In this final post in the series, I present the change I argue for in the paper I have just posted to SSRN called When the Supreme Court is Not Supreme.

The paper shows that state courts have always enjoyed a good deal of independence to interpret the meaning of the U.S. Constitution.

Historically, this independence was codified in the provision of the 1789 Judiciary Act that limited [...]]]> In four previous posts, I discussed proposals offered by a group of law professors for a Judiciary Act of 2009. The professors propose various changes to the structure and work of the Supreme Court. My first post on this proposed Judiciary Act is here. My second post is here. My third post is here. My fourth post is here

In this final post in the series, I present the change I argue for in the paper I have just posted to SSRN called When the Supreme Court is Not Supreme.

The paper shows that state courts have always enjoyed a good deal of independence to interpret the meaning of the U.S. Constitution.

Historically, this independence was codified in the provision of the 1789 Judiciary Act that limited review by the Supreme Court of decisions by state courts that rejected constitutional rights asserted against state government. If the state court held that state government had violated a constitutional right, the Supreme Court could not review that decision. In an earlier article, The Bill of Rights in the Early State Courts, I explored how this framework allowed state courts to apply provisions of the Bill of Rights against state government prior to incorporation of those rights via the Fourteenth Amendment.

Today, I show, even while the Supreme Court has broad authority to review state court decisions on federal questions, a variety of statutory and doctrinal factors prevent or limit review in a good number of cases. State courts can, and do, decide issues of constitutional law free from review by the Supreme Court.

The paper proposes formalizing the authority state courts exercise today in practice. I advocate, in essence, a resurrection of the rule from the 1789 Judiciary Act that prevented the Supreme Court from reviewing state court decisions upholding constitutional rights asserted against state government. State courts would, therefore, be permitted to expand upon, but not to narrow, federal constitutional rights as construed by the Supreme Court. For reasons I explore in the paper, I would limit this rule to cases involving rights under the criminal procedural provisions of the Constitution and the Fifth Amendment’s Takings Clause. But the basic idea is that state courts would once again, as a formal matter, have some independent authority to interpret the federal Constitution.

Court watchers will know that Justice Stevens has long advocated that the Court deny review in cases in which the only issue is that a state court has arguably over-enforced the Constitution against state government. Stevens set out his views, with renewed energy in his dissenting opinion in Kansas v. Marsh (2006), prompting a spirited response by Justice Scalia. My paper engages the analysis in Marsh and in earlier cases in which Stevens has expressed a similar view.

In my paper, I also anticipate a variety of objections to my proposal and show that the negative effects can be minimized and that the benefits are considerable.

At SSRN, I have posted the first draft of When the Supreme Court is Not Supreme. Comments are very welcome.

This is my last post during this visit to Concurring Opinions. With my thanks to Dan for the invitation, I now return to less important endeavors.

The professors’ fourth proposal is to alter the certiorari process. The professors write that allowing the Justices to select their own cases makes the Court look like a “robed legislature.” By controlling their docket, the Justices are able to delegate the more basic tasks of adjudication of routine cases to lower courts and focus their efforts on writing new law. This, the professors contend, has contributed to growing unrest of citizens with judicial independence. “The independence of the judiciary is indispensable to the rule of law,” the professors explain, “but it is increasingly difficult to [...]]]> This is my fourth post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here. My second post is here. My third post is here.

The professors’ fourth proposal is to alter the certiorari process. The professors write that allowing the Justices to select their own cases makes the Court look like a “robed legislature.” By controlling their docket, the Justices are able to delegate the more basic tasks of adjudication of routine cases to lower courts and focus their efforts on writing new law. This, the professors contend, has contributed to growing unrest of citizens with judicial independence. “The independence of the judiciary is indispensable to the rule of law,” the professors explain, “but it is increasingly difficult to justify absolute independence for Justices whose chief work is expressing and imposing on the public laws on topics of their choice.” Moreover, state supreme courts and lower federal courts have taken a cue from the Supreme Court and likewise delegate routine tasks so that they can write extended opinions on important issues.

The professors propose the creation of a Certiorari Division of the Supreme Court staffed, by rotation, by experienced appellate judges. The Certiorari Division would review petitions for certiorari and select 80-100 cases each year for the Justices. The Justices could reverse some grants of certiorari and also grant certiorari in additional cases but the Court would be required to decide a substantial number of the cases identified by the Certiorari Division.

