eggs doubled and they blamed in on bird-flu, even as the CEO of the one company that owns every egg brand you've ever heard of boasted about how he could hike prices and suckers would just pay it?

https://pluralistic.net/2023/01/23/cant-make-an-omelet/#keep-calm-and-crack-on

In Canada, grocers rigged the price of bread, the most Les-Mis-ass form of corporate crime you can imagine (do you want guillotines, Galen Weston? Because this is how you get guillotines):

https://en.wikipedia.org/wiki/Bread_price-fixing_in_Canada

EU grocers – another highly concentrated industry – also collude to rig prices:

https://pluralistic.net/2023/09/17/how-to-think-about-scraping/

Which is all to say that while these companies don't have to use the twiddling capabilities that come with ESLs to enshittify their stores, we'd be pretty fucking naive to assume that they won't.

And here's the bad news: US grocers like Whole Foods (owned by Amazon, the company that wrote the enshittification playbook) are already experimenting with ESLs. So is Alberstons/Safeway, the massive, inbred conglomerate that has already demonstrated its passion for using twiddling to fuck over their workers:

https://knock-la.com/vons-fires-delivery-drivers-prop-22-e899ee24ffd0/

Economists love "price discrimination" – where prices change based on circumstance, trying to match the perfect price with the perfect customer. On paper, that sounds plausible: if I need a quart of milk for a recipe I'm making tonight and I get a 50% discount on some about-to-expire 2%, then everyone's better off. I get a discount and the grocer gets some money for milk they'd have to throw away at the end of the day.

But these elegant, self-licking ice-cream cones only emerge if the corporation offering the deal is constrained. Perhaps they're constrained by competition – the fear that you'll go elsewhere. Or perhaps they're constrained by regulation – the fear that they'll be punished if they use twiddling-tech to cheat you.

The grocery sector, dominated by a cartel of massive companies that routinely collude to rip us off, is not constrained by competition. And for years, regulators let them get away with ripping us off (though finally that might be changing):

https://www.nytimes.com/2024/03/21/us/politics/grocery-prices-pandemic-ftc.html?unlocked_article_code=1.ek0.t2Pr.g4n2usbxEcoa

For neoclassical economists, the answer to all this is "caveat emptor" – let the buyer beware. If you want to make sure that ESLs are only used to offer you discounts and not to gouge prices, all you need to do is note the price of everything you buy, every time you buy it, and triple-check it every time you go back to the grocery store. Just be eternally vigilant!

Thing is, the one thing computers are much better at than humans is vigilance. With ESLs and other twiddling mechanisms, you're a fish on a hook, and the seller is tireless in giving you a little more slack, then a little less, until you finally drop your guard.

Economists desperately want these elegant models to work, but "efficient market hypothesis" is a brain-worm that always turns into apologetics for fraud. Dynamic markets sound like a good idea, but they are catnip for cheaters. "Just be eternally vigilant" is miserable advice, and no way to live your life:

https://pluralistic.net/2023/02/24/passive-income/#swiss-cheese-security

In his brilliant novel Spook Country, @GreatDismal describes augmented reality as "cyberspace everting" – that is, turning inside-out:

https://memex.craphound.com/2007/07/31/william-gibsons-spook-country/

The extrusion of twiddling technology from digital platforms into the physical world isn't cyberspace everting so much as it is cyberspace prolapsing.

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:

https://pluralistic.net/2024/03/26/glitchbread/#electronic-shelf-tags

[mostlysignssomeportents]

Antitrust is a labor issue

I'm touring my new, nationally bestselling novel The Bezzle! Catch me SATURDAY (Apr 27) in MARIN COUNTY, then Winnipeg (May 2), Calgary (May 3), Vancouver (May 4), and beyond!

This is huge: yesterday, the FTC finalized a rule banning noncompete agreements for every American worker. That means that the person working the register at a Wendy's can switch to the fry-trap at McD's for an extra $0.25/hour, without their boss suing them:

https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes

The median worker laboring under a noncompete is a fast-food worker making close to minimum wage. You know who doesn't have to worry about noncompetes? High tech workers in Silicon Valley, because California already banned noncompetes, as did Colorado, Illinois, Maine, Maryland, New Hampshire, North Dakota, Oklahoma, Oregon, Rhode Island, Virginia and Washington.

The fact that the country's largest economies, encompassing the most "knowledge-intensive" industries, could operate without shitty bosses being able to shackle their best workers to their stupid workplaces for years after those workers told them to shove it shows you what a goddamned lie noncompetes are based on. The idea that companies can't raise capital or thrive if their know-how can walk out the door, secreted away in the skulls of their ungrateful workers, is bullshit:

https://pluralistic.net/2022/02/02/its-the-economy-stupid/#neofeudal

Remember when OpenAI's board briefly fired founder Sam Altman and Microsoft offered to hire him and 700 of his techies? If "noncompetes block investments" was true, you'd think they'd have a hard time raising money, but no, they're still pulling in billions in investor capital (primarily from Microsoft itself!). This is likewise true of Anthropic, the company's major rival, which was founded by (wait for it), two former OpenAI employees.

