IPcentral Weblog
  The DACA Blog

Friday, September 10, 2004

Epstein/Barr on Takings
(previous | next)

The Federalist Society Telecommunications Practice Group hosted a session yesterday at George Mason Law School on the Constitutional Dimensions of Telecom Competition. The half-day session specifically focused on the Takings Clause implications raised by the 1996 Act, even in the wake of Verizon v. FCC.

With all due respect to the other presenters, the moderators of the panels proved to be the highlight, through force of personality if nothing else. Bill Barr, General Counsel of Verizon and former Attorney General, and Richard Epstein, one of my former Professor's at Chicago in whose presence I always feel like a first-year law student again, proved the maestros of the event.

Richard Epstein's general theory for takings analysis is particularly useful in analyzing the issues surrounding telecommunications takings issues. He posits three justifications for regulation: fraud, externalities and monopoly (with externalities being a rough proxy for solving situational monopoly problems). Regulation must then be directed to these valid purposes, or it is a per se takings problem, according to Epstein. As a general theory, this is quite helpful.

This general theory does not, though, address the administrability and institutional competence issues that follow from identifying a taking. Professor Richard Pierce from George Washington focused on these problems and they are indeed non-trivial. Short of courts composed of Breyers, Posners and Easterbrooks, the ability and patience of courts to slog through the issues of costing and pricing are, shall we say, limited. Perhaps, again, the per se category of takings solves this difficulty and the role of doctrine should be to define this category better. Incidentally, General Barr certainly thinks TELRIC belongs in this category, in case you couldn't guess.

And no, no viruses, just bad medical puns.

posted by Ray Gifford @ 10:52 AM | General

Share |

Link to this Entry | Printer-Friendly

Post a Comment:

Blog Main
RSS Feed  
Recent Posts
  EFF-PFF Amicus Brief in Schwarzenegger v. EMA Supreme Court Videogame Violence Case
New OECD Study Finds That Improved IPR Protections Benefit Developing Countries
Hubris, Cowardice, File-sharing, and TechDirt
iPhones, DRM, and Doom-Mongers
"Rogue Archivist" Carl Malamud On How to Fix Gov2.0
Coping with Information Overload: Thoughts on Hamlet's BlackBerry by William Powers
How Many Times Has Michael "Dr. Doom" Copps Forecast an Internet Apocalypse?
Google / Verizon Proposal May Be Important Compromise, But Regulatory Trajectory Concerns Many
Two Schools of Internet Pessimism
GAO: Wireless Prices Plummeting; Public Knowledge: We Must Regulate!
Archives by Month
  September 2010
August 2010
July 2010
June 2010
  - (see all)
Archives by Topic
  - A La Carte
- Add category
- Advertising & Marketing
- Antitrust & Competition Policy
- Appleplectics
- Books & Book Reviews
- Broadband
- Cable
- Campaign Finance Law
- Capitalism
- Capitol Hill
- China
- Commons
- Communications
- Copyright
- Cutting the Video Cord
- Cyber-Security
- Digital Americas
- Digital Europe
- Digital Europe 2006
- Digital TV
- E-commerce
- e-Government & Transparency
- Economics
- Education
- Electricity
- Energy
- Events
- Exaflood
- Free Speech
- Gambling
- General
- Generic Rant
- Global Innovation
- Googlephobia
- Googlephobia
- Human Capital
- Innovation
- Intermediary Deputization & Section 230
- Internet
- Internet Governance
- Internet TV
- Interoperability
- IP
- Local Franchising
- Mass Media
- Media Regulation
- Monetary Policy
- Municipal Ownership
- Net Neutrality
- Neutrality
- Non-PFF Podcasts
- Ongoing Series
- Online Safety & Parental Controls
- Open Source
- PFF Podcasts
- Philosophy / Cyber-Libertarianism
- Privacy
- Privacy Solutions
- Regulation
- Search
- Security
- Software
- Space
- Spectrum
- Sports
- State Policy
- Supreme Court
- Taxes
- The FCC
- The FTC
- The News Frontier
- Think Tanks
- Trade
- Trademark
- Universal Service
- Video Games & Virtual Worlds
- VoIP
- What We're Reading
- Wireless
- Wireline
Archives by Author
PFF Blogosphere Archives
We welcome comments by email - look for a link to the author's email address in the byline of each post. Please let us know if we may publish your remarks.

The Progress & Freedom Foundation