I am in favor of altering the current process by which the Supreme Court’s docket is set. Law clerks’ reviewing arguments by parties as to why and why not review should be granted is less than an ideal way to set the Court’s tasks. I am also generally sympathetic to the professors’ reliance on experienced appellate judges. Those judges could bring a sophisticated understanding of the law and a (more) reliable sense of when the Supreme Court’s intervention is warranted.

Given that the creation of the Certiorari Division is likely to encounter resistance, I have a different proposal that is easier to implement and addresses many of the professors’ own concerns.

I would transfer to the Supreme Court a random selection of appeals filed in the Courts of Appeals. The cases would be transferred (and their transfer announced) once briefing on them was complete. In those transferred cases, the Supreme Court would therefore review directly the decision of the district court.

Under this proposal, the Justices would decide some run of the mill cases that they themselves had not selected. Instead of a diet of exceptional cases, the Justices would review how legal rules they have crafted operate in routine cases. This experience would likely enhance decision-making when the Justices decide more momentous cases. The proposal would also address the professors’ concern that the Justices look like policy-makers not judges.

The details of my proposal would, of course, have to be worked out. For example, some limit would need to be set on the number of cases reviewed from the district courts (perhaps 30 cases per year is a good target). There is also a question as to whether the entire Court should decide the transferred cases. Perhaps the cases from the district court should be assigned to a three-Justice panel of the Supreme Court, with the possibility of the full Court reviewing that panel’s decision en banc. My proposal could be implemented immediately and with minor expense. The Justices might even like it.

The professors’ third proposal is for Congress to specify that the Chief Justice be appointed to a term of seven years with the possibility of renewal. So as to ensure the position of Chief Justice is not limited to Justices currently on the Court, the term would automatically extend until the President has an opportunity to appoint a new Justice to the Court. The professors believe a term limit is desirable given the increased responsibilities of the Chief Justice.

The proposal revels something unexpected about our current procedures for choosing the Chief Justice.

The Constitution assumes the existence of a Chief Justice, [...]]]> This is my third post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here. My second post is here.

The professors’ third proposal is for Congress to specify that the Chief Justice be appointed to a term of seven years with the possibility of renewal. So as to ensure the position of Chief Justice is not limited to Justices currently on the Court, the term would automatically extend until the President has an opportunity to appoint a new Justice to the Court. The professors believe a term limit is desirable given the increased responsibilities of the Chief Justice.

The proposal revels something unexpected about our current procedures for choosing the Chief Justice.

The Constitution assumes the existence of a Chief Justice, in Article III, section 3 (“When the President of the United States is tried, the Chief Justice shall preside”). But the Constitution does not specify how the Chief Justice is to be selected. Indeed, aside from that one reference in Article III, section 3, the Constitution says nothing at all about the Chief Justice. The Constitution also does not refer in any place to “Associate” Justices; Section 1 of Article III and Section 2 of Article II refer instead to the “judges” of the Supreme Court.

Consider, then, the practices we follow. In order for an Associate Justice to be elevated to Chief Justice, the President nominates and the Senate confirms the Associate Justice to the position. This is the procedure that was followed when Rehnquist was elevated. The assumption in this process is that if the Senate refuses to confirm, the nominee retains the position of Associate Justice.

When the President seeks to fill the position of Chief Justice with an outside candidate, the President nominates the candidate to the position of Chief Justice. The Senate is asked to confirm the candidate to that position. (If the Senate refuses, the candidate does not join the Court.) Thus, President George W. Bush originally nominated John G. Roberts to the post of Associate Justice to replace O’Connor. When Rehnquist died, Bush withdrew that nomination and nominated Roberts instead for the position of Chief Justice, to which he was confirmed by the Senate. If I am counting right, just three Associate Justices have ever been elevated to Chief Justice: White, Stone, and Rehnquist. (Rutledge and Hughes had previously served as Associate Justices.) The preference has been for outsiders.

I assume under the professors’ proposal that after an outsider’s seven-year term is up, the Chief Justice becomes an Associate Justice. That raises a question: would the President need to nominate and the Senate need to confirm the Chief Justice, whose term is expiring, to the position of Associate Justice? The answer must be no. The initial appointment must, for constitutional purposes, be to the position of a “judge” of the Supreme Court. That position is held for life, assuming good behavior. No further appointment after the expiration of the seven-year term would therefore be needed.

