On “NPU-ness,” by David Singh Grewal
*This is the tenth 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.
The arrival of the first new casebook on regulated industries—what its authors call “Network, Platform, and Utility” (NPU) law—in a quarter century is both a cause for celebration and for consternation: celebration because the authors have undertaken to renew and update this essential area of law, and consternation that something so crucial to the democratic experiment and to human flourishing more generally has been sidelined for several decades.
I want to focus here on the neologism “NPU,” an acronym made up of three words, one of them relatively new (“network”), two of them older (“platform,” “utility”), all pressed into novel uses—to which the word “law” is appended, almost as suffix, and offer a few remarks by way of speculative genealogy on “NPU-ness.” My suggestion is that we should understand NPU law as the critical reemergence of a discourse formerly associated with the problem of “planning,” tied to deeper and older questions concerning the purview of politics as applied to social dynamics that “scale,” and in a way that ought to elevate (rather than suppress) the crucial normative stakes of the matter.
To begin with the obvious question: what is the “NPU” in NPU law? Is it more than “infrastructure” (the question Frischmann puts in his post), and if so, how? Is it more than “regulated industries,” even noting the networked character of many regulated industries, past and present?
The authors invite an exploration of these questions across many of the domains in which what they describe as “NPU-ness” seems to appear. It seems clear that in the promised second edition, NPU law will be pushed into areas yet further removed from the doctrinally familiar examples of previous “regulated industries” casebooks. Social media, financial services, and even property itself are slated to be analyzed as “NPU” in future editions. But even in this first edition, much progress already occurs in treating “NPU-ness” as more than a mere recapitulation of whatever “industries” happened earlier this century to have gotten themselves “regulated.” The authors wish instead to get at the core of a dynamic they recognize behind existing regulated industry doctrine, but also spilling beyond it. The focus of the casebook is accordingly on the law, sometimes the “governance,” of “NPU” industries.
NPU refers to three abstractions that situate the kinds of activities or processes that qualify them for the types of public oversight that the casebook explores. The authors say, rightly, that nothing turns precisely on whether one or another of these abstractions is applied to a particular business entity, and that often more than one of these words may be used in description. (Is Amazon better called a “network” or a “platform” or a “utility”? What about a bank?) And they also argue that “NPU-ness” comes in degrees. So, in the final analysis, we are asked to consider a set of overlapping abstractions – aggregated together as “NPU”—that together define some overlapping or shared quality that exists on a spectrum.
It seems straightforward to accept that an essential quality or a set of related qualities can underlie several different descriptors and that such a quality might come in doses, and even apply in some measure to entities to which we would not ordinarily attach one of these descriptors. (For example, a supermarket, especially a supermarket “chain,” surely has some NPU-ness, even if no one would call their local supermarket branch a “network,” “platform,” or “utility” in common speech.) Nor should the thought that NPU-ness exists on a spectrum (i.e., that it comes in doses) bother anyone. While a skeptic might wish to subject this claim to the sorites problem (the problem of induction on a vague predicate)—and, where lawyers are involved, one should expect any number of ancient tricks to be dragged out or rediscovered—it should be easy enough for the rest of us to say about NPU-ness, along with Justice White, in an admittedly different context, that “we know it when we see it.”
Indeed, whomever among the authors suggested the surprising inclusion of Wittgenstein’s Philosophical Investigations in the “Key Concepts” section of the casebook knew how to silence the skeptic—and not just on the point raised concerning “family resemblances” among N, P, and U, but for the broader point Wittgenstein makes there concerning the way that ordinary language functions in practice. Indeed, with this Wittgensteinian hat on – and thus silencing the mere skeptic – it may nevertheless be possible to understand better the language game we are here already playing: to talk about what it means to talk about NPU-ness, even if we cannot define it straightaway (because, for example, it may be an “essentially contested concept,” while also an indispensable one).
Because someone else brought up Wittgenstein, I suppose I may follow the general thrust of at least one insight that readers have taken from him, which is that when coming up against an abstraction in language (e.g., “NPU-ness”), an analytic approach may tangle us up in further abstractions, whereas a genealogical approach can sometimes allow us to see how moves in a current language game came into being, with an eye to which next moves might sensibly be played (and which can be dissolved, i.e., understood as not really moves at all).
We may begin with the history the authors provided about the background to NPU law. They explain that “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.’” It would be instructive to do a reconstruction of these terms in the common law (and it would be possible, of course, to trace some of them back even to Roman law sources – e.g., the laws recorded in the Digest on the special responsibilities of innkeepers, ship captains, and so on). For now, let me simply observe here the “publicness” or “commonness” of the enterprises, as originally conceived, which then get pulled together into an idea of “regulation.”
