Work to Rule

Another loss in the undeclared war on expertise

I went to graduate school straightaway after my undergraduate days. Looking back on it, this was probably a mistake. For a variety of reasons, following two years in an MA program, I returned home one thesis away from actually receiving my degree¹. Two years later, I would return to graduate school for my doctorate, but in the interim? I taught writing and literature at a community college, I renovated houses (including the one that I was living in) with my father and my uncle, and I worked in a restaurant for several months. (It’s still there, I just learned.)

Had I stayed on, I might have eventually gone on to culinary school. I was hired as an extraordinarily overqualified dishwasher, but I was eager to learn more about the entire business, and was doing a little of everything eventually, including filling in on the line, baking desserts (I’m Team Marcus), and talking with one of the co-owners about the economics of running a restaurant.

At the risk of sounding like I’m talking myself up, I was in some ways a pretty ideal employee². I didn’t mind washing dishes or cleaning house, but I was curious about how everything worked and I was good at figuring out what needed to be done (and doing it). That’s a skill that just about any organization requires, although it’s not something that you can list as a job qualification or even necessarily interview for as an employer. There are people who are good, or even perhaps excellent, at doing what the job specifically requires, but then there are those who are able to figure out what else is required, and are able to work that into their routines as well without compromising the system itself. People in the latter category tend to be better at figuring out quickly who’s who—game recognizes game. For example, it didn’t take long for me to figure out which of the waitstaff were good at handling special requests or dietary restrictions, without needing to talk to a manager.

Photo by Patrick on Unsplash

When I was writing about Scott’s Seeing Like a State, one of the pieces that I didn’t really engage with was about “work-to-rule” labor interventions. One of the problems with large-scale social engineering, Scott notes, is that the larger the scale, the more difficult it is to account for contingent and individual circumstances. “Designed or planned social order is necessarily schematic;” Scott explains, “it always ignores essential features of any real, functioning social order.” When we walk into a restaurant and receive a menu, we know that there’s a certain amount of necessary variability that it doesn’t account for. There are people with food allergies, sensitivities, and/or preferences, who might ask you to replace one ingredient with another, hold this or that side, etc. If it were written to account for all of the possibilities associated with every dish listed on there, the menu would be a book.

One of the points that Scott makes is that, therefore, any such plan has to accommodate—indeed, it relies upon—a certain degree of local knowledge (mētis, as you’ll recall). Thus, the effectiveness of what’s called a work-to-rule strike, “which turns on the fact that any production process depends on a host of informal practices and improvisations that could never be codified. By merely following the rules meticulously, the workforce can virtually halt production.” A work-to-rule strike isn’t a strike in the strictest sense; instead, it’s the decision to follow the letter of the rules as opposed to their spirit, the conscious choice to perform the exact requirements of the job and no more.

In a work-to rule action (the French call it grève du zèle), employees begin doing their jobs by meticulously observing every one of the rules and regulations and performing only the duties stated in their job descriptions. The result, fully intended in this case, is that the work grinds to a halt, or at least to a snail’s pace. The workers achieve the practical effect of a walkout while remaining on the job and following their instructions to the letter. Their action also illustrates pointedly how actual work processes depend more heavily on informal understandings and improvisations than upon formal work rules. In the long work-to-rule action against Caterpillar, the large equipment manufacturer, for example, workers reverted to following the inefficient procedures specified by the engineers, knowing they would cost the company valuable time and quality, rather than continuing the more expeditious practices they had long ago devised on the job.

To borrow another phrase from French, we might characterize those expeditious practices as savoir faire. And in any large-scale system, decision makers at the top would be overwhelmed by the prospect of having to legislate that sort of savoir faire into specifications. I tend to think of this as well in terms of institutional memory. As I near my 25th year in my department at Syracuse, I have years of experience dealing with different models for curriculum, for assessment, and for divvying up workloads amongst the folks in our department. If someone proposes a policy or a procedure change, I can speak pretty knowledgeably (and sometimes persuasively) about whether it will work (or if we’ve tried it before). Whether we call it institutional memory, savoir faire, tacit knowledge, or something else, it boils down to the fact that experiential know-how is often crucial to the operations of any organization or decision-making system. No plan, no matter how elaborate and detailed, survives first contact with the client, customer, or audience (or enemy, as the maxim I’m paraphrasing has it).