Yet doesn’t this also suggest that under the Constitution an Associate Justice need not be nominated by the President and confirmed by the Senate (under Article II, section 2) in order to become Chief Justice? An Associate Justice has already been appointed to the position of “judge” of the Supreme Court–the same position, for constitutional purposes, as the Chief Justice. The Constitution therefore even appears to allow for the Justices to name one of themselves to be the Chief Justice. (Though they couldn’t name an outsider.)

Or am I missing something?

The professors’ second proposal deals with the possibility of Justices staying on the Court when they are no longer capable of performing their duties. This proposal specifies that Justices have a duty to retire when they are no longer able to perform fully the duties of the office held. Recognizing that a Justice might not easily know or admit that the time to retire has come, the proposal also places a duty on the Justice’s colleagues. When an Associate Justice is unable to perform the duties required of the office, the Chief Justice must advise the Associate Justice to retire; the Chief Justice must also [...]]]> This is my second post on the law professors’ proposal for a Judiciary Act of 2009. My first post is here.

The professors’ second proposal deals with the possibility of Justices staying on the Court when they are no longer capable of performing their duties. This proposal specifies that Justices have a duty to retire when they are no longer able to perform fully the duties of the office held. Recognizing that a Justice might not easily know or admit that the time to retire has come, the proposal also places a duty on the Justice’s colleagues. When an Associate Justice is unable to perform the duties required of the office, the Chief Justice must advise the Associate Justice to retire; the Chief Justice must also report as much to the Judicial Conference. If the Chief Justice is unable to perform his or her duties on the Court, the Associate Justices must report the disability to the Judicial Conference. Upon receiving a report, the Judicial Conference convenes the most Senior Judges of the Courts of Appeals. If those judges determine that a Justice is no longer capable of serving, it must report that to the House Judiciary Committee.

The professors’ proposal responds to a striking aspect of the Constitution: there is no specific provision for removing a judge who is disabled. Article III provides for a judge to continue to serve during “good behavior.” I understand that provision, though, to mirror the impeachment clause (“all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors”). Disability would not, therefore, be an instance of bad behavior. Many state constitutions, by contrast, do provide for the removal of a judge on disability grounds.

The professors’ proposal works by applying pressure at various points on a failing Justice. Such pressure might help a Justice recognize a disability or shame a reluctant Justice into acting. It is notable that the professors assume that sufficient counsel and pressure does not already exist–from colleagues, family members, and close friends.

I wonder which examples the professors have in mind of ailing Justices who remained too long on the Court—so that the proposal offered would have been a suitable remedy. Some commentators have said that Chief Justice Rehnquist, who died in office, should have retired when he became seriously ill. Rehnquist missed oral arguments while undergoing treatment for thyroid cancer, but he continued to work at home, and he voted in some cases he did not hear argued. Under the professors’ approach, did Rehnquist’s physical absence from the Court mean he was no longer fully performing his duties as Chief Justice? And, if so, at which point would the professors’ proposal have led to Rehnquist’s retirement?

Here, some difficulties in the professors’ proposal emerge. There is a great deal of subjectivity involved in deciding when the time to retire has come. A judge might be physically ill but lucid. A judge might be physically fit but mentally failing. People are also naturally optimistic. A judge who falls ill, even very seriously ill, is likely to think that things will improve. The judge’s colleagues are likely to be hopeful. Absences can be temporary; disabilities might pass.

The first proposal the professors offer is for regular appointments to the Supreme Court. The professors who offer this (not all the professors in the group sign on to each of the individual proposals) say that when the Justices stay on the Court for extended periods, the Court’s “many policy decisions” do not “reflect the moral and political values” of the general public. Instead of term limits, which exist in other countries and in [...]]]> A group of law professors has offered to Congress four proposals for a Judiciary Act of 2009 that would make some changes in the composition and duties of the Supreme Court. In a series of posts this week, I will address those four proposals and present also my own proposal for reform.

The first proposal the professors offer is for regular appointments to the Supreme Court. The professors who offer this (not all the professors in the group sign on to each of the individual proposals) say that when the Justices stay on the Court for extended periods, the Court’s “many policy decisions” do not “reflect the moral and political values” of the general public. Instead of term limits, which exist in other countries and in the state courts, the professors propose that, in addition to filling in vacancies when a Justice retires or resign, the President should appoint one new Justice during the first session of Congress after each federal election. The nine most junior Justices would then sit to hear cases. The remaining Justices would be designated Senior Justices. A Senior Justice would fill in where an active Justice is unable to participate in a case. Senior Justices would also play a role in decisions to grant or deny certiorari.

