Tomorrow's New York Times has a piece discussing an exhibition at Manhattan's Cooper Union School of Art. The exhibition focuses on the work of the graphic design firm Chermayeff & Geismar.

That firm has designed some of the world's most recognizable corporate logos, from Mobil to NBC. The print version of the story has samples of C&G's work, and the web version (linked above) has a slideshow of those images and the accompanying text.

[PS - I've always been impressed with the thought and preparation that goes into corporate logos. Can anyone suggest a book that focuses on the history and practice of corporate logo graphic design, as opposed to graphic design generally? If so, you can reach me by clicking my name above (in blue) and removing everything between the "poon" and the ampersand.]

A Tampa limousine service is being punished for not fleecing old ladies. The car service that does business driving elderly and disabled patients to doctors' appointments is on probation for six months for not charging enough. According to the Reason article, regulation is not uncommon in the taxi and limousine business. The Reason piece links to a law review article discussing the history and implications of taxi regulation.

The law review article states:

For the most part, taxicabs were unregulated until the 1930's, when car prices and wages tumbled. Competition became severe for established taxicab companies who now had to compete with unemployed workers who realized that the low capitalization and easy entry of taxicab driving could subsidize their livelihood. n21 The introduction of regulations in the taxicab business was not stimulated by the public interest, but by limited self-interest. Pressure came from the American Transit Association, public transit firms, established taxi fleets and the National Association of Taxicab Owners (which passed a resolution favoring entry and minimum fare controls). n22 Historically, an estimated 43 out of 93 U.S. cities with a population of over 100,000 had restricted entry into the taxi business by [*332] 1934. n23 Just as the airline industry cycled through regulation to deregulation, the last bastion of the taxi industry has yet to deregulate.

Out of curiosity, does anyone know if anti-hitchhiking legislation has anything to do with competition-limiting agenda? I always assumed that soliciting rides from (non-professional) drivers-by was illegal in some places for safety reasons but I have no evidence to support any claim.

Ok, so blogging from me will be light between now and after Christmas. I fly out of Chicago tonight, and I expect that as soon as I arrive home, I'll start working on getting ready for Christmas. There are a lot of ornaments that need to be hung on the tree, cookies to be baked, and paper bags to be folded and filled for luminaries. On Tuesday, my mother and I fly off on our vacation. We'll be in Glasgow and London until the 23rd, so if anyone has any advice on things we shouldn't miss in those two cities, please send them along.

One inquiring mind has asked what I think of RLUIPA. I don't think it's a good law. My somewhat extended answer is below. My longer answer is avaliable by request as a 30 page pdf.

On Thursday, or the day after my paper on the Religious Land Use and Institutionalized Persons Act was due, the Fourth Circuit handed down an opinion reversing a decision by the Western District of Virginia that had held RLUIPA unconstitutional. The Fourth Circuit, in Madison v. Riter, No. 03-6362, is the fourth circuit to hear a case on the constitutionality of RLUIPA. The Ninth and the Seventh were the first two to, and both also upheld the law (Mayweathers v. Newland, 314 F.3d 1062 [9th Cir. 2002] and Charles v. Verhagen, No. 02-3572 [7th Cir. Oct. 20, 2003], respectively). A month ago, the Sixth Circuit declared it unconstitutional, referring extensively to the reversed decision, Madison (Cutter et al., v. Wilkinson et al., 2003 FED App. 0397P). All of these cases have addressed RLUIPA in prisons.

Mayweathers, Cutter, and Madison all spend a great deal of time going through the three prongs of the Lemontest: does the law have a legitimate secular purpose, does it have the impermissible effect of advancing religion, and does it create excessive government entanglement with religion. Madison failed RLUIPA on the first two counts, so it never bothered to reach the third prong. Whether you think the law has a legitimate secular purpose turns on whether you think it is following Amos, which allows the government to lift burdens it imposes on free exercise (483 U.S. 327, 335 (1987)), or if you think that the point of such a law is to prefer religiosity to areligiosity. Likewise, it has the effect of allowing inmates to follow their religions or it creates an incentive for inmates to become religious so that they may benefit from the exceptions granted therein. In my opinion, applying the Lemon test to determine whether RLUIPA violates the establishment clause just creates a circle of competing voices crying out "it is!" and "it isn't!" I'll let people more experienced with the tangled mess of establishment clause cases decide whether it most resembles cases on the "ok" or the "not ok" side of the Lemon line. And then we will have all played with the rules and we can all go home.

