Prison as the Default Option: The U.S. Supreme Court Considers a California Case
FindLaw columnist and Cornell law professor Sherry Colb comments on Plata v. Schwarzenegger, a prisoners' rights case in which the U.S. Supreme Court recently heard oral argument. As Colb explains, the state of health care in California's prisons is appalling, largely due to overcrowding that strains resources to the breaking point. Accordingly, a specially-convened three-judge federal court invoked its authority under the Prison Litigation Reform Act to order a remedy that will -- if implemented -- likely mean that California will release tens of thousands of prisoners over the next two years. Colb explains the issues that the case raises under the Eighth and Fourteen Amendments -- which prohibit cruel and unusual punishment -- and explains the ways in which some of the Court's Justices seemed to be thinking about these issues at oral argument. In addition, she considers how this case puts at issue the assumption that -- even when non-violent offenders are at issue -- prison terms are necessary to protect the public. Colb asks, do prisons need to be as crowded as they are? For certain non-violent offenders, Colb points to alternatives to imprisonment such as fines, probation terms that can be revoked if their conditions are violated, house arrest, and monitoring via GPS implant. Colb suggests that we see imprisonment for non-violent offenders as an extreme remedy, and investigate other possible alternatives.
Wednesday, December 22, 2010
The U.S. Supreme Court Considers Whether Police Can "Make Their Own Exigency" in the Fourth Amendment Context
FindLaw columnist and Cornell law professor Sherry Colb comments on a case in which the Supreme Court granted review earlier this year, Kentucky v. King.
As Colb explains, the case involves the "exigent circumstances" exception to the Fourth Amendment's requirement that, before conducting a search, police must first procure a warrant from a neutral magistrate. In the case before the Court, police knocked on the door of an apartment that smelled of marijuana (and that they had misidentified as being the apartment where a drug dealer they were chasing had taken refuge) and announced their presence. Then, the police heard movement inside the apartment -- which they interpreted as the sound of evidence being destroyed. The police thus forced their way into the apartment. Later, in court, the police invoked the "exigent circumstances" exception to the Fourth Amendment to justify their conduct, on the ground that if they had not entered when they did, the evidence would have been gone by the time that they could return with a warrant. The Fourth Amendment issue here arises because, had the police not knocked and announced their presence, the evidence might never have been destroyed at all. Colb considers two possible tests that courts have used to determine whether a police-created exigency like this one can fit the exigent circumstances exception, and contends that one is superior and should be adopted by the Supreme Court.
Wednesday, December 8, 2010
Does Denying Opposite-Sex Couples Access to Civil Partnership Violate Their Equality Rights?
FindLaw columnist and Cornell law professor Sherry Colb comments on an unusual type of lawsuit that is being brought in the U.K., and that could be brought in some states in the U.S., as well. The plaintiffs in the suit are a straight U.K. couple who seek access to the civil-partnership status that was enacted in the U.K. as an alternative to gay marriage. In the U.K., as Colb explains, the benefits of marriages and civil partnerships are identical; all that is different is the name. Is the straight couple correct that equality necessitates that straight couples have access to civil partnership, even though they already have access to marriage, which carries the same benefits? Colb examines a variety of interesting arguments that might cause us to answer "Yes" or "No," respectively, to that question.
Wednesday, November 24, 2010
Does Routinely Sampling DNA From Arrested Felons Violate The Fourth Amendment?
FindLaw columnist and Cornell law professor Sherry Colb comments on a case that the U.S. Court of Appeals for the Third Circuit has set for oral argument before the entire 14-judge court. As Colb explains, the issue in the case is whether, consistent with the Fourth Amendment, the government can routinely collect DNA samples from arrestees (without any showing of probable cause, and without a warrant). Colb notes that this important issue is likely to eventually make its way to the U.S. Supreme Court, and she considers the arguments and precedents on both sides. She also notes that the issue is made more complex by the point that there are two arguable rights-infringements here -- the taking of a buccal (inside-of-the-cheek) swab, and the analysis of the DNA collected via that swab.
Wednesday, November 10, 2010
No Buying Soda with Food Stamps? Considering Mayor Bloomberg's New Health Initiative
FindLaw columnist and Cornell law professor Sherry Colb comments on New York City Mayor Michael Bloomberg's request that the USDA allow him to exclude sodas and other sugary drinks from the City's Food Stamp coverage, in an attempt to reduce high levels of obesity and Type 2 Diabetes. The proposed exclusion would be temporary, lasting two years, and its effect would be assessed at the end of that time. Colb contends that some of the most frequently-heard criticisms of Bloomberg's proposed exclusion are unconvincing. Some claim it is unfair that Bloomberg is limiting only Food Stamp recipients, but Colb points to other Bloomberg heath programs that affect all New Yorkers, such as the smoking and restaurant trans fat bans, and notes that a proposed Bloomberg soda tax would have affected every New Yorker. Colb also argues that objections that hold that the Food-Stamp soda exclusion is an unfair limitation on freedom ignore studies that show that sugary drinks are literally addictive.
Wednesday, October 27, 2010
The Criminalization of HIV Transmission: Is It Just?
FindLaw columnist and Cornell law professor Sherry Colb comments on when, if ever, HIV transmission should be criminalized. This controversial topic has also been the subject of the focus of the American Bar Association’s AIDS Coordinating Committee, and will soon be the subject of a hearing at the George Washington Elliott School of International Affairs, which will focus on the implications of the criminalization issue for HIV prevention. Colb considers the rationales for criminalization, and also its shortcomings and risks. In addition, she parallels the criminalization of HIV transmission with the imposition of sanctions upon alcohol- and drug-addicted pregnant women. Ultimately, she suggests that this issue is best approached from a public-health, not a criminal-justice, standpoint.
Wednesday, October 13, 2010
D.C. Circuit Holds that Month-Long Police GPS Monitoring Triggers Fourth Amendment
FindLaw columnist and Cornell law professor Sherry Colb analyzes a recent decision by the U.S. Court of Appeals for the D.C. Circuit regarding the constitutionality of allowing the police to attach GPS devices to suspects' cars, and then to use the devices to monitor the suspects' movements. (In the case at issue, the monitoring went on for a month.) More specifically, the Court had to resolve whether the Fourth Amendment allows the police to attach and use GPS devices, or whether their doing so falls afoul of the Amendment's prohibition on unreasonable searches and seizures. Colb covers the difference between one-time and long-term monitoring; discusses the relevant precedents, including a key U.S. Supreme Court precedent on phone-booth privacy; and explains why the GPS-monitoring issue is also likely to end up before the Court. Colb also comments on how the Court ought to rule when and if such a case does come before it.
Wednesday, September 15, 2010
Evaluating the Eighth Amendment's Ban on Only Cruel and Unusual Punishments
FindLaw columnist and Cornell law professor Sherry Colb notes that, while it's evident why the Constitution might want to ban cruel punishments, it is less plain why it bans punishments that are "cruel and unusual." Why should it matter if a punishment is unusual? As a case study of a punishment that is both cruel and unusual, Colb focuses on a recent stoning in Afghanistan, of a couple who had done nothing but marry without their parents' blessing. She also considers a U.S. Supreme Court case involving a convict who was tied to a hitching post for hours in the hot sun. In examining why the Constitution is troubled by cruel AND unusual punishments, Colb considers whether targeting unusual punishments may be a way to constrain judicial discretion by compelling the judge to refer to community norms. In addition, she contends that the Constitution's ban may not be sufficient -- since in some cases, society can become acclimated to, and treat as "usual," conduct that, on closer examination, may be cruel. In other words, Colb suggests, the very fact that a kind of conduct is usual in American society may mask its cruelty -- citing factory farming as an example. Yet in other instances, Colb observes, when society increasingly becomes more enlightened over time, then the unusualness of a punishment may indeed be a good proxy for whether it should be permissible.
Wednesday, September 1, 2010
How The Supreme Court May Have Quietly Undermined the Constitutional Requirement of "Probable Cause"
FindLaw columnist and Cornell law professor Sherry Colb focuses on an unusual per curiam opinion from the last Supreme Court Term that she argues may have quietly changed the Court's Fourth Amendment doctrine -- in particular, its doctrine regarding the "probable cause" requirement. Colb begins by explaining the Court's practice with respect to per curiam opinions, which are not signed by any Justice, are not preceded by briefing on the merits, and are not the subject of oral argument. Colb explains why the Justices sometimes issue per curiam opinions, but contends that the Fourth Amendment case at issue, Michigan v. Fisher, was a poor candidate for per curiam treatment, because it is far more significant and potentially wide-ranging in its doctrinal effects than per curiam opinions usually are.