Leaving aside the questions of whether the Court makes policy decisions and whether it is desirable for the Justices to be updated on contemporary mores, I generally agree with the goal of the proposal. I think turnover is healthy. Roberts and Alito have brought some welcome energy to the Court. Oral argument is more interesting nowadays with new voices weighing in (and with Roberts increasing the time available to lawyers to argue their cases).

The big issue here, as the professors recognize, is how to put this plan in action. Article III specifies that the Justices “shall hold their offices during good behavior.” The question, then, becomes whether a Senior Justice is still holding the office to which the justice was originally confirmed. David Stras and Ryan Scott have identified the relevant concerns in the context of lower federal judges taking senior status.

The professors have three possible ways to avoid a constitutional problem. One is to for the Court itself, rather than Congress, to decide which nine Justices hear a case. The second is to give a monetary bonus to Justices who retire early. A third is to make life unpleasant by restoring circuit riding.

I have a better fix.

I would not turn Justices into Senior Justices and virtually eliminate their role in deciding cases. Instead, I would allow a new President, in the first year of office, to make an additional appointment to the Court. Thus, instead of a new Justice every two years (under the professors’ proposal), there would be one new Justice every four years. All of the Justices would continue to be active Justices hearing cases. If a Justice retires or dies, the President would only make a new appointment if the retirement or death led to there being fewer than than nine Justices on the Court.

In addition to avoiding the constitutional problem, this approach deals with another concern the professors have, that of strategic retirement: a Justice staying in office until a particular President is elected so the Justice can exercise some control over his or her successor. Under my approach, a retirement would be unlikely to lead to a new appointment.

My approach allows for the number of Justices to exceed nine. It could, therefore, produce a larger number of opinions and even more fractured decisions than we already see. Yet the total number of Justices is not likely to be so high as to be an unworkable number. Moreover, there are likely ways to promote unity. Congress could, perhaps, require the Court to issue a single opinion for the Court representing the views of a super majority.

My fix could be readily enacted and would be an easier sell than turning current Justices into Senior Justices.

Recently, I passed a mother and child of about 3 or 4 years old standing before a pretzel vendor. Here is the conversation I overheard:

Child: “Mommy, I want a pretzel! I want a pretzel!”

Mother: “Jennifer, a pretzel is 300 calories. Are you sure you want to spend 300 calories on a pretzel?”

Child: “I want a pretzel! I want a pretzel!”

Mother: “Jennifer, I want you to think about this. If you spend 300 calories on the pretzel, you won’t have those calories left for later.”

Child: “I want a pretzel! I want a pretzel”

I [...]]]> Another report on hyperparenting. The New York Times reports the emergence of children with such strongly instilled food concerns they are afraid to eat. Doctors have coined the term orthorexia for the phenomenon.

Recently, I passed a mother and child of about 3 or 4 years old standing before a pretzel vendor. Here is the conversation I overheard:

Child: “Mommy, I want a pretzel! I want a pretzel!”

Mother: “Jennifer, a pretzel is 300 calories. Are you sure you want to spend 300 calories on a pretzel?”

Child: “I want a pretzel! I want a pretzel!”

Mother: “Jennifer, I want you to think about this. If you spend 300 calories on the pretzel, you won’t have those calories left for later.”

Child: “I want a pretzel! I want a pretzel”

I don’t know whether the child received the pretzel. But whatever happened to “No, you’ll spoil your appetite”?

Yoko Ono Lennon, along with Lennon’s sons Sean and Julian, vigorously protect their copyrights in John Lennon’s works. Most recently, the Lennons sued the producer of a movie about intelleigent design that included 15 seconds from the song Imagine. Judge Sidney Stein (S.D.N.Y.) ruled in Lennon v. Premise Media that the producer was likely to prevail on a fair use defense and he denied the Lennons a preliminary injunction.

One can only guess how the Lennons feel about Justice Alito reproducing the entire lyrics to Imagine [...]]]> I live near the Strawberry Fields memorial with the mosaic of the word “Imagine” that is in Central Park opposite the Dakota. Yoko Ono Lennon funded and maintains the memorial. Almost every day, somebody asks me for directions to the site.

Yoko Ono Lennon, along with Lennon’s sons Sean and Julian, vigorously protect their copyrights in John Lennon’s works. Most recently, the Lennons sued the producer of a movie about intelleigent design that included 15 seconds from the song Imagine. Judge Sidney Stein (S.D.N.Y.) ruled in Lennon v. Premise Media that the producer was likely to prevail on a fair use defense and he denied the Lennons a preliminary injunction.