Tied to this publicness – and to be “public” in this way is to be always already primed for legality (“regulation”)—is the kind of activity under consideration: the this-worldly domain of “utilities,” “service,” “carriers” (and so on, later, to “industry”) as opposed to those finer things subject to discriminating moral approval or through which the spirit soars. We are thus firmly in the domain of utilitas not honestas, to recapitulate the classical moral categories: NPU-ness describes “utilities” that are public or common, relating to the res publica or “commonwealth.” This is the public regulation of utilitas – hence, the infrastructural quality, the spillovers that Frischmann describes, but also the instrumental focus on means to ends – instead of the public regulation of honestas as something morally valuable “in itself.” Thus does the “U” in NPU have its own telling history and take its place as a key element in the acronym.
At their most general, the authors describe “NPU law” as:
both narrower and deeper than “social” regulation: narrower because it confines itself to particular 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. We would go so far as to say that 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.”
The idea that government is charged with providing not only “traditional” functions of “police and justice,” but the oversight of industries is of course an old one, tied to ideas of infrastructure: ports, roads, and the like. Indeed, in describing how NPU law was sidelined in the later twentieth century, the authors explain that “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.”
So here we have another description of NPU-ness—as “infrastructural resources”—which raises the question of how (when) infrastructure may be treated as mere private property and how (when) it shouldn’t be. Does identifying the degree of NPU-ness in a relevant industry help us answer that question?
As some of the previous posts have noted, NPU-ness is meant both to describe industry dynamics relating to underlying production processes (hence, the turn to government oversight of otherwise private pricing decisions) but also signals a set of normative commitments that help to determine when monopoly or monopolistic private control over infrastructural resources should trigger public oversight. The authors specify equal citizenship and democratic government (the two, of course, connected, maybe even mutually entailing) as reasons to subject some industries exhibiting NPU-ness to such public oversight. Implicit here is a sense of interconnected social development (“public utility”) that matters for political life, and the possible grounds for marking out which types of connectivity require limits to price discrimination and militate in favor of universal access, not only on welfarist grounds (e.g., noting the welfare gains from regulating monopoly) but also on more than welfarist grounds.
Indeed, the publicness of NPU industries enters the picture as an implicit “republican” (small-r) premise, such that the NPU-ness of an industry is not merely descriptive of its productive dynamics but also indicates something about which forms of interconnection prove vital to shared political life. If, in the privacy of my living room, I am subject to the monopolistic pricing of a video game purveyor, my consumer preferences might be better satisfied with a public rearrangement of property rights but my capacity as a citizen would be largely unaffected (or let us so suppose). Not so with internet news, still in the “privacy” of my living room, let alone with mass transport in dense urban cores.
NPU-ness thus functions as what philosophers call a “thick concept” (sometimes a “thick ethical concept”), which combines evaluation and description intrinsically. When we say that Nero was a “cruel” emperor (as the usual example goes), it is nonsense to ask whether we are making a descriptive or a normative claim. The two are conjoined in the very idea of “cruelty”: saying that someone is cruel both describes their cruel actions (and in a way that could lead to predictions of the kind favored by contemporary social science: saying that someone is cruel is tantamount to saying that he does (and will almost surely continue to do) cruel things); and evaluates those actions in the same breath as cruel (cruel being a complex normative standard, and subject to internal debate, as in “one must sometimes be cruel to be kind”).
At the normative core of NPU-ness seems an idea of publicness which depends on need, but ties that needspecifically to the maintenance of the res publica. This is why arguments for regulation in NPU law do not merely rehash medieval and early modern debates over whether private property ought to yield in cases of private necessity, though they draw on some of the same argumentation. It is arguable that in cases of private duress, I should be able to use the equipment of any NPU industry to which I can get access—say, hacking into a phone network to make an emergency call, if I knew how to do that—just like I can seize food in the middle of a famine; but NPU law goes to the broader problem of what duress looks like as a collective condition, and given a prior conceptualization of the kind of political collectivity that equal citizenship both requires and prefigures.
Let me make two final points about the thick ethical concept of NPU-ness.