Chevron deference

In other words, work-to-rule can be incapacitating for any organization, and this is something that probably scales as well. The larger the organization or the scope of its activities, the more it depends upon the initiative of those on its front lines. Why is this relevant? Because it has everything to do with the Supreme Court’s repudiation of the Chevron deference doctrine.

The doctrine stems from a 1984 case (Chevron v. NRDC) where the Supreme Court unanimously decided that “when a statute contains an ambiguity, courts should defer to the judgment of the federal agency in resolving the ambiguity, as long as the agency's action is ‘reasonable.’" The decision is both commonsensical and a matter of settled law—as Judd Legum reports, it’s been cited more than 18,000 times by federal courts in the 40 years since the decision.

Setting aside the unanimity of the decision and its widespread citation, the doctrine itself is so obvious that it’s almost beneath argument, or at least it was³. As with that book-length menu I mentioned above, imagine if we were to hold Congressional legislation to the standard that it must account not only for every possible contingency that might arise, but also those that did not exist at the time of the drafting of the law. Barring the imposition of that impossible standard, of course, the rejection of the Chevron doctrine now means that government agencies are no longer allowed to apply their expertise unless explicitly permitted to do so. As Legum explains, “Chevron deference is a critical tool that allows the government to address important and complex problems.”

With a single decision, the Supreme Court has effectively imposed a work-to-rule standard on government agencies, and set itself as the sole arbiter in cases where the timely application of expertise is crucial. As Justice Kagan explained in her dissent, “It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.” Considering how much in the way of corporate resources are devoted to evading regulation and exploiting statutory ambiguity, the revocation of Chevron is the judicial equivalent of asking the agencies to fight with one or both hands tied behind their backs.

Photo by Muhammad Numan on Unsplash

The implications are enormous. Meredith Moore, writing for Scientific American, explains,

Without Chevron deference, the door is wide open for legal challenges to the clean air and water regulations that erased the nightmares of the past—rivers on fire, waste in unmanaged piles, cancer clusters, and more. Different judges will most likely make different decisions across the U.S., creating a patchwork of loopholes and rollbacks. The courts will no longer defer to experts. Industry-funded studies that appeal to a particular judge might influence their decisions more than the years and decades of research showing why well-regulated systems serve the greater good. Faced with the possibility of endless lawsuits, federal agencies could cease to take on the critical challenges of the present day, such as reducing greenhouse gas emissions to give us a livable future, tackling the challenges of microplastics polluting our ocean and our body or even keeping us safe from the next pandemic.

Speaking of industry-funded studies, it should surprise absolutely no one that the plaintiffs in the actual court case, Loper Bright Enterprises v. Gina Raimondo, were represented pro bono by lawyers associated with the Cause of Action Institute and the New Civil Liberties Alliance, groups linked to a certain billionaire who’s probably never set foot on a herring boat. The case in question claims that a 30-year regulation governing fishing boats shouldn’t apply to herring boats because they’re not named specifically in the original regulation. Perhaps it is needless to say, but the “case⁴” gets more outrageous the longer one looks at it.

