NPU and the Long Interregnum, by William Boyd
*This is the sixth 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.
When I went to law school, after having spent years studying the political economy of particular industries (energy, forest products, chicken processing, agricultural biotechnology), I was struck not only by the infantilization that goes with being a new law student but also the cognitive dissonance that came from being told that a corporation was simply a nexus of contracts, that the capital markets were efficient, that antitrust should focus only on consumer welfare, that harm was reciprocal, that money is speech, that the first generation of so-called command-and-control environmental laws (which some leading legal academics compared to “Soviet-style central planning”) was finally giving way to a new generation of smarter market-based approaches, and that solving complex public problems was as easy as picking the right policy instrument from a menu of options that had been carefully analyzed for their respective costs and benefits.
At the time I was naïve (and perhaps a bit in denial) about how far I had wandered into the forcing house of neoliberalism that was the elite law school circa 2000. Of course, I had only myself to blame for that. What was clear at the time, though, was how abstract and reductionist it all seemed. Even if the daily bread of cases contained ample discussions of specific facts, the name of the game was to strip away the details and the nuance to isolate the bottom line. I suppose this is part of what people mean when they talk about learning how to “think like a lawyer,” and there is surely great value in the kind of analogical reasoning that this entails. Upon reflection, however, it was the largely hidden work (at least to me) that often framed the bottom line that was creating so much dissonance—that is, the set of baseline assumptions about the big institutions and background structuring mechanisms that are implicated in all legal disputes and market exchanges but that are so often naturalized and rendered invisible by mainstream legal training. Where was Robert Lee Hale when I needed him.
In short, I had come to law school hoping to find resources and frameworks that would help me understand how law had structured the industries I knew well and how it might be marshaled to remedy some of the harms they were inflicting on communities, workers, and the environment. To my dismay, such resources and frameworks were nowhere to be found. There was no class on energy law. Nothing on regulated industries as a field. Nothing on law and political economy. Yes, one could get a small taste of progressive critiques of laissez faire and a modest dose of legal realism in modern American legal thought and the occasional legal theory seminar. Legal history also provided glimpses of different ways to think about the constitutive role of law in the broader economy. But these were all operating on the margins of the big, meaty doctrinal classes that all seemed directed at reproducing what Jed Purdy, David Grewal, Amy Kapczynski, and Sabeel Rahman have labeled the twentieth century synthesis. Sadly, for all of the promise embedded in its name, critical legal studies was already in decline, and the crits were viewed, fairly or not, as almost entirely internalist in their orientation.
The problem or maybe the tragedy (at least for students like me) was that the resources and frameworks were available if you knew where to look and if you could find the right interlocutors. As William Novak and others have pointed out, some of the most vital and important debates in what we might now call law and political economy were being hashed out in law schools and pursued by leading legal scholars during the first third of the twentieth century—and much of this was taking place on the terrain of regulated industries.
This is one of the many reasons why the new NPU casebook—and the broader project of which it is part—is so important and why Professors Ricks, Sitaraman, Welton, and Menand deserve enormous gratitude from students, professors, and the larger profession. They have taken a huge step toward recovering, updating, and re-establishing a set of doctrines, debates, concerns, and commitments that are critical to understanding how law and legal arrangements structure industries and, in doing so, how law makes the broader economy. They have reminded us of the vital importance of those particular industries that operate as networks, platforms, and utilities and that provide so many of the necessities for everyday life. And they have underscored the critical importance of domain-specific knowledge and the importance of getting into the details of specific industries. Finally, they have reminded us that the project of building and governing these industries is deeply implicated with a set of longstanding normative commitments that have been hollowed out and diminished by a half century of neoliberal critique.
Capital and Infrastructure in a Time of Crisis
That much of that critique corresponded initially with the economic crisis of the 1970s was fortuitous, setting in train the great transformation of regulated industries law and forty plus years of experiments with deregulation and neoliberal approaches to infrastructure and key systems of provisioning. While the precise nature and effects of those experiments have varied across different sectors, looking across the landscape of formerly regulated industries today reveals a series zombie markets (or market-like entities) that are frail and shot through with market power, corporate malfeasance, extreme price shocks, recurring reliability crises, poor service, degraded customers, exploited workers, and a hodge podge of ad hoc regulatory fixes intended to keep things working as we lurch from one crisis to another.
