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The Revolutionary Banality of Regulatory Evil
What Burke can Teach Us About "The Lawyers Who Ate California"
“Everything which they have done, or continue to do, in order to obtain and keep their power is by the most common arts. They proceed exactly as their ancestors of ambition have done before them. Trace through all their artifices, frauds, and violences and you can find nothing at all that is new. They follow the precedents and examples with the punctilious exactness of a pleader. They never depart an iota from the authentic formulas of tyranny and usurpation.”
- Edmund Burke [Reflections on the Revolution in France, p. 1661]
“They find themselves obliged to rake into the histories of former ages (which they have ransacked with a malignant and profligate industry) for every instance of oppression and persecution which has been made by that body, or in its favour, in order to justify, upon very iniquitous, because very illogical principles of retaliation, their own persecutions and their own cruelties.” - Edmund Burke [p. 140]
On Sunday, Matt Taibbi published the first two parts of an incredible piece of investigative journalism titled “The Lawyers Who Ate California,” with an epilogue containing his analysis of the topic released on Thursday. It is a wonderful piece of writing, if you happen to be a subscriber you should absolutely read the whole thing. Even if you aren’t, at least check out the free previews. Here is Taibbi’s description:
“In the spirit of California, long the cradle of American innovation, a small group of government litigators spent nearly a decade dreaming up an aggressive new vision of corporate regulation, one that’s seen agencies like California’s DFEH act like high-end plaintiffs’ firms. They laugh off mediation, jump quick as you can to litigation they may be mandated to avoid, then couple blunt public accusations with eye-catching damage demands that open at ten or fifteen times the size of previous record awards. Also in the California spirit there are ruthless box-outs of other regulatory agencies, private attorneys, and even the agency’s own in-house lawyers for the sole rights to be claimants in each of the target firms’ stories, told by media pals who act more like production partners than journalists.”
In short, what Taibbi discovered is that there has been a growing trend of “equal opportunity” government regulators making outlandish and spurious accusations against corporations and immediately publishing those accusations in the media, followed by demands for outrageous damages. They are choosing to do this instead of working with the companies to fix problems and compensate victims, which is the ostensible purpose of these regulatory agencies. In California, where this is the most extreme, 265 companies have moved their headquarters out of state in 2019-2021 alone, causing untold damage to the state economy; the trend continues to accelerate.
While Taibbi’s investigative reporting is excellent, he has more trouble with the tricky question of why they are doing this. If this was working, there could simply be a “banality of evil” explanation in that these are just dreadful careerists seeking scalps to leave the government and get high-paying corporate jobs, and that may be part of it because presumably they go into these ventures expecting a degree of success. However, they are repeatedly and horribly losing at great expense to the public, the economy, and their own careers- not to mention great expense to their targetted victims- which makes these actions nearly impossible to understand.
The two main explanations Taibbi lands on for this incredible change in corporate enforcement [note: no regulator was willing to give an interview justifying these practices] is that California is in a transition where “new money” is becoming “old money” and is attacking relatively younger tech companies to hold onto their now-entrenched economic position. The economic theory behind this is not solid, however, that doesn’t mean it isn’t a belief they hold which partially motivates their actions, and it probably is. No proof is provided that old-money interests are driving this persecution, though it is implicit that entrenched financial interests support whatever the government does. His other explanation is that the cause is no different from the administrative growth at universities: the manpower cost of compliance creates jobs for useless people. Basically, it is the lamest make-work program imaginable. Taibbi writes, “part of what’s been packaged as progress but feels more like a vast jobs program for otherwise unemployable pseudo-intellectuals.” This is something we’ve seen everywhere, such as the growing dispute between Elon Musk and Twitter’s most useless employees whom he intends to fire if his acquisition is successful.
However, neither of these things goes far enough to explain these egregious unjustified attacks which serve no purpose but harm and division. Really, only revolutionary fervor to reshape society along “scientific” instead of human lines and group-hatred can explain this disturbing trend of joyless government agents trying so hard to make our society function even more poorly than it already does. In Reflections on the Revolution in France of 1790 and A Letter to a Member of the National Assembly 1791, Edmund Burke, the most prominent British legislator and political theorist of the late 18th century, excellently lays out a mirrored trend in revolutionary France. There, radicals and the new money financial interests who supported their ideology partook in widespread, aggressive show trials where vast amounts of property were transferred from historic class enemies [clergy and nobility] to the government, only to be sold to the favored moneylenders for a fraction of their market value.
