*This is the eleventh and final 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.
Writing a book review, especially when that book weighs in at 1,200 pages, is an act of generosity. We are so very grateful to all the contributors for their deep engagement with Networks, Platforms, and Utilities: Law and Policy. For those who haven’t read them all:
- Bill Novak situates the book in the history of legal thought, linking it to a postwar law-and-political-economy tradition that has been sidelined in recent decades.
- Brett Frischmann homes in on the normative foundations of NPU law, identifying considerations—foremost, NPU enterprises’ propensity to generate positive spillovers—that he thinks deserve more emphasis.
- Wendy Wagner considers how law professors who are outsiders to substantive NPU law can benefit from the book and use it to study institutional design and other regulatory topics.
- Yochai Benkler focuses on the advantages of the book’s sectoral organization, its inclusion of historical and material context, and its functional approach to law.
- Sharon Jacobs drills into the book’s terminological choices, noting both opportunities and possible hazards that come with using the value- and history-laden term “public utility.”
- William Boyd argues that the book “recenter[s] a set of questions that have been largely displaced and forgotten” and that it offers frameworks to understand, analyze, and think about the future of many important industries that structure our economy.
- Josh Macey and Genevieve Lakier (hereinafter “M&L”) raise questions about the proper boundaries of NPU law; highlight challenges regarding administrability; and target one of NPU law’s tools, entry restriction, for greater scrutiny.
- Saule Omarova comments on the book’s “cross-disciplinary scope” and “field defining spirit” and on how the money and finance chapter “creates a much-needed intellectual platform for a sustained interrogation…of th[e] gradual erosion of banks’ public utility functions.”
- Amy Kapczynski connects the book to the Law and Political Economy (LPE) movement, noting that the book offers “a template for a radically different approach to thinking and teaching about economic governance for lawyers,” while also recommending that future editions engage more with questions of power and essentiality.
- David Grewal examines the thick ethical concept of NPUs and contemplates the “family resemblance” and genealogical approach the book takes to defining its scope.
It isn’t possible here to comment on or respond to every point in these terrific contributions. Instead we use the remainder of this concluding post to highlight some recurring themes and address some of the suggestions that surfaced.
Filling a Gap
As we noted in our symposium introduction, we wrote Networks, Platforms, and Utilities because we perceive a hole in the law school curriculum, as well as in contemporary legal scholarship and public policy debates. We were gratified to see that most of the contributors not only agree that the hole exists but also think that the book takes a meaningful step toward filling it.
Why NPU Law Matters
None of the contributors appears to doubt the importance of the book’s subject matter. Describing failures of privatization and deregulation in NPU industries, Benkler credits the book with “negat[ing] precisely the major pernicious tendencies of presently dominant approaches to thinking about how law ought to apply to these basic structural foundations of American economy and society.” Boyd turns up the dial:
[L]ooking 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.
Omarova develops this point in the banking context, exploring some of the unintended and, in her view, harmful consequences of financial deregulation. And as Grewal notes, the very importance of NPU law suggests reasons for consternation: why has the field largely disappeared from legal education and scholarship? The book’s introduction points toward a confluence of ideological and economic trends that are partly responsible. We plan to say more about this in future work.
At the same time, contributors rightly observe that NPU governance is fraught with challenges. Boyd notes that regulated industries law has “never lived up to its potential,” while Jacobs suggests that the phrase “public utility” has been “tarnished by experience” in the energy sector, giving rise to renewed calls for a public takeover of the electricity grid—what she calls a “revolutionary” in lieu of a “redemptive” approach. (Public enterprise, of course, raises challenges of its own, as the book explores.)
M&L take this line of reasoning a step further, questioning the administrability of NPU law and asking whether it’s even possible to “ensure that regulators remain sufficiently competent and well-resourced over time to outsmart the manipulations of private industry.” Needless to say, this familiar critique applies not just to NPU regulation but to all regulation, not to mention other governmental activities, such as taxation.
To our way of thinking, M&L’s administrability critique doesn’t frame the question quite right. We should ask instead: administrable compared to what? As we trace in the book, more market-oriented approaches to supplying essential NPU infrastructure and services themselves present tremendous administrability challenges. One of the benefits of the book’s vertical, historical, and multi-sector approach is that readers can compare administration and outcomes across different real-world regulatory regimes. For example, we can ask whether the challenges of administering quasi-regulated oligopoly in airlines suggests that a model more like the post office (exclusive public provisioning) or AT&T (regulated monopoly) would be better. Internally to each industry, we also examine administrability over time: how did the federal government fare at regulating telecommunications during the Bell System’s heyday as a regulated monopoly? What about after its forced break-up at the hands of antitrust enforcers?
