Leasing Sovereignty: On State Infrastructure Contracts

Matthew Titolo *

 

Infrastructure privatization is in the news. In the past ten years, Pennsylvania, California, Colorado, Indiana, and many other states and municipalities have privatized—or attempted to privatize—toll roads, parking meters and other public infrastructure. State and federal policies have encouraged these public-private partnerships and infrastructure privatizations.  Private development of public infrastructure was common in states and municipalities during the nineteenth century. This was typically done through granting corporate charters and franchises. Disenchantment with this model led to a public finance counterrevolution in the twentieth century. Privatization re-emerged in the 1980s and 1990s. Headlines such as “Why Does Abu Dhabi Own All of Chicago’s Parking Meters?” and “Cities for Sale” attest to the continuing controversy surrounding these arrangements.

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*Associate Professor, West Virginia University College of Law. J.D., University of California, Berkeley; Ph.D, University of California, Los Angeles. I am grateful for the feedback I received on this article by faculty at the Ohio Legal Scholarship Workshop, at the Seventh Annual Conference on Contracts at the Thomas Jefferson School of Law, and in faculty colloquia at West Virginia University College of Law. Brittany Vascik and Bill Bogard provided excellent and timely editorial assistance. This article was completed with the support of a West Virginia University Bloom Summer Research Grant.