Inverting Choice of Law in the Wired Universe: Thermodynamics, Mass, and Energy

Abstract:     
What is electric power and why does it matter? Physically, electric power is the development fluid of modern society. One look at a space photograph of the Earth at night demonstrates where modern industrial societies are established, just by the extent of electric illumination on the globe. Legally, whether electricity is a good or service matters significantly for determining which set of decision rules govern the increasing array of litigation surrounding power provision. In a world where electricity, the last of the regulated industries, is being deregulated, contracts and common law are increasingly replacing regulators as the arbiters of legal disputes and issues. With deregulation and restructuring of the power sector, there are several-fold more private stakeholders and actors, and a commensurate increase in legal disputes. This article first contrasts the substantial differences between the U.C.C. and the general common law to determine the legal decision rules for electric power disputes. With this foundation, the article next examines how the various state and federal courts have determined whether they will treat electricity as a good or a service for contract disputes, and whether as a service or a product for tort disputes. Finally, the article deconstructs what electricity is as a scientific and technical phenomenon, and then concludes that many courts simply got it wrong in establishing their legal decision rules as to whether electric power is a good or a service.

Number of Pages in PDF File: 118

Accepted Paper Series