Wednesday, August 4, 2010
The Jerusalem "Rape by Deception" Case: Can a Lie Transform Consensual Sex Into Rape?
FindLaw columnist and Cornell law professor Sherry Colb comments on the notorious recent Jerusalem news story about an act that some have called "rape by deception." In brief, the facts appear to be as follows: (1) a man falsely told a Jewish woman that he was single, Jewish, and interested in a serious relationship; (2) in fact, the man was (and is) married (with two children), and is a Palestinian Arab; (3) the two had sex; and (4) the woman says that she never would have consented to sex, had she known the truth about the man. Colb analyzes a number of hypothetical situations to determine when, exactly, a lie told prior to a sex act, and the sex act induced by the lie may together properly be equated with rape. She also explains how -- if the sequence of events that occurred in Jerusalem had instead occurred in the U.S. -- American criminal law would have characterized the man's deception.
Wednesday, August 4, 2010
An Oklahoma Abortion Law Raises New and Different Rights Questions
FindLaw columnist and Cornell law professor Sherry Colb analyzes the legal questions raised by a new Oklahoma abortion law that, as she explains, operates differently than many abortion restrictions do. Specifically, the law prevents a patient from suing her doctor for failing to reveal to her, during her pregnancy, the presence of a fetal abnormality. Colb notes that most abortion restrictions stop pregnant women from obtaining abortions at the time, at the place, and/or in the manner of their choosing -- or compel young women to gain permission for their abortion from a parent or judge. But this restriction is different: It does not interfere with a woman's ability to get an abortion at a time when she wants one, but it does allow doctors to withhold from women information that might cause some women to decide to abort -- by rendering doctors immune from a lawsuit based on their withholding that information. Using Colb's terms, the law thus does not interfere with a woman's Bodily Integrity Interest (as limits on abortion may), but it does interfere with her Offspring Selection Interest -- but should the latter interest be honored? Colb considers the arguments.
Wednesday, July 21, 2010
The Supreme Court Denies A Public Employee's Privacy in Electronic Communications: What's Next?
FindLaw columnist and Cornell law professor Sherry Colb comments on the Supreme Court's recent, end-of-Term decision in Ontario v. Quon. Colb contends that the Court's outcome -- holding that a public employer can, under some circumstances, read the text messages an employee sends on an employer-owned pager that is meant to be used for work purposes -- should have been unsurprising to Court observers. She also explains that the case before the Court was made easier by a number of facts -- such as the employer's express warning to its employees that its policy was that it could read their texts without prior notice. Much more surprising than the outcome here, Colb contends, was the explicit decision by the Court to refrain from interpreting what privacy rights mean in the area of electronic communications, on the ground that the technology is in a state of flux. Colb argues that Justice Scalia was right to ask the Court not to shrink from deciding cases in this area of law.
Tuesday, July 6, 2010
The Miranda Right to Counsel Shrinks at the Supreme Court
FindLaw columnist and Cornell law professor Sherry Colb comments on a significant recent right-to-counsel Supreme Court decision, Maryland v. Shatzer. The case posed the following question: An incarcerated prisoner is interrogated about a second crime that he is suspected of committing. He invokes his Miranda rights to ask for an attorney, which cuts off the questioning. Two weeks later, while he is still incarcerated, police would like to re-approach him, to question him again about the second crime, while giving him new Miranda warnings. Can they do so? The Court answered yes, but Colb seriously questions the theory that drove the Court's result -- which suggested that a prisoner's returning to the general prison population, after being interrogated, is akin to a person outside of prison being released by the police being released after interrogation, and resuming his normal daily life.
Wednesday, June 23, 2010
The Supreme Court Holds That Responding to Police Interrogation Waives The Right to Remain Silent
FindLaw columnist and Cornell law professor Sherry Colb comments on a recent Supreme Court decision regarding the scope and meaning of the famous "right to remain silent" established by the Court in Miranda v. Arizona. As Colb explains, the Court held that a suspect who had been read his Miranda rights, and then was subjected to an almost three-hour-long near-monologue of police questioning, still waived those rights when he finally responded to the police. Colb -- who predicted this very holding at an earlier stage of the case -- argues that the Court's decision breaks with the spirit of Miranda, which was meant to serve as a genuine protection against coercive interrogation.
Monday, June 7, 2010
High Court Rejects Life Without Parole for All Juvenile, Non-Homicide Crimes
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent, highly significant Supreme Court decision, Graham v. Florida. As Colb explains, the Court held that it is an Eighth Amendment violation to sentence a juvenile to life imprisonment without parole for the commission of a lesser crime than homicide. Colb sets forth the facts of the case, explains why the Eighth Amendment claim that was made was audacious, puts the decision in the context of prior Eighth Amendment precedent, and explains what the Justices' views on this case may mean for future cases. In particular, Colb explains why Eighth Amendment cases -- which typically have involved death penalty challenges -- may now more frequently include challenges to lengthy prison sentences.
Wednesday, May 26, 2010
"Not Milk?": Dairy Petitions the FDA to Block Labels Like "Soy Milk" on Non-Dairy Products
FindLaw columnist and Cornell law professor Sherry Colb contends that the Food and Drug Administration (FDA) should reverse the regulations that it recently promulgated in response to a petition from the dairy industry. The petition sought to stop producers of non-dairy food from using terms such as "milk," "cheese," "ice cream," "sour cream" and "yogurt" to describe their products, and the regulations and warning letters that the FDA has since issued have followed suit. The industry group that filed the petition claims that the use of these words on labels falsely conveys to consumers that non-dairy products are "something they are not." However, Colb counters that it is the dairy producers that have failed to fully disclose the nature -- including the health consequences -- of the products they sell. Colb also argues that there is little likelihood of product confusion here, since those who buy soy milk and similar products are specifically trying to avoid dairy by opting for a substitute, not purchase it.
Wednesday, May 12, 2010
Nebraska Passes Law Prohibiting Abortion After Twenty Weeks: Implications for Abortion and Animal Rights
FindLaw columnist and Cornell law professor Sherry Colb comments on a new Nebraska law that will go into effect later this year, which will prohibit any abortion in the state that would occur after the twentieth week of pregnancy. Colb explains that the express reason that the twentieth-week cutoff was chosen is that it is the point at which some experts believe that a fetus begins to feel pain. Colb situates the law in the context of Supreme Court abortion precedent and the arguments that are made in the political debate over abortion. She also considers the possible implications of the law -- and the theory behind it -- for abortions that occur prior to the twenty-week cutoff. Finally, she raises a parallel between this controversy and controversies regarding animal rights: If suffering is a key benchmark for granting legal protection, then shouldn't animals -- who suffer terribly when used for food, experimentation and other purposes -- receive legal protection to prevent that suffering?
Wednesday, April 28, 2010
Federal Appeals Court Rejects Preemption Claim Against California "Downed Animal" Law: A Victory for Animal Rights?
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent decision by the U.S. Court of Appeals for the Ninth Circuit, which allowed, for now, the full enforcement of a California law that bans the slaughter of animals unable to stand or walk to their death without assistance, and requires that slaughterhouses immediately euthanize such animals in a humane fashion. The National Meat Association claimed that the California law was preempted by the Federal Meat Inspection Act, but the Ninth Circuit reversed a district court's preliminary injunction against the California law's enforcement. Colb argues that the Ninth Circuit made the right call on federal preemption, but notes that from an animal rights perspective, the California law does not come close to going far enough in protecting animals.
Wednesday, April 14, 2010
A Prisoner Seeks Vegan Food in Prison: Why Refusing Him is Both Illegal and Foolish
FindLaw columnist and Cornell law professor Sherry Colb argues that a prisoner who is seeking a vegan diet has a right to such a diet under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). She contends that the practice of veganism meets RLUIPA's requirements, as developed in federal courts' caselaw, when it is connected to a prisoner's practice of Buddhism or another religion, and perhaps also when it is simply a tenet of a prisoner's ethical veganism. In addition, she suggests that -- putting legal issues aside -- there is a compelling policy case for allowing prisoners to opt for vegan diets, particularly when such diets are part of a prisoner's larger renunciation of all types of violence against living beings.
Wednesday, March 31, 2010
The Supreme Court Rules on How Clear Miranda Warnings Must Be
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent Supreme Court decision concerning an unusually-worded set of Miranda warnings. The specific question before the Court was whether this set of warnings had adequately apprised the suspect of his right to have an attorney present during -- not just prior to -- interrogation. Colb contends that beneath this question, a more troubling question lurks: Do courts really want suspects to understand that they may have a lawyer with them during interrogation? Colb contends that, long before this case, the answer to this second question has been unclear, and provides evidence from the case law to support her point.