Only by understanding the historical precedent can we attempt to understand- and stop- this growing attack on markets, productivity, and merit-based hiring. It is not usually my habit to partake in apologism for the corporations, however, the government’s behavior is egregious and wealth is being transferred from productive uses into the creation of mountains of paperwork [a specialty of government, this is just more extreme.] If they can attack powerful corporations and cause this much damage, they can do anything to the man on the street guilty of wrongthink. Any smaller business could be forced to close if subjected to these defense costs and/or fines.
Within reason, there is nothing inherently wrong with the government taking action towards pay fairness and racial equality- after all, these are the same assholes who created the problems by enforcing slavery, Jim Crow, et cetera. There is a strong argument that the government has a responsibility to fix them [of course, trying to fix problems they themselves caused is a primary function of government.] However, almost 60 years after the Civil Rights Act was passed, if the government’s actions were going to fix any of these problems they should have by now, and such programs should be winding down and have an end in sight, if not already be ended. Instead, their activity is only expanding, and in an overtly aggressive way.
One former civil rights regulator whom Taibbi spoke to explained the more traditional method of this sort of regulatory enforcement:
“They all want to get off cheap, but most companies are willing to take their medicine. You carrot-and-stick them to get the number up. The carrot is the press release at the end that says they cooperated and moved their policies into the correct century. Most firms will pay a lot for that.”
You can see that this individual believes in the necessity of government regulations he enforced, but also believes that the goal is actually to make corporations end illegal and discriminatory practices. Now, instead of continuing to work with corporations and end remaining employment discrimination, the federal and California governments have become openly antagonistic, and in Taibbi’s words, “the state avoids mediation at all costs and turns every dispute into Appomattox.” One person interviewed said the animosity generated has reached such proportions that it is comparable to the IRS. Worse than just being hostilely litigious, they began the practice of publishing wild accusations at the beginning of investigations- when some form of positive PR is the main thing they have to offer corporations with vast budgets who can afford fines. However, there is more to this new problem than just the government behaving oppressively and irresponsibly going to the press. In 2013 the Obama administration came up with a new approach to dealing with the [real or perceived] problem of racial and gender pay discrimination in corporate employment. Unsurprisingly, this new approach relied heavily on statistical analysis, as Taibbi explains:
“In 2013, the agency rolled out a new approach that more than ever before would stress using statistical analyses to identify actionable pay gap issues. This led to some controversial results, including a settlement with Tyson foods that ended in a confusing settlement for $1.6 million for underpaid workers that among other things “revealed discrimination against black and white applicants when compared to Hispanic applicants.” Cases in the years that followed would accuse various companies of discriminating both for and against Asians, for and against Hispanics, even for and against white women.”
Essentially what is going on here is that the government is using a kind of modeling to paint anyone whose hires don’t fall into a narrow range of racial and gender proportionality after large-scale analysis as wicked white supremacists; beyond statistical analysis the government has had little evidence but weak hearsay in these cases. What’s more, they are attacking many companies simply for not keeping detailed enough long-term diversity records to satisfy the requirements of running the model. It’s notable that modeling is the wellspring of this evil, as it seems to be with so many things such as global warming panic and the vast covid oppression justified by wildly inaccurate “agent-based modeling” which has never been proven to work. The problem, as laid out in this wonderful philosophic essay, is that a lack of shared beliefs within our society has given all of the power to “experts” and “technocrats”:
It is not an accident that society’s nihilistic rejection of sacred principles is accompanied by the rise of a sacred infallible technocracy (“trust the experts”). When principles cease to be the anchor around which society is built, the only alternate anchor that can prevent society from fracturing into a million warring tribes is to anchor society around the raw authority of its leaders, and to defend their authority at any cost even when they lie, cheat, steal, or are grossly incompetent. And right on cue, our technocratic leaders are instinctively trying to wrap themselves in an aura of divinely ordained power that “shall not be questioned” in order to shield themselves from challengers to the throne.”