In short, the blanket approach of unleashing competition to contest markets and discipline prices in order to counter the pathologies of economic regulation has resulted in the concentration of corporate power, massive rents, privatization of essential services, and growing lack of access and affordability that is at the heart of a deeply entrenched cost-of-living crisis. Rather than finding ways to use the price system to build the infrastructure we need, neoliberalism worked to subordinate our infrastructure to the magic of the price system. The result has been a deadly mix of asset sweating, privatization of essential services, and a predatory, financialized capitalism that has stifled innovation and investment.
While NPU law hardly purports to provide a blueprint for how to proceed in the face of these challenges, it does direct attention to a set of questions regarding the legal and institutional frameworks needed to build the infrastructure and systems of provisioning we need in order to confront some of the most important challenges of the twenty-first century.
Regulated industries law grew up in part to as a way of thinking about how to structure a set of working rules and institutional arrangements for channeling capital into long-lived physical assets. One lesson learned early on was that there is no one right way and that each industry had its own changing set of technological characteristics and cost structures. Experimentation with different forms of public and private ownership, different approaches to cost recovery, and different ways of charging for services held great promise. Lots of infrastructure was built in key sectors such as energy and telecommunications. But there were plenty of problems along the way, and it is clear that the system of public utility regulation that provided the heart of much of regulated industries law never lived up to its potential. NPU law will need to look carefully at the reasons why this happened as it works to update what the authors call the NPU toolkit for our own time and craft a new set of working rules that can channel massive amounts of capital into new infrastructure and new industries in a manner that does not work to entrench the hierarchies and structural violence of our existing economy. That is no small task, to be sure, but we must take the world as we find it.
NPU and the Long Interregnum
It has become fashionable in the current conjuncture to quote Gramsci’s famous line about the dangers of an interregnum: “the crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear.” Whatever one thinks about the likelihood of an end to the neoliberal order, what does not appear to be in dispute is that so many aspects of our world are in crisis. Things have gotten so bad, in fact, that the word crisis itself is apparently no longer sufficient to capture the multiple, mutually reinforcing disruptions that we face. Polycrisis is now the preferred descriptor, at least among the Davos set. But whatever term you use, the dangers of a long interregnum in the face of global polycrisis are truly terrifying. Morbid symptoms abound.
It seems both true and trivial to say that law has a vital role to play in any way forward. The question begged, of course, is how. NPU, together with law and political economy, suggests a more optimistic view of the current interregnum—one premised perhaps on something new trying to be born in part through a recovery and updating of older, wiser views about how to use law to build and govern key systems of provisioning in order to promote human flourishing.
Of course, one might conclude that these largely academic pursuits will never translate into a new politics – that they will disappear into the morbid symptoms that Gramsci warned of, a cautionary note that is easily supported by even the most casual observation of our current moment. One might also argue that NPU law, to the extent that it seeks to turn up the dial on regulation, runs the risk of simply recycling all of the pathologies of the old regulated industries – capture, over investment, lack of innovation, rent seeking, etc.—all concerns that were raised in one way or another by the original architects of regulated industries law well before the neoliberal critique of the 1970s.
The point is not to claim that NPU law has the answers any more than neoliberalism does. Rather it is to recenter a set of questions that have been largely displaced and forgotten. The NPU casebook provides a framework and set of resources for keeping those questions front of mind as we rethink our teaching, our research, and our commitments to work, brick by brick, to build a new political economy that can withstand the polycrisis and enable a truly just transition to a sustainable future. To me, what is perhaps most exciting about the NPU project is that it provides an anchor for grounding those questions and conversations within a new community of students, professors, and others seeking to build new frameworks for understanding our political economy and for building new forms of statecraft that are adequate to the challenges we face. To that end, the authors deserve enormous thanks not only for the prodigious intellectual achievement that is their new casebook but also for creating a vital infrastructure for a set of ongoing conversations about NPU law and the community building it entails. Bravo!
William Boyd is the Michael J. Klein Chair and Professor of Law at UCLA School of Law and Professor atUCLA Institute of the Environment and Sustainability.