Monday, March 15, 2010
Anti-Abortion Billboards Claim "Black Children Are An Endangered Species": A Meaningful Contention?
FindLaw columnist and Cornell law professor Sherry Colb discusses the controversial billboards that have recently appeared in majority-minority communities in Georgia. The billboards include a photo of an unhappy-looking African-American infant, and the legend "Black Children Are an Endangered Species." They also include the Internet address of a related website. Colb explains that, when read in conjunction with the text on the website, the billboards serve to protest the claimed disproportion between the number of African-American women who use abortion services, and the number of white women who do. The website and billboards also together suggest that adopting an anti-abortion stance is the answer. But should racial disparities in abortion -- if proven -- trigger the same kind of outrage and concern that, say, racial disparities in incarceration do? Colb offers a nuanced answer to this provocative question.
Wednesday, March 3, 2010
Should Possession of Child Pornography Require Reparations to the Child?
FindLaw columnist and Cornell law professor Sherry Colb takes on a question that has sharply divided courts: Should a person who is found to have committed the crime of possessing child pornography be required to pay restitution to each child who appears in those images? The question has been posed very sharply recently, because images of one child victim -- whose pseudonym is "Amy" -- have been at issue in 350 criminal cases across the country. Moreover, the difference in the amount of restitution awarded in those cases is dramatic: Two Florida judges together awarded over three million dollars; a California judge awarded only $5000; and a Texas judge refused any award at all.
Wednesday, February 17, 2010
Can Violence Be Allowed When a Warning Is Prohibited? The Kansas High Court Issues a Perplexing Ruling
FindLaw columnist and Cornell law professor Sherry Colb analyzes a complex and, she argues, very troubling recent decision from the Kansas Supreme Court in a criminal case. In the case, the defendant admitted that he had threatened to break his sister's neck. But the defendant claimed that he had only made the threat because he was afraid, at the moment he spoke, that his sister was about to attack him. He therefore argued that he was entitled to have the trial court instruct the jury on self-defense -- a defense which, if proven, would have compelled an acquittal. Colb argues that the Kansas Supreme Court was wrong to hold that no such instruction was warranted -- and that its reasoning was deeply flawed, for it implied that the defendant could have invoked self-defense if he had actually harmed his sister, but not if he had taken the lesser step of threatening harm. Colb thus deems the ruling both counterintuitive and perverse.
Wednesday, February 3, 2010
The Vermont Supreme Court Considers "Loss of Companionship" Damages for a Dog's Death
FindLaw columnist and Cornell law professor Sherry Colb comments on an interesting case that is before the Vermont Supreme Court. The case arose when a couple's dog wandered into a neighbor's yard, and the neighbor shot and killed the dog. The couple is now seeking damages from the neighbor for their emotional distress, and for the loss of their dog's companionship. Colb contends that the damages the couple are seeking should be available under the law, but she also warns that claims that this case could be the first step in ushering in a larger recognition of animal rights in America are seriously overstated. Rather than embracing animal rights, Colb suggests, a decision in favor of the couple who lost their dog would likely have a much narrower significance -- in that it would recognize that some people put special meaning and importance upon their pets, and would recognize the wrongness of the neighbor's criminal act.
Wednesday, January 20, 2010
Abortion in Israel and the United States: A Lesson in Questioning Assumptions
FindLaw columnist and Cornell law professor Sherry Colb -- who recently taught a course on reproductive rights in Israel -- contrasts the ways in which Judaism and Christianity (Catholicism, in particular), and the U.S. and Israel, each conceptualize abortion. In particular, Colb focuses on beliefs as to when life begins, as to when (if ever) abortions are permissible, and as to the significance of the concept of "potential life." She notes that, in light of the existence of disagreement even among the devout regarding such issues, it is inaccurate to suggest that only secular persons take a less than absolutist view of abortion.
Wednesday, January 6, 2010
Pro-Life Ideology Split in Two: Subtle Distinctions Expose Fundamental Divide
With the Stupak Amendment bringing the issue of abortion to the forefront of national politics, FindLaw columnist and Cornell law professor Sherry Colb discusses one point on which both pro-choice Americans and many pro-life Americans agree: Women who have abortions should not be prosecuted. Colb explains why many pro-life Americans believe that prosecutions should occur, but also that they should only target doctors, not women -- by invoking criminal law doctrines such as duress, self-defense, and excuse. She also parses the legal distinction between an action's being excused, and its being justified, to better explain the splits within the pro-life movement about whether abortion is tantamount to murder, and whether women who have abortions should be prosecuted.
Wednesday, December 9, 2009
Excluding Illegally-Obtained Evidence and the Doctrine of Double Effect
FindLaw columnist and Cornell law professor Sherry Colb offers an interesting and original perspective on the Fourth Amendment's prohibition on unreasonable searches and seizures and the "exclusionary rule." (The exclusionary rule forbids courts from admitting into evidence the fruit of an unconstitutional search, and has always been the subject of Supreme Court debate.) Colb contends that the Catholic Doctrine of Double Effect (DDE) can shed new light on the morality and logic behind the exclusionary rule. The DDE holds that the following two actions are morally distinct (1) intentionally and directly causing harm as a means of accomplishing a positive outcome, and (2) intentionally and directly bringing about the same positive outcome, while knowingly causing the same harm as an undesired side effect.
Wednesday, November 25, 2009
Suit Challenges Federal Ban on Compensation for Bone Marrow Donor
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent lawsuit that is challenging the federal ban on compensation for bone marrow donors. As she explains, there is a very strong policy argument for lifting the ban -- for it is estimated that about 1,000 patients per year in the U.S. are literally dying for lack of bone marrow donors, and compensation could incentivize more donors to come forward. But is there also a strong policy argument in favor of the ban? Colb examines ban supporters' fears about deception (which could occur if donors seeking money lie about their HIV risk); coercion (which could occur if a person feels that poverty gives her no choice but to donate, or if an unscrupulous third party forces her to donate and then takes the money); and commodification (which would occur if society were debased by the fact that a price tag had been put upon a bodily substance). Colb offers strong responses to each of these policy concerns, and then goes on to analyze whether the case that challenges the ban as unconstitutional can succeed on the merits, as a matter of constitutional law.
Thursday, November 9, 2009
Are "Hate Crimes" the Same Thing as "Thought Crimes"?: Opponents of the Federal Hate Crime Bill Invoke Free Speech
FindLaw columnist and Cornell law professor Sherry Colb takes strong issue with a commonly-heard objection to the proposed bill, which President Obama is expected to sign today, that would expand the scope of the federal hate crimes law to encompass hatred based upon gender, sexual orientation, gender identity, or disability. The objection contends that to ban a hate crime is to ban a "thought crime," when we all ought to have freedom of thought and speech. Colb responds that, to the contrary, to look to a perpetrator's motivation for committing a proven crime is a far cry from criminalizing thought or speech alone. She also covers the Supreme Court's two key hate crimes case, explicating the reasoning of the two and explaining why the Court accepts punishment enhancements based on motivation. Finally, she points out that conservative critics of the bill's emphasis on crimes' motivations are plainly comfortable with looking to motivation in other contexts -- such as in a suit alleging that an employer has committed so-called "reverse discrimination" against a white employee -- and thus, she suggests that their real discomfort must be with gay rights, not with the bill's focus on motivation.
Wednesday, October 28, 2009
Does the Mere Existence of an Invalid Arrest Warrant Injure Its Target?
FindLaw columnist and Cornell law professor Sherry Colb discusses a fascinating Fourth Amendment case in which the U.S. Court of Appeals for the D.C. Circuit recently heard oral argument. The case poses the question whether a person has standing to bring a civil rights lawsuit in federal court whenever a baseless arrest warrant is issued against him or her. In this case, the government points to the facts that the plaintiff was never actually arrested; that the government has dismissed the warrant; and that the government has indicated it will never prosecute the plaintiff on the charge that had led to the warrant. However, the plaintiff argues that he continues to fear that he will be wrongfully arrested. In considering which side is right here, Colb examines both Fourth Amendment doctrine and the Constitution's "case or controversy" requirement for the exercise of federal jurisdiction.
Wednesday, September 30, 2009
Cass Sunstein's Views About Organ Donation: When is a "Nudge" Illegitimate?