One can only guess how the Lennons feel about Justice Alito reproducing the entire lyrics to Imagine in footnote 2 of his opinion for the Court today in Pleasant Grove City v. Summum.

If the Supreme Court were not a slow adapter, Alito might have attached an audio file.

Please, please, please, let there be the Jindal-Palin ticket in 2012.

Bonus question: which MSNBC commentator (or 30 Rock character?) says “Oh, God” just before Jindal speaks?

Let’s not let chimps get stuck with a reputation for making bad laws.

As Jane Goodall and Frans de Waal have documented chimpanzees are highly social creatures. Among other things, chimps have long-lasting familial ties and they live in communities governed by complex social norms. Chimps cooperate in hunting and maintain social order through sophisticated [...]]]> Today, publisher Rupert Murdoch apologized for the recent New York Post cartoon that some viewed as racially offensive in its attribution of Congress’ stimulus bill to a chimp. “Today I want to personally apologize to any reader who felt offended, and even insulted,” Murdoch, said. “I can assure you — without a doubt — that the only intent of that cartoon was to mock a badly written piece of legislation.”

Let’s not let chimps get stuck with a reputation for making bad laws.

As Jane Goodall and Frans de Waal have documented chimpanzees are highly social creatures. Among other things, chimps have long-lasting familial ties and they live in communities governed by complex social norms. Chimps cooperate in hunting and maintain social order through sophisticated forms of communication. They adopt orphaned siblings. They use tools for a variety of purposes. They mourn death. They have phenomenal memories. They can learn to complete complex tasks. They have highly individualized personalities. They engage in diplomacy and other political behavior. They patrol the boundaries of their communities (and sometimes they engage in warfare with outsiders).

Chimp law works quite well.

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All [...]]]> David Blankenhorn and Jonathan Rauch have an Op Ed in the New York Times on “A Reconciliation on Gay Marriage.” Blankenhorn has spoken out strongly against gay marriage. Jonathan Rauch has been in favor of it. They think they have struck a deal. Here is their proposal:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

The gist of the proposal is that same-sex couples could receive federal benefits, while religious entities would not be forced to recognize their unions. B & R note that the First Amendment likely means no church can be required to perform a same-sex union. Under the proposal they offer, a church auxiliary or charity also could not be forced to give spousal benefits to the partner of a gay employee; a faith-based nonprofit would not lose tax status by refusing to host a gay wedding ceremony.

The proposal is likely to generate a good deal of discussion and opposition on both sides. Marriage proponents will object to the seemingly broad exemption for religious groups; marriage opponents will object to any conferral of federal benefits on same-sex couples.

One aspect of the proposal, which might easily be overlooked, strikes me as fatal.

Read carefully. Under the proposal offered, Congress would deem marriages and civil unions between same-sex couples and recognized under state law to be federal civil unions.

Think about that. A couple married in Massachusetts would be downgraded to a civil union for purposes of federal law.

This suggests to me that Blankenhorn’s real interest here is to keep same-sex couples from using the M word and to do that by codifying civil unions into the language of federal law. The title of the Op Ed and the multiple references to marriage throughout it conceal an underlying motive.

If, as the Op Ed suggests, the concern of people of faith is with making sure they are not required to recognize same-sex unions, the exemption accomplishes that. What additional reason justifies the federal government deeming a marriage a civil union?

If Blankenhorn is being candid about the concerns religious organizations have, once those concerns are addressed through the exemption, he should have no difficulty with the federal government recognizing marriages as marriages and civil unions as civil unions. Alternatively, Blankenhorn should have no problem in deleting “marriage” entirely from the U.S. Code and replacing it with “civil union,” a term that would be defined to include marriages and civil unions recognized under state law.

I bet the label “federal civil unions” is not negotiable for Blankenhorn. If he explains to us why a marriage in Massachusetts can not be a marriage in the eyes of the U.S. government, we would be in a much better position to assess the proposal as a whole.

Social capital refers to the collective value of social networks: when people are embedded in networks and can draw upon the norms of cooperation and reciprocity the networks embody there are a variety of measurable benefits both to them and to the community as a whole. These benefits can include more effective government, faster economic growth, improved health, and increased happiness.

