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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.


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