Notice & Comment

An “Outsider’s” View of NPU Law and Policy, by Wendy Wagner

*This is the third post in a symposium on Morgan Ricks, Ganesh Sitaraman, Shelley Welton, and Lev Menand’s “Networks, Platforms, and Utilities: Law and Policy.” For other posts in the series, click here.

In the preface to the 1994 edition of Economic Regulation: Cases and Materials (a precursor to Networks, Platforms, and Utilities (NPU) Law & Policy), Richard Pierce observed that “[t]he past fifteen years have been a period of revolutionary change in the field of economic regulation. In many industries, e.g., telecommunications and electricity, the revolution is far from complete, and it is too early to predict the new equilibrium.” (p.xvii). Pierce’s predictions could not be more prophetic. Climate change, largescale bank failures, and innovations in internet and telecommunication technologies are just a few of the many urgent challenges transforming how we govern many essential services. But, for the last twenty-plus years, there have been virtually no resources available to help understand what has been going on in this field or how the various legal developments fit together.

 NPU Law and Policy fills this void by providing a resource for students and scholars to make sense of this badly neglected area. After providing four “horizontal” chapters that tutor readers on recurring concepts like administrative process, ratemaking, and constitutional authorities, the authors then provide “vertical” chapters that delve into the history and development of eleven distinct regulatory programs located within the larger field they call NPU law. Even if the chapters were not highly readable and engaging, which they are (check out Chapter 6 on the Postal Service for an unexpectedly entertaining read), the immense contributions the book makes to teaching and scholarship for those who are expert in one or more subfields of NPU law seem uncontestable.

In this post, however, I want to emphasize the value of this book to a second tier of outsiders (or casual tourists), like me, who are not expert in any of the vertical topics, but are eager to learn more about the field, either from a broad administrative law perspective or in order to trace out cross-connections with neighboring regulatory fields, like environmental regulation.

The good news is that for these outsiders, the book delivers. Much like a pirate’s map of buried treasure, the book is filled with scholarly goldmines for casual tourists who are less concerned with pinning down the black letter law of telecommunications, airline, or internet regulation and more interested in the back-stories of regulatory pathologies and institutional design choices that can be compared and contrasted with their own research niches.

The bad news, though, is that locating and extracting all of this gold will not necessarily be quick or easy (although there is a short-cut discussed later). The themes and connections most outsiders will be interested in are largely implicit and offered in passing in the book’s fifteen chapters.

Lessons for Institutional Design and Legal Process

For example, in NPU Law & Policy we learn that one of the recurring themes in NPU law is the familiar challenge of developing accountable institutions and processes to govern large private/public entities that enjoy substantial power and expertise relative to the diffuse public and regulators. (p.34). The vertical chapters detail disturbing accounts of these power asymmetries, including evidence of information distortions, outright bribes, and market manipulations that sometimes seem out of regulatory reach, in part because the same powerful actors tend to exert disproportionate influence over how the laws and regulations are designed. (E.g., Electricity, Chapter 14, at pp. 652, 726-728). The case study on Amazon’s market tactics in Chapter 20 is particularly dramatic, revealing how corporate profit incentives, reinforced by superior information, expertise, and resources, enabled Amazon to become almost impervious to regulatory oversight and market controls.

However, except for a brief call-out in the first chapter, this overarching theme of institutional design is not elaborated or tracked explicitly, either in the conceptual foregrounding chapters or in the individual regulatory chapters themselves.

Cross-connections with other Regulatory Fields

As another example, since NPU law provides a counterpart to social regulation, many causal tourists will be keen to compare and contrast NPU law with other areas of regulation, like environmental protection. Indeed, there is even some overlap in the nature of the regulated industries; drinking water providers, health care facilities, and perhaps even farms and basic industries also provide essential services in some settings.

Yet outsiders eager to make these cross-comparisons between NPU regulatory programs and social regulation will again find they must do much of this work on their own since the book treats NPU law as a distinct field and does not delve into these points of intersection and difference with other regulatory sectors. In the first few pages, in fact, we learn that unlike social regulation, NPU law involves the “governance” of essential services provided by a discrete set of “industries with particular characteristics” (p.3; see also p.8), with a focus on “promoting positive externalities.” (p.23). However, even in the NPU field itself, there is a lot of social regulation going on, for example with respect to energy and climate change, public safety, and some oversight of technology platforms (to name a few). The authors probably found it necessary to overstate the line that separates these various areas of regulation since the primary goal of the book is – after all — to provide a clear and accessible introduction to NPU law. But regardless, the casual tourist must still pick up the slack.

A Shortcut for Casual Tourists to Reap the Rewards of NPU Law & Policy

Up until now I have spotlighted a few of the many potential benefits for a NPU outsider to engage with the book, while acknowledging that these benefits will entail some work — but there is a shortcut! This shortcut makes use of the casebook format (rather than treating the book as a desk resource), while still saving NPU-novices from the humiliation and burden associated with teaching a new, esoteric field. Instead, the outsider can teach a NPU law-focused “reading-group” styled seminar that enlists students as fellow-explorers. In this seminar design, NPU Law & Policy becomes essentially a 1160 page “Where’s Waldo” book. Students and professor work collaboratively to trace out one or a few meta-themes running through the various regulatory programs. My own focus for such a seminar will be on institutional design challenges (e.g., regulatory oversight of powerful entities pitted against diffuse public beneficiaries — think Gormley’s boardroom). But the wide-ranging themes that NPU Law & Policy opens up for deeper exploration defy imagination, including federalism, the ways that historic legal arrangements constrain future options, and comparative institutional analysis (particularly markets versus regulation), to name a few.

In this seminar design, the professor will still exert control over structure, readings, and class choreography, as well as coordinating the questions/approaches of the weekly (ideally student-led) discussion teams, but the professor must abdicate control over what discoveries emerge from the weekly discussions. Short of making sure a few burning questions are explored and that discussions do not drift from the seminar’s main focus, each week will almost assuredly yield unexpected and likely more exciting and novel insights than the professor could generate on her own. [Side note: My own plan is to offer a particularly low-risk version — a one-credit seminar focusing on institutional design and administrative process (ideally co-taught with an adventuresome colleague). My seminar will begin with several weeks of readings on conceptual frameworks drawn mostly from the political science literature, followed by several more weeks of readings on several environmental regulatory programs that I expect to provide interesting comparisons to NPU law. The bulk of the seminar will then trace out the seminar’s main theme through four or five “vertical” chapters of NPU Law & Policy.]


In sum, by providing excellent coverage, readable and engaging text, and a blank slate for tracing and analyzing institutional themes in diverse regulatory fields, the authors provide a kind of smorgasbord resource for researchers and students alike. Even if a reader just sticks to learning the legal basics of NPU law, the book provides a wealth of information (all at a price under $60!). But those who want to go farther can finally begin to connect dots across legal areas and in so doing uncover much buried treasure waiting to be discovered.

Wendy Wagner is the Richard Dale Endowed Chair, University of Texas School of Law.

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