Except for the fact that RLUIPA requires the courts to use strict scrutiny when evaluating cases that are either a burden on free exercise within institutions, or are zoning regulations that make it more difficult for a religious institution to settle down in a particular area. Previously, whenever a First Amendment right was infringed in prisons, courts applied a rational basis test to see if the violation were too severe (see O'Lone and Shabazz.). Zoning boards were there own little fiefdom: officials often didn't have to explain their reasons to deny a permit unless it came to court, and then they could just point to regulations on parking spaces, easements, square footage and height; there was no requirement that they allow churches in areas that weren't zoned for them. It was -- is -- a troublesome system. But in everyone's favorite Scalia opinion, Employment Division v. Smith, the Court had announced that there was no constitutional right to an exception to generally applicable laws when those laws created free exercise burdens. Rational basis was and always had been the way those claims were evaluated (as he pointed out a 'hybrid claims' doctrine no one had noticed before when religious exemptions had been upheld). He does have good reasons for why this is a prudent system and he seems to accept the existence of an America in which, if the majority of the people wanted it this way, they could forbid him to take his minor children to drink communion wine. He has to trust that people, not the Constitution, will chose to grant the exemption.

Prison regulations and land-use ordinances are generally applicable laws. In RLUIPA, Congress has attempted to change the scrutiny the courts use in these areas. It has tied this requirement to the spending (prisons) and commerce clause (zoning) powers. To me, this seems to flaunt the purpose of judicial review. It also seems that Congress is not regulating under those above powers, but regulating how others regulate: this makes it less likely that RLUIPA is in the pattern of previous acts. There are times when Congress can create First Amendment exceptions where the Court has declined to find the right. After an Orthodox Jewish officer had run afoul of air force dress code by wearing his yarmulke, the Court ruled it a case of 'the military is different' and within the military's ability to choose its own regulation. Congress, using its clear powers to regulate the military, passed a law requiring the military to allow neat and tidy religious apparel. There is no question that this was within Congress's power. It seem to see RLUIPA as a similiar act, although broadly construed.

I don't think RLUIPA is. It is simply too broad to fall in that pattern, and it must be understood as sweeping legislation. It's one thing for Congress to use the spending clause, tied to federal highway dollars, to bribe the states to raise their drinking ages to 21. It's another thing to bribe the states and to twist the hands of the court into following a different master on what the Constitution says and requires. Maybe we should be in a country in which communities can't keep churches out by complaining that they are too tall, or deny inmates religious calendars so that they can at least be reminded of on what they should be reflecting on a certain day. Instead, we live in one in which communities seem to be able to get away with allowing book clubs but not Bible clubs to meet in private homes, and prisons can say they're doing well enough by proving two pork-free meals a day along with one halal/kosher to Muslim and Jewish inmates. It makes no sense that having a religious motive can make it harder for an activity to exist in an area, and its offensive that prisons aren't more respectful of their inmates' religions. But it doesn't seem that Congress can touch this. Federalism means tying the federal government's hands from certain areas. That's what some people like about it. Why, I don't know. It seems that more intelligent people serve in Washington than serve in most local governments. But the separation of powers also prevents Congress from stepping over federalism and from changing the Constitutional rights. An honest desire to make a better America changes nothing here.

Surprisingly enough, RLUIPA does seem to be working as Congress intended it to. I say surprising because, during the three years the Religious Freedom Restoration Act was valid, the courts seemed to be using a very loose definition of strict scrutiny in zoning and prison cases (see Lupu, 20 U. Ark. Little Rock L.J. 575 603-617 (1998). Legal scholars had complained that religion will never get strict strict scrutiny, and requiring it would only waterdown the meaning of that test elsewhere. But cases decided under RLUIPA seem to be treating strict scrutiny a bit closer to its meaning. I'm not sure what to make of that. Yell at the lower courts once, and they'll ignore you; twice, and they'll heed you?

a bit more on zoning:

Professor Eptstein has written,

“The establishment clause is offended if religious institutions receive a clear preference that bypasses ordinary land use law and are governed by the now-discarded common law standard of nuisance. But the free exercise clause requires more or less what RLUIPA provides — a strong reason to halt religious practices, which the preservation of neighborhood character argument doesn't quite supply.” (“A Synagogue in Suburbia,” National Law Journal, 25(105), p. 31 September 1, 2003)

The zoning case that will probably make it to an appeals court first is Congregation Kol Ami v. Abington Township. A church that feels it has a responsibility to be stewards of the land has sought to build in an agricultural zone. The permit was denied. The Justice Department wrote the zoning officials a letter pointing out RLUIPA and requesting that they reverse their decision, to which an official said she'd like to reply "Greetings from the soveriegn state of Hawaii..."

