Infrastructural Regulation and the New Utilities
29 Pages Posted: 25 Jul 2018
Date Written: June 30, 2018
From too-big-to-fail financial firms to net neutrality to internet platforms and the water crisis in Flint, Michigan, we now face a variety of legal and public policy problems which all share a common structure. While covering vastly different subject matter areas, these disputes are similar in that they all involve the same root problem: how should law and public policy operate to prevent the arbitrary and unaccountable control over basic infrastructure? Water, finance, internet access — these are examples of goods and services which are foundational and infrastructural. They are the basis upon which much economic and social activity is built. As a result, arbitrary, exclusionary, or unfair governance of these services poses a particularly troubling problem for individuals, businesses, and communities. This Essay draws on the historical and legal tradition of public utility regulation to develop a generalized framework for regulating these kinds of infrastructural goods and services. While the history of public utility regulation has at times been fraught with some controversy, this Essay (and this symposium as a whole) suggests that the public utility tradition offers some valuable normative, legal, and institutional design insights which can be adapted for a range of contexts in today’s economy.
The Essay develops a portable method of analysis and regulation that can be applied to a wide range of contemporary contexts. This proposed, modernized framework of “infrastructural regulation” has three elements. First, I argue that infrastructural regulation should be applied to goods that are infrastructural, in that they are defined by the conditions of scale, necessity, and vulnerability. Second, such infrastructural goods should be subjected to a mix of regulatory oversight, “firewalls,” and public options, which together can assure fair and equal access to those infrastructural goods. Finally, the Essay suggests that the regulatory oversight of such infrastructural goods must itself be constituted in more democratically-accountable ways.
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