Risk(y) Management

It’s been several years now since I read Michael Lewis’s book The 5th Risk. The title refers to a question that Lewis posed to an expert in the Department of Energy about the risks that his department faced. The first four were what you might expect: broken arrows (loose nukes and nuclear accidents), North Korean nuclear weapons, an end to the Iran nuclear deal, and securing our electrical grid from cyberterrorism. The 5th was bad project management. Lewis goes into great detail about how the former Administration left key positions unfilled, and that’s when they weren’t being filled “by people who are uninformed about what areas they're supposed to be overseeing while others have conflicts of interest or political views that make them antagonistic toward the department or agency they're leading.” Beyond the obvious issue of appointing foxes to run the henhouses, the problem with this approach is that these agencies are largely invisible and dangerously crucial for our everyday lives. In an interview with Terry Gross, Lewis explains,

a lot of the risks that the government manages are very long-term, slow-moving risks. Climate change would be one of them. Income inequality would be another, cleaning up, you know, horrible toxic waste sites that can pollute rivers and ruin lives another.

There are all kinds of examples of very slow-moving problems that are dealt with in a slow way, but they require a long-term approach. And on top of this enterprise has been thrust this very short-term attitude.

The only thing I’d disagree with here is that I think Lewis (understandably) fails to note the long-term approach that did in fact underlie the previous administration, which was their assault on the legal system. It’s no accident that all 3 of the recent SCOTUS nominations were people who had already staked out positions against Chevron (as Legum notes) and then misrepresented their beliefs during the confirmation process. As corrupt and awful as several recent decisions have been (and they’ve been awful), I genuinely believe that overturning Chevron has been a long-term goal. I know that this may make me sound conspiracist, but I suspect that cloaking it behind the outcry over presidential immunity was intentional. Putting it in Lewis’ terms, the folks who’ve been working towards this result weren’t satisfied with periodic incompetence when it comes to project management. They’ve now guaranteed that even competent regulators will be handcuffed, and they’ve rigged the judicial branch sufficiently that they’ll be able to stall (or even reverse) any progress that these agencies can achieve. My guess is that we’ll look back at Loper Bright twenty years from now in the same way we can trace so much of our dark money corruption back to Citizens United. Maybe that’s overly dramatic of me, but I don’t think so.

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I’ve spent a lot of time over the past few months thinking about the patterns that lead to (or that facilitate) prioritizing short term gain over long term sustainability (see my discussion of Davies, for instance, or what Newitz writes about culture war psyops). In one way, this feels like I’m drifting away from the avowed point of my writing here, but I don’t think so. I think I’m getting at a certain kind of procedural asymmetry that’s at play in our politics and our discourse. I’m working with the hypothesis that irony is manifesting itself in the double move that Newitz describes (and that Klein writes about as well): where it’s not sufficient to simply make one’s case or represent one’s viewpoint, one must also incapacitate anyone who doesn’t share that perspective. Gaslighting as a tactic is the most obvious example of this that I can think of, but it involves something much more pernicious. This strategy proceeds in bad faith, corrupting and eroding values (like balance, empathy, fairness), but that’s part of the deal we’ve signed up for. Zac Gershberg and Sean Illing characterize it as The Paradox of Democracy: “a free and open communication environment that, because of its openness, invites exploitation and subversion from within.” While that feels like small comfort to me, knowing this is baked into the system, it does make me feel like I’m on the right track. More soon.

1. I wrote a thesis on my own that next year, but never submitted it. And my PhD program only required a certain number of credits beyond the BA, not the degree itself, so I never did end up receiving a Masters. (Most people don’t know this about me, and I was secretly ashamed of it for a long time, longer than I probably should have been.)

2. Leaving the biz to return to grad school was, from their perspective, less than ideal of me.

3. Legum’s piece spends a bit of time recalling the fact that Justices Kavanagh, Gorsuch, and Barrett all testified under oath (or seemed to) that Chevron was established precedent in their confirmation hearings. Barrett’s dodge in and of itself, “claiming it ‘would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals,’” would have been enough for me to oppose her appointment, considering that hypotheticals and abstract legal issues are indeed almost the entire point of an approval hearing.

4. Similarly unsurprising is the fact that the economic damage caused by the “overreach” named in the complaint came from the previous administration’s unwillingness to abide by the original agreement that was reached. And even though the Biden administration fixed the problem? Hey! Free lawsuit!