The Irony of Deregulatory Takings

Abstract

This is a critical review essay, exploring the thesis advanced by Gregory Sidak and Daniel Spulber in their book Deregulatory Takings and the Regulatory Contract (Cambridge University Press 1997). Sidak and Spulber argue that deregulation of the electric utility and local telephony industries can constitute an unconstitutional taking to the extent the state does not provide compensation for the investment-backed expectations of firms in the industry. In addition, they argue that economic efficiency requires this result. This review takes Sidak and Spulber to task for their reading of the case law. In addition, the review criticizes their argument for giving short shrift to the lessons of public choice theory and the law and economics of risk. In many instances, it is argued, private industry is in a better position than ratepayers or government to bear the risk of regulatory change in the utility industry. Thus shared responsibility for change to the industry is appropriate.

Keywords: Constitutional takings, Networks, Deregulation, Energy, Telecommunications