Friday, September 10, 2004 - The Progress & Freedom Foundation Blog

Epstein/Barr on Takings

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