Indeed, a central theme of the book is that administrability considerations have themselves shaped NPU law. As FTC Chair Lina Khan has written, a key rationale for structural separations—a component of NPU law that surfaces in nearly every chapter—is that they can sidestep the administrability challenges of enforcing behavioral rules, such as conduct remedies in antitrust consent decrees. In many cases, NPU law’s structural tools may be more administrable than alternatives.
The Regulatory Toolkit
A number of contributors comment on aspects of what we refer to as the NPU toolkit. Both Frischmann and Kapczynski focus on open-access and nondiscrimination rules—among the oldest and most widely used components of the toolkit—emphasizing their critical role in serving not only economic but noneconomic values, including participation in the democratic process.
M&L sound a more skeptical note toward the toolkit and toward governmental regulation of NPU enterprises more generally. They take particular aim at entry restrictions—which, together with rate regulation, have been key targets of Chicago School criticism over the past fifty years.
M&L say that the book “embraces” entry restrictions. We disagree and think that their formulation misunderstands the nature of the project. Entry restrictions exist and have played a major role in the American legal tradition. The book therefore studies both their potential uses (in sustaining internal cross-subsidies against opportunistic “cream skimming” and in avoiding destructive competition in high-fixed-cost NPU industries with winner-take-all dynamics) and hazards (namely, their potential to be hijacked to serve anticompetitive ends) (see pp. 29-30). We find it hard to believe that anyone reading our treatment of, say, Hush-a-Phone Corp. v. United Statesor Camp v. Pitts could conclude that the book “embraces” how regulators sought to insulate incumbent firms from competition in those cases.
What M&L seem to mean is that entry restrictions are never warranted—that they can serve no legitimate purpose and therefore should be studied as a sort of malignant regulatory tumor, fit only for excision. But the very example they give in support of their point—retail choice electricity programs—highlights the value of the comparative institutional approach we take in the book. Retail choice electricity programs allow customers to shop for electricity providers against the backdrop of a subsidized provider of last resort. But recent research has demonstrated that these programs, which forgo entry restrictions, suffer enormous administrability and non-discrimination challenges of their own, while failing to produce promised gains in electricity affordability and increasing the volatility of consumers’ bills. Indeed, several states are considering discontinuing these programs because of their tendencies to prey on vulnerable consumers—hardly the track record you’d want to see before concluding that entry restrictions are universally unwise.
Rather than advancing a position for or against any particular regulatory tool, we choose to supply readers with a wide range of cases from multiple sectors and allow them to make up their own minds about the circumstances, if any, under which using the tools may advance the public interest.
The NPU Concept
Several contributors engage with the issue of what distinguishes NPU industries from other industries. Grewal devotes most of his post to deep rumination on this question; we will return to his treatment in a moment.
Alone among the contributors, M&L appear to doubt even the possibility of a workable NPU concept: they aim to (in their words) “problematize the idea that there is a coherent set of industries that can be understood as NPUs.” Because industries are idiosyncratic, they suggest, attempts to categorize them as we do are doomed to failure.
We obviously see things differently. Networks, Platforms, and Utilities supplies a pragmatic approach to NPU identification, offering a heuristic for distinguishing those industries to which the rationales for NPU law are likely to adhere (pp. 7–11). In so doing the book transcends the restrictive “natural monopoly” framing that has dominated regulated industries thinking for half a century, while still providing a tractable basis for discriminating among industries with diverse characteristics.
Oddly (given their preoccupation with the definitional issue), M&L ignore our pragmatic approach to identification, fixating instead on the summary descriptions of networks, platforms, and utilities that we supply on the first page of chapter 1. As they note, those brief descriptions can be interpreted quite broadly. But these descriptions are merely a preliminary sketch designed to orient readers toward the specific, functional analysis that immediately follows.
M&L’s focus may stem from a formalist view of classification, seeking a way to divide enterprises neatly on a binary basis: NPU or not-NPU. But we are pragmatists, not essentialists, and we reject the idea that the NPU concept, to be coherent, must have sharp edges. Few social categories do. “Keep in mind that ‘NPU’ is not a binary categorization,” we note on page 10. “[A]s you work your way through this book, you may decide that some industries have more NPU-ness than others.”
As Grewal trenchantly observes: “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.” We agree wholeheartedly.
Boundaries of the Field
One of the virtues of our pragmatic approach to NPU classification is that it invites discussion and debate about what sectors have sufficient NPU-ness that governance under NPU principles and tools might be warranted. Contrary to M&L’s suggestion that we see the field as static, Networks, Platforms, and Utilities emphasizes that the domain of NPU law and policy shifts over time. How else could we bring in broadband internet and tech platforms? We also explicitly invite readers to think about the boundary question (“Consider also some of the services that we’ve not included, such as health care or schools. In what ways do these enterprises resemble those surveyed in this book? In what ways do they differ?” (p. 11)).
