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@interfluidity @pluralistic Private right of action is not a right; it's rule of lawyers, ensuring only the socially connected can avoid abuses. Public right of action, with enforcement done by bureaucrats, is the only thing that gets big companies to behave. Think administrative triple damages rather than worker lawsuits for wage theft.

@Alon @interfluidity The entire ADA enforcement mechanism depends on private right of action. Indeed, the story of civil rights progress through courts is the story of PROA cases. GDPR enforcement is being driven by impact litigant NGOs like noyb.

There is nothing about a private right that precludes public prosecutions. Private rights are adjuncts, not replacements, for state enforcement.

@pluralistic @interfluidity Yes, and with this private right of action for ADA enforcement, New York City Transit is 30% accessible and managed to convince a judge to give it until 2055 to get to 95%, while the older Berlin U-Bahn is 80% and is getting to 100% any moment now, because Germany doesn't rely on adversarial legalism.

And as for civil rights, modern American adversarial legalism goes back to the 1970s and since then the black-white wage gap hasn't really budged.

@Alon @interfluidity I'm sorry, this iscoherent. Are you asserting that the reason that public prosecutors aren't enforcing the law is because there are private actions? How does that work?

@pluralistic @interfluidity No, I'm asserting that enforcement of both rights and rules (like environmental protection) comes only from professional bureaucrats rather than lawsuits; lawsuits can give the appearance of justice, but their ability to work at scale is questionable.

@Alon @pluralistic @interfluidity

thematically, i guess you could say that in the post breton woods era (to pick a semi arbitrary marker) the anglo world has worked hard to privatize state capacity whether by leaning on rule-by-lawyer (private action/regulatory enforcement) or implementation-by-consultant (the whole non profit industrial complex of grant writing giving and services, megaprojects like transit)

@phillmv @pluralistic @interfluidity Yeah. In the UK it's a bit later than this, though. The privatization of state planning in infrastructure is from the 1990s, but the transition to US-style adversarial legalism with endless reviews and toleration of equity trolls (thus, much longer planning docs than before) is from the last few years.

I will say, even in Thatcherite Israel, the stuff that stays administrative, like wage theft law, stays well-enforced (US-style wage theft is rare).

@Alon @phillmv @pluralistic i think a way to think about all this is private rights of action are very rigid and limit govt flexibility, but they are also very certain. in a world with perfect govt, there’d be little use for them. in lots of eg environmental and planning contexts, they do mischief. 1/

@Alon @phillmv @pluralistic but in contexts where the issue is likely underenforcement by the plutocratic state, and where costs of enforcement despite an inability of the state to balance or make tradeoffs against other interests are low, private rights of action are very useful. 2/

@Alon @phillmv @pluralistic if we had a capable administrative state in the US reliably willing to exert state power in favor of a balanced notion of the public interest over plutocratic interests, i’d agree private rights of action should be minimized to very clear, old-fashioned torts. but we don’t in fact have that. 3/

@Alon @phillmv @pluralistic but the actual circumstance is the United States’ administration state is substantially hobbled by deference to plutocratoc interest, and there is very little public interest to balance against the harms of ad-tech-driven commercial surveillance. 5/

@Alon @phillmv @pluralistic so it seems to me that, despite the (very real!) flaws of private rights of action in the general case, they are well suited to this application. we intend to bluntly impair our collective capacity to surveil, and ensure existing infrastructure is disemployed. things that have been (mostly) unintended consequences in a planning and development context are the intended consequences here. /fin

@interfluidity @phillmv @pluralistic Even in the American context, administrative remedies exist and work where they do - for example, a Maryland lawyer tells me that once the state instituted triple damages for wage theft, cases of wage theft fell dramatically. And then there's the case of Israel, which at this point has American levels of inequality and a prime minister who introduced Reaganism to the country.

@Alon @phillmv @pluralistic yes, they can work when the state overcomes plutocratic interests to act. but, empirically, at the moment, the American administrative state mostly does not. one state out of fifty is the exception that proves the rule, re wage theft. I could speculate why Israel maybe does better — parliamentary systems in general better insulate administrative states from bad politicians — but your speculations will be better informed.

@interfluidity @phillmv @pluralistic Israel does better because it inherited an administrative state on this matter, is all. It's not the parliamentary system - in fact, the system is constrained by a 1980s-era neoliberal reform called the Arrangements Law, giving the ministry of finance the right to veto spending it feels raises the deficit too much. The US adversarial system is, I think, more a matter of the formation of a national elite of lawyers. They have hammers so they look for nails.

@Alon @phillmv @pluralistic but as you can see from this discussion, for better or worse, it’s not just lawyers. we have so lost confidence in a competent administrative state capable of opposing plutocratic interests that we (citizens, activists) actively seek private rights of action. we want to be able to do it ourself because we expect the administrative state to sell us out.

@interfluidity @phillmv @pluralistic The activists are often lawyers too, is the point - and even when they're not, the lawyers tend to have the most prestige, because of their earning power and ability to deliver for clients at small scale. (Relatedly: most rationalists are not in tech, IIRC only 20% are, but those are more or less the wealthiest 20% in the community so everyone else imitates their techbro culture.)

@Alon @phillmv @pluralistic i mean, i want a private right of action to kill adtech, bc otherwise i suspect any reform will be even more toothless than GDPR has been in Europe. @pluralistic wants a private right of action, he’s not a lawyer, i think. mb we are somehow in thrall of the prestige of the legal lobby, but i think it’s mostly bc we know how effective litigation risk is at conditioning corporate behavior in the US. (often too effective!)

