To riff on the title of Vic's hilarious post about the young urban party scene on Hallowe'en, I have been thinking today about the sociology of trick-o'-treating and the cultural norms that surround it.  Here in Whitefish Bay, Wisconsin, Hallowe'en is the Sunday closest to the 31st of October, from 4:00 to 6:00 p.m.  If you would like to close off your block, please contact the Village.  This superstructure for trick-o'-treating struck us as artificial at first, but we have grown to like having the festivities on a day and hour when both parents can be involved.

But the topic that is really haunting me today is the immigrant trick-o'-treater.  TOT'ing is essentially a neighborhood pastime, yet in most of the neighborhoods that I have lived in as an adult, much TOT'ing seems to be done by groups of people in cars who have come from a different neighborhood.  Am I a bad person to notice this?  Am I a bad person to mention it?  I am generally a pro-immigration person (although I recognize that my social welfare tendencies make my position economically untenable), so I would be a hypocrite to care about Hallowe'en immigration, even if it requires me to buy two or three times more candy than I otherwise would need to buy.

Mostly I understand that I would be heartless to complain because the Hallowe'en visa holders seem to be coming from neighborhoods where safe evening walks and fun treats don't seem to flow as freely as they do on Kent Avenue.  Any additional burden on me seems to be tiny.  A few years back, I was witness to a female neighbor complaining about the influx of TOT'ers ("And they don't even have costumes on, and they just have plastic grocery bags for candy!").  I turned the full force of my sharp, sarcastic wit on her, so I think it's safe to say that she had a "perspective epiphany."

So, next year -- my house.  We'll leave the light on for you.

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Like Homer Simpson discovering a meal between breakfast and brunch, the British government has recently “discovered” an organizational form between charity and public company. It’s called a Community Interest Company or CIC.

If Henry Hansmann is right that the nondistribution constraint is the defining feature of nonprofit organizations, the CIC is essentially a nonprofit. (“A nonprofit organization is, in essence, an organization that is barred from distributing its net earnings, if any, to individuals who exercise control over it, such as members, officers, directors, or trustees.” 89 Yale L. J. 835, 835 (1980)). As the British government Fact Sheet on CICs notes, CICs are “restricted from distributing profits and assets to their members. This is known as an ‘asset lock’ – a transparent and entrenched way of ensuring that assets are used to benefit the community.”

What’s unique about the CIC is that it is nevertheless permitted to pay some dividends to investors. Quoth the British government Fact Sheet again, “In order to raise investment, CICs limited by shares will have the option of issuing shares that pay a dividend to investors. The dividend payable on these shares will be subject to a cap, set by the Regulator (after consultation), in order to protect the asset lock.”

There’s more, to be sure. See, e.g., in addition to the links above, here and here.

While there might be some benefit here in providing an off-the-rack form that could have been difficult to contract into otherwise (or not -- more on this in a later post), the form surely seems tailor made to deal with the CSR problem. (On which see here, here, here and here). If corporate directors want to maximize something other than shareholder interests, let them. But why not also make them (permit them to?) identify their organizations accordingly -- call it Whole Foods, CIC –- and subject them to dividend monitoring by regulators (and see how well that goes over).

Part of the stated purpose with the CIC is, in fact, branding, and this might be its real appeal: “The CIC legal form was specifically designed to provide a purpose-built legal framework and a ‘brand’ identity for social enterprises that want to adopt the limited company form.” It’s a way for “socially-conscious” corporations cheaply to identify their consciousness (and a way for the rest of us cheaply to avoid investing in them). (But I will note that some fascinating recent research by Anup Malani and Guy David has suggested that there may be less value in nonprofit branding than we might have thought, and the benefits of a CIC designation may be accordingly limited).

As I said, more on this topic in later posts . . . .

And before I go -- many thanks to Christine, Gordon and Vic for having me here.

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Happy Halloween, everyone.   It's long been my favorite holiday -- it's a license to be goofy.  I worry, tho, that as I get older, cultural constraints are making it less fun than it ought to be.

I went to a costume party here in DC on Saturday, and I noticed what seemed like a striking number of high-concept designs.  To recognize the costumes, one needed both an acute awareness of current events and a rigorous ability to think creatively.  For example, I saw people dressed as John Roberts' kids, Intelligent Design, the Flying Spaghetti Monster, the Leak, Valerie Plame, Judith Filler (an intentional misspelling of Judith Miller, which I didn't get -- something to do with the misspelling of Plame in her notes?), the Runaway Bride and the Real Estate Bubble.  In hindsight, I should have gone as "Official A."

Contrast that with the party I went to in LA last year, where the costumes demanded somewhat less in the way of cognitive gymnastics:  'Ho, O.G. Pimp, 'Ho, Perfect 10 Pimp, 'Ho, sexy cat, sexy bride (think Madonna at the 1984 Video Music Awards), Don Johnson (circa 1984 Miami Vice) and Ali G.   This year I suspect there were some folks dressed as Ari from Entourage.

