Law Commons^™

Disestablishing Environmentalism, Andrew P. Morriss, Benjamin D. Cramer

Andrew P. Morriss

The debate over environmental policy is increasingly conducted in language with strong religious overtones. Both proponents and opponents of various environmental policies appeal to religious doctrine to support their positions: Those who question human-caused global warming are labeled "heretics, " while appeals for environmental "stewardship" echo Biblical texts. Religious groups play an important role in defining environmental policy issues, and both supporters and critics of specific environmental policy views have labeled particular sets of beliefs about the environment a "religion." In this Article we engage in a thought experiment, arguing that there are valuable lessons to be learned from treating …

Creating Cayman As An Offshore Financial Center: Structure & Strategy Since 1960, Tony Freyer, Andrew P. Morriss

Andrew P. Morriss

The Cayman Islands are one of the world's leading offshore financial centers (OFCs). Their development from almost a barter economy in 1960 to a leading OFC for the location of hedge funds, captive insurance companies, yacht registrations, special purpose vehicles, and international banking today was the result of a collaborative policy-making process that involved local leaders, expatriate professionals, and British officials. Over several decades, Cayman created a political system that enabled it to successfully compete in world financial markets for transactions, participate in major international efforts to control financial crimes, and avoid the political, economic, racial, and social problems that …

Private Actors & (And) Structural Balance: Militia & (And) The Free Rider Problem In Private Provision Of Law, Andrew P. Morriss

Andrew P. Morriss

Miners in Montana in the 1860s created "common law," nongovernmental legal institutions which dispensed millions of dollars of public resources to private individuals. Armed Vigilantes rode across the territory administering private justice. They hung twenty-two men, including an elected sheriff and his deputies. Even as Montana finally became a territory in May 1864, "it nevertheless chose still to regard itself as back of beyond, as a remote, independent, and untouchable empire. It resented and continually obstructed, ungratefully, the federal controls which accompanied the blessings of territorial recognition." Such activities were not limited to the early days of the Montana Territory: …

The Necessity Of Economics: The Preferential Option For The Poor, Markets, And Environmental Law, Andrew P. Morriss

Andrew P. Morriss

No abstract provided.

Clinical Legal Education & Access To Justice: Conflicts, Interests, & Evolution, Margaret B. Drew, Andrew P. Morriss

Andrew P. Morriss

The explosive growth in the number of law school clinics over the last 50 years began with an individual client focus as a core component. This contributed to reducing unmet legal needs in substantive areas such as landlord-tenant, family, consumer and other areas. These service clinics accomplished the dual purpose of training students in the day-to-day challenges of practice while reducing the number of unrepresented poor. In recent years, however, the trend has been to broaden the law school clinical experience beyond individual representation and preparation for law firm practice. So-called “impact” clinics typically address systemic change without significant individual …

Decius S. Wade's The Common Law, Andrew P. Morriss

Andrew P. Morriss

Decius S. Wade played important roles in Montana's legal history as Chief Justice of the Territorial Supreme Court (1871- 1887), member of the Code Commission (1890-1895), and prominent lawyer. Wade wrote The Common Law sometime in late 1894 or early 1895 for a February 1895 address to Helena bar members celebrating the 1895 passage of the Civil, Political, Penal, and Civil Procedure Codes by the Montana Legislature. Although I disagree with much of Wade's analysis, his manuscript deserves attention now for two reasons.

First, Wade played a critical role in the development of Montana's legal system and his views on …

Thinking About Economics As Religion, Andrew P. Morriss

Andrew P. Morriss

Four years ago, the Case Western Reserve Law Review conducted a paper-only symposium on Bjom Lomborg's The Skeptical Environmentalist. That symposium was so successful that the editors decided to repeat the experience. Seeking a book that could approximate Lomborg's in its ability to inspire controversy, I suggested Robert H. Nelson's Economics as Religion: From Samuelson to Chicago and Beyond after Professor Nelson gave a well-received lecture here on environmentalism as a religion. The editors agreed. As before, the Review has assembled an impressive group to comment on Nelson's book. The group includes economists who take a wide range of …

