The New Utilities: Private Power, Social Infrastructure, and the Revival of the Public Utility Concept

Abstract

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 informationupon which many communities, constituencies, and economic actors depend?Drawing on historical Progressive Era concepts of private power and public utility, as t

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