Mind you the demographics of the party were quite similar.  Lots of lawyers.  But the cultural norms and expectations differ.  In DC, it's about the importance of being clever while displaying Beltway insider knowledge.  In LA, it's about being a hipster (men) or showing off your bod (women) -- while signaling an awareness of (often retro) pop culture references.

Which makes it understandable why so many folks, especially self-aware law profs, opt out of costumes.  There's just so much darn pressure to be smart/clever/hipster/sexy/cool.  We should start a movement for dorky, low-concept costumes to take the pressure off.  Next year, I'm going as a pirate.

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I take few doctrines less seriously than federalism. In this I am not alone, of course; conservatives have abandoned federalism in the California medical marijuana and Oregon right to die cases, and everybody else has had little patience for it since the New Deal. The idea that this country, with a national economy, a national language, and a news media that disseminates a single culture nationwide ought to be politically governed and economically regulated by a set of random fragments, er, states – indeed, fragments devised in intermittent fits of 19^th century ad hockery … well, it is, neurotic, as Malcolm Feeley and Edward Rubin have said more eloquently than I can here (see 41 UCLA L. REV. 903 for their insightful but non-SSRN-available view).

I would counsel any senator against confirming a judge with a sincere commitment to federalism – and that’s if such a commitment is even possible, or at least possible to claim with a straight face. So – uh, oh – what’s going on in Judge Alito’s opinion in Chittister v. Department of Community and Economic Development, 226 F.3d 223 (3d Cir. 2000): excising the applicability of the Family and Medical Leave Act to state employees because of a failure by Congress to make a particular finding? “Notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.” And what’s this? By creating “a substantive entitlement to sick leave … the legislative scheme cannot be said to be congruent or proportional to any identified constitutional harm," therefore failing to get it over the high hurdle posed by [shudder] state immunity from suit under the Eleventh Amendment?

It’s troubling, is what it is. But at least it's a relief that this is what federalism amounts to today in the courts - a fight over whether state employees get to enjoy the same federal benefits that everyone else does.  There's another silver lining too: at least Alito doesn’t give any old public authority the protections he appears to be willing to afford state bureaucracies. See Bolden v. SEPTA, 953 F.2d 807 (3d Cir. 1991).

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Tuesday was Special Guest day on the old Mickey Mouse Club, but here at the Glom, Monday is Guest Blogger Day!  Today's special guest blogger is Geoff Manne, law professor at Lewis & Clark Law School.  Geoff teaches and writes about the good stuff:  business associations, nonprofits, antitrust, and law & econ.  Welcome!

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Although I became fairly embroiled in the Harriet Miers controversy over here, I will probably be a mere spectator in the Samuel Alito confirmation process.  Any critics of Judge Alito will be bypassing the qualifications argument and going straight to the constitutional ideology arguments.  There, we will witness all kinds of people throwing around words like "textualist," "orginialist," "strict constructionist," and "super-precedent":  words that sort of make me sleepy and yearn for a good Delaware Chancery Court opinion.

The hearings will probably be very similar to the Roberts hearings:  senators asking well-worded questions designed to elicit answers reflecting whether Alito would overturn Roe v. Wade.  In turn, Alito will give even better-worded answers designed to have the exact amount of ambiguity so that conservative senators can silently be convinced of a "yes" answer but be able to argue to liberal senators that Alito did not give a "yes" answer.  Overall, just not as exciting as the Gong Show that Larry R. had predicted a few weeks ago.

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"Two senior Republican officials" are reporting that Samuel Alito is President Bush's next nominee for the Supreme Court. The announcement is expected this morning. [And it's now official.]

Senators on both sides of the aisle already are mentioning the "F" word: filibuster. Nobody is talking specifics yet, but if it comes to a decision to filibuster, the central focus will likely be Alito's dissent in Casey in 1991, in which Alito would have allowed a spousal notification requirement for women seeking an abortion.

Alito has the flashy credentials (Princeton, Yale) that Harriet Miers did not have, but more importantly, he has both experience as a practicing lawyer (prosecutor) and as a judge. Larry Ribstein looked at his business law opinions, but I see no business experience in his bios. His work as a prosecutor and his tough-on-crime reputation is likely to ruffle some feathers, but he also seems to have a reputation for fairness. Alito looks solid and is a strong departure from stealth mode.

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Larry Ribstein is getting a jump on Alito analysis, looking at some of his business law opinions and concluding:

Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He's also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.

Meanwhile, Doug Berman and UTR are wondering whether Alito is a misdirection, a la  Edith Brown Clement. I never understood the reason for the Clement misdirection, so I am not sure why the White House would try that again here. If it turns out to be Luttig, however, I am wondering whether these charges of intellectual mediocrity and cronyism are true.

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A discussion has emerged on Prawfs and Concurring Opinions about the ethics of deleting blog posts.  I have commented at Prawfs, and I find myself holding the minority position that blog posts should not be deleted once posted.  Here is the Conglomerate policy:

Once we have posted something, it stays posted, even if we later regret it. Except for spelling errors or an occasional stylistic edit, which we will perform without telling you. If we change our minds about something, we will fess up or just move on, but we won't be sneaky about it.

