The Supreme Court and Religious Liberty

Non

The Supreme Court and Religious Liberty

Non

Pandemic (or War) Notwithstanding

None

The Great Transformation of Regulated Industries Law

The nation's approach to regulating its transportation, telecommunications, and energy industries has undergone a great transformation in the last quarter-century. The original paradigm of regulation, which was established with the Interstate Commerce Act's regulation of railroads beginning in 1887, was characterized by legislative creation of an administrative agency charged with general regulatory oversight of particular industries. This approach did not depend on weather the regulated industry was naturally competitive or was a natural monopoly, and it was designed to advance accepted goals of reliability and, in particular, non-discrimination. By contrast, under the new paradigm, which is manifested most clearly in the Telecommunications Act of 1996, the goals of regulation have become the promotion of competition and maximization of consumer choice. The role of agencies has been reduced to monitoring access and pricing of "bottleneck" monopolies such as the local telecommunications loop and electricity distribution systems. Having described this transformation in six core common carrier and public utility industries -- railroads, airlines, trucks, telecommunications, electricity, and natural gas -- the Article sets out on a quest to find its causes. No consistent pattern of institutional leadership can be discerned in any of the three types of government actors with the power to compel change: the regulatory agencies, the courts, and the Congress. This suggests that the causes are rooted in deep-seated economic and social forces, such as technological changes, and chain reactions that have emerged as regulatory reform in one industry segment has spread to another segment. The Article concludes that the two most persuasive explanations are that key interest groups have discovered that regulatory change is in their interests, and that an ideological consensus has emerged among economists and other policy elites that the original paradigm entails risks of regulatory failure that exceed the risks of market failure under the new paradigm

The Origins of the American Public Trust Doctrine: What Really Happened in Illinois Central

Great cases have the power to shape attitudes about the law in a way that goes far beyond the particular legal propositions for which they stand. Witness the power of Marbury v Madison in supporting an expansive power of judicial review, or of Brown v Board of Education in undermining the legitimacy of invidious racial classifications. Illinois Central Railroad Company v Illinois plays a similar role in the public trust doctrine. The force of Illinois Central, however, derives not so much from its fine phrases or the courage that it took for the Court to reach the decision it did. Rather, Illinois Central is a compelling precedent largely because of its facts, or at least what are presumed to be its facts. The Illinois legislature granted the entire Chicago lake-front, over one thousand acres, to a private railroad corporation! Small wonder that the legislature quickly repented of this deed, or that the Court was compelled to say that this valuable resource is impressed with a public trust that means it can never be sold to a private entity. We have tried to show how the Lake Front Act of 1869 came to be passed, why the railroad's motives were not as pernicious as they are usually portrayed to have been, and how a conscientious legislator might have decided to vote in favor of the Act. We have also concluded that most probably the railroad used corrupt means to procure the legislation. So the reality is more complex than the standard story even begins to intimate. None of this is to suggest that the public trust doctrine is necessarily a bad idea or a good one. But it does suggest that the doctrine should be assessed using arguments more probing than a retelling of the standard narrative of the Illinois Central case. That story is a fable, and can justify the doctrine only if we already believe in it for reasons independent of the lesson the case supposedly teaches