The modern regulatory state challenges settled constitutional doctrines. These challenges reflect the differing histories of the relation between the state and the market across modern democracies. Public law is the product of statutory, constitutional, and judicial choices over time; it blends constitutional and administrative concerns.1 Contrast the United States with its long tradition of private ownership that includes public utilities with Europe where the state has traditionally operated public companies supplying those services. Recent trends to deregulate...
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