Due to our lack of shared principles, all authority has devolved to what “experts” and their computers can tell you about society. There is no arguing with a true believer in his models, since after all, you can’t possibly compute things with the certainty of a computer and any human-based approach is “unscientific.” This is the same situation as post-revolutionary France [which gave us the inhuman metric system], where everything was torn asunder on the belief that a new and more “scientific” society could be built, abstract from human consideration. This is the core of progressive ideology, which I define as “the belief that the combination of science and active government can solve humanity’s eternal problems.” Revolutionary France, relying on experts, made a “perfect” extremely complex geometric system of districts, which is a key example of “experts” run amok. Burke writes:
“It is remarkable that in this great arrangement of mankind, not one reference, whatsoever is to be found to anything moral or anything politic; nothing that relates to the concerns, the passions, the interests of men…
The legislators who framed the antient republics knew that their business was too arduous to be accomplished with no better apparatus than the metaphysics of an under-graduate, and the mathematics and arithmetic of an exciseman. They had to do with men, and they were obliged to study human nature. They had to do with citizens, and they were obliged to study the effects of those habits which are communicated by the circumstances of civil life.” [p. 183, 185]
In America, the eternal problem that the “woke” are seeking to “solve” [or use as a hammer against perceived demographic enemies] is in-group/out-group prejudice, and they will do it with all the scientific precision their model can provide. For example, regulators determined that the tech company Palantir only had a 1 in 3.4 million chance of hiring the percentage of Asian applicants it did out of the applications received if the hiring process was not impacted by racial bias. This is obvious nonsense. Humans, and human interaction, are much more complex than a few data points you enter into a computer [I’m sure they would brag that their model is much more complex than that, while ignoring that they’ve reduced humans to a small number of outward traits.] They clearly believe that humans are widgets or that society is a simulation they run. The problem is that you can’t run a functional enterprise showing more concern about the race and gender of applicants than if they can do the job or will work with your team; intuition and emotional intelligence are a major feature of making good hires. Beyond which, this forces the concept of a “diversity hire”, which harms qualified minority employees by creating the impression they were only hired to avoid the wrath of diversity regulators.
Beyond the absurdity of applying such rigid statistical analysis to human interaction, a preference for people with features which resemble your own is a fundamental aspect of humans as a tribal species. One of our first learned behaviors is to prefer people who look like our parents, so creating a society that has truly moved past this tribalism at a subconscious level is not an achievable goal. Understanding and racial tolerance can, and should, be taught, but like anything else, you just do the best you can and a reasonable person doesn’t think it can be eradicated from society. However, far from doing anything like removing prejudice from society, they are intentionally flaring up all sorts of racial and class grievances based on historic events that no one currently alive was in control of with their outlandish claims about the behavior of white people in positions of power in the corporate workforce.
This mirrors the attacks on clergy and landed interests in revolutionary France, where the ideologues supported and driven by financial interests looked to profit from instability and confiscation. Though we’ve heard much about the abuses of France’s ancien regime, the truth is that a great deal of reform had taken place or was in the process of taking place before the revolution began and the church was being attacked primarily for practices which had long since ended. Burke wrote:
“The assembly punishes men, many, if not most, of whom abhor the violent conduct of ecclesiastics in former times as much as their present persecutors can do, and who would be as loud and as strong in the expression of that sense, if they were not well aware of the purposes for which this declamation is employed.” [p. 141]
This is the situation in which the white male or any kind of traditionalist or just rational person currently finds himself in. Very few people support this country’s history of racism or think that our forefathers had the correct racial policies, but that history is being used to destroy our country in the present. However, it’s obvious that any way in which we go along with acknowledging these historic wrongs will be used as evidence of our current guilt. Burke described the situation as, “the unprovoked persecution of your present countrymen, on account of conduct of men of the same name in other times.” [p. 141] This is a perfect description of these current woke show trials where corporations have to fight so hard to protect themselves from the dreaded charges of “racism” and “sexism.” These regulatory prosecutions serve no ostensible purpose but to generate hatred to a disfavored previously dominant group in decline. Burke wrote of the “literary cabal” driving this in his day that, “These writings and sermons have filled the populace with a black and savage atrocity of mind, which supersedes in them the common feelings of nature, as well as all the sentiments of morality and religion.” [p. 154] This insane degree of regulatory destruction must be motivated by simple hatred: since they have caught the so-called “woke mind virus” they are compelled by animosity towards any institution perceived to be controlled by white men. There is nothing just about using the government to attack disfavored groups due to historic grievances. Burke writes:
“It is not very just to chastise men for the offences of their natural ancestors; but to take the fiction of ancestry in a corporate succession, as a ground for punishing men who have no relation to guilty acts, except in names and general descriptions, is a sort of refined injustice belonging to the philosophy of this enlightened age.” [p. 140]
“A sort of refined injustice” is an excellent description of the regulators Taibbi describes. This is not just normal avarice or prosecutorial scalp-hunting: instead they’ve made a bizarre art of attacking corporations which show any sort of resistance to the cult of “Diversity, Equality, and Inclusion.” And if you think this isn’t a form of political persecution, it is key to note that Oracle, one of the most notable victims and most extreme cases, had a Trump-supporting CEO and such an investigation was launched just two days before Obama left office in 2017. It is a sort of media and political production with no purpose but rapacity, social division, and harm. Yet, as Taibbi writes, the exodus of businesses fleeing California’s regulators is seen by the state as simply “a reluctance by coddled white male executives to diversify.” The problem with that claim is that it is empirically true that the state is inventing massive compliance costs, and no rational business no matter how diverse would want to be subjected to this risk. This is especially as they can, and have, been punished for hiring too many people from specific minority groups, making the basic requirement that all human concerns should be removed from the hiring process. Corporations can clearly win in “court” [even the in-house administrative courts of the regulators themselves], but nothing except leaving California and the Western district of the federal Equal Employment Opportunity Commission can save them from the cost of their defense and the atrocious public relations crises these regulators create.