Putnam’s article and then book entitled Bowling Alone traced the decline of social capital during the past several decades and the effects [...]]]> In the late 1990s, while he was a member of the Illinois Senate, Barack Obama was also a member of the Saguaro Seminar — a brainstorming group organized by Robert Putnam on how to remedy the decline in social capital in the United States.

Social capital refers to the collective value of social networks: when people are embedded in networks and can draw upon the norms of cooperation and reciprocity the networks embody there are a variety of measurable benefits both to them and to the community as a whole. These benefits can include more effective government, faster economic growth, improved health, and increased happiness.

Putnam’s article and then book entitled Bowling Alone traced the decline of social capital during the past several decades and the effects of this decline. The Saguaro Seminar brought together a diverse group of individuals to think about what could be done to counteract this trend.

(Disclosure: I worked for Bob Putnam for several years and I was rapporteur to the Saguaro Seminar.)

Among the proposals of the Saguaro Seminar is for government, when it considers new policies, to conduct a Social Capital Impact Assessment. In essence, policymakers, in considering the benefits and downsides of any program, would be required to take account of the social capital impact. Ideally, government would then adopt an approach that helped to preserve or generate social capital. (To give a simple example: in choosing between two possible locations for a shopping mall, government would select the location that did not displace or disrupt an existing community.)

Over the years, Presidents have required executive personnel to measure and take account of the impact of regulatory choices on designated variables. President Reagan, for example, issued an Executive Order requiring executive personnel to examine the impact of federal programs on federalism and, where possible, to minimize the erosion of state authority. Congress can also require impact statements: one obvious example is Section 102 of the 1970 National Environmental Protection Act which required federal officials to prepare and distribute a detailed impact environmental impact statement for any federal policy or project significantly affecting the quality of the environment.

With a member of the Saguaro Seminar now in the White House, and there in large measure as a result of increased civic engagement, there is a reasonable chance that federal agencies will be required in the near future to take account of the impact of regulatory programs on levels of social capital.

506(c) says: “Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution [...]]]> There is an interesting development in the dispute between artist Shepard Fairey and the Associated Press. The New York Times reports today that the photographer, Mannie Garcia, claims that under the terms of his contract with the AP, he, not the AP, owns the copyright in the photograph on which Fairey’s poster is based. We’ll have to see how this plays out. But this is a good opportunity to mention the little known (and rarely enforced) criminal provisions of section 506 of the Copyright Act.

506(c) says: “Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500.” If the AP does not own the copyright, have AP employees violated this provision? In addition to the requisite intent and knowledge, we would need to know whether AP versions of Garcia’s photo carry a copyright notice attributing ownership to the AP (or words to that effect).

Section 506(e) says: “Any person who knowingly makes a false representation of a material fact in the application for copyright registration provided for by section 409, or in any written statement filed in connection with the application, shall be fined not more than $2,500.” Here, we would need to know first whether the AP has registered a copyright in the photograph. I tried searching the registration records at the Copyright Office to determine if there is a registration for the photograph but I was unable to narrow the search terms sufficiently. Perhaps somebody has the scoop?

Under Amazon’s terms of use, digital content for Kindle is licensed.The license grants the licensee “the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for . . . personal, non-commercial use.” Further, the licensee “may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party.”

Arguably, [...]]]> Amazon has launched Kindle 2. Stephen King has written a short story that is available exclusively to Kindle owners. Is the story any good? Unless you buy it, you might never know.

Under Amazon’s terms of use, digital content for Kindle is licensed.The license grants the licensee “the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for . . . personal, non-commercial use.” Further, the licensee “may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party.”

Arguably, these terms prohibit the Kindle user from excerpting text from digitally-delivered works for the purposes of writing a review. A review quoting text would be a “display” of the content in a form other than on the Kindle device and would be for a non-personal and possibly commercial use. The use of the text would also be a distribution to a third party.

If other authors make their works available exclusively to Amazon for digital distribution, and Amazon is able to enforce its licensing agreement with its subscribers, reviews of those works might not appear–or reviews might be limited to description of the work, without quotations from it.

[Updated]

Moreover, these circumstances make it more difficult to browse a work before purchasing it. Sometimes in bookstores, I come across a book that is sealed in plastic. I always remove the plastic so I can see if I like the book before I purchase it. Perhaps that isn’t what the publisher intended, but nothing has ever happened to me as a result. Amazon takes things further. Kindle users do not get to see an entire work before purchasing it. And forget about showing your digital content to a friend (who might be thinking about buying her own copy): the license agreement appears to prohibit that too.