Deregulatory Takings and the Regulatory Contract Published online by Cambridge University Press: 29 October 2009
THE PRECEDING CHAPTERS define deregulatory takings and demonstrate the equivalence that exists between damages for breach of the regulatory contract, just compensation for a taking of property, changes in investor expectations, and (under certain conditions concerning the stand-alone cost of substitute technologies) the efficient pricing of network access. Such an analysis would not be complete without specifying the limits on stranded cost recovery. What conditions are sufficient for a regulatory action to constitute a deregulatory taking? What conditions are necessary for a deregulatory taking? The answers to those questions will give regulators, legislators, and judges guidance as to whether eliminating taxicab medallions, agricultural production quotas, or occupational licensure, to take three common examples, would engender compensable stranded costs. The answers also will clarify whether stranded costs are more likely to arise in one regulated network industry (such as electricity) than in another (such as local exchange telephony). We emphasize at the outset that the questions addressed in this chapter are subtle on both legal and economic grounds, and they will likely acquire greater complexity as the restructuring of network industries continues to unfold. As with any question of first impression, the delineation of limiting principles for stranded cost recovery will be an iterative process that will likely take a number of years to achieve convergence. Our analysis in this chapter is therefore not the final word, but only the beginning of what we are confident will be an extended undertaking.
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