Appointed Courts, Elected Courts, and Public Utility Regulation: Judicial Independence and the Energy Crisis

Abstract

This paper investigates the importance of variations in judicial institutions after a ‘shock’ has unraveled a regulatory status quo. State court decisions involving utility regulation are examined. Appointed state courts are generally agreed to be more independent than elected state courts. Before 1970, the primary participants in the process of utility regulation (and thus its largest beneficiaries) were the regulated firms and their commercial customers; afterwards, utility regulation increasingly accommodated consumer groups as well. Certain scholars have proposed that independent courts help keep administrative agencies from deviating from the original wishes of their political principals, and thus might be expected to slow down such changes in regulatory approach (which occurred with few alterations to the governing statutes). Other scholars have proposed instead that independent courts can decide as discretion dictates, and may thus lead such changes. The results of this analysis provide support for the latter view: controlling for other factors (such as partisan affiliation), more independent appointed courts sided more often with consumer groups while less independent elected courts sided more often with regulated firms and their large commercial customers.