It seems clear that nothing will stop California from this course of woke self-immolation, least of all a concern for actual justice. As Burke wrote in his Letter to a Member of the National Assembly:
“Tyrants seldom want pretexts. Fraud is the ready minister of injustice…The usurpation no longer sees plausibility. It trusts to power. Nothing that I can say, or that you can say, will hasten them by a single hour, in the execution of a design which they have long since entertained.” [p. 266]
No one could conceivably believe that what California’s regulators are doing is good for the state, even if California governor Newsom writes this off by saying “progressivism is our strength.” The most generous explanation is the one that it is a cynical make-work program for people with useless degrees; this includes those who are actively harmful to the companies at which they work. There is no named political ideology which supports this kind of behavior. There is no public good in these failed show trials, besides the fact that it is better than them succeeding. There is no above-board political goals this achieves.
What scares me the most about this situation, is that the only thing which has restricted the damage to mostly corporate legal expenses is that most judges- including the administrative judges employed by regulatory agencies- are relatively old. With the influx of stories about woke law students at elite institutions, it is only a matter of time before the current judges are replaced by younger ones indoctrinated at social justice madrassas who support these spurious lawsuits on the grounds of “equity.” Unless, of course, we manage to change course. However, I fear that like France, our culture and society will be torn apart by those driven by a hatred for all tradition and anything from the past, most of all a hatred of white men in positions of power. Burke was correct when he wrote:
“We do not draw the moral lessons we might from history. On the contrary, without care it may be used to vitiate our minds and destroy our happiness. In history a great volume is unrolled for our instruction, drawing the materials of future wisdom from past errors, and the infirmities of mankind.” [p.141]
There is no proper remediation of events in the long past, all you can strive for is to do better going forward. Using history in this fashion is dangerous. There are countless examples of societies being torn apart over old grievances, and we are living through a new one. If the regulators have their way and every corporation is at the mercy of a diversity model, we will be torn asunder from our past, and even more lost and at the mercy of false “expertise” than we currently find ourselves. This is rule we are at risk of facing under these men who are no different from the nihilistic French revolutionaries:
“Unmindful of what they have received from their ancestors, or what is due to their posterity, should act as if they were among the entire masters; that they should not think it amongst their rights to cut off the entail, or commit waste on the inheritance, by destroying at their pleasure the whole original fabric of their society; hazarding to leave those who come after them, a ruin instead of an habitation—and teaching these successors as little to respect their contrivances, as they had themselves respected the institutions of their forefathers.” [p. 95]
We have to stop this somehow, and now that Taibbi has shined light on these practices, we have a great deal of appropriate history to guide us. The most important things you can do is show basic skepticism of the wild accusations they publish and actually wait for facts to come out before assuming the guilt of every person or corporation accused of racism or sexual misconduct. If we cannot stop this, I will see you at your own woke show trial or when you get picked up by the Microaggression Victims Unit:
Thank you for reading! I am sorry for the slow pace in publishing recently, its a busier season for work and few stories have interested me. If you enjoyed this article please share and subscribe. This content will always be free but paid subscriptions majorly help motivate and fund me. [Payment in 1790s paper Francs preferred.] You can see my shitposting on Twitter @WaywardRabbler
Reflections on the Revolution in France of 1790 is not broken up into books or chapters, and is indeed basically a 270 page wall of text. All citations refer to the page number in the Oxford World’s Classics edition published in 1993 [Reissued in 1999.] This edition includes Letter to a Member of the National Assembly 1791.