The Law of Infrastructure Industries

Dominant intermediaries and networks have been governed by a common set of legal principles. Often exhibiting a shared set of economic properties, these infrastructure industries host and provide core services to a broad range of economic and social activity. In the United States, the legal approach to structuring and regulating these industries underwent a profound shift in the late twentieth century. This course will provide an overview of the laws and legal principles that have governed infrastructure industries and will trace their evolution. It will examine the substantive goals and institutional assumptions that motivated the original paradigm, with its focus on non-discrimination, fair competition, just price, and universal access, and assess the arguments that ushered in a shift towards a paradigm focused instead on policing for market failures and promoting consumer choice.

The first part of the course will provide an introduction to foundational concepts, including a taxonomy of problems that arise with infrastructure industries and the toolkit designed to address these problems, and provide a historical overview of the rise and evolution of infrastructure industries law. The second part of the course will focus on the application of these principles, including the legal regimes governing transportation, communication, energy, and banking. The final part of the course will explore how these legal principles are being extended to emerging forms of infrastructure, including dominant digital platforms, through legislation, administrative orders, and judicial remedies in the U.S. and globally