Our major infrastructural industries—electricity, gas, telecommunications, transportation and water—were historically controlled by monopolies. Introducing competition into these industries, an effort largely begun in the 1970s and continuing to this day, has been a struggle. Numerous battles before legislative bodies, regulatory agencies and courts, at the state and federal levels, has produced a distinct body of law. That body of law—the law of introducing competition into historically monopolistic industries—is the subject of this course.
Regardless of the industry or era, the regulation of infrastructural monopolies and their competitors has had five common elements: its mission (to align utility performance with the public interest); its legal principles (ranging from the state law on exclusive monopoly franchise to federal constitutional protection of shareholder investment); policy flexibility (accommodating multiple market structures—from monopolies to competition; and public purposes—from reliability to environmental accountability); reliance on multiple professions (law, economics, finance, accounting, management, engineering and politics); and formal administrative procedures, such as adjudication and rulemaking.
Today, political challenges are causing policymakers to stretch regulation's core legal principles. Four examples of these challenges are: climate change (e.g., To what extent should we make utilities and their customers responsible for "greening" energy production and consumption?); universal service (e.g., Should we bring broadband to every home, and at whose cost?); privacy (How do regulators induce personal changes in energy consumption while protecting the related data from public exposure?); and protection of our infrastructure from hackers, terrorists and natural catastrophes.
Complicating these political challenges are two sources of constant tension: ideology (e.g., private vs. public ownership, government intervention vs. "free market"); and state federal relations (e.g., Which aspects of utility service are "national," requiring uniformity, and which are "local," warranting state experimentation?).
In this field—in which there are many jobs as baby boomers hired in the 1970s retire—regulatory lawyers play varied roles. They advise clients who are suppliers or customers of regulated services, represent parties before regulatory tribunals, advise those tribunals or their legislative overseers, and challenge or defend those tribunals on judicial review. Using Georgetown's Zoom platform, students will have opportunities to interact with practitioners playing each of these roles.