Prof. Epstein's focus is very different, and a heartening reminder for capitalists in the age of Obama. Drawing on the Bill of Rights protections against takings without just compensation and deprivation of property without due process of law, and on the Supreme Court's rate-regulation jurisprudence, Epstein concludes that the Constitution assures that "any firm in a regulated market be allowed to recover a risk-adjusted competitive rate of return on its accumulated capital investment." (Citing the Supreme Court's decision in Duquesne Light Co. v. Barasch (1988)) Applying these principles, Epstein concludes: The Reid Bill emphatically fails this test by imposing sharp...