FindLaw columnist and Cornell law professor Sherry Colb argues that the Senate was right to confirm Cass Sunstein as the Administrator of OIRA (the Office of Information and Regulatory Affairs), an office within the Office of Management and Budget that oversees the federal government’s regulatory apparatus. Sunstein's critics had cited his view that when someone dies, the default rule -- if the deceased person did not express a preference -- should be that his or her organs are donated so that others may live. Colb makes the case for this particular default rule, while also examining the importance and meaning of default rules more generally. She also contends that Sunstein's position on which default rule is the correct one should not have posed an impediment to his confirmation, since the position was, at a minimum, reasonable, and punishing nominees for expressing reasonable views would impoverish public debate.
Monday, September 14, 2009
What Vegans Can Learn from the Gay Rights Movement's Successes
FindLaw columnist and Cornell law professor Sherry Colb parallels some of the features of the vegan movement with those of the gay rights movement. In drawing the parallel, Colb notes that a vegan and a gay person each must make a choice as to how "out" he or she will choose to be, regarding his or her identity, and how avidly he or she will urge others to share the same views. Each also may face difficult family conflicts, and pressure to conform to majority lifestyles. Drawing upon the work of law professor and author Kenji Yoshino, Colb notes that a gay or vegan life may include many disparate instances in which one must decide whether to be "out," or to "cover" one's identity, in a particular context, and the answer one gives might not always be the same. Accordingly, she argues that vegans struggling with such questions have much to learn from the gay rights movement.
Wednesday, September 2, 2009
Supreme Court Considers Constitutionality of Juvenile Life Without Parole
FindLaw columnist and Cornell law professor Sherry Colb details and assesses the precedents and arguments that may inform the Supreme Court's deliberation as it considers, during its coming term, two important companion cases. The cases raise the question whether imposing sentences of life imprisonment without parole upon juvenile offenders violates the Eighth Amendment's prohibition on cruel and unusual punishment. Colb argues that, as a matter of policy, the case against sentencing juvenile offenders to life without parole is strong. However, after analyzing relevant Court precedents, she finds that they offer little support for an Eighth Amendment argument against sentencing juveniles to life without parole. Nevertheless, Colb expresses the hope that the Court will modify its doctrine in this case, and remove this harsh punishment as an option.
Wednesday, August 19, 2009
Lessons From an Animal Cruelty Case In the U.S. Supreme Court
FindLaw columnist and Cornell law professor Sherry Colb discusses an important First Amendment and animal cruelty case that the Supreme Court recently decided to review. The case involves the constitutionality of a statute through which Congress responded to the phenomenon of "crush" videos, in which a woman tortures and slowly kills animals to appeal to those with a sexual fetish for watching such abuse. However, as Colb notes, in the case the Court will review, Robert J. Stevens was convicted not of any crush-video offense, but of filming and distributing violent videos of pit-bull fights and pit-bull attacks. After the U.S. Court of Appeals for the Third Circuit struck down Stevens's conviction on First Amendment grounds, the Supreme Court opted to take the case. Colb covers the key First Amendment precedents that may influence the Court's ruling, drawing on cases from the context of child pornography to argue that the state has a legitimate interest in destroying the market for certain materials. She also contends that those who are horrified by crush videos, but who are not vegans, should look within to consider whether their practices of eating meat or animal products do not create a valid analogy between themselves and the repellent crush video makers.
Monday, August 3, 2009
Child Obesity as Child Neglect: Is the Standard American Diet Dangerous?
FindLaw columnist and Cornell law professor Sherry Colb comments on a controversial South Carolina case in which the state's Social Services Department accused a mother of neglecting her 14-year-old son because he was morbidly obese. Colb contends that the state's decision was clearly the wrong one, as this is not a case of an abusive or neglectful mother, but rather of an apparently loving mother without the resources or information she needs. Colb parallels the situation to one in which a hypothetical loving parent might have an anorexic child -- a situation which ought not to lead to neglect charges. Colb also raises the broader point of how this case fits into our country's obesity epidemic, citing the deeply unhealthful nature of the Standard American Diet, and ways the government could and should protect the health of children, ranging from better information about the link between nutrition and health, to improving the healthfulness of public schools' lunches.
Wednesday, July 22, 2009
The Right of Confrontation: A Supreme Court Decision Reveals Strong Schisms
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent Supreme Court decision regarding the meaning of the Constitution's Confrontation Clause, which gives criminal defendants the right to be confronted with the witnesses against them. As Colb explains, the Court recently split on the question whether the government, when submitting forensic test results (such as the results of a test as to whether a substance is cocaine), must provide the analyst who performed the test to be questioned by the defense. In addition to analyzing that decision, Colb also traces the Court's troubled Confrontation Clause history.
Thursday, July 2, 2009
The Highest Court of New York State Protects Privacy from GPS Monitoring
FindLaw columnist and Cornell law professor Sherry Colb discusses an important recent decision by the New York Court of Appeals, holding that police should have obtained a search warrant before they attached a GPS device to a suspect’s car and continuously monitored its whereabouts for over two months. Colb contrasts the approach of New York's highest court with that of the U.S. Supreme Court when it comes to Fourth Amendment issues involving the tracking of suspects. She also predicts that the New York decision's approach could influence federal courts considering cases involving GPS and the Fourth Amendment in the future.
Wednesday, June 24, 2009
Kansas v. Ventris: The Supreme Court Misconstrues the Right to Counsel
FindLaw columnist and Cornell law professor Sherry Colb comments on a recent Supreme Court Sixth Amendment right-to-counsel decision, and reflects on how well the decision does -- or does not -- square with prior Court precedent. As Colb explains, the decision required the Court to confront the following question: When police or prosecutors cause a suspect's cellmate to ask him about his alleged crime, can the damning answer the suspect gives to the cellmate (without the benefit of counsel) later be offered as inculpatory evidence against the suspect at trial, to contradict other, exculpatory statements that he makes? The Court said yes, but Colb contends that its ruling justifying that answer is incoherent -- and she points to serious problems, as well, with a closely-related Court precedent in this area of law.
Wednesday, June 10, 2009
Ten Angry Men?: Why The Supreme Court Should Take a Jury Unanimity Case
The movie "12 Angry Men" told the story of how a lone holdout juror can make a profound difference in a criminal case. But -- as FindLaw columnist and Cornell law professor Sherry Colb explains -- there are two American states, Oregon and Louisiana, where prosecutors can procure a criminal conviction, for a lesser felony than murder, by convincing only ten jurors out of twelve. In 1972, the U.S. Supreme Court okayed such split-verdict criminal convictions, but Colb argues that it should grant review in a case that would allow the Court to reverse itself. Colb points out that even when unanimity is required, holdouts may be rare due to the human tendency to conform, and adds that, when unanimity is not required, there is little incentive for the majority even to listen to dissenters. She contends that if the Court required unanimous juries under the Sixth Amendment, it would also effectively be requiring a process of dialogue and persuasion that would improve the accuracy and fairness of verdicts.
Wednesday, May 27, 2009
Implications of the "Holier-than-Thou Effect" For Criminal Justice
FindLaw columnist and Cornell law professor Sherry Colb examines how the "holier-than-thou effect" -- in which individuals predict that they would act more morally in certain situations than, in fact, they do in practice -- may be negatively influencing America's criminal justice system. Colb asks whether America's stunningly high incarceration rate may have resulted, in part, from Americans' refusal to empathize with prisoners, due to the "holier-than thou effect." For instance, if we believed that we ourselves might turn to dealing drugs under certain life circumstances, would our laws be less harsh on drug dealers? Colb suggests that a more accurate ability to predict our own behavior might convince us to adopt a perspective far closer to "There but for the grace of God go I," and to shift from an objective of retribution to one of rehabilitation. in the case of some offenses and offenders.
Monday, May 11, 2009
Avoiding Race Discrimination Between a Rock and a Hard Place: The U.S. Supreme Court Hears Argument in Ricci v. DeStefano
FindLaw columnist and Cornell law professor Sherry Colb discusses Ricci v. DeStefano, a case in which the Supreme Court recently heard oral argument. As Colb explains, the case seems to present a paradox: If an employer takes an action to avoid engaging in one form of race discrimination – disparate-impact discrimination – can that very action constitute another form of race discrimination – disparate-treatment discrimination? And if so, what is the employer to do? In the case before the Court, a fire department found that its test for employees yielded promotions only for three white employees, and learned that the test was more likely than similar tests to favor whites over African-Americans. The department decided to junk the test's results on the ground that the test might be discriminatory -- but the white employees who would otherwise have been promoted said that it was they who had now become victims of discrimination.
