, rather than the Takings Clause. The historical dichotomy is further reinforced by the views of Justice David Brewer (1891), perhaps the primary architect of the Court's early takings jurisprudence. His famous speech at Yale Law School on the subject clearly evinced his belief that rate regulation and use restrictions represent distinct lines of authority. 5. The Importance of the Shift to Access Regulation Fortunately, we need not resolve the precise relationship between regulatory takings and confiscatory rate-making in order to press our argument. Although the cases do not shed much light on whether regulatory takings and confiscatory rate-making represent distinct concepts or slightly different aspects of the same doctrine, for our purposes it is sufficient that the Court has emphasized the importance of dis- tinguishing both categories from its physical takings jurisprudence. If a regulation authorizes a third party to establish a permanent physical invasion, Loretto and 16 For an earlier analysis along the same lines, see Block V. Hirsh, 256 U.S. 135, 155-56 (1921) (Holmes, J.). 17 Drobak (1985) asserts, without analysis, that the Court's regulatory takings and confiscatory rate-making precedents are equivalent. Goldsmith (1989) identifies similarities in the Court's regulatory takings and confiscatory rate-making precedents, but concludes that confiscatory rate-making is based on due process considerations. Chi., Burlington & Quincy R.R. Co. V. Chicago, 166 U.S. 226, 241 (1897). Networks in Telecommunications Florida Power dictate that it constitutes a per se taking regardless of any other factors typically invoked in regulatory takings and confiscatory rate-making cases. Equally important, the Court has frequently reiterated that its physical and nonpossessory takings cases occupy separate doctrinal spheres, and that its deci- sions involving nonpossessory takings have no application to physical takings. For example, the Court held in Yee that a regulatory takings challenge was not fairly included in a p