Private Dispute Resolution In The Card Context: Structure, Reputation, And Incentives, Andrew P. Morriss, Jason Korosec

Andrew P. Morriss

Explosive growth in credit, debit, and other card payment systems in recent years has produced a parallel growth in private dispute resolution systems based on the web of contracts entered into by merchants, merchant acquirers, consumers, card issuers, card associations, and transaction processors. These contracts have produced legal systems based on contract and the enforcement of which rests primarily on reputational constraints. To cost-effectively resolve disputes, these private legal systems have evolved innovative procedures using resources at the lowest-possible level, including incentive-payments for producing information and rigid deadlines for parties' actions. This paper describes and analyzes these legal systems and …

The Failure Of Epa's Water Quality Reforms: From Environment-Enhancing Competition To Uniformity And Polluter Profits, Andrew P. Morriss, Bruce Yandle, Roger E. Meiners

Andrew P. Morriss

Since 1970, pollution control in the United States has centered on national level regulatory approaches built on federal command-and-control regimes. Enacted in reaction to well-publicized "failures" of markets, common law, and state and local regulation such as the "killer smogs" of the 1950s and 1960s and the "burning" of Cleveland's Cuyahoga River in 1969 modem environmental statutes shifted authority away from states, local governments, and private property holders to the national government.

Section I reviews the history of federal and state regulation of water quality and highlights the delicate balance of authority that has emerged between various levels of government. …

Regulatory Effectiveness & Offshore Financial Centers, Andrew P. Morriss, Clifford C. Henson

Andrew P. Morriss

Onshore jurisdictions, such as the United States, United Kingdom, France and Germany, are critical of offshore financial centers (OFCs), such as Bermuda, the Cayman Islands, and the Channel Islands. Arguments against OFCs include claims that their regulatory oversight is lax, allowing fraud and criminal activity. In this article, we present cross-jurisdictional data, showing that OFCs are not lax. We also provide qualitative analyses of regulatory effectiveness, demonstrating that input-based measures of regulation are inappropriate metrics for comparing jurisdictions. Based on both quantitative input measures and a qualitative assessment, we reject the onshore critique of OFCs as bastions of laxity.

Currents In Contemporary Ethics, Sharona Hoffmann, Andrew P. Morriss

Andrew P. Morriss

Advances in reproductive technology are an established part of the medical landscape. No longer merely the subject of science fiction, new reproductive technologies are more commonly available each year. As these technologies become widespread, the law will need to recognize their existence and consider their impact on legal rules and institutions. Much as family law earlier evolved to include adopted and born-out-of-wedlock children within the legal definition of children, so too will property law need to address the reality of posthumously conceived children. Since at least some of these children will be "planned" posthumous births, simply excluding all such children …

Student Quality As Measured By Lsat Scores: Migration Patterns In The U.S. News Rankings Era, William D. Henderson, Andrew P. Morriss

Andrew P. Morriss

This study examines the change in entering-class median LSATscore, a key input into the U.S. News & World Report ("U.S. News') rankings, between 1993 and 2004. Using multivariate regression analysis, the authors model several factors that can influence the direction and magnitude of this change. The study presents six specific findings: (1) the marketfor high Law SchoolAdmission Test (LSAT) scores is divided into two segments that operate under different rules; (2) initial starting position is a strong predictor of the future gain or loss in LSATscores; (3) the allure of the high-end corporate law firms appears to cause a signficant …

Legal Education In North Carolina: A Report For Potential Students, Lawmakers, And The Public, William D. Henderson, Andrew P. Morriss

Andrew P. Morriss

No abstract provided.

Bad Data, Bad Economics, And Bad Policy: Time To Fire Wrongful Discharge Law, Andrew P. Morriss

Andrew P. Morriss

One of the many effects of the combination of technological change, globalization of labor, capital, and product markets, and changes in labor force composition in recent years is the disruption of traditional employment patterns based on Fordist production techniques. Of all the branches of government, the judiciary is the least capable of responding to these massive economic and social changes in a productive manner. It has the least capacity for collecting and analyzing data, the least ability to control its own agenda, and the least democratic accountability.

