Legal Commentary: Sherry Colb Archive


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WHEN COMPASSION GOES UP IN SMOKE: WHAT THE SUPREME COURT'S MEDICAL MARIJUANA CASE TELLS US ABOUT OUR GOVERNMENT
FindLaw columnist and Rutgers law professor Sherry Colb discusses the Supreme Court's recent 8-0 ruling in the "medical marijuana" case -- in which the Court held that federal laws prohibiting marijuana use trump state and local laws attempting to create a compassionate use exception. Colb also raises an interesting conflict between the Court's concurrence view in this case, and an earlier opinion in the landmark privacy decision Griswold v. Connecticut.
Monday, May. 21, 2001

WHY THE SUPREME COURT SHOULD OVERRULE THE MASSIAH DOCTRINE AND PERMIT MIRANDA ALONE TO GOVERN INTERROGATIONS
FindLaw columnist and Rutgers law professor Sherry Colb discusses a fundamental criminal procedure question implicitly raised by a recent Supreme Court decision, Texas v. Cobb: Should the Court overrule the Massiah doctrine, which forbids interrogation of an indicted defendant without counsel present? Colb traces the evolution of Massiah, and explains how it differs from the famous Miranda decision that guarantees defendants are "read their rights" before being interrogated.
Wednesday, May. 09, 2001

AMTRAK'S COOPERATION WITH THE DRUG ENFORCEMENT ADMINISTRATION: A FOURTH AMENDMENT ANALYSIS
FindLaw columnist and Rutgers law professor Sherry Colb discusses Amtrak's recent admission that it turns over the names of cash-paying passengers to the Drug Enforcement Administration, and allows drug-sniffing dogs to sniff those passengers' luggage. Colb explains that under Supreme Court precedent, even though Amtrak counts as a government actor, its conduct -- perhaps shockingly -- still would not be held to violate the Fourth Amendment.
Wednesday, Apr. 25, 2001

RACE VERSUS SEX: THE MULTIPLE MEANINGS OF "REVERSE DISCRIMINATION"
FindLaw columnist and Rutgers law professor Sherry Colb notes an odd difference between "reverse discrimination" lawsuits in the context of sex, and that of race: Male plaintiffs' "reverse discrimination" victories (allowing men to be nurses, or stay-at-home parents who receive benefits) are often victories for women too, but white plaintiffs' "reverse discrimination" victories (for example, in challenging affirmative action) are often setbacks for African-Americans and members of other minority groups. Colb explains the difference, and also discusses the concept of "reverse discrimination" in two other settings: that of love relationships, and that of adoption.
Wednesday, Apr. 11, 2001

THE FIFTH AMENDMENT RIGHTS OF THE INNOCENT
FindLaw columnist and Rutgers law professor Sherry Colb discusses the recent Supreme Court decision in Ohio v. Reiner. Colb analyzes the facts behind Reiner, explains why the Ohio Supreme Court held that a witness who maintains her innocence cannot also assert her Fifth Amendment right against self-incrimination, and argues that the U.S. Supreme Court was right to reverse Ohio's highest court on this issue. Colb also contends that, more generally, the popular notion that criminal procedure protects only the guilty -- not the innocent -- is incorrect.
Wednesday, Mar. 28, 2001

WHY A CORRECTED DISABILITY SHOULD STILL COUNT AS A DISABILITY FOR PURPOSES OF EMPLOYMENT DISCRIMINATION LAW
FindLaw columnist and Rutgers law professor Sherry Colb contends that Massachusetts' Supreme Judicial Court, currently confronted with the question whether a corrected disability still counts as a disability for purposes of employment discrimination law, should answer that indeed, it does. The U.S. Supreme Court has held to the contrary, reasoning that a disability, once corrected, is no longer a disability. Colb points out, however, that a person whose hearing is normal by virtue of a hearing aid is still not viewed by society as equivalent to a person whose hearing is "naturally" normal. On the contrary, a hearing aid wearer may suffer stigma very similar to that suffered by someone with hearing loss -- in that both types of stigma are systematic and societal, not idiosyncratic on the part of an isolated employer. As a result, Colb argues, both the hearing aid wearer and the person with hearing loss should be protected by employment discrimination law.
Wednesday, Mar. 14, 2001

IS USE OF THERMAL HEAT IMAGING A "SEARCH" GOVERNED BY THE FOURTH AMENDMENT?
FindLaw columnist and Rutgers law professor Sherry Colb, a specialist in criminal procedure, discusses the recently-argued Supreme Court case in which a criminal defendant challenges his conviction for growing marijuana, claiming that the government's use of thermal heat imaging equipment to gain evidence against him constituted an unconstitutional warrantless search. Colb reviews prior Court precedent, but also employs an ingenious hypothetical to argue that the Court should go beyond that precedent.
Wednesday, Feb. 28, 2001

REDEFINING THE STATUS QUO TO INCLUDE THE DISABLED
Should Casey Martin win his disability discrimination suit against the PGA Tour, and gain the right to ride in a golf cart rather than walking between greens? Was ETS right to respond to a lawsuit by reversing its prior policy of specially "flagging" the test scores of disabled applicants to business school? FindLaw columnist and Rutgers law professor Sherry Colb discusses the way in which these two recent controversies illustrate fundamental issues in the law of disability discrimination, and relates a personal story about how even disabled bar exam takers can suffer unfair treatment.
Wednesday, Feb. 14, 2001

IS JUSTICE RONNIE WHITE "PRO-CRIMINAL"? EVALUATING ASHCROFT'S ACCUSATION
FindLaw columnist and Rutgers law professor Sherry Colb discusses the situation of Justice Ronnie White, the African-American Missouri jurist whose federal judicial nomination was torpedoed by then-Senator John Ashcroft on the ground that White was "pro-criminal." In fact, Colb argues, White's record shows that he is not "pro-criminal" in any of the senses in which that term is typically understood. At most, White is an independent-minded dissenter who is rightly sensitive to racism in the courtroom.
Wednesday, Jan. 31, 2001

THE CONTROVERSY OVER THE NETHERLANDS' NEW EUTHANASIA LEGISLATION
FindLaw columnist and Rutgers law professor Sherry Colb examines the controversial new legislation in the Netherlands which will legalize physician-assisted deaths, not only for terminal patients but also for those who, though not terminal, experience unbearable pain that cannot be relieved. As Colb explains, United States "right to die" proponents have taken a different approach, urging the Supreme Court to recognize the right for the terminally ill alone. She examines the rationale for limiting "right to die" protections to terminal patients alone, contending that this limitation does not accord with the reason "right to die" proponents believe the right should be recognized in the first place.
Wednesday, Jan. 17, 2001

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