Shunpike: The Road Less Travelled

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:

https://pluralistic.net/2025/10/27/shit-shack/#binding-arbitration

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:

https://www.reuters.com/article/otc-uber-frankel-idUKKCN1P42OH/

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:

https://pluralistic.net/2022/02/24/uber-for-arbitration/#nibbled-to-death-by-ducks

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:

https://pluralistic.net/2021/06/02/arbitrary-arbitration/#petard

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:

https://pluralistic.net/2022/06/12/hot-coffee/#mcgeico

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:

https://pluralistic.net/2025/08/15/dogs-breakfast/#by-clicking-this-you-agree-on-behalf-of-your-employer-to-release-me-from-all-obligations-and-waivers-arising-from-any-and-all-NON-NEGOTIATED-agreements

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:

https://www.npr.org/2026/04/27/nx-s1-5793804/supreme-court-monsanto-roundup-arguments

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:

https://www.organizedmoney.fm/p/the-conservative-who-torments-big

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:

https://pluralistic.net/2024/12/04/its-not-a-lie/#its-a-premature-truth

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:

That's just what they did: Musk bought Twitter; Zuck ordered his content moderators to censor the left and push MAGA influencers; Bezos neutered his newspaper in the run up to the 2024 elections; Tim Cook hand-assembled a gold participation trophy for Trump live on camera. These CEOs paid a million dollars each for seats on Trump's inauguration dais and their companies donated millions for Trump's Epstein Memorial Ballroom.

Slater's political assassination merely formalizes something that's been obvious for a year now: you can rip off the American people with impunity so long as you flatter and bribe Trump.

The HP/Juniper merger means that one company now supplies the majority of commercial-grade wifi routers, meaning that one company now controls all the public, commercial, and institutional internet you'll ever connect to. The merger was worth $14b, and Trump's trustbusters promised to kill it. So the companies paid MAGA influencer Mike Davis (who had publicly opposed the merger) a million bucks and he got Trump to overrule his own enforcers. Getting your $14b merger approved by slipping a podcaster a million bucks is a hell of a bargain.

HP/Juniper were first, but they weren't the last. There was the Discover/Capital One merger, which rolled up the two credit cards that low-waged people rely on the most, freeing the new company up for even more predatory practices, price-gouging, junk-fees, and strong-arm collections. When the bill collectors are at your door looking for thousands you owe from junk fees, remember that it was Gail Slater's weakness that sent them there:

https://www.nytimes.com/2025/04/03/business/dealbook/capital-one-discover-merger.html

Slater also waved through the rollup of a string of nursing homes by one of the world's most notoriously greedy and cruel private equity firms, KKR. When your grandma dies of dehydration in a dirty diaper, thank Gail Slater:

https://pluralistic.net/2023/05/09/dingo-babysitter/#maybe-the-dingos-ate-your-nan

Slater approved the merger of Unitedhealth – a company notorious for overbilling the government while underdelivering to patients – with Amedisys, who provide hospice care and home health help:

https://www.justice.gov/opa/pr/justice-department-requires-broad-divestitures-resolve-challenge-unitedhealths-acquisition

The hits keep coming. Want to know why your next vacation was so expensive? Thank Slater for greenlighting the merger of American Express Global Business Travel and CWT Holdings, which Slater challenged but then dropped, reportedly because MAGA influencer Mike Davis told her to.

Davis also got Slater to reverse her opposition to the Compass/Anywhere Real Estate merger, which will make America's dysfunctional housing market even worse:

https://www.wsj.com/us-news/law/real-estate-brokerages-avoided-merger-investigation-after-justice-department-rift-e846c797?gaa_at=eafs&gaa_n=AWEtsqdSXg4z1XPl2UpqdHR4V2-sNj9M7oDcWHscPIXuSU-5n0gtYEv8Q5XZG7qtzfY%3D&gaa_ts=698e44a6&gaa_sig=IO7tWGaHZSYER64YyUzyoiVtrOKR77ZsYMMOdwN1P7koRt9zXYRJ1hxw2oDU9cD40-aGgHHVfwMWg14olFwNaw%3D%3D

It's not just homebuyers whose lives are worse off because of Slater's failures, it's tenants, too. Slater settled the DoJ's case against Realpage, a price-fixing platform for landlords that is one of the most culpable villains in the affordability crisis. Realpage was facing an existential battle with the DoJ; instead, they got away with a wrist-slap and (crucially) are allowed to continue to make billions helping landlords rig the rental market against tenants.

So Slater's defenestration is really just a way of formalizing Trump's approach to antitrust: threaten and prosecute companies that don't bend the knee to the president, personally…and allow companies to rob the American people with impunity if they agree to kick up a percentage to the Oval Office.

But while Slater will barely rate a footnote in the history of the Trump administration, the precipitating event for her political execution is itself very interesting. Back in September, Trump posed with Kid Rock and announced that he was going after Ticketmaster/Live Nation, a combine with a long, exhaustively documented history of ripping off and defrauding every entertainer, fan and venue in America:

https://www.pbs.org/newshour/nation/ftc-sues-ticketmaster-saying-it-uses-illegal-tactics-to-make-fans-pay-more-for-live-events

At the time, it was clear that Trump had been prodded into action by two factors: the incredible success of the Mamdani campaign's focus on "affordability" (Ticketmaster's above-inflation price hikes are one of the most visible symptoms of the affordability crisis) and Kid Rock's personal grievances about Ticketmaster.

Kid Rock is the biggest-name entertainer in the Trump coalition, the guy Trump got to headline a MAGA halftime show that notably failed to dim Bad Bunny's star by a single milliwatt. Trump – a failed Broadway producer – is also notoriously susceptible to random pronouncements by celebrities (hence the Fox and Friends-to-Trump policy pipeline), so it's natural that Kid Rock's grousing got action after decades of documented abuses went nowhere.

Ticketmaster could have solved the problem by offering to exempt Trump-loyal entertainers from its predatory practices. They could have announced a touring Trumpapalooza festival headlined by Kid Rock, Christian rock acts, and AI-generated country singers, free from all junk fees. Instead, they got Gail Slater fired.

Mike Davis doesn't just represent HPE/Juniper, Amex travel, and Compass/Anywhere – he's also the fixer that Ticketmaster hired to get off the hook with the DoJ. He's boasting about getting Slater fired:

https://x.com/gekaminsky/status/2022076364279755066

And Ticketmaster is off the hook:

https://prospect.org/2026/02/12/trump-justice-department-ticketmaster-live-nation-monopoly/

What's interesting about all this is that there were elements of the Biden coalition that also hated antitrust (think of all the Biden billionaires who called for Lina Khan to be fired while serving as "proxies" for Kamala Harris). And yet, Biden's trustbusters did more in four short years than their predecessors managed over the preceding forty.

Stoller's theory is that the progressive anti-monopoly movement (the "Brandeisians") were able to best their coalitional rivals because they did the hard work of winning support for the idea of shattering corporate power itself – not just arguing that corporate power was bad when it was used against them.

This was a slower, harder road than dividing up the world into good monopolies and bad ones, but it paid off. Today the Brandeisians who made their bones under Biden are serving the like of Mamdani:

https://pluralistic.net/2025/11/15/unconscionability/#standalone-authority

And their ideas have spread far and wide – even to other countries:

https://lewisforleader.ca/ideas/public-options-full-plan/