There are a number of possible solutions to the problem of economic insecurity …

Market Principles For Pesticides, Andrew P. Morriss, Roger E. Meiners

Andrew P. Morriss

No abstract provided.

Symposium: The Roles Of Markets And Governments: Introduction, Andrew P. Morriss

Andrew P. Morriss

In 2003-2004, the new Center for Business Law and Regulation at Case Western Reserve University School of Law sponsored four public lectures on topics related to the roles of markets and regulation in American society. The Case Western Reserve University Law Review has kindly undertaken to publish the results in this volume. These four lectures examined the role of markets and governments from four different perspectives, but all four shared a common set of insights drawn from economic reasoning.

Between A Hard Rock And A Hard Place: Politics, Midnight Regulations And Mining, Andrew P. Morriss, Roger E. Meiners, Andrew Dorchak

Andrew P. Morriss

Since the California Gold Rush in 1848, the mining of hard rock minerals (e.g., gold, silver, and similar minerals) on public lands has been based on the principle that discovery and development of mineral resources led to private ownership, promoting exploration and discovery of mineral resources. As with other nineteenth century land disposal statutes, such as the various homestead laws, the General Mining Law of 1872 provides for provision of mineral rights and even fee simple title to land based on the satisfaction of conditions related to use of the land and does not require significant payments to the federal …

Debating The Field Civil Code 105 Years Late, Andrew P. Morriss, Scott J. Burnham, James C. Nelson

Andrew P. Morriss

Debating the Field Civil Code 105 Years Late

Change, Dependency, And Regime Plasticity In Offshore Financial Intermediation: The Saga Of The Netherlands Antilles, Craig M. Boise, Andrew P. Morriss

Andrew P. Morriss

The legal regimes of offshore jurisdictions have historically differed in significant ways from those applicable in onshore jurisdictions. Inevitably, legal and financial professionals have seized upon these differences to develop strategies for reducing transactions costs. A prominent example of such cross-border arbitrage was the routing of Eurodollar loans through a small group of former Dutch island colonies in the Caribbean, a practice which peaked in the mid-1980s, when virtually every major U.S. corporation made interest payments to a Netherlands Antilles finance subsidiary. The "Antilles sandwich" strategy exploited the difference between high U.S. withholding tax rates that applied to interest payments …

Searching For The Soul Of Judicial Decisionmaking: An Empirical Study Of Religious Freedom Decisions, Gregory C. Sisk, Michael Heise, Andrew P. Morriss

Andrew P. Morriss

During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religiousf aith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughyul contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much …

Implications Of Second-Best Theory For Administrative And Regulatory Law: A Case Study Of Public Utility Regulation, Andrew P. Morriss

Andrew P. Morriss

No abstract provided.

Law And Economics And Tort Law: A Survey Of Scholarly Opinion, Andrew P. Morriss, John C. Moorhouse, Robert Whaples

Andrew P. Morriss

Recent litigation brought against cigarette manufacturers, software companies over potential year 2000 computer problems, and a fast food restaurant for serving coffee that was allegedly too hot reminds us of the importance and dynamic nature of tort law in the United States. Judging from ongoing coverage by newspapers and television, tort law is newsworthy. Yet, as with other legal issues, it is within the covers of law reviews and specialty journals in economics that much of the debate over the social utility of various tort rules and their reform takes place. In that debate law and economics exercises great influence. …

Miners, Vigilantes & Cattlemen: Overcoming Free Rider Problems In The Private Provision Of Law, Andrew P. Morriss

Andrew P. Morriss

Law is a good like food, insurance, or housing. Like other goods, it can and often should be provided by private entities. Yet law is usually regarded as the quintessential public good, so obviously public in nature that we need not even discuss its provision by anyone but the State. As Bruce Benson observed "[a]nyone who would even question the 'fact' that law and order are necessary functions of government is likely to be considered a ridiculous, uninformed radical by most observers." Even William Landes and Richard Posner, hardly apologists for the State, have concluded that law often must be …

Changing The Rules Of The Game: Offshore Financial Centers, Regulatory Competition & Financial Crises, Andrew P. Morriss