Wednesday, April 29, 2009
Feminists For Life and the Hard Questions It Must Confront
FindLaw columnist and Cornell law professor Sherry Colb reflects upon a speech recently given at Cornell by Karen Shablin, a spokesperson for the group Feminists for Life (FFL). Colb contends that Shablin is right to question whether pregnant college women truly have a free choice to decide to opt to have children, in light of the daunting practical obstacles that would be involved. Pro-life and pro-choice feminists, Colb argues, should be able to agree that women should never feel compelled to give up the chance to have children in order to pursue an education and career. However, Colb also takes strong issue with FFL's failure to take any position on whether women should avail themselves of contraception; she argues that an organization like FFL, which is expressly seeking to provide alternatives to abortion, should endorse the very common alternative of contraception.
Wednesday, April 15, 2009
Why A Botched Abortion Case Should, and Does, Inspire Outrage: The Sycloria Williams Story
FindLaw columnist and Cornell law professor Sherry Colb discusses the criminal charges recently brought against a woman, Belkis Gonzalez, who allegedly suffocated a fetus that was inadvertently delivered alive at an abortion clinic that Gonzalez owned. This month, Gonzalez was charged with tampering with evidence and the unlicensed practice of a health-care profession resulting in serious bodily injury -- but not with homicide. She also faces a wrongful-death suit from the infant's mother, Sycloria Williams. Colb contends that this should not be seen as an abortion case, because the infant had been delivered alive when Gonzalez killed it; explains the key moral and legal differences between these facts and a true abortion scenario; and considers why Gonzalez might have acted as she allegedly did: What rationale -- even if an indefensible one -- might have gone through her mind?
Wednesday, April 1, 2009
The Perils of Eyewitness Identification: A Personal Account
FindLaw columnist and Cornell law professor Sherry Colb comments on recent concerns with eyewitness identification, drawing upon both her personal and professional experience. As the past victim of an armed robbery, Colb was able to identify her attacker out of a lineup with confidence, and he was eventually convicted. Yet as a law professor, Colb notes both that eyewitness identification can be unreliable, and that there are methods to improve its reliability -- including the use of multiple lineups and clear instructions to victims stressing that the perpetrators of their crimes may not appear in any lineup they see. In addition, Colb discusses the work of Iowa State's Gary Wells, who studies eyewitness identification, and comments on his online test -- which readers may want to take, and from which they may learn firsthand about the difficulties of such identification.
Wednesday, March 18, 2009
An Empty Gesture to Soothe the Conscience: Why We Pass Laws Protecting Chimpanzees And Other Animals from Cruelty
FindLaw columnist and Cornell law professor Sherry Colb questions the motivations behind purportedly pro-animal legislation -- such as California's Proposition 2, which will require larger cages for animals beginning in 2015; and the "Captive Primate Safety Act," recently passed by the House, which would, if it becomes law, outlaw the interstate transportation of nonhuman primates in the wake of the Connecticut chimpanzee-mauling incident. More specifically, Colb asks whether such laws really spring from empathy for animals, as some theorists argue, or whether they simply make consumers feel better about the limits on their empathy which allow them to continue to eat animals and use animal products. In support of her thesis, Colb notes that Proposition 2 has drawn advocates even within the industries it will regulate.
Wednesday, March 4, 2009
Miguel Tejada's Guilty Plea: What's Wrong With Prosecuting Dopers for Lying?
FindLaw columnist and Cornell law professor Sherry Colb argues that we should be troubled by the federal charges brought against Baltimore Orioles shortstop Miguel Tejada for lying to congressional investigators about the use of performance-enhancing drugs in baseball. Colb argues that society pays a steep cost when underlying charges -- such as here, a charge of the use of performance-enhancing drugs -- cannot be proven, and as a result, investigators and prosecutors decide to bring only false statements charges arising from their own interrogation of suspects. For instance, Colb notes that if the pattern that occurred with Tejada (who pled guilty to the false statements charges) repeats itself over and over in the context of steroids and baseball, we may be left forever ignorant about the true nature and extent of the use of such drugs within the sport. Colb also takes on the more general issues of pretextual conduct by the government -- that is, conduct where the justification cited is not the real justification -- and of government entrapment, where the government involves itself in inducing the offense.
Wednesday, Feb. 18, 2009
Can Religious Faith Justify Reckless Homicide? A Wisconsin Prosecution Raises Larger Issues
FindLaw columnist and Cornell law professor Sherry Colb considers how society should think about and address issues such as those raised by the death, last year, of eleven-year-old Kara Neumann. Kara died in great pain as the result of untreated diabetes, because her parents -- believers in faith-healing -- did not consult a doctor. Colb notes that a judge' s decision, last month, to reject Kara's parents' religious freedom claim was based on well-settled law. However, she goes on to tackle broader and more controversial related questions: How should the law address anti-social behavior that is motivated by religious faith? In particular, how should criminal law conceptualize the state of mind of defendants like Kara's parents?
Wednesday, Feb. 4, 2009
How Far Does Police "Good Faith" Go? The Supreme Court Creates Another Exception to The Exclusionary Rule
FindLaw columnist and Cornell law professor Sherry Colb discusses the Supreme Court's recent decision in United States v. Herring. There, the Court held that the results of a search could still be admitted into evidence, despite the fact that one police department had mistakenly told another that the person who was searched was the subject of an outstanding warrant. In fact, there was no outstanding warrant against him. Colb argues that the Court was wrong not to apply the "exclusionary rule" -- which prevents the fruits of unconstitutional searches from being admitted into evidence -- in this situation. In addition, she explains why this ruling goes significantly beyond past rulings that declined to apply the exclusionary rule when the mistake was made by someone within the judicial branch, such as a court clerk or magistrate.
Wednesday, Jan. 21, 2009
The Costs of Testifying in One’s Own Defense: An Empirical Study Highlights the Problem, But What To Do About It?
FindLaw columnist and Cornell law professor Sherry Colb considers what action, if any, should be taken in light of the results of a recent, empirical study by Professors Theodore Eisenberg and Valerie Hans -- which will appear this year in the Cornell Law Review. Eisenberg and Hans found that the revelation of prior convictions -- which are fair game for prosecutors, if defendants opt to take the stand -- in fact increases the chance of conviction in close cases, just as defense attorneys have always feared. Colb considers possible solutions geared toward protecting fair-trial rights -- such as our justice system's deciding to never admit prior convictions, always admit prior convictions, or bar all defendants from taking the stand.
Wednesday, Jan. 07, 2009
The U.S. Supreme Grants Review in Rivera v. Illinois: Reconciling Peremptory Challenges, Racial Discrimination and Harmless Error
FindLaw columnist and Cornell law professor Sherry Colb discusses a case that the Supreme Court recently opted to decide, involving the following interesting scenario: The attorney for the defendant in a criminal case sought to use one of the defendant's peremptory challenges (that is, a challenge for which the defendant need not provide justification, but which automatically excludes a juror). The judge, however, refused to honor that challenge, on the ground that the challenge discriminated against the juror based on her race and sex and therefore violated a rule set down in Supreme Court precedent. That very juror -- who was aware that the defendant had tried to use the challenge to exclude her -- not only joined the jury, but became its foreperson. The jury convicted the defendant. Based on this scenario, the Court must address this difficult question: Assuming the judge's ruling was wrong, and the defendant should have been able to use the peremptory challenge, should his conviction automatically be reversed -- or should it be subject to harmless-error analysis, under which the juror's presence on the jury may well be seen as innocuous, since no reason (such as bias) was given for removing her?
Monday, Dec. 22, 2008
Writing Term Papers for Hire: Innocent Protected Speech?
FindLaw columnist and Cornell law professor Sherry Colb considers claims that a person who wrote "model" term papers did nothing morally wrong, and that in writing the papers, he was merely engaging in First-Amendment-protected speech. Colb contends that while the writing of true "model" papers would indeed be blameless and constitutionally-protected, in this case the surrounding evidence (especially the amounts of money paid) shows that the term papers were actually written so that students could pass them off as their own. To support her point, Colb draws analogies to areas of criminal law where conduct that is defended as innocuous can be proven to be criminal based on the evidence surrounding it.
Wednesday, Dec. 10, 2008
A Judge Orders a Woman Not to Have Children While On Probation: Did He Violate Her Rights?
FindLaw columnist and Cornell law professor Sherry Colb analyzes whether a controversial probation condition imposed by a Texas judge would be deemed constitutional under governing Supreme Court precedent. The judge imposed the condition upon a woman who was guilty of failing to protect her child from the child's father's beatings, and failing to seek medical care for the child's injuries, which included broken bones. The judge sentenced the woman to ten years' probation -- with the condition that she is forbidden to
conceive and bear a child. Colb explains both the argument that could be made in support of such a probation condition, and the reasons why that argument is flawed.
