This week, we’re sharing a few of our favorite posts from Notice & Comment’s recent symposium on Networks, Platforms, and Utilities, a new casebook by Morgan Ricks, Ganesh Sitaraman, Shelley Welton, and Lev Menand.
In this brief symposium introduction, we seek to answer five questions about the book. What is it about? Why did we write it? How does its subject matter relate to other areas of legal study? Why is the time ripe for it? And, how does it differ from previous “regulated industries” textbooks?
What Is the Book About?
Networks, Platforms, and Utilities studies the law that governs networks, platforms, and utilities (NPUs), which we also call infrastructure industries. “No task more profoundly tests the capacity of our government,” wrote Felix Frankfurter, “than . . . securing for society those essential services which are furnished by” these industries.
The first edition covers the postal system, telecommunications, broadband internet, railroads, airlines, electricity, fossil fuel pipelines, money, computer operating systems, online marketplaces, and internet search. The second edition, to be published in the summer of 2024, adds chapters on mass communications, maritime shipping, motor carriers, payment systems, financial market infrastructure, social media, cloud computing, local utilities, and property systems.
A detailed table of contents can be found here.
Why Did We Write It?
We wrote Networks, Platforms, and Utilities because we perceive a gaping hole in the law school curriculum, as well as in contemporary legal scholarship and public policy debates.
Unquestionably, many of today’s most pressing public policy challenges are directly tied to NPU industries. Consider the following examples from just the past few weeks of news headlines.
- Southwest Airlines cancelled thousands of flights, disrupting travel all across the country.
- As a pre-Christmas polar vortex descended across the majority of the United States, several regions struggled and failed to keep the lights on.
- The crypto exchange FTX collapsed.
- Twitter, under Elon Musk’s ownership, suspended the account of its rival Mastodon.
- The Federal Reserve announced it would further raise its target for short-term interbank interest rates, restricting the growth of money and credit in an effort to reduce economic activity.
Lawyers—to the extent that they grapple with these kinds of issues at all—tend to analyze them in isolation from each other, as though each sector were entirely sui generis. Law school curricula mirror this siloed approach: students can study banking law, energy law, or communications law, but (with notably few exceptions) not in a single course. In contemporary legal thought, there is little recognition that these fields might in fact be closely related.
Yet they are closely related. Although NPU industries have diverse characteristics, they present a strikingly similar set of public policy challenges, and they have been governed to a large extent by a common set of legal principles and tools. We cover these foundational issues—what are NPUs; why have NPU law; and what does the NPU “regulatory toolkit” consist of—in the first chapter of our casebook (key concepts).
In our view, studying individual NPU industries only in isolation from each other—the currently prevailing approach within legal thought and practice—is a mistake. Not only does separate treatment prevent policymakers from translating relevant experience and lessons from one NPU domain to others, but it also obscures the broader implications of NPU governance for economic prosperity, social cohesion, and democracy.
How Does Its Subject Matter Relate to Other Areas of Legal Study?
A word is in order about the relationship between NPU law and other legal fields. Administrative law—the study of the law governing administrative agencies and the judicial review of agency action—is an adjacent field, and we include a chapter on administration. But whereas administrative law is largely procedural, NPU law is largely substantive. In a sense, NPU law is administrative law’s principal substantive counterpart, and it is not too much to say that the development of American administrative law has been driven, to a significant degree, by the imperatives of NPU governance.
Antitrust law, too, is an adjacent field, and we include a chapter on its intersection with NPU law. But whereas antitrust law seeks to safeguard the competitive process, NPU law’s domain consists primarily of areas “in which active regulation has been found necessary to compensate for the inability of competition to provide adequate regulation.” F.C.C. v. RCA Communications, 346 U.S. 86 (1953). (In practice, NPU law and antitrust law inhabit a somewhat complicated relationship, as the book explores.) Just as administrative law has been shaped by the government’s efforts to address NPU problems, so too has antitrust doctrine been forged in seminal NPU cases.