The first is brief and concerns the inextricably normative dimension of NPU-ness. There is no reason whatsoever to be anxious about the fact that NPU-ness is a thick ethical concept, or to suppose that there is any more precise concept in the social-scientific lexicon that might be more readily and durably deployed for this purpose. Quite the contrary: all notions of optimality in economics presuppose this same entanglement of fact and value in the ideas of “preference-satisfaction,” “utility,” “welfare,” even “rationality,” even though this entanglement is frequently neglected or misunderstood. All problems of planning, including the kind of planning that a renewed NPU law would constitute, involve conjoint problems of evaluation and description. It was an oddity of the twentieth century that so many intellectuals aimed at a science of society on foundations borrowed from the observation of inanimate objects (e.g., planets, billiard balls), and in which the ways we use language were considered a problem rather than the starting point for social analysis. But alongside such positivist conceits, thick ethical description has always remained the engine-horse of legal analysis, and for good and unavoidable reasons. The task of reinventing NPU law thus rightly trusts a little more to “law” (in its constant entanglement of the evaluative and descriptive) and a little less to those social sciences that have recently sought to impose upon law the ersatz precision of a supposedly external perspective.
The second point takes us back to a genealogy of the concept. The authors rightly observe the problem of scale as a descriptive matter in their introductory chapter, but it is worth noting further that the problem of scale may itself require a deeper genealogy to understand its relation to several “problems” of modernity (puzzles conjointly evaluative and descriptive). I cannot here do justice to that premise but let me simply close with an extraordinary passage from Marx on this issue, from his chapter on machinery and its uses in production in the Grundrisse. After distinguishing fixed and circulating capital after the usual fashion, and describing the wage-relation under (nineteenth-century) capitalism, Marx turned to what the development of “large-scale industry” would do to society in the future, including to those laws (tendencies) of society he had sought to expose:
to the degree that large industry develops, the creation of real wealth comes to depend less on labour time and on the amount of labour employed than on the power of the agencies set in motion during labour time, whose ‘powerful effectiveness’ is itself in turn out of all proportion to the direct labour time spent on their production, but depends rather on the general state of science and on the progress of technology, or the application of this science to production….Real wealth manifests itself, rather – and large industry reveals this – in the monstrous disproportion between the labour time applied, and its product, as well as in the qualitative imbalance between labour, reduced to a pure abstraction, and the power of the production process it superintends. Labour no longer appears so much to be included within the production process; rather, the human being comes to relate more as watchman and regulator to the production process itself. (What holds for machinery holds likewise for the combination of human activities and the development of human intercourse.) No longer does the worker insert a modified natural thing [Naturgegenstand] as middle link between the object [Objekt] and himself; rather, he inserts the process of nature, transformed into an industrial process, as a means between himself and inorganic nature, mastering it. He steps to the side of the production process instead of being its chief actor. In this transformation, it is neither the direct human labour he himself performs, nor the time during which he works, but rather the appropriation of his own general productive power, his understanding of nature and his mastery over it by virtue of his presence as a social body – it is, in a word, the development of the social individual which appears as the great foundation-stone of production and of wealth. The theft of alien labour time, on which the present wealth is based, appears a miserable foundation in face of this new one, created by large-scale industry itself. As soon as labour in the direct form has ceased to be the great well-spring of wealth, labour time ceases and must cease to be its measure, and hence exchange value [must cease to be the measure] of use value. The surplus labour of the mass has ceased to be the condition for the development of general wealth, just as the non-labour of the few, for the development of the general powers of the human head. With that, production based on exchange value breaks down, and the direct, material production process is stripped of the form of penury and antithesis.
Among other things, what Marx is arguing here is that the nineteenth-century wage-relation at the heart of his analysis of political economy would cease to be the foundation of social wealth given the further development of the division of labor in (and, with it, the mechanization of) large-scale industry. One extraordinary implication thus already noted (and in 1859) is that the very advance of technology undermines “exchange value” as the basis of “value.” This claim has appeared novel to those involved in recent discussions of the “platform economy,” who have effectively rediscovered it (mostly in the guise of a concern about future employment levels, i.e., labor power exploitation, under conditions of mass automation). How, under such conditions, is the distribution of this vast new social wealth to occur – and what would secure its continued production?
We are now in the middle of a social and political experiment to answer these questions – just as we have been since the advent of modern industry when the predecessors to NPU law first emerged to attempt to address the problem. That this regulatory effort is being renewed today shows, in that complex way in which concepts and histories intertwine, that the experiment is far from over. This essential casebook thus arrives not a moment too soon and should be welcomed by all those concerned about the future we are building together.
David Singh Grewal is Professor of Law at UC Berkeley School of Law.