Jim Rossi

Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement

In recent years, a new account of administrative law, favoring private ordering over state-imposed solutions, has bolstered the acceptability of negotiated approaches to regulatory problems. Consistent with this account, administrative law has seen a growing trend toward flexible, consensual mechanisms for regulation, emphasizing less rigid, cooperative approaches over prolonged adversarial disputes. Procedural innovations, such as negotiated regulation (known less formally as “reg neg”), have proliferated as alternatives to more traditional administrative procedures, such as notice and comment rulemaking. Reformers’ embrace of such solutions for their promise

Public Choice Theory and the Fragmented Web of the Contemporary Administrative State

In the recent book, Greed, Chaos and Governance: Using Public Choice to Improve Public Law (Yale U. Press 1997), Jerry Mashaw addresses the convergence between public choice and administrative law. This review essay summarizes Mashaws arguments and explores his use of public choice tools. The review suggests that, absent some unifying theoretical perspective for understanding administrative governance outside of public choice method, little more than rampant pessimism or fragmented lessons about the administrative state can be taken.

The Electric Deregulation Fiasco: Looking to Regulatory Federalism to Promote a Balance Between Markets and the Provision of Public Goods

The Essay uses three recent books - two by a historians and one by an economist - to address the electric power deregulation fiasco in the U.S. It argues that public law has an important role to play in deregulated markets. At least in part, the essay argues, public law is to blame for the failure of deregulation in California. At the same time, the Essay suggests, without clarification of jurisdictional responsibility and incentives in public law, adoption of effective competitive market reforms to the electric power industries will not succeed in the future.

Public Choice, Energy Regulation and Deregulation

Public choice theory sheds light on many aspects of legislation, regulation, and constitutional law and is critical to a sophisticated understanding of public policy. The editors of this landmark addition to the law and economics literature have organized the Handbook into four main areas of inquiry: foundations, constitutional law and democracy, administrative design and action, and specific statutory schemes. The original contributions, authored by top scholars in the field, provide helpful introductions to important topics in public choice and public law while also exploring the institutional complexity of American democracy.

'Mal-Adaptive' Federalism: Addressing the Structural Barriers to Interstate Coordination of Sustainability Initiatives

While the federal government has been slow to address problems such as climate change, many states have adopted innovative approaches to address the climate impact of using natural resources to produce energy, including aggressive approaches to regulating carbon emissions and renewable and clean energy standards. This Article identifies an emerging challenge that subnational regulation faces in the energy and environmental context -- what I will call “maladaptive” federalism -- and argues that federalism discussions need to account for its possibility. Part I highlights adaptive regulation as a form of federalism, echoing a vision for subnational regulation many federalism scholars and policymakers have endorsed over the past two decades. Part II argues that policy choices by subnational units of government that fail to account for or consider these coordination benefits should not be celebrated as a form of adaptive federalism merely because they are state policy choices. I identify subnational recalcitrance (on inaction by states) and backlash (or reversing course) as two potential types of maladaptation, provides examples of each, and use these to illustrate the structural features of subnational governments that make maladaptation most likely. Part III argues in favor of pro-adaptation tools that federal agencies can use to address the enactment costs of states taking maladaptive approaches. In certain contexts, focusing on enactment costs associated with the structure of state governments will superior to federal policies that preempt subnational units of government altogether by making the policy choice for them. Such tools not only make maladaptation less likely; they also help to ensure that when a state does opt for an maladaptive policy path that it does so because it is making explicit tradeoffs in ways that are more likely to be welfare-enhancing and politically accountable.

Clean Energy and the Price Preemption Ceiling

Since the New Deal, federal preemption has precluded many state and local regulatory decisions that depart from wholesale electric prices determined under federal standards. Recent decisions treat prices that meet the federal standard as a preemption ceiling, which prohibits states from setting prices that exceed the wholesale price set in a competitive market. Both appellate courts and the Federal Energy Regulatory Commission (“FERC”) - the primary federal agency responsible for the electric power sector - have recently applied a price preemption ceiling to clean energy policies.I argue in this Article that this price ceiling preemption approach hobbles the advancement of clean energy policy under both federal and state laws. State and local governments, along with regional institutions, have adopted a number of clean energy innovations, including feed-in tariffs for renewable power, novel approaches to transmission siting and cost allocation, and energy conservation policies. As subnational governments today consider how to encourage clean energy investments, they are increasingly bumping into limitations imposed by FERC and the courts under the Supremacy Clause of the U.S. Constitution.Imposing a legal preemption ceiling on clean energy prices thwarts the ability of subnational governments to adopt policies that advance conservation and renewable energy goals. I argue that reassessing application of wholesale price ceiling preemption to regional, state and local clean energy innovations will allow courts and federal regulators to more effectively imagine the ability of federal energy laws to advance clean energy goals.

How the Filed Rate Doctrine Wreaks Havoc With Energy Market Development and Policy ... And What Courts Can Do About It

The filed rate doctrine is a venerable doctrine of public utility regulation. When a court applies it - and courts frequently do - the doctrine serves as a litigation shield for regulated utilities. Federal courts invoking this shield refuse to exercise jurisdiction over an alleged violation of antitrust, tort or contract claim whose resolution would require a departure from a utilitys filed rate. Like many venerable legal rules, the filed rate doctrine is rarely questioned. For over a century, it has served many important purposes. However, with deregulated wholesale electric power markets at the federal level and various degrees of deregulation across the states, both the doctrines continued applicability and usefulness are suspect. Moreover, as recent examples in the industry suggest, presumptive application of the filed rate doctrine by both firms and courts can cause affirmative harm for energy market development and policy. For example, a recent U.S. District Court decision in Texas applied the filed rate doctrine in an astonishingly broad manner, precluding antitrust claims against energy suppliers in the deregulated Texas wholesale power market and leaving those harmed by market abuses without any legal or administrative remedy. The Essay draws on examples such as this to illustrate the serious need for reassessment of the doctrine by federal courts in the energy context. It is argued that both courts and litigators have at their disposal ways of lowering the filed tariff shield to allow more efficient energy markets to develop, better furthering the goals of energy policy.

The Scope of Regulatory Bargaining

This chapter outlines a regulatory bargaining account of regulated industries. The account analyzes the relationship between private stakeholders and governmental institutions in regulated industries through a bargaining lens. The account is introduced and contrasted to other approaches to regulation as contract. The chapter, which is the introduction to a book length treatment of the issue, REGULATORY BARGAINING AND PUBLIC LAW (Cambridge University Press 2005; 274 pp; ISBN 0521838924) surveys application of regulatory bargaining to a variety of issues facing electric utility and telecommunications firms, including consumer service obligations, consumer service obligations, constitutional takings jurisprudence, the filed rate doctrine, the dormant commerce clause, state action immunity from antitrust enforcement, and federalism disputes. The approach leads the author to advance suggestions to guide courts in the United States and elsewhere as they address the complex issues that will come before them in a deregulatory environment.

Some recent ideas in substantive moral philosophy and their relevance to law

Bolstered by the writings of Ronald Dworkin, moral philosophy recently has enjoyed something of a renaissance in jurisprudence. Of course, moral philosophy has always been of vital concern to natural law theorists, who view law and morality as conceptually related. Moral philosophy has also been a vital reform weapon for several writers in feminist jurisprudence1 and critical legal studies.2 Even legal positivists who view law and morality as conceptually distinct are aware of developments in moral philosophy and depend on these developments to defend their separability thesis.3 Serious legal theorists cannot ignore the development of ideas in moral philosophy. The collection Liability and Responsibility4 brings together a dozen essays on moral philosophy by influential philosophers and legal