Indeed, Silicon Valley couldn't have come into existence without California's ban on noncompetes – the first silicon company, Shockley Semiconductors, was founded by a malignant, delusional eugenicist who also couldn't manage a lemonade stand. His eight most senior employees (the "Traitorous Eight") quit his shitty company to found Fairchild Semiconductor, a rather successful chip shop – but not nearly so successful as the company that two of Fairchild's top employees founded after they quit: Intel:

https://pluralistic.net/2021/10/24/the-traitorous-eight-and-the-battle-of-germanium-valley/

Likewise a lie: the tale that noncompetes raise wages. This theory – beloved of people whose skulls are so filled with Efficient Market Hypothesis Brain-Worms that they've got worms dangling out of their nostrils and eye-sockets – holds that the right to sign a noncompete is an asset that workers can trade to their employers in exchange for better pay. This is absolutely true, provided you ignore reality.

Remember: the median noncompete-bound worker is a fast food employee making near minimum wage. The major application of noncompetes is preventing that worker from getting a raise from a rival fast-food franchisee. Those workers are losing wages due to noncompetes. Meanwhile, the highest paid workers in the country are all clustered in a a couple of cities in northern California, pulling down sky-high salaries in a state where noncompetes have been illegal since the gold rush.

If a capitalist wants to retain their workers, they can compete. Offer your workers get better treatment and better wages. That's how capitalism's alchemy is supposed to work: competition transmogrifies the base metal of a capitalist's greed into the noble gold of public benefit by making success contingent on offering better products to your customers than your rivals – and better jobs to your workers than those rivals are willing to pay. However, capitalists hate capitalism:

https://pluralistic.net/2024/04/18/in-extremis-veritas/#the-winnah

Capitalists hate capitalism so much that they're suing the FTC, in MAGA's beloved Fifth Circuit, before a Trump-appointed judge. The case was brought by Trump's financial advisors, Ryan LLC, who are using it to drum up business from corporations that hate Biden's new taxes on the wealthy and stepped up IRS enforcement on rich tax-cheats.

Will they win? It's hard to say. Despite what you may have heard, the case against the FTC order is very weak, as Matt Stoller explains here:

https://www.thebignewsletter.com/p/ftc-enrages-corporate-america-by

The FTC's statutory authority to block noncompetes comes from Section 5 of the FTC Act, which bans "unfair methods of competition" (hard to imagine a less fair method than indenturing your workers). Section 6(g) of the Act lets the FTC make rules to enforce Section 5's ban on unfairness. Both are good law – 6(g) has been used many times (26 times in the five years from 1968-73 alone!).

The DC Circuit court upheld the FTC's right to "promulgate rules defining the meaning of the statutory standards of the illegality the Commission is empowered to prevent" in 1973, and in 1974, Congress changed the FTC Act, but left this rulemaking power intact.

The lawyer suing the FTC – Anton Scalia's larvum, a pismire named Eugene Scalia – has some wild theories as to why none of this matters. He says that because the law hasn't been enforced since the ancient days of the (checks notes) 1970s, it no longer applies. He says that the mountain of precedent supporting the FTC's authority "hasn't aged well." He says that other antitrust statutes don't work the same as the FTC Act. Finally, he says that this rule is a big economic move and that it should be up to Congress to make it.

Stoller makes short work of these arguments. The thing that tells you whether a law is good is its text and precedent, "not whether a lawyer thinks a precedent is old and bad." Likewise, the fact that other antitrust laws is irrelevant "because, well, they are other antitrust laws, not this antitrust law." And as to whether this is Congress's job because it's economically significant, "so what?" Congress gave the FTC this power.

Now, none of this matters if the Supreme Court strikes down the rule, and what's more, if they do, they might also neuter the FTC's rulemaking power in the bargain. But again: so what? How is it better for the FTC to do nothing, and preserve a power that it never uses, than it is for the Commission to free the 35-40 million American workers whose bosses get to use the US court system to force them to do a job they hate?

The FTC's rule doesn't just ban noncompetes – it also bans TRAPs ("training repayment agreement provisions"), which require employees to pay their bosses thousands of dollars if they quit, get laid off, or are fired:

https://pluralistic.net/2022/08/04/its-a-trap/#a-little-on-the-nose

The FTC's job is to protect Americans from businesses that cheat. This is them, doing their job. If the Supreme Court strikes this down, it further delegitimizes the court, and spells out exactly who the GOP works for.