Andrew P. Morriss

Politicians from New York District Attorney Robert Morgenthau to British Prime Minister Gordon Brown are blaming offshore financial centers (OFCs) for contributing to the current global financial crisis by failing to adequately regulate their financial industries. These criticisms are mistaken for three reasons. First, OFCs offer different rather than less regulation. Since most OFC financial products are aimed at sophisticated and institutional investors, OFC regulators are less concerned with protections for retail investors than are regulators in jurisdictions like the United States. This enables them to adopt less costly regulations that are still effective at preventing fraud and other financial …

Borders And The Environment, Andrew P. Morriss, Roger E. Meiners

Andrew P. Morriss

Despite regular acknowledgement of the interconnectedness of global ecosystems, government policies at the national level focus on environmental problems within their borders. As a result, the level of public and private resources expended on environmental protection in rich and poor countries is dramatically different on both a per capita and an absolute basis. While this outcome is readily explained by the politics of environmental issues, in which voters reward governments for domestic expenditures but are skeptical of expenditures outside the jurisdiction, these differences mean that the total amount of environmental quality purchased across nations is lower than it could be. …

Global Economies, Regulatory Failure, And Loose Money: Lessons For Regulating The Finance Sector From Iceland's Financial Crisis, Birgir T. Petursson, Andrew P. Morriss

Andrew P. Morriss

Iceland was the first developed economy to fall into crisis in 2008, with the collapse of its banking sector, currency value, and economy. The collapse threw Iceland into a political crisis and provoked a serious international dispute between Iceland and Britain and the Netherlands over responsibility for the failed banks. Prior to 2008, Iceland had been treated as the poster child for deregulation; since 2008, it has been held up as the poster child for the dangers offinancial liberalization. Neither is accurate. Rather, Iceland presents a cautionary tale about the interrelationships between fiscal and monetary policy and regulatory measures. Excessive …

Defining What To Regulate: Silica And The Problem Of Regulatory Categorization, Andrew P. Morriss, Susan E. Dudley

Andrew P. Morriss

This article examines the history of human exposure to silica, the second most common element on earth, to explore the problem of categorizing substances for regulatory purposes and the role interest groups play in developing policy. The regulatory history of silica teaches three important lessons: First, the most compelling account of the cycle of action and inaction on the part of regulators is the one based on interest groups. Second, knowledge about hazards is endogenous - it arises in response to outside events, to regulations, and to interest groups. Accepting particular states of knowledge as definitive is thus a mistake, …

Comment: A Public Choice Perspective On The Federal Circuit, Andrew P. Morriss

Andrew P. Morriss

The Federal Circuit is different from other federal courts in important ways. Professor Dreyfuss has done pioneering work on the Federal Circuit as an institution and her article in this Symposium extends that work. As a nonexpert on patent law, my contribution to this Symposium is not to offer a substantive critique of the Federal Circuit's patent law jurisprudence. Instead, I will apply the public choice perspective to this particular judicial institution. This perspective includes some background thinking about how the federal judiciary works as an institution and about how judicial background affects how judges decide things.

Real People, Real Resources, And Real Choices: The Case For Market Valuation Of Water, Andrew P. Morriss

Andrew P. Morriss

How is one to value water? Indeed, how does anyone value anything? There are three broad categories of answers to these questions. One relies on the notion of an intrinsic value of a good. In other words, there is a definitive value of a particular good, and this value can be determined by some means. Theological speculations on the "just price" of a good and other speculations on "innate values" of various things often fall into this category. A second category of answers is to deny that a particular good is capable of valuation. Human lives, for example, are often …

Homesteading Rock: A Defense Of Free Access Under The General Mining Law Of 1872, Andrew P. Morriss, Roger E. Meiners, Andrew Dorchak

Andrew P. Morriss

The Mining Law of 1872 is one of the most reviled federal land laws, regularly drawing attacks as anachronistic, corporate welfare, a relic of pioneer days, and a source of major environmental problems. Born out of the experience of the nineteenth century mineral rushes, the Mining Law allows individuals to privatize both the surface estate and the mineral rights to public land containing minerals (with some exceptions) without requiring a significant payment to the public treasury for the land This "giveaway" aspect of the law draws the loudest protests. The authors argue that it is inappropriate to measure the net …