Legal Commentary: Sherry Colb Archive

THE BENEFITS OF RANDOM DRUG TESTING:
WHY THE SUPREME COURT'S RECENT DECISION APPROVING ITS USE IN PUBLIC SCHOOLS MAY BE CORRECT
FindLaw columnist and Rutgers law professor Sherry Colb discusses the Supreme Court's recent decision in Board of Education v. Pottawatomie. There, the Court held, 5-4, that it was constitutional for a school district to have a policy of drug-testing all middle school and high school students involved in extracurrical activities. Colb argues that while the Court majority may have reached the right result, the reasoning it used to get there was severely flawed. Colb also explains why random or generalized drug-testing may be superior to a system that tests only those students who teachers suspect may be taking drugs.
Wednesday, Jul. 03, 2002

THE OSTRICH APPROACH TO CONSTITUTIONAL INTERPRETATION:
A SUPREME COURT DECISION ABOUT PRISONERS' FIFTH AMENDMENT RIGHTS
FindLaw columnist and Rutgers law professor Sherry Colb argues that the Supreme Court's decision, issued earlier this month, in McKune v. Lile is incorrect. There, a five-justice majority of the Court upheld as constitutional a Kansas prison policy requiring sex offenders to enter a treatment program in which they must confess all prior crimes without a grant of immunity. Colb argues, however, that the policy, far from being consitutional, actually violated two independent lines of Court precedent interpreting the Fifth Amendment.
Wednesday, Jun. 19, 2002

WHY KOSHER FRAUD STATUTES AREN'T KOSHER:
THE SECOND CIRCUIT ENFORCES THE SEPARATION OF CHURCH AND STATE
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent federal court of appeals decision invalidating New York's Kosher Fraud Statutes on the ground that they violate the Constitution's Establishment Clause. Are there many meanings of "Kosher," or a single meaning that the less observant fail to live up to? Colb, who was brought up in an Orthodox household, explains the details of the debate, argues for the "multiple meanings" position, and explains one type of Kosher fraud statute that would be constitutional.
Wednesday, Jun. 05, 2002

SENTENCING WHILE STONED:
WHY A JUDGE'S PRIVATE USE OF MARIJUANA MAY CALL HIS SENTENCING CAPACITY INTO QUESTION
FindLaw columnist and Rutgers law professor Sherry Colb discusses two Arizona death row inmates' attempts to get new sentencing hearings based on the fact that the judge who sentenced them was later convicted of marijuana use. As Colb discusses, the case raise a number of questions: Does a judge's personal use of marijuana affect the validity of the sentences he imposes? If so, must the judge be proven to have been intoxicated at the time the sentence was handed down? And, even if there is no such proof, is it acceptable for a drug-using judge to have sentenced drug users for drug crimes or other crimes?
Wednesday, May. 22, 2002

SEX, DEATH, AND THE FIRST AMENDMENT:
A RECENT FIRST CIRCUIT CASE IGNORES FREE SPEECH PRECEDENTS
FindLaw columnist, University of Pennsylvania visiting law professor, and Rutgers law professor Sherry Colb discusses a recent federal appellate decision with important First Amendment implications. The decision upheld a Massachusetts statute that banned shooting (except by law enforcement personnel in the line of duty) at images of human beings and human-shaped targets. Colb argues that the decision was not only in error but, worse, in sharp conflict with a line of binding Supreme Court precedents that the appeals court failed even to mention.
Wednesday, May. 08, 2002

A RECENT SUPREME COURT CASE ON THE EIGHTH AMENDMENT AND QUALIFIED IMMUNITY BOTH EXPOSES AND HIDES THE CRUELTY OF PRISON
FindLaw columnist, University of Pennsylvania visiting law professor, and Rutgers law professor Sherry Colb discusses the case of Hope v. Pelzer, in which the Supreme Court heard oral argument last week. Colb explains the case's two central issues: First, what constitutes "cruel and unusual" punishment in violation of the Eighth Amendment? Second, when are prison guards on notice that the punishment they inflict for prisoners' disciplinary infractions violates the Eighth Amendment?
Wednesday, Apr. 24, 2002

A SECOND LOOK AT EXECUTING THE MENTALLY RETARDED:
THE MEANING OF "CRUEL AND UNUSUAL PUNISHMENTS"
FindLaw columnist, University of Pennsylvania visiting law professor, and Rutgers law professor Sherry Colb uses a current Supreme Court case, relating to the constitutionality of executing mentally retarded persons, to discuss a curious feature of the Eighth Amendment -- which prohibits "cruel and unusual punishments." As Colb notes, notwithstanding the Amendment's highly substantive text, the Court has tended to read it primarily as a source of procedural protection. Colbs offers an interesting explanation of why this might be.
Wednesday, Apr. 10, 2002

THE ANDREA YATES VERDICT:
A NATION IN DENIAL ABOUT MENTAL ILLNESS
FindLaw columnist, University of Pennsylvania visiting law professor, and Rutgers law professor Sherry Colb offers an explanation of how Andrea Yates could, at the same time, both be mentally ill and "seem" sane in the eyes of the public and the law. Colb contends that insanity law and the public imagination are out of step with psychiatric knowledge of mental illness -- and uses Poe's "The Telltale Heart" to illustrate her point.
Wednesday, Mar. 27, 2002

PRIVACY, PROCREATION, AND DYING:
SHOULD THE LAW PERMIT A WOMAN WHO HAS THE GENE FOR EARLY ONSET ALZHEIMER'S DISEASE TO HAVE A GENETICALLY-SCREENED CHILD?
FindLaw columnist, University of Pennsylvania visiting law professor, and Rutgers law professor Sherry Colb puts a recent medical controversy into a legal context. The controversy concerns a woman who has a gene that guarantees she will eventually die of early-onset Alzheimer's disease, and who chose with her husband to have a child genetically screened to be free of the disease. Colb considers the constitutional ramifications if, as has been suggested, states were to ban certain parents -- those who are likely to die in a few years of genetic disease -- from procreating.
Wednesday, Mar. 13, 2002

WHY THE CLONED CAT MAKES THE CASE AGAINST HUMAN CLONING
FindLaw columnist, University of Pennsylvania visiting law professor, and Rutgers law professor Sherry Colb addresses the following provocative question: Is there a universal reason, beyond individual religious beliefs, to support the legal ban on human cloning currently being considered by the Senate? Colb argues that a close look at pet cloning helps provide just such a reason.
Wednesday, Feb. 27, 2002