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39 Cardozo L. Rev. 1621 (2017-2018)
The New Utilities: Private Power, Social Infrastructure, and the Revival of the Public Utility Concept

handle is hein.journals/cdozo39 and id is 1699 raw text is: THE NEW UTILITIES: PRIVATE POWER, SOCIAL INFRASTRUCTURE, AND THE REVIVAL OF THE PUBLIC UTILITY CONCEPT K. Sabeel Rahmant From the renewed controversies over financial regulation and the problem of too-big-to-fail (TBTF) financial firms, to the clash over the Federal Communications Commission (FCC's) net neutrality regulations on internet service providers, and more recent questions about Google, Facebook, and online platforms, we are in the midst of a larger policy and political debate about how to regulate modern-day forms of private power. Encompassing different areas of law and policy, the underlying issue in this debate is the following: how should we conceptualize and regulate new forms of concentrated private power, particularly when these firms control the terms of access to vital services-such as finance, broadband internet, or information- upon which many communities, constituencies, and economic actors depend? Drawing on historical Progressive Era concepts of private power and public utility, as t Assistant Professor of Law, Brooklyn Law School. Fellow, Roosevelt Institute. A great many colleagues have contributed generous feedback over the course of this Article. I am especially grateful to: Martha Minow; John Manning; Bill Novak; William Boyd; Frank Pasquale; Spencer Weber Waller; Saule Omarova; Aziz Rana; Morgan Ricks; Jim Rossi; Jon Michaels; Laura Phillips Sawyer; Brett Frischmann; Prasad Kirshnamurthy; David Grewal; Kent Greenfield; Usha Rodrigues; Roberta Romano; Elizabeth Pollman; Julie Suk; Ajay Mehotra; Ted Janger; Jocelyn Simonson; Ken Mack; Liz Schneider; Minor Myers; David Reiss; Maryellen Fullerton; Steve Dean; Julian Arato; Greg Mark; Ted De Barbieri; Natalie Chin; Cynthia Godsoe; Eun Hee Han; Maria Termini; Laurent Sacharoff; Prithvi Datta; Emma Saunders- Hastings; and Adam Lebovitz. Earlier drafts of this Article were previously presented at several conferences and workshops, where the participants were enormously helpful. Thanks in particular to the participants and staff at: the Harvard Law School Public Law Workshop (Spring 2016); The Corporate Law and Economics Revolution 40 Years Later, Business Associations & Law and Economics Joint Program, American Association of Law Schools annual conference (January 2016); Vanderbilt Law School Roundtable on Revisiting the Public Utility (February 2017); Yale Law School Information Society Project speaker series (February 2017); American Bar Foundation speaker series (January 2017); Political Theory and the Corporation, American Political Science Association annual conference (September 2015); and the Brooklyn Law School faculty workshop (July 2016). I am grateful to Andy Kissner, Nicole Mormillo, Pearl Shah, and Andrew Hwang for excellent research assistance. The Brooklyn Law School Summer Research Fund supported in part the development of this paper. This Article was accepted for publication in June of 2017 and circulated in pre-publication form under a different title of Private Power, Public Values: Regulating Social Infrastructure in a Changing Economy. 1621

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