There's a long list of zoning cases where churches have been denied a permit for what seems to be no reason stronger than animosity towards religion in general, or that kind of religion in particular. I agree with Professor Conkle that Congress would have provided a good response to this problem had they enacted certain procedural changes: give the zoning officials the burden of proving that the denial of the permit was justified and ask them to explain what might be wrong with certain compromises (but say nothing about what scrutiny the courts should use), allow churches to require attorney's fees and perhaps minimum damages if it's found that they were discriminated against (20 U. Ark. Little Rock. L.J. 633, 648). Transparency seems to be a good weapon here. And when the church located in a residential neighborhood is restricted from holding services 13 decible levels above the community noise regulations, then maybe that's ok (it doesn't seem it would be ok under strict scrutiny).

Historic presevation laws are another problem, and Professor Epstein has good arguments about them in the above piece. Essentially, the Court has held that a taking does not occur when historic zoning regulations make it difficult (or impossible) for a church to use its land as it sees fit so long as it is still possible to use the land for the purpose for which it was designed and was being used for at the time it was landmarked. Churches (and other land-marked buildings) become stuck with the bill for keeping the property in good shape, while they receive no benefits for this sacrifice. But the proper response to court decisions that are unsympathetic to religion is not to pass unconstitutional legislation.

While sitting here having a wonderful time studying the Supreme Court's jurisprudence on 42 U.S.C. § 1983, I've had a few thoughts.

Before I get to those thoughts, here's a reasonably brief review of § 1983 for those who may not know its history:

Back in 1871, Congress noticed that in many states, if you had the wrong color skin, it was often rather easy to have your civil rights violated. They also noticed that when someone whose rights had been violated tried to get some remedies for those violations, they again had the wrong color skin and were wrongfully denied relief in state court (where such suits had to be filed).

Congress then said, "If only we could do something about it. If only there were a constitutional amendment, somewhere between the 13th and 15th, that could help us out." After searching for a few hours, the 42nd Congress found the 14th Amendment and passed the predecessor of § 1983, the Ku Klux Klan Act of 1871, to do something about this problem (or, as the kids are saying, "lay the smackdown").

In a nutshell, the law said (and still says), "If, acting under color of law, you deprive someone of their rights, that person can sue you in federal court." The idea was that in federal court, where judges have life tenure, salary protection, and Chuck Schumer and Orrin Hatch bickering over their nominations, there is a much smaller likelihood of a judge caving to local political pressure and denying someone redress for a violation of their rights.

In any event, this law didn't have much bite until 1961, when the Warren Court decided that the "under color of law" in § 1983 was not so restrictive that it couldn't include situations where the rights deprivation was also a violation of state or local law. (This actually made sense and the decision was entirely penumbra-free.)

Over the next forty years, the Supreme Court has had a fabulously grand time playing tug 'o' war with the scope of § 1983. Liberals generally want its scope to be very broad; they want every prisoner in America to be able to recover money damages when the prison doctor hurts them too much while removing a hangnail. Conservatives generally want to restrict § 1983's scope down to the point where the only actionable violation occurs when the Governor walks out of the statehouse, yells "I AM ACTING UNDER COLOR OF LAW!" at the top of his lungs, and then shoots somebody in the head. I exaggerate, of course, but the lesson is that they're always fighting about it. (In fights like that, nobody wins, especially not law students that need to remember it all for their final next week.)

So now you're up to speed. (Note to self: "reasonably brief" apparently means "five paragraphs.") Which brings me to point number one:

1. The 42nd Congress was nice enough to give us § 1983, but they forgot to tell us how it should operate in a zillion different circumstances. So when these issues come before the Court, the intent and understandings of the 42nd Congress take on a talismanic importance. A lot of these decisions end up as 5-4 bicker-fests where five justices insist that it would be ridiculous to think that the 42nd Congress would choose option A, whereas four justices nominated by the President and confirmed by Congress swear on their ancestors' graves that option A would have been laughable for the 42nd Congress and when Congressman Shellabarger said he liked option A he really meant option B. Super.