We welcome debate about what other areas could be included and scholarship making the case for further expansion. Indeed, we hope that the book, by exposing scholars and students to a range of NPU sectors, will help to prompt new work on the frontiers of NPU law. Should drone delivery services be regulated as NPUs? What about AI? Semiconductor foundries? Is commercial space transportation similar to airlines?
Many respondents embrace the book’s invitation to think more expansively than the traditional regulated industries. Grewal notes that “in the 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.’” Benkler mentions water, sewage, and garbage collection, topics we plan to include in the second edition’s chapter on local utilities. Kapczynski encourages us to include a chapter on healthcare in a future edition. This is very much the spirit with which we hope readers will engage with the current group of industry verticals.
Normative Underpinnings of NPU Law
Two commentators suggested, in essence, that the textbook was at points too “economic” in its orientation. Kapczynski notes that LPE scholars question whether efficiency is “an appropriate and coherent metric” and pushes us to say more about political economy concerns, including issues of power and the role of public participation in regulatory decisionmaking. In his own way, Frischmann shares this concern, suggesting that the book could do more to highlight “deeper (broader) normative considerations.”
We share these authors’ desire to move past stale and restrictive twentieth century jargon and to develop more nuanced and complex ways of describing and evaluating economic activity and productive enterprise. At the same time, we think there is value in making an economic case for NPU governance. To that end, we try to avoid a narrow focus on efficiency and situate resource scarcity and management as one aim of NPU law. In so doing, we decenter it—even as we illustrate one of the public benefits of NPU law that many critics of the toolkit themselves acknowledge is valuable. Moreover, we seek to deepen what is meant by “efficiency.” For example, we explore how nondiscrimination rules and structural separations can create a level playing field for dependent businesses, thereby fostering investment and innovation in platform-dependent activities. This idea of “dynamic efficiency” is often ignored in traditional economic analysis of NPU enterprises.
Furthermore, we emphasize “enabling and sustaining democracy” as one of the core purposes of NPU law. Indeed, connecting NPU law to democracy was one of the central motivations for the project. For example, the importance of geographic access to infrastructure in fostering equality, opportunity, and fairness is a core theme in communications, transportation, energy, and money, and we treat it extensively. In future editions, we hope to push further on the links between NPU law, democracy, power, and justice as we see better establishing these links as vital in rebuilding the normative case for the field.
NPU Pedagogy and Scholarship
Many of the commentators emphasized the book’s pedagogical potential. Frischmann notes that this is “the casebook I wish I’d written” and that he wishes it had been available for the last 20 years. Benkler praises the book’s organization—sectoral, historical, and functional—and describes it as “an excellent exemplar of an important pedagogical pathway for the emerging Law and Political Economy movement.” He continues:
The achievement is to provide an educational tool for teachers and students interested in understanding how law actually functions to shape economic power and dynamics in most of the areas that form the structural and material foundations of American economy. In this, the book offers a detailed, rich counterargument to the possibility of understanding how law works in practice through abstract concepts like “incentives” or “efficiency,” and offers an integrated, constructive way of teaching students that structural choices about most sectors they care about necessarily entail normative choices.
Two of us (Morgan and Ganesh) have already test-driven the materials in the classroom and found them enormously fun and rewarding to teach. Students grasped the concepts well enough that by the time we reached complex topics (like electricity regulation) later in the semester, they were able to understand the dynamics of regulation and deregulation, make analogies to other areas, and creatively develop their own ideas for policy reform.
Other contributors note that the book can benefit scholars. Jacobs says it is “accessible enough for students yet takes deep enough dives to serve as a reference for scholars.” Boyd says it “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.” Wagner notes that the book is like “a pirate’s map of buried treasure” and is “filled with scholarly goldmines.” At the same time, she notes that for an “outsider” to NPU law like her, teaching the book in a seminar could serve as a “shortcut” to navigate the expansive, multi-sector materials. We share Wagner’s excitement about the treasures that await.
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We are truly grateful to all the contributors to this symposium and we hope that it is the start of an ongoing conversation. So many of today’s biggest public policy problems are intimately connected to NPU industries. We hope this book goes a small way in catalyzing efforts to address them.
Morgan Ricks is the Herman O. Loewenstein Chair in Law at Vanderbilt Law School.
Ganesh Sitaraman is the New York Alumni Chancellor’s Chair in Law at Vanderbilt Law School.
Shelley Welton is the Presidential Distinguished Professor of Law and Energy Policy at the University of Pennsylvania Carey Law School.
Lev Menand is an Associate Professor of Law at Columbia Law School.
 For example, a November 2022 paper by Jenya Kahn-Lang shows that under actually existing retail choice, “consumers pay different prices for electricity in the same market, with low-income households and marginalized communities paying systematically higher electricity prices than their higher-income counterparts.” A 2016 study highlights many additional administrability and pricing challenges.