Judge Cudahy and the Deference Tension in U.S. Energy Law

15 Pages Posted: 27 Aug 2011 Last revised: 7 Nov 2014

See all articles by Jim Rossi

Jim Rossi

Vanderbilt University - Law School

Thomas G. Hutton

Van Ness Feldman, LLP

Date Written: January 18, 2012


In this contribution to a Yale Journal on Regulation tribute issue honoring Seventh Circuit Judge Richard Cudahy’s distinguished career, we explore his energy law opinions. His opinions addressing energy issues elaborate on two recurring themes in U.S. energy law: judicial humility and deference for state innovation. At some level these themes present a deference tension: Where federal regulators disapprove of state regulatory policies, courts may confront a conflict between deference to regulators and encouraging subnational energy policy innovations. We argue that in such cases, Judge Cudahy’s decisions point towards favoring the outcome that best supports the system-wide welfare of the electrical grid – a principle that has important implications for contemporary energy policy in the U.S.

Keywords: Energy, electric power, federalism, judicial deference, subnational innovation, renewable energy, electric power transmission

Suggested Citation

Rossi, Jim and Hutton, Thomas G., Judge Cudahy and the Deference Tension in U.S. Energy Law (January 18, 2012). Yale Journal on Regulation, Vol. 29, p. 371, 2012, FSU College of Law, Public Law Research Paper No. 551, FSU College of Law, Law, Business & Economics Paper No. 12-4, Vanderbilt Public Law Research Paper No. 12-22, Available at SSRN: https://ssrn.com/abstract=1918052

Jim Rossi (Contact Author)

Vanderbilt University - Law School ( email )

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6153436620 (Phone)

Thomas G. Hutton

Van Ness Feldman, LLP ( email )

1050 Thomas Jefferson Street NW
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Washington, DC 20007
United States

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