Wednesday, Nov. 26, 2008
Do Convicts Have a Constitutional Right to Access Crime-Scene DNA? The U.S. Supreme Court Considers the Question
FindLaw columnist and Cornell law professor Sherry Colb discusses a criminal procedure case that the Supreme Court will resolve this Term. The case arose because William Osborne, convicted of kidnapping and sexual assault in Alaska 14 years ago, says up-to-date DNA analysis will clear him, but prosecutors refuse to turn over the evidence to be tested. Colb considers whether there is any "rational basis" -- the legal standard -- for the prosecutors' stance, and finds none, but she also notes that in other DNA-testing cases, it is possible that a rational basis might exist, depending on the facts of the case.
Monday, Nov. 10, 2008
Are Different Abortion Methods Morally Distinguishable? The U.S. Court of Appeals for the Fourth Circuit Hears Richmond Med. Center v. Herring
FindLaw columnist and Cornell law professor Sherry Colb discusses a legal issue the Fourth Circuit will soon decide: whether a Virginia statute violates the Constitution when it prohibits intact dilation and evacuation ("D&X") abortion. After describing the current state of Supreme Court precedent on abortion, Colb also analyzes a philosophical issue that underlies the doctrine: Is there a moral difference between a procedure in which a doctor kills a non-viable fetus inside the womb, and one in which a doctor kills a non-viable fetus outside the womb?
Wednesday, Oct. 29, 2008
The Fourth Amendment, Once Removed: The Supreme Court Examines a New Search and Seizure Loophole
FindLaw columnist and Cornell law professor Sherry Colb discusses a fascinating upcoming Supreme Court case about the Fourth Amendment. As Colb explains, prior Supreme Court cases have established that a police officer may -- without probable cause -- lawfully pretend to be your friend (or recruit an informant to do so) in an effort to gather information about you. Now, the Court must answer another question: If you invite your "pretend friend" to your home, and your "friend" uncovers illegal activity there, have you in effective consented to a warrantless police search of the premises? Colb contends that the answer should be no, for the "consent once removed" doctrine wrongly piles fiction upon fiction to find consent where there was none.
Monday, Oct. 13, 2008
The Rationality of Spite: Why the Bailouts Do, And Should, Make People Angry
FindLaw columnist and Cornell law professor Sherry Colb argues that -- contrary to recent claims -- it might actually be rational for a person to oppose the proposed government economic bailout even if he or she will predictably benefit from the bailout's boost to the economy, and predictably suffer if no bailout occurs. Are those who fit this description simply "cutting off their noses to spite their faces" and acting illogically against their own best interests? Colb explains that the answer isn't as simple as it may seem. She notes that some might count the ability to inflict retribution as itself a benefit, and draws analogies to examples in law enforcement and anti-discrimination law where we rationally accept a loss to innocent persons, or to society as a whole, in order to punish undesirable behavior.
Wednesday, Oct. 01, 2008
Abortion, Sarah Palin's Amniocentesis, and the Pro-Life View of Sex
FindLaw columnist and Cornell law professor Sherry Colb offers an interesting and original perspective on the much-talked-about details of GOP vice-presidential candidate Sarah Palin's most recent pregnancy. Palin, who is pro-life, decided to have amniocentesis despite the fact that the procedure poses a significant though small risk of inducing an abortion. Surely, Palin did not believe that by choosing to incur this risk, she consented to an abortion -- which would have gone against her pro-life stance. However, Colb points out that many in the pro-life movement equate risk with consent in another context: that of women's choice to have sex and thus risk pregnancy. Colb considers when and why taking a particular risk is (or is not) deemed to count as consent in a number of legal contexts, ranging from abortion law to tort law to criminal law.
Monday, Sept. 15, 2008
"Neither Shall You Commit Adultery": John Edwards, John McCain, and the Relevance of Politicians' Affairs
FindLaw columnist and Cornell law professor Sherry Colb draws upon Supreme Court precedent, including modern cases interpreting the right to privacy, in her analysis of when politicians' sexual conduct should, and should not, be deemed relevant by voters. For example, while Court precedent may arguably imply that adultery cannot constitutionally be criminalized, Colb notes that it still may be relevant to voters because, whether or not it is criminal, it still constitutes wrongdoing with respect to the betrayed spouse. In contrast, Colb notes, Court precedent suggesting that a consensual homosexual relationship cannot constitutionally be criminalized may have a different import: If the Court considers such conduct private, shouldn't voters, too? Colb also contends that attacks based on candidates' adultery may be more fairly lodged against a candidate such as John McCain -- who has a permissive view of the Establishment Clause, allowing some mixing of religion into public life, and often invokes religion in campaign speeches -- than against a candidate who takes a more strongly secular stance.
Wednesday, Sept. 03, 2008
Is Obama "Pro-Infanticide"? Analyzing a Vote in the Illinois Senate
FindLaw columnist and Cornell law professor Sherry Colb discusses claims that Senator Barack Obama opposed an Illinois law that would have banned infanticide, and thus that he must be "pro-infanticide." Colb points out that Obama has supported a federal anti-infanticide law. She also explains that the Illinois law Obama opposed possessed serious flaws that the federal law did not possess -- and that, as a result of its flaws, the Illinois law put abortion rights in serious jeopardy.
Wednesday, Aug. 13, 2008
Is Sex a "Major Life Activity"? Why a Claim of Disability Discrimination Turns on the Answer to this Question
FindLaw columnist and Cornell law professor Sherry Colb discusses a case in which a plaintiff sued for disability discrimination when she was initially accepted by the Foreign Service, but then rejected when she subsequently was diagnosed with treatable breast cancer. As Colb explains, under the Rehabilitation Act, a condition only qualifies as a covered disability if it substantially limits a major life activity. As a result, this particular plaintiff was able to come under the Act's protection only because she was able to allege that the combination of surgery and medication harmed her sexual life. Colb explains how this seemingly odd result derives from the legal rules regarding who is (and who is not) covered by disability law.
Wednesday, Aug. 6, 2008
With the Spanish Parliament Poised to Extend "Human Rights" to Great Apes, What are the Implications for Human Beings and Other Animals?
FindLaw columnist and Cornell law professor Sherry Colb considers the implications of the Great Ape Project (GAP), which observers predict will soon succeed in making protection of the Great Apes the law of Spain. Colb agrees with the GAP that the Great Apes deserve protection, and offers a strong response to the common objection that we should be worrying about human rights, not animal rights. However, she also points out issues regarding the reasons why the Great Apes alone are being protected. For example, should greater intelligence and the capacity to use tools be a reason to protect the Great Apes, but not other nonhuman animals -- despite the fact that they all suffer and feel pain?
Monday, Jul. 21, 2008
The U.S. Court of Appeals for the Eighth Circuit Approves An "Informed Consent" Requirement for Abortions: The Slippery Quality of Statutory Definitions
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent decision by an en banc panel of the Eighth Circuit. The panel vacated a district court's preliminary injunction, on the ground that the plaintiffs were unlikely to prevail on their First Amendment challenge to a South Dakota law requiring doctors to tell patients seeking abortions "that the abortion will terminate the life of a whole, separate, unique, living human being." Colb contends that this requirement is far afield from proper informed-consent requirements, which outline the risks of a medical procedure or treatment, and that doctors do have a First Amendment right not to deliver the value-laden message the statute requires if they do not agree with it.
Wednesday, Jul. 9, 2008
Banning Loaded Words at Criminal Trials: A Well-Meaning But Foolish Approach to Protecting Defendants
FindLaw columnist and Cornell law professor Sherry Colb discusses the phenomenon of courts' employing word bans during trials on the theory that juries will be inappropriately influenced if witnesses use words that suggest or embody legal conclusions -- such as "rape," "victim," "crime scene," "homicide," and "drunk." Colb argues that while word bans do not raise significant First Amendment issues in light of judges' traditional leeway to control trials, they do tend to frustrate, rather than enhance, the trial's core process of seeking the truth. She also notes the special difficulty that occurs in instances where if one word is banned, the alternate word is also freighted -- such as when witnesses banned from saying "rape" must then say "intercourse," which may imply consent.
Tuesday, Jun. 24, 2008
A Thirty-Five Year Prison Sentence for Spitting at a Police Officer: The Danger of Basing Justice on Mistaken Assumptions
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses a recent case in which an arrestee with a record of prior convictions was sentenced to thirty-five years in prison because he spit into a police officer's eye and open mouth, and then informed the officer that he (the arrestee) had AIDS -- which caused the officer to believe that he too would contract HIV. As Colb explains, the length of the sentence is highly questionable in light of the fact that scientific evidence indicates it is impossible for HIV to be transmitted through spitting. In the face of this evidence, Colb suggests that though the offense was objectionable and deserved punishment, the sentence imposed is far too long.
