Sandeep Vaheesan –

Since the 1970s, Congress and federal agencies have replaced regulator-established rates with market-derived pricing in many sectors of the U.S. economy. Electricity and natural gas are two such industries. Congress and the Federal Energy Regulatory Commission (FERC) have abolished regulated rates and instituted market-based pricing in a part of the electricity and gas supply chains. (At a simplified level, both industries have three segments: production, transmission, and distribution. Policymakers generally still treat the transmission and distribution functions as monopolistic.)

These legislative and regulatory decisions are premised on the belief that markets are superior to direct public control of rates and other terms of service. While this process is often described as “deregulation,” the term is a misnomer. This industrial restructuring is a transfer of discretionary authority from public bodies to private actors. Instead of structuring competitive markets in this new environment, the federal courts have defended private market power and helped scale back all public control of sellers and traders of electricity and gas. A case before the First Circuit (in which my Open Markets Institute colleagues and I filed an amicus brief in support of the plaintiffs) illustrates this theme.

In Breiding v. Eversource Energy, New England residents have accused two large utilities of violating antitrust and consumer protection laws by creating an artificial shortage of gas and engineering a chain of events that dramatically drove up the cost of electricity. The district court dismissed the plaintiffs’ complaint and expanded a judicial doctrine intended to protect the integrity of regulator-set rates to also insulate market-based prices from private lawsuits. This decision, which is consistent with rulings by other courts, grants gas producers, power generators, and traders the freedom to engage in exclusionary and other unfair practices. In electricity and gas, the net effect of legislative, regulatory, and judicial choices over the past 40 years has been a dramatic erosion of public control over public utilities.

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Reminder to law student readers: RebLaw 2019 will take place at Yale Law School on February 15 and 16. Law students who want to be part of building a left answer to the Federalist Society should be there. On Saturday, February 16 from 3:45-5:15, join LPE law student organizers for a workshop on launching an LPE student network at your law school! Continue reading →

LPEBlog will be on break until the New Year. We will be back in 2019 with new and exciting content!

Wishing you all a happy and restorative holiday season,

The LPEBlog Team

Helen Hershkoff–

Over a decade ago I wrote a short piece called “Poverty Law and Civil Procedure: Rethinking the First-Year Course [Poverty],” published as part of a symposium issue of the Fordham Urban Law Journal on the place of poverty in the law school curriculum. Reginald Heber Smith’s statement from 1919 was the epigraph: “The administration of American justice is not impartial, the rich and the poor do not stand on an equality before the law, the traditional method of providing justice has operated to close the doors of the courts to the poor, and has caused a gross denial of justice in all parts of the country to millions of persons.”

Poverty was practical and concrete, conceived almost in the style of Teacher’s Manual (indeed, it was geared to the casebook I know best, Friedenthal, Miller, Sexton & Hershkoff, Civil Procedure: Cases and Materials). I took inspiration from Kevin Johnson’s earlier article on introducing race into the 1L curriculum. Re-reading Poverty, it’s clear that the pedagogic suggestions are allied with the theoretical premises identified in this blog’s (near-)manifesto—(1) that politics and the economy “cannot be separated,” i.e. politics affects the distribution of economic resources and wealth affects the distribution of political power; and (2) that law constitutes, creates, promotes, and reshapes politics and the economy and is, in turn, affected by both. Here I sketch out some of Political Economy’s more important themes that relate to 1L Civil Procedure and begin to update the teaching approach in light of a few doctrinal developments. The goal is not a mechanical add-on of ideas associated with Political Economy, but rather to encourage a space in the 1L curriculum where suppressed issues about law and  power, both political and economic, can be raised and explored at an early stage in the students’ legal education. Continue reading →

Daniel Wilf-Townsend—

What does civil procedure have to do with LPE? On the one hand, you might think of procedural rules as only instrumentally important. They don’t dictate our obligations, like tort law or criminal law, or define the terms of economic organization, like property law. But anyone wondering why procedure gets a prime place in the first-year law curriculum should consider the famous warning of Congressman John Dingell, who was heavily involved in landmark accomplishments of substantive policymaking like Medicare, the Endangered Species Act, and the Clean Air Act. In Dingell’s words, “If I let you write the substance and you let me write the procedure, I’ll screw you every time.”

In other words, procedure is power. Procedural rules are at the root of how legal institutions make decisions: who gets into court, what burden they must meet to prove their claims, what information they can find out, who decides which party is right, what remedies may be on the table, and more. This means that the set of procedures the law employs heavily influences the ultimate outcomes of any policy choice. Because legal procedures play such an important mediating role between political choices and actual outcomes, understanding those procedures is a key component of the study of law and political economy.

This post focuses on just one aspect of legal procedure—the idea of formal equality in legal proceedings. I’ll explain how the notion of “procedural equality” stands in tension with inequalities that exist outside of legal institutions and provide a few quick examples of this tension in contemporary doctrinal debates. Finally, I suggest two approaches that students of LPE can take to these kind of debates: one with an eye toward understanding what the law does in the world, and the other with an eye toward considering how the law can be used and improved.

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Jocelyn Simonson-

The customary case caption in criminal court, “The People v. Defendant,” pits the community against one lone person in an act of collective condemnation. When I was a public defender in New York City, it was common for judges, clerks, and other courtroom players to refer to individual Assistant District Attorneys as “the People,” as in, “Do the people have an offer?,” “Would the people like to request a lunch break?,” or, if an ADA was not visible in the courtroom, “Are the People in the bathroom?” Calling an individual prosecutor “the People” sends a powerful message to courtrooms full of defendants and their supporters waiting for their cases to be called: a message that they are not part of “the People,” are not part of the public that matters. Even in jurisdictions in which the prosecution calls itself the “State,” “Government,” or “Commonwealth,” this idea—that the prosecutor is the People’s representative in the courtroom—pervades how we think and talk about prosecution and criminal procedure.

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