@interfluidity @phillmv @pluralistic The Arrangements Law empowers the finance ministry specifically, yeah. It's an extension of how single-mandate central banks are empowered to engineer recessions whenever the inflation rate goes to 2.1%, except in this case it targets fiscal and not just monetary policy.

@Alon @phillmv @pluralistic in the US, the central bank is the one part of the administrative state somewhat insulated from political sabotage, so we rely upon it, upon it alone almost, for macroeconomic management. activists often treat the Fed (rather than electeds) as the government worth lobbying (eg the campaign to have the Fed consider climate risk when regulating and risk-weighting bank lending).

@interfluidity @phillmv @pluralistic Yeah, and that campaign to get the Fed to regulate climate risk somehow manages to make the EU Commission look like an institution that does things. (Of note, where I live, the people who tried to pass a referendum requiring the city to be climate-neutral by 2030 oppose subway expansion and urban housing construction.)

@Alon @phillmv @pluralistic i’m not endorsing this kind of activism. on the contrary, i’m skeptical both of localistic and Fed-based approaches to addressing climate change. just noting that in systems where most of the administrative state is dysfunctional, people seek out capable levers (courts, the Fed) as substitutes. often tragically, as none of these are great at balancing diverse interests.

@BenRossTransit @Alon @phillmv @pluralistic you’d think! yet wage theft apparently remains common in the US. if damages for intentional shaving of wage obligations were trebled, if class actions were pursuable on contingency, i think you’d get a lot of private enforcement! but here there might be unintended consequences in terms of employment practices. more than with ad tech, you might want to balance employee rights and employer risk.

@interfluidity @Alon @phillmv @pluralistic My point about wage theft was just that while administrative enforcement is necessary in practice, you don't take away anyone's private right of action when you put it in place. It's not either one or the other.

@BenRossTransit @interfluidity @Alon @phillmv @pluralistic I agree. Administrative enforcement and private right of action are complements rather than substitutes.

@MadMadMadMadRN @BenRossTransit @Alon @phillmv @pluralistic to take the other side a little, private rights of action can entrench not-so-great resolutions to problems. sometimes it would be good to have a less-financially-incentivized, more open-to-balance administrative state instead of private rights of action. when the issue is insufficient enforcement, yeah, they’re complements. but when the issue is thoughtless, unbalanced enforcement, maybe substitutes.

@Alon @MadMadMadMadRN @BenRossTransit @phillmv @pluralistic we oughtta sue them for that.

@interfluidity @Alon @MadMadMadMadRN @BenRossTransit @pluralistic

the problem with lawsuits/access to the courts is that, outside of administrative tribunals with forms and bureaucrats, defending your rights has a floor cost of $50,000, and an almost unbounded ceiling

@phillmv @interfluidity @Alon @MadMadMadMadRN @pluralistic Agreed. My point was that when you set up the administrative enforcement, you don't take away anyone's right to sue. Wage theft is at the end of a continuum at which allowing court enforcement does no harm, with (let's say) California CEQA at the other end. And even with California CEQA, the damage is done by administrative enforcement at least as much as by lawsuits.

@phillmv @Alon @MadMadMadMadRN @BenRossTransit @pluralistic and in practice, “filling forms” and prompting bureaucracies to act often also requires lawyers, who must be paid up front if there will be no damages to be paid from. we’re discussing at to general a level to know whether and who will be priced out of relief. it depends on vwry specifics. /fin

@interfluidity @phillmv @Alon @MadMadMadMadRN @pluralistic The US problem is best diagnosed as process-based decision-making rather than results-based, rather than judges vs civil servants. It's true that reliance on judges pushes things toward process, because that's what judges feel most comfortable judging, but OTOH process-driven civil servants can be more rigid than judges (see: zoning).

@BenRossTransit @phillmv @Alon @MadMadMadMadRN @pluralistic that’s a useful framing. fundamentally, we need an administrative state capable of doing what’s required to deliver good outcomes within wide procedural guardrails, rather than one whose actors are primarily concerned with the risk of being seen to have done something objectionable.

@interfluidity @BenRossTransit @phillmv @Alon @pluralistic Based on my experiences working for government at both the federal and state level, that's going to be a big lift.

The culture of most American government agencies is incredibly risk averse. Incompetence, inefficiency, laziness, nepotism, cronyism, toxicity, etc. are way more tolerated than risk taking or making big and/or quick changes.

@interfluidity @BenRossTransit @phillmv @Alon @pluralistic It's incredibly rare for someone to be fired from or even disciplined in a government job for just doing things the same way they've always been done – even if that way of doing things doesn't make any sense.

Conversely, those who dare to try to improve things by changing outdated and inefficient processes catch hell if anything goes wrong.

@MadMadMadMadRN @interfluidity @BenRossTransit @phillmv @pluralistic People don't get fired from government jobs in working civil service systems, either.

@Alon @interfluidity @phillmv @MadMadMadMadRN @pluralistic . Bureaucrats write the zoning code, and they do it in a process-centered way. The people with the most input are landowners/developers and nearby homeowners, the balance between the two varying with local politics. The way the "self-appointed community leaders" appoint themselves to represent the homeowners is mostly by taking the time to participate in the process.

@BenRossTransit @interfluidity @phillmv @MadMadMadMadRN @pluralistic One of the things Alex Baca pointed out years ago is that no matter what critical theories are taught at planning school, the actual praxis is that planners sit at community meetings to be yelled at and there's nothing they can do about it. (Think why the jail meme is delivered by a deliberately ridiculous Venezuelan military officer.)

@interfluidity @BenRossTransit @Alon @phillmv @pluralistic The kinds of legal, political, and cultural changes that would remove the malign influence of plutocrats on administrative remedies would also most likely allow civil suits to be far more effective in deterring malfeasance and making victims of corporate crime whole.