Wednesday, Jun. 11, 2008
Hearsay, the Sixth Amendment, and Framers' Intent: The U.S. Supreme Court Hears Argument in Giles v. California
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses a Sixth Amendment case on which the Supreme Court recently heard oral argument. As Colb explains, the Sixth Amendment's Confrontation Clause guarantees a criminal defendant's right to cross-examine his accuser if his accuser offers testimony against him. The case before the Court asks whether this right is triggered when the defendant is on trial for murder; the prosecution wants the jury to hear the accuser's prior statement to the police; but the accuser is also the defendant's alleged murder victim who, of course, can no longer be subjected to cross-examination. Colb explains the difficult issues the case raises -- including whether the Court should apply the common law rule that a right can be forfeited by the wrongdoing of the person who claims that right.
Wednesday, May. 28, 2008
What's So Special About Genetic Discrimination? Congress Passes a Revealing Bill
FindLaw columnist and visiting Columbia law professor Sherry Colb considers a provocative question: The Genetic Information Nondiscrimination Act (GINA), which prohibits employers and insurance companies from discriminating on the basis of a person's test results showing her predisposition to certain illnesses, has enjoyed across-the-board support in Congress and is poised to be signed by President Bush. Yet a hypothetical parallel law telling insurance companies not to discriminate based upon pre-existing conditions would doubtless prove extremely controversial. What accounts for the difference? To explain this sharp contrast, Colb draws upon the theories of philosopher John Rawls, whose work asks us to imagine that we must make decisions behind a "veil of ignorance" -- that is, in a state in which we do not know what our own attributes (including sickness or health) will be.
Wednesday, May. 14, 2008
Kennedy v. Louisiana and the Lessons of a Supreme Court Oral Argument
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses the Supreme Court's recent oral argument regarding whether it is constitutional to impose the death penalty for the rape of a child. As Colb explains, the oral argument revealed that several of the Justices appear to differ in their interpretation of the precedential effect of a prior Court decision, which held unconstitutional the imposition of the death penalty for the rape of an adult woman. Moreover, the argument indicated how Chief Justice Roberts and Justice Ginsburg view the evolution of society's views on the crime of rape itself.
Wednesday, Apr. 30, 2008
The Implications of Death Penalty Law for Human Euthanasia
FindLaw columnist and Rutgers law professor Sherry Colb argues that the constitutional right not to be subject to cruel and unusual punishment may have interesting implications for a possible constitutional right for suffering, terminally-ill patients to avail themselves of euthanasia with the help of a physician. Colb points out, in support of her argument, that the Supreme Court has already recognized a constitutional right to refuse medical treatment, which includes the right to refuse food and water. The anomalous result, she points out, is that Court precedents have caused a terminally-ill patient to have the painful option of starving to death, but not less painful options with which a doctor could assist.
Wednesday, Apr. 16, 2008
Lethal Injection and Animal Euthanasia: A Fair Comparison?
FindLaw columnist and visiting Columbia law professor Sherry Colb offers an original, thought-provoking perspective on an issue that the Supreme Court must resolve this Term: Is death by lethal injection, as currently administered, cruel and unusual punishment in violation of the Eighth Amendment? Colb notes that some lethal injection opponents object that "even animals" are treated more kindly, when they are euthanized at shelters, than are death row inmates faced with lethal injection. Colb contends, however, that this argument is less convincing than it may seem, for the relevant distinction here is not between animals and human beings, but rather between beloved companions and convicted criminals.
Wednesday, Apr. 02, 2008
Client 9 and President 42: Drawing Parallels Between Spitzer and Clinton
In the wake of New York Governor Eliot Spitzer's decision to resign in light of revelations that he used the services of high-end prostitutes, FindLaw columnist and Columbia visiting law professor Sherry Colb contrasts the scandal with another from ten years ago. In 1998, the world was shocked to learn of President Clinton's inappropriate sexual conduct with White House intern Monica Lewinsky but of course, unlike Spitzer, Clinton did not resign. Colb offers a provocative analysis of possible parallels and contrasts between the two high-profile scandals.
Thursday, Mar. 13, 2008
A Chance to Determine the Fourth Amendment Limits On Search Incident to Arrest: The U.S. Supreme Court Grants Review in Arizona v. Gant
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses an Arizona Supreme Court decision that the Supreme Court recently opted to review. The decision regards whether police, consistent with the Fourth Amendment, can search an arrestee's car under the "search incident to arrest" doctrine, even when he or she is already secured within a police car. Colb explains the evolution of the Supreme Court's Fourth Amendment doctrine regarding the search that can accompany a lawful arrest. In particular, she focuses on the reasons why the Court has sometimes allowed police to conduct such a search even when it was not necessary to ensure that the suspect was fully disarmed or to preserve evidence.
Monday, Mar. 03, 2008
Can A Person be Pro-Life and Pro-Choice at the Same Time?: The Film "4 Months, 3 Weeks, and 2 Days" Confronts Abortion in Ceausescu's Romania
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses the recent film "4 Months, 3 Weeks and 2 Days," which illustrates the human cost of the abortion ban in Romania under Ceausescu, by depicting a woman's desperate search for an illegal abortion. Colb also considers, more generally, the role that the inevitability of a black market in abortions should play in our thinking about whether abortion should be legal. She suggests that for some, it may be a reasonable stance to be "pro-life and pro-choice" -- that is, to be pro-life, in very strongly opposing abortion, yet pro-choice, in accepting abortion's legality in order to prevent the horrors of the black market.
Tuesday, Feb. 19, 2008
Does the Fifth Amendment Protect the Refusal to Reveal Computer Passwords? In a Dubious Ruling, A Vermont Magistrate Judge Says Yes
FindLaw columnist and visiting Columbia law professor Sherry Colb clarifies the complex law surrounding a difficult and significant question: Can a criminal suspect invoke his or her Fifth Amendment right against self-incrimination when asked for the password necessary to access his or her computer files? Colb discusses a recent ruling by a Vermont-based federal magistrate judge concluding that, indeed, the defendant's Fifth Amendment rights were implicated in a password request. However, she suggests that the better answer was that the right did not apply, because, under the factual circumstances of the case, the provision of the password was not "testimonial," as Fifth Amendment doctrine requires.
Monday, Feb. 04, 2008
Should Pregnant High School Students Receive Maternity Leave? The Complexity of Accommodating a Less-than-Ideal Status
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses the difficult issue of whether public high schools should grant maternity leave to students who become pregnant, above and beyond the leave required simply to give birth. Recently, a Denver public high school faced a request from pregnant students for a four-week leave, and had to decide whether to grant it, or to allow students to suffer unexcused absences that could delay their graduation dates. Colb covers both sides of the argument and comes down in favor of granting leave, but she notes that the leave question should be revisited if the grant of leave were to itself be connected to a rise in teen pregnancy rates.
Wednesday, Jan. 23, 2008
Abortion Clinic Violence: Is "Pro-Life" Murder An Oxymoron?
FindLaw columnist and visiting Columbia law professor Sherry Colb considers the division, in the "pro-life" movement, between those who condemn abortion clinic violence as reprehensible, and those who perpetrate it. Colb explains why even someone who deeply believes that a fetus is a person may not also support employing violence in an attempt to defend the fetus.
Wednesday, Jan. 09, 2008
Is the Nighttime the Wrong Time for Searching Houses?: The Supreme Court of Minnesota Reads the U.S. Constitution to Say Yes
FindLaw columnist, visiting Columbia law professor, and Rutgers law professor Sherry Colb discusses a recent decision by the Minnesota Supreme Court interpreting the Fourth Amendment to the U.S. Constitution to suggest that searches conducted by the police at night at citizens' homes should be subject to stricter standards than searches conducted in the daytime. Colb argues that this analysis -- grappling with a question the U.S. Supreme Court has not resolved conclusively -- is the correct one.
Wednesday, Dec. 26, 2007
The Issue of "Me Too" Evidence in Employment Discrimination Cases: The U.S. Supreme Court Considers Sprint v. Mendelsohn
FindLaw columnist, visiting Columbia law professor, and Rutgers law professor Sherry Colb discusses an issue the Supreme Court will confront this Term: the admissibility of "me too" evidence -- evidence that suggests that not only the plaintiff, but other employees as well, suffered employment discrimination perpetrated by the defendant corporation. Colb explores the idea that an institution itself (as opposed to an institution as represented by a single supervisor) can be guilty of discrimination, therefore making all its supervisors' employment decisions relevant in a discrimination case.
