Jodi Short

In Oligarchy, State, and Cryptopia, Julie Cohen lays the groundwork for re-theorizing the administrative state in the age of Trump II, DOGE (otherwise known as the Department of Government Efficiency), and their unparalleled assault on the institutions of government. Before now, generations of deregulatory politics and rhetoric have tended paradoxically to produce more rules rather than less, and they have decidedly not produced any radical restructuring of government regulatory institutions. The settled explanation from scholarship in a variety of fields is that while businesses often spout the rhetoric of deregulation, they actually want—perhaps need—regulation for reasons including competition control, market making, and firm survival and stability. The extensive and unprecedented dismantling of government institutions spearheaded by DOGE radically unsettles those understandings, which begs questions about why this time is different.

Cohen’s article begins to address those questions and, more broadly, sets the terms for future theorizing about administrative law and regulation in a cogent, meticulous, and frankly chilling account of the tech oligarchy and its relationship to, and ambitions for, state power. Cohen starts from the premise that existing theories of administrative law and regulation give too little attention to oligarchy as a phenomenon that shapes the use of state power and regulatory authority in ways that go beyond the familiar industry capture story. Based on influential research in political science, she defines oligarchy as “a particular form of concentrated power based on the accumulation of extreme material wealth and the use of such wealth to obtain systemic, inescapable advantage within a political system or community” (P. 6). Cohen argues that the principal difference between tech oligarchs and capitalist oligarchs of yore is that the former are becoming increasingly unwilling to submit to a rule-of-law system to advance and protect their dominance. Instead, tech oligarchs increasingly seek to move towards a system in which they displace the state and exercise coercive power directly—including by individual fiat.

Cohen explains how the political economy of informational capitalism enables this gambit. Her account starts with the infrastructural nature of information technology: the dominant tech platform firms do not merely provide essential products or services; they “have become essential infrastructures for an increasingly wide variety of computing, communication and control-based functions that, in turn, now underlie and infuse every conceivable domain of human and social activity” (P. 15). This powerful techno-social position provides tech oligarchs with the means to multiply their extraordinary personal wealth and to control communications about issues that concern them. Tech oligarchs have also managed to untether themselves from traditional channels of market and legal accountability. They have largely consolidated control of their firms, adapting corporate governance structures to advance their personal aims and evade market accountability mechanisms such as share price and stockholder discipline—for instance, by keeping their companies private or adopting dual-class ownership structures. They have also engaged in “flamboyant defiance” of the law (P. 18), often with impunity, in part by exploiting the states’ deep dependence on the operational and surveillance services tech platform companies provide.

Oligarchs always, predictably, use their structural advantages to amass ever greater wealth, and certainly tech oligarchs have done so through traditional means such as lucrative government contracts and strategic regulatory capture. But Cohen argues that tech oligarchs are distinct from their capitalist predecessors in their “increasingly profound disenchantment with the prevailing terms of the state-oligarch relationship” (P. 22) which expects oligarchs to surrender coercive power to a rule-of-law system administered by the state. While their capitalist predecessors settled for strategies to capture state regulatory institutions for their advantage, tech oligarchs are pursuing a much more ambitious strategy to re-structure the terms of the state-oligarch relationship entirely.

Cohen explores two key channels through which this relationship is being renegotiated: finance and public administration. In the financial domain, tech oligarchs are working to break states’ power over exchange value through cryptocurrency systems for decentralized economic exchange. In the domain of public administration, the second Trump administration has empowered tech oligarchs to attack the state from the inside through DOGE. Cohen trenchantly observes that the unprecedented and ultra vires acts of DOGE are not merely “neoliberal downsizing on steroids” (P. 28). Rather, “Musk and his team of loyal coders are laying the groundwork for a far more durable realignment in the oligarchy-state relationship” (P. 28). Specifically, Cohen describes DOGE as a vehicle to transform “the federal government and its constituent institutions and processes into forms more amenable to oligarchic direction” (P. 30). While it remains to be seen exactly how DOGE will ultimately reconfigure regulatory institutions and operations, Cohen posits that the realignment will be guided by theories influential among the tech elite that envision massive ideological and personnel purges of government employees, yielding to unencumbered control by the tech oligarchy of whatever government institutions survive.

One of Cohen’s signal contributions is to situate this account of oligarchy within a techno-futurist ideology that supplies moral justifications for tech oligarchs’ dominance and their drive to replace existing state institutions and social settlements. Many prominent tech oligarchs adhere to a philosophy known as Effective Altruism, which holds that “amassing great wealth is a necessary first step to achieving great and long-lasting social change” (P. 21). This philosophy not only tolerates but celebrates grossly unequal distributions of material resources as a “precondition to achieving long-term human betterment” (P. 21). In this epistemology, “human betterment” is achieved not through collective, democratic deliberation and institutions, but rather through the use of “cutting edge computational technologies to radically alter a wide range of human and social processes in the services of utopian goals” (P. 37). It follows that all resources should be devoted to developing such technologies, and it is wasteful to devote resources to ameliorate immediate social ills such as homelessness or to redistribute resources to populations harmed by such short-term ills. So, for instance, there is “[n]o need to impose regulatory measures to mitigate climate change; invent [artificial general intelligence] and it will solve climate change” (p. 39). And if it doesn’t, and instead climate change ravages the earth, by that time the tech oligarchs will have decamped to Mars.

This epistemology leads tech oligarchs to view predictable and historically unremarkable attempts to regulate them—for instance, through antitrust law, privacy protections, and precautionary risk regulation—not merely as inhibiting their business interests, but as “existential threats to a brightly beckoning, data-driven future” (P. 21). Unlike other corporate titans who simply resist or flout regulation, tech oligarchs “fancy themselves misunderstood idealists, devoted to improving the human condition via the inevitable forward march of technological progress” (P. 20) and they view state regulatory demands as misguided and immoral attempts to impede human progress.

This all raises serious questions about the capacity and role of administrative law in judicial challenges to the tech oligarchy’s administrative machinations. Administrative law is an outgrowth of particular social and political settlements about the relationship between state and market. How will it respond to the great unsettling sought by the tech oligarchy? Will it, too, be transformed? Will tech oligarchs be able to flout administrative law as freely as they do many other laws? If not, what is it about the qualities and context of administrative law that will save it from irrelevance?

Cohen’s account also highlights how moral theory can be used to shape and justify administration. In my article, The Moral Turn in Administrative Law, I observe a growing constellation of theories that explicitly invoke substantive moral values as the basis for administrative law and policy, cutting against the field’s tendency toward proceduralism, formalism, and technocracy. Tech-futurist ideology is a provocative entry into conversations about moral administration. In a recent analysis, my co-authors and I show that the mainstream media has paid little attention to tech oligarchs’ ideologies in coverage of tech platform regulation. At the time, we interpreted this absence of coverage as indicative of broad public disinterest in or even rejection of these ideologies, but Cohen’s article suggests that they have flourished out of the public spotlight, and they continue to motivate the behavior of powerful actors irrespective of their public appeal. By foregrounding the values underlying DOGE’s project, Cohen subjects the tech oligarchy’s moral code to the public scrutiny it deserves and invites a broader dialogue about the moral aims and imperatives of administration.