The Law of the Mid-Transition

Authors

• Alison Gocke, University of Virginia School of Law

Abstract

To address climate change, our energy systems need to transition from fossil fuels to clean energy resources. There is a tendency to think this transition will occur in a linear, seamless progression: We will move from the (old) fossil fuel system at Time A to a (new) clean energy system at Time B. But this belies the reality that an energy transition involves not just building a new energy system, but also unwinding an old one. Crucially, both processes will take time. That means there will be a significant period in which both energy systems coexist.

In the engineering literature, this period is called “the mid-transition.” Identifying the mid-transition is important because it poses unique design challenges: An engineer would design an energy system based on fossil fuels one way, a system based on clean energy resources a second way, and a system based on a mix of both an entirely different, third way.

This Article identifies and analyzes a similar phenomenon in the law—what it calls the “legal mid-transition.” In the context of the energy transition, the legal mid-transition describes the period when two different legal frameworks—one designed for the (old) fossil fuel system and one designed for a (new) clean energy system—coexist. This unique period resembles neither the law as it existed prior to the transition nor the law as it will come to be after the transition. It also poses distinct challenges. During this time, our energy laws are bifurcated and unstable, making it more difficult to ensure safe, reliable, and affordable energy services. The system is also at risk of “maladaptations,” or legal responses that address the challenges of the legal mid-transition in the short term but, in the long term, stall the law in the mid-transition. Additionally, the period is prone to “accountability problems,” or the concern that failures that occur during this period will be incorrectly attributed to the new clean energy laws, leading to misguided efforts to roll back the energy transition.

How we respond to the challenges of the legal mid-transition may be the difference between a successful energy transition and no transition at all. This Article uses the energy transition to develop a granular model of the legal mid-transition. It then uses insights from this model to propose solutions designed to respond to the specific challenges of this period. But the model is not intended to be confined to the energy transition. The legal mid-transition describes the phenomenon of legal change more broadly. Particularly at a time when much of the law is in flux, the framework developed here can be used by scholars to analyze legal transitions in other fields that present similar dynamics.

Recommended Citation

Alison Gocke, The Law of the Mid-Transition, 124 Mich. L. Rev. 1037 (2026).
Available at: https://repository.law.umich.edu/mlr/vol124/iss7/3