Anyway, I just wanted to use this space to offer a suggestion to Green Bag 2d, who gave the world those great Supreme Court Bobbleheads: How about making a "WWT42ndCD?" bracelet? ("What would the 42nd Congress do?"). I'd wear it.

2. More importantly, the real joy of these cases is the occasional Justice Fortas sighting. Does anyone else derive a strange sense of satisfaction at seeing his name in a case's syllabus? My reaction, geeky as it is, is generally something akin to, "Oh, cool, Fortas!" -- as if I just found a Barry Bonds rookie card or caught one of the early Seinfeld episodes where Jerry's dad is a different actor.

A lot of aspiring lawyers hope to land a job with a "big city firm."

If you'd prefer the slower pace of life outside the city, though, then this firm might be for you.

Let me add that you should not bother applying without a working knowledge of weights and scales.

[PS - It's nice to know that convicted drug dealers can set up their own fake law firm... makes me feel like my training here at Penn was worth something!]

Hi, everyone. Before I introduce myself, I'd like to thank Will and the rest of CS for having me. Will promised that my posts will be "dazzling and irreverent," so I guess I'd better be holding some sparklers while I type, since I usually stick to the latter and rarely approach the former.

Anyway, allow myself to introduce... myself. I'm a 3L at Penn Law School. I'm in the middle of finals right now, which is why I've been blogging so much lately. As Will mentioned, I normally blog as "Mr. Poon" at the appropriately-titled Sugar, Mr. Poon?. The title comes from a line in Fletch, and it allows me to call my girlfriend "Ms. Poon" with an entirely straight face. No, really. My likes include golf and the feeling of being done with finals. My dislikes include taking finals and having all of my fingernails pulled out.

If you do venture over to SMP?, and I hope you do, you'll find that it's a bit different from CS. I definitely traffic in the silly, irreverent and inane. Put another way, if blogs were board games, CS would be Trivial Pursuit; interesting, erudite, with the occasional typo. SMP? is more like Hungry Hungry Hippos, with me whacking a plastic lever until something fun happens.

In any event, I you enjoy my brief stay here, and that I don't give cause for anyone to call for a special CS link that ignores my posts.

Over the next few days the dazzling and irreverent posts in this space will come from our newest holiday guest-- Toby Stern of "Sugar, Mr. Poon?" As usual, send complaints or accolades to either him or me.

Today will be turned over to packing and putting up a Christmas tree. After that, I'm off to Chicago until Tuesday for a date with a beautiful cat.

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From F. Scott Fitzgerald's Winter Dreams:

"Lots of women fade just like that," Devlin snapped his fingers. "You must have seen it happen. Perhaps I've forgotten how pretty she was at her wedding. I've seen her so much since then, you see. She has nice eyes."

A sort of dulness settled down upon Dexter. For the first time in his life he felt like getting very drunk. He knew that he was laughing loudly at something Devlin had said, but he did not know what it was or why it was funny. When, in a few minutes, Devlin went he lay down on his lounge and looked out the window at the New York sky-line into which the sun was sinking in dull lovely shades of pink and gold.

He had thought that having nothing else to lose he was invulnerable at last--but he knew that he had just lost something more, as surely as if he had married Judy Jones and seen her fade away before his eyes.

The dream was gone. Something had been taken from him. In a sort of panic he pushed the palms of his hands into his eyes and tried to bring up a picture of the waters lapping on Sherry Island and the moonlit veranda, and gingham on the golf-links and the dry sun and the gold color of her neck's soft down. And her mouth damp to his kisses and her eyes plaintive with melancholy and her freshness like new fine linen in the morning. Why, these things were no longer in the world! They had existed and they existed no longer.

For the first time in years the tears were streaming down his face. But they were for himself now. He did not care about mouth and eyes and moving hands. He wanted to care, and he could not care. For he had gone away and he could never go back any more. The gates were closed, the sun was gone down, and there was no beauty but the gray beauty of steel that withstands all time. Even the grief he could have borne was left behind in the country of illusion, of youth, of the richness of life, where his winter dreams had flourished.

"Long ago," he said, "long ago, there was something in me, but now that thing is gone. Now that thing is gone, that thing is gone. I cannot cry. I cannot care. That thing will come back no more."