NPU law intersects with numerous other subjects in the law school curriculum. Readers of the book may be surprised to discover that important aspects of American constitutional law have been shaped by cases involving NPU industries. NPU law also overlaps with core business law topics like corporate law (which, at its origins, was a tool of NPU governance) and payments law (traditionally a “private law” topic). Although no area of law is hermetically sealed from the rest of a legal order, NPU law exhibits an unusual number of significant intersections.
Economists and legal scholars sometimes distinguish between “economic” and “social” regulation, with NPU law forming the centerpiece of the former, and the latter consisting of subjects such as health, safety, and environmental law and consumer and investor protection. While we might quibble with this terminology, it does convey an important distinction. NPU law is both narrower and deeper than “social” regulation: narrower because it confines itself to industries with particular characteristics, and deeper because it often imposes public control over the most basic aspects of enterprise management—what services are offered, who is served, and what prices are charged. In many cases NPU law is more than regulation: it is governance. The services that NPU enterprises provide are often “as truly public services as the traditional governmental functions of police and justice.”
Why is the Time Ripe For It?
NPU law was not always a “missing” field of legal study. For many years, this field was known as “regulated industries.” Before that, it was called “the law of public utilities,” “the law of public service corporations,” and “the law of common carriers.” For generations, its centrality in American life was widely recognized. (Frankfurter taught the course at Harvard Law School for nineteen years.)
But for decades now it has all but ceased to exist as an integrated field of study. Significant intellectual and cultural shifts drove this change. In the closing third of the twentieth century, the long-prevailing view that the public interest demanded a substantial measure of public control over society’s infrastructural resources gave way to a bipartisan distrust of public administration and an abiding faith in the self-regulating power of markets. In the process, deregulatory initiatives “transformed” NPU law, and its animating concepts dropped out of the legal and political imagination.
We seek to revive that imagination among students, scholars, and policymakers. Networks, Platforms, and Utilities is the first entirely new casebook integrating NPU law in a quarter century—and the first with some temporal distance from the deregulatory movement of the late twentieth century. The book thus also contributes to larger intellectual shifts in the academy and public policy. Scholars and policymakers on both sides of the aisle have increasing been critical of the paradigm—whether framed as neoliberalism or law and economics—that shaped much of economic policymaking over the last generation. In response, significant shifts are underway in antitrust, trade, industrial policy, labor, and other areas. We believe that reanimating—and refashioning—“regulated industries” is a critical part of this broader shift in law and political economy. Our aim is to provide a modern, comprehensive volume that pushes the field back to the center of legal education and scholarship and reintroduces its tools and logic to policymakers.
How Does It Differ from Previous “Regulated Industries” Textbooks?
Networks, Platforms, and Utilities covers a much broader range of industries than previous “regulated industries” textbooks. Those texts were incomplete even in their day: none, for example, covered money, payment systems, financial market infrastructure, or computer operating systems. And in recent decades, new, dominant NPU enterprises such as Amazon and Google have arisen in the technology sector. Our book studies each of these industries.
In addition, Networks, Platforms, and Utilities is structured differently. Previous “regulated industries” casebooks were generally organized horizontally. That is to say, rather than focus on a particular type of network, platform, or utility and treat it comprehensively, these texts took one topic within NPU law and treated it across (selected) NPU sectors. For example, they might include a chapter on rate regulation, with cases drawn from disputes involving postal, electricity, and airline rates. By removing doctrine from context, however, they obscured how the law’s parts were in many cases designed to fit together as comprehensive governance systems.
Networks, Platforms, and Utilities is instead organized vertically. After foundational chapters on key concepts, the legal framework, administration, and the relationship between regulation and antitrust, subsequent chapters examine one sector at a time. We begin with communications systems, and then cover transportation and energy. Money and finance follow, with technology platforms rounding out the book.
Our sectoral approach is designed to allow readers to explore the underlying dynamics of each industry, the specific problems that emerged in it over time, and how legislators, regulators, and judges have addressed them. For each NPU vertical, readers can examine its legal past, explore its present problems, and imagine its possible futures. In the process, the book offers something like a liberal arts education in the structural foundations of American capitalism.