The Scope of Regulatory Bargaining

Abstract

This chapter outlines a regulatory bargaining account of regulated industries. The account analyzes the relationship between private stakeholders and governmental institutions in regulated industries through a bargaining lens. The account is introduced and contrasted to other approaches to regulation as contract. The chapter, which is the introduction to a book length treatment of the issue, REGULATORY BARGAINING AND PUBLIC LAW (Cambridge University Press 2005; 274 pp; ISBN 0521838924) surveys application of regulatory bargaining to a variety of issues facing electric utility and telecommunications firms, including consumer service obligations, consumer service obligations, constitutional takings jurisprudence, the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust enforcement, and federalism disputes. The approach leads the author to advance suggestions to guide courts in the United States and elsewhere as they address the complex issues that will come before them in a deregulatory environment.

Keywords: Deregulation, courts, constitutional law, antitrust, administrative law