Regulatory Bargaining and Public Law

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9780521838924: Regulatory Bargaining and Public Law
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This text explores the implications of a bargaining perspective for institutional governance and public law in deregulated industries such as electric power and telecommunications. Leading media accounts blame deregulated markets for failures in competitive restructuring policies. However, the author argues that governmental institutions, often influenced by private stakeholders, share blame for the defects in deregulated markets. The first part of the book explores the minimal role that judicial intervention played for much of the twentieth century in public utility industries and how deregulation presents fresh opportunities and challenges for public law. The second part of the book explores the role of public law in a deregulatory environment, focusing on the positive and negative incentives it creates for the behavior of private stakeholders and public institutions in a bargaining-focused political process.

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This text explores the implications of a bargaining perspective for institutional governance and public law in deregulated industries. Leading media accounts blame deregulated markets for failures in competitive restructuring policies. However, the author argues that governmental institutions, often influenced by private stakeholders, share blame for the defects in deregulated markets.

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Praise for Regulatory Bargaining and Public Law (Cambridge University Press 2005) Regulatory Bargaining and Public Law is a must-read for anyone with a serious interest in the modern law of regulation. Rossi analyzes the new forms of regulation – misnamed "deregulation" in the popular press and in much academic work – using techniques originally developed for analyzing contracts. Rossi’s approach yields fresh, new insights.

- Matthew Spitzer, University of Southern California School of Law Jim Rossi has thought long and creatively about the role of courts in our evolving deregulated economy. He warns against a "deference trap" leading courts to passive roles in conflicts involving political institutions like regulatory agencies and states. When doctrines like the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust, and federal preemption traditionally signal "hands off" to the courts, a new sensitivity to incentives and the context of institutional bargaining are sorely needed. - Judge Richard D. Cudahy, U.S. Court of Appeals for the 7th Circuit As Professor Rossi shows, the term "deregulation" may be the greatest misnomer in the legal lexicon, for rather than eliminating regulation it replaces one regulatory scheme with a new and even more complex one. Regulatory Bargaining and Public Law analyzes the resulting interactions between regulators, industry, and other groups, demonstrating that these interactions can either further or frustrate the goal of consumer welfare. Public policy analysts, legal scholars, and students of political economy will all find the book an invaluable resource. - Daniel Farber, University of California, Berkeley Jim Rossi's Regulatory Bargaining and Public Law should be on the bookshelf of everyone interested in the regulatory process, antitrust, and public law. Beginning with a historical perspective that stretches back to the 1830s and the Charles River Bridge case, Rossi carries our conception of regulated industry away from traditional neoclassical notions of natural monopoly and rate-of-return regulation to more Coasian ideas that each instance of regulation is a special kind of bargain with the sovereign. That is, rather than taking areas of enterprise out of the market, so to speak, regulation is simply a special case of market bargaining. In the process Rossi explores the consequences of deregulation and other alternatives to traditional cost-of-service rate making. Of particular concern is the divergence of public and private interests that can occur when firms and the interests groups aligned with them try to obtain the best deal that they can through the regulatory bargaining process. This model helps Professor Rossi develop a cogent set of explanations for what went wrong in certain cases of deregulatory failure, such as the California electric power crisis. - Herbert Hovenkamp, University of Iowa

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