This is part of the long history of antitrust and labor. From its earliest days, antitrust law was "aimed at dollars, not men" – in other words, antitrust law was always designed to smash corporate power in order to protect workers. But over and over again, the courts refused to believe that Congress truly wanted American workers to get legal protection from the wealthy predators who had fastened their mouth-parts on those workers' throats. So over and over – and over and over – Congress passed new antitrust laws that clarified the purpose of antitrust, using words so small that even federal judges could understand them:

https://pluralistic.net/2023/04/14/aiming-at-dollars/#not-men

After decades of comatose inaction, Biden's FTC has restored its role as a protector of labor, explicitly tackling competition through a worker protection lens. This week, the Commission blocked the merger of Capri Holdings and Tapestry Inc, a pair of giant conglomerates that have, between them, bought up nearly every "affordable luxury" brand (Versace, Jimmy Choo, Michael Kors, Kate Spade, Coach, Stuart Weitzman, etc).

You may not care about "affordable luxury" handbags, but you should care about the basis on which the FTC blocked this merger. As David Dayen explains for The American Prospect: 33,000 workers employed by these two companies would lose the wage-competition that drives them to pay skilled sales-clerks more to cross the mall floor and switch stores:

https://prospect.org/economy/2024-04-24-challenge-fashion-merger-new-antitrust-philosophy/

In other words, the FTC is blocking a $8.5b merger that would turn an oligopoly into a monopoly explicitly to protect workers from the power of bosses to suppress their wages. What's more, the vote was unanimous, include the Commission's freshly appointed (and frankly, pretty terrible) Republican commissioners:

https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-moves-block-tapestrys-acquisition-capri

A lot of people are (understandably) worried that if Biden doesn't survive the coming election that the raft of excellent rules enacted by his agencies will die along with his presidency. Here we have evidence that the Biden administration's anti-corporate agenda has become institutionalized, acquiring a bipartisan durability.

And while there hasn't been a lot of press about that anti-corporate agenda, it's pretty goddamned huge. Back in 2021, Tim Wu (then working in the White wrote an executive order on competition that identified 72 actions the agencies could take to blunt the power of corporations to harm everyday Americans:

https://www.eff.org/deeplinks/2021/08/party-its-1979-og-antitrust-back-baby

Biden's agency heads took that plan and ran with it, demonstrating the revolutionary power of technical administrative competence and proving that being good at your job is praxis:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

In just the past week, there's been a storm of astoundingly good new rules finalized by the agencies:

A minimum staffing ratio for nursing homes;

The founding of the American Climate Corps;

A guarantee of overtime benefits;

A ban on financial advisors cheating retirement savers;

Medical privacy rules that protect out-of-state abortions;

A ban on junk fees in mortgage servicing;

Conservation for 13m Arctic acres in Alaska;

Classifying "forever chemicals" as hazardous substances;

A requirement for federal agencies to buy sustainable products;

Closing the gun-show loophole.

That's just a partial list, and it's only Thursday.

Why the rush? As Gerard Edic writes for The American Prospect, finalizing these rules now protects them from the Congressional Review Act, a gimmick created by Newt Gingrich in 1996 that lets the next Senate wipe out administrative rules created in the months before a federal election:

https://prospect.org/politics/2024-04-23-biden-administration-regulations-congressional-review-act/

In other words, this is more dazzling administrative competence from the technically brilliant agencies that have labored quietly and effectively since 2020. Even laggards like Pete Buttigieg have gotten in on the act, despite a very poor showing in the early years of the Biden administration:

https://pluralistic.net/2023/02/11/dinah-wont-you-blow/#ecp

Despite those unpromising beginnings, the DOT has gotten onboard the trains it regulates, and passed a great rule that forces airlines to refund your money if they charge you for services they don't deliver:

https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/24/fact-sheet-biden-harris-administration-announces-rules-to-deliver-automatic-refunds-and-protect-consumers-from-surprise-junk-fees-in-air-travel/

The rule also bans junk fees and forces airlines to compensate you for late flights, finally giving American travelers the same rights their European cousins have enjoyed for two decades.

It's the latest in a string of muscular actions taken by the DOT, a period that coincides with the transfer of Jen Howard from her role as chief of staff to FTC chair Lina Khan to a new gig as the DOT's chief of competition enforcement:

https://prospect.org/infrastructure/transportation/2024-04-25-transportation-departments-new-path/

Under Howard's stewardship, the DOT blocked the merger of Spirit and Jetblue, and presided over the lowest flight cancellation rate in more than decade:

https://www.transportation.gov/briefing-room/2023-numbers-more-flights-fewer-cancellations-more-consumer-protections

All that, along with a suite of protections for fliers, mark a huge turning point in the US aviation industry's long and worsening abusive relationship with the American public. There's more in the offing, too including a ban on charging families extra for adjacent seats, rules to make flying with wheelchairs easier, and a ban on airlines selling passenger's private information to data brokers.

There's plenty going on in the world – and in the Biden administration – that you have every right to be furious and/or depressed about. But these expert agencies, staffed by experts, have brought on a tsunami of rules that will make every working American better off in a myriad of ways. Those material improvements in our lives will, in turn, free us up to fight the bigger, existential fights for a livable planet, free from genocide.

It may not be a good time to be alive, but it's a much better time than it was just last week.

And it's only Thursday.

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:

https://pluralistic.net/2024/04/25/capri-v-tapestry/#aiming-at-dollars-not-men