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Preside or Lead? The Attributes and Actions of Effective Regulators
For over a century, the law of public utility regulation has supported and disciplined the nation's infrastructural industries. Regardless of sector or era, all utility law has shared five features: its mission (to align private utility behavior with the public interest); its diversity (from state law exclusive franchises to federal protection of...
For over a century, the law of public utility regulation has supported and disciplined the nation's infrastructural industries. Regardless of sector or era, all utility law has shared five features: its mission (to align private utility behavior with the public interest); its diversity (from state law exclusive franchises to federal protection of shareholder investment); its reliance on multiple professions (economics, accounting, engineering and finance); its sources (constitutions, statutes, regulatory orders and appellate opinions); and its flexibility (accommodating multiple market structures and public purposes). New policy challenges are stretching regulation's legal boundaries. Commissions accustomed to processing rate cases are facing questions over climate change, universal broadband service, data privacy, microgrids, industry concentration and terrorism protection. The resulting tensions are both ideological (private vs. public ownership, government vs. markets) and jurisdictional (national standards vs. state experimentation). At stake are trillions of investor and consumer dollars. This treatise organizes a century of legal principles to help the regulatory profession resolve these tensions and fashion new policies. Its mix of case narratives and doctrine, drawn from all legal sources, is geared to lawyers and non-lawyers, veterans and novices, practitioners and decisionmakers, academics and the media—anyone seeking to use the law to serve the public interest. This first of two volumes covers market structure (monopolies, competition and the transitions between the two); pricing (including the distinctions among fair compensation, scarcity pricing and price-gouging); and jurisdiction (including the mismatch between bright jurisdictional lines and blurry market boundaries). The second volume, to be completed by fall 2014, will address corporate structure, mergers and acquisitions.
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