In my opinion, bloggers can't have their cake and eat it too. I sense a growing opinion in the blogosphere (at least the blawgosphere) that bloggers are not just diary-keepers in pj's but contributors to a national dialogue. Of course, journalists seek to be skeptical of this notion, and I think that suspicion is warranted if bloggers live by different rules, including the rule that any post can be deleted if the poster has a change of heart. When a television journalist says something on television, those words are recorded forever. When someone writes an op-ed for the NYT, then once the paper is printed, the op-ed is there forever. I even recall at least one time when bloggers have fussed a bit because an established news source changed a headline or a story during the day on an associated website. For us, second thoughts are what the "draft" function is for. But posting is the end of a thought process, not the beginning. If we want to clarify, we can update or use the comments function or even post again. Believe me, I have wanted to delete posts that brought the critics out in full force!

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Thank you to Gordon, Christine, and Vic for asking me to share some thoughts here over the past two weeks.  And thank you to those who offered comments, especially the challenging ones!  It was my first effort at blogging, and I've caught the bug.  Look for me shortly over at Madisonian Theory, where I'll join I.P. lawprofs Mike Madison and Brett Frischmann as regulars.

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Over at Prawfs, Matt Bodie looks at Lowenstein's NYT article on Pensions and concludes that the doomsday picture isn't really all that bad.  I don't agree with everything in his post, but Bodie's certainly right that it's not clear that we must turn to defined contribution plans. 

As Bodie suggests, defined benefit plans economize on planning costs and transaction costs and may generate greater long-term benefits to be shared between employer and employee (rather than smaller gains to be shared by employee and Fidelity or Schwab).  Perhaps the lesson is this:  if we're going to have a PBGC, we need to have increased monitoring in the form of better pension accounting and careful oversight to ensure full funding.  (Again, Matt and I seem  to agree on this.)  The presence of the PBGC shifts risk to the government and other taxpayers, so we should not be surprised to see companies underfunding their pension plans and gambling with the plan assets.  We could also consider forcing companies to isolate pension assets more completely and really fund them on a current basis, with any residual gains going only to beneficiaries.

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On the 19th century business history tip, and on the audioscholarship hobby horse that I like to ride around on, may I commend a talk on the history of employee-generated intellectual property, obtained via the University Channel and Orin Kerr?

Catherine Fisk wonder why intellectual property rules changed from 1800, when the property essentially followed the employee around, to the mid-twentieth century, when it very much didn’t. She traces the evolution, through a series of corporate case studies, here:

http://www.law.duke.edu/cspd/lectures/04142005.mp3

You can download it now, and listen to it while you’re raking leaves this weekend. I only wish there was more out there like it.

Maybe someone – heck, maybe I – should start a blog with various pieces, or their introductions, speed read into mp3 format. Until that day arrives, I look for audioscholarship a bit futilely on iTunes’s large-but-not-large-enough selection of audiobooks, through podcasts, websites, and, unsatisfyingly, in big box bookstores. Related: Tyler Cowen wonders about the wisdom of podcasts of lectures.

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The NYU Journal of Law & Liberty is sponsoring an online symposium today, and the topic is Sarbanes Oxley. Participants include a gaggle of law professors -- former guest blogger Brett McDonnell, Larry Ribstein, Jeff Lipshaw, Allen Ferrell, Larry Backer, and Robert Ahdieh -- and Chief Justice Myron Steele of the Delaware Supreme Court. Must-read blogging.

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Michael McCann at Sports Law Blog points to a story that a male golfer plans on applying to enter the Women's British Open.  This golfer is obviously upset that the rare female golfer has been allowed to play in men's tournaments. 

How to fix this conundrum?  If we support very good female golfers playing against men in men's golf tournaments, then how do we stop (what I would call shameless) male golfers from flooding women's tournaments?  The distinction is hard to support without infantilizing women golfers and arguing for their inadequacies.  I have two suggestions:

1.  Have one British Open (or U.S. Open or whatever).  Give out awards for females and males and see what happens.  You already have amateurs and pros playing together.  Mix it up.  Have some fun.

2.  Have different tournaments based on weight/height/BMI/something.  If we find that the average professional male golfer has a better game than the average professional female golfer, figure out why.  Is it because of height, weight, what?  Then create categories for that, sort of like boxing.

Anyway, these are Friday morning before class ideas.  Give me yours.

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After being found not guilty in his earlier trial on accounting fraud charges, Richard Scrushy was indicted again yesterday by federal prosecutors in Alabama on charges of bribery and mail fraud.  These charges allege that the former CEO of HealthSouth made contributions of $500k to the Alabama Educational Lottery Foundation in 1999 and 2000 in order to gain a spot on a state board that reviewed proposals for new hospitals in Alabama.

These charges may turn out to be important and lead to justice, but my first reaction is that surely there's some other crime happening in Alabama that you folks could look into for awhile. 

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