Flow or Oscillate? The Mismatchbetween the Language Judges andAttorneys Use to Describe Electricityand the Actual Behavior of Electricityon the Grid

In North Dakota v. Heydinger, two Eighth Circuit judges disagreed about the constitutionality of a Minnesota statute regulating the electricity imported into the state. Their disagreement stemmed from the judges’ conflicting understandings of the behavior of electrons. Judge James B. Loken described electrons as “flow[ing] freely” through the grid’s transmission lines “without regard to state borders.” Judge Diana E. Murphy, by contrast, contended that electrons do not “flow”; rather, they “oscillate in place.” Whereas Judge Murphy’s description of electrons comports with the language of physicists and engineers in the energy field, Judge Loken’s language is incorrect. This Note discusses the inaccurate and inconsistent language with which attorneys and judges describe electricity and the problems that result from this language. While many utilize the incorrect and outdated language of electrons and electricity flowing directly from a power plant to people’s homes, others reject this language. This flawed description likely did not cause problems in energy law cases in the early and mid-1900s. Due to the highly-interconnected structure of today’s electric grid, however, inaccuracies in the language that individuals use to describe electricity has caused fundamental disagreements in attorneys’ and judges’ interpretations of state and federal statutes. In order to avoid ongoing problems caused by these language discrepancies, attorneys and judges should conceptualize and describe the grid using language that