Monday, Dec. 10, 2007
Divorce, Religion, and Circumcision: What A Conflict Tells Us About Parental Rights
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb discusses an Oregon case involving divorced parents' dispute over whether their twelve-year-old son may be circumcised in accordance with his converted Jewish father's wishes. Colb considers the specific questions the case poses, and also addresses a related presumption that she contends is implicit in American law: If a couple's beliefs, stemming from their adherence to a mainstream religion, require them to inflict what could be seen as harm on their child, then the law will not interfere. Colb considers why we generally are loath to intervene when it comes to parental decisions of this kind.
Wednesday, Nov. 28, 2007
What Counts as a "Crime" For Fourth Amendment Purposes? Why Arrests for "No Arrest Offenses" Violate the Fourth Amendment
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb discusses a complex, important case that the U.S. Supreme Court will hear this Term. As Colb explains, the case asks the following question: If state law prohibits arrest for a given offense, may police nonetheless arrest a suspect for that very offense and search him, without violating the Fourth Amendment? (In the case before the Court, the offense was driving with a suspended license, and Virginia law directed that this offense must lead to citation, not arrest.) Colb untangles the complex intersection of federal constitutional law and the law of the various states in this context.
Wednesday, Nov. 14, 2007
Why Does the U.S. Sentence Adolescents To Life Without Parole?
FindLaw columnist, visiting Columbia law professor, and Rutgers law professor Sherry Colb discusses why the U.S., unlike so many other nations, sentences adolescent offenders to life without parole. Indeed, Colb notes, twenty U.S. states allowed the execution of adolescent offenders until the Supreme Court held in 2005 that such executions are unconstitutional. Colb considers possible answers to the question of why, on one hand, we recognize adolescents' immature decisionmaking powers with parental consent regulations for abortions and age requirements for voting and drinking, yet, on the other hand, we seem to consider adolescents mature enough to face maximum penalties when they commit criminal offenses.
Monday, Oct. 29, 2007
When Does Pregnancy Begin?: A Federal Appeals Court Decision Implicates a New Abortion Question
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb discusses an interesting case, recently decided by the U.S. Court of Appeals for the Third Circuit, and the provocative question it raises: When does pregnancy begin? The case arose when a 16-year-old girl received a "morning after" pill from a Philadelphia clinic. Her parents sued on their own behalf and hers, arguing that the clinic should have told their daughter that the pill could prevent a fertilized egg from implanting inside her uterus -- which, according to their religious beliefs, constitutes abortion. Colb argues that the Third Circuit panel was right to dismiss the case. In addition, she considers when stopping a chain of events that could eventually lead to a birth does, and does not, constitute terminating a pregnancy.
Monday, Oct. 15, 2007
The Senate Approves the "2007 Mental Health Parity Act": Achieving Equal Treatment for the Mentally Ill
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb asks whether the new 2007 Mental Health Parity Act, if enacted into law, will truly create parity, as between the way health plans cover physical health and mental health, respectively. In assessing the new Act as compared to its predecessor, the 1996 Mental Health Parity Act, Colb sees great improvement, deeming the 2007 Act to have moved much closer to the goal of parity. However, she also points out key reasons why true parity is still a goal to be aspired to for the future.
Monday, Oct. 01, 2007
Should People Be Free To Be Enslaved?: Polygamy, Prostitution, and the "Consenting Adults" Argument
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb considers the often-raised "consenting adults" argument against the criminalization of polygamy and prostitution. She asks how the law should respond when, in the real world, theoretical freedom of choice is often wholly or partially replaced by significant coercion that is brought to bear on the women involved in these practices. Colb contends that one way to respond to concerns about the mix of coercion and choice is to retain criminal penalties for these practices, but exempt the women at issue from their scope.
Wednesday, Sep. 19, 2007
The Homage Vice Pays to Virtue: Lessons of the Michael Vick Story
FindLaw columnist and Rutgers law professor Sherry Colb contends that even as we pat ourselves on the back, as a society, for punishing NFL quarterback Michael Vick harshly for his involvement in dogfighting, we should also consider the extent to which we may be hypocritical in doing so. Colb asks how, if we judge and punish Vick harshly for torturing and killing animals, the overwhelming majority of us can still continue to eat meat and other animal products, and to wear leather goods, in light of the cruelty through which all of these are produced. Colb contends that while we understandably love and cherish pets such as dogs more than we do the chickens and cows we raise for food, that provides no reason to treat the latter differently in this respect.
Monday, Sep. 10, 2007
Who Wants to Imprison Pregnant Women For Having Abortions?: Not Necessarily the Pro-Life Community
FindLaw columnist and Rutgers law professor Sherry Colb continues her series of columns addressing the justifications for supporting various exceptions to abortion laws, yet otherwise assuming a "pro-life" viewpoint. Having previously considered the justifications for exceptions for pregnancies resulting from rape and incest, respectively, Colb now considers a different kind of exception: An exception from prosecution under the criminal law for women who opt to have illegal abortions. Colb considers whether it makes sense for one who holds a pro-life position to support this exception either under the criminal law doctrines of justification and excuse, or pursuant to the belief that the woman herself is a victim.
Wednesday, Aug. 22, 2007
Can Nothing Be Done About the Pedophile Blogger?: How the Law Deals With Dangerous People
FindLaw columnist and Rutgers law professor Sherry Colb discusses whether there is any way, through the legal system, to address parents' concerns about Jack McClellan, who blogs about his sexual interest in little girls and calls readers' attention to places where large numbers of children can be found. Parents have fought back by attempting to track McClellan's whereabouts, but can more be done without violating the Constitution? Colb surveys the legal terrain, and notes that, in fact, if McClellan's blog is properly categorized as a map for child molesters, legal remedies may indeed be available.
Monday, Aug. 06, 2007
Should Pro-Choice and Pro-Life Approaches to Reproductive Rights Carry an "Incest Exception"?
Following up on her prior column examining the rationales for the position that abortion should be illegal, but that there should be an exception when the pregnancy results from rape, FindLaw columnist Sherry Colb discusses the position that abortion should be illegal, but that there should be an exception when the pregnancy results from incest. As with the "rape exception," Colb contends that the rationales for being pro-life, yet supporting the "incest exception," are, once closely examined, much less simple and straightforward than they appear.
Wednesday, Jul. 25, 2007
What Proponents of the "Rape Exception" Teach Us About Abortion
FindLaw columnist and Rutgers law professor Sherry Colb discusses potential justifications for the position, held by many who describe themselves as "pro-life," that, while abortion should be illegal, an exception should be made in instances where the pregnancy is the result of rape. Colb compares and contrasts these arguments with the argument in favor of a general ban on abortion coupled with a "life of the mother" exception.
Wednesday, Jul. 11, 2007
Resistant Tuberculosis and the Return of Quarantine: Justifications and Accompanying Risks
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting aspect of the scandal relating to Andrew Speaker's decision to travel after being diagnosed with drug-resistant tuberculosis (TB): The U.S. has now quarantined Speaker, under the first quarantine imposed in this country since 1963. Meanwhile, another man with drug-resistant TB, Robert Daniels, has also been confined, in Arizona. Colb discusses several related questions: Why aren't such quarantines deemed to violate constitutitional rights? And is it a good or a bad idea, as a matter of policy, to impose them?
Monday, Jun. 25, 2007
Opposition to Abortion and Physician Assistance-In-Dying: The Claim that Choice Can Evolve Into Coercion
Is it possible that legalizing a particular practice can actually reduce, rather than enhance, choice? FindLaw columnist and Rutgers law professor Sherry Colb considers this argument as presented by opponents of legal abortion and legal euthanasia, respectively. Both groups, as Colb explains, contend that legalizing a given practice may set up a "new normal" that makes it more difficult to opt away from that practice -- such that young women are pressured into abortion, or terminally ill patients are pressured into euthanasia. Colb analyzes and parallels these arguments, but in the end finds them unconvincing.
Monday, Jun. 11, 2007
Alleged Death by Veganism: Why a False Story Has Legs
FindLaw columnist and Rutgers law professor Sherry Colb discusses a defense that, she argues, is as fallacious as it is unusual: The claim that a couple charged with murder after their child died of starvation, were simply innocently feeding the child a vegan diet. Taking issue with a recent New York Times Op Ed concerning the case, entitled "Death by Veganism," Colb notes that children not only can, but often do, thrive on a vegan diet -- indeed, for children intolerant of dairy, such a diet, based on soy protein, is precisely what pediatricians will prescribe.
Tuesday, May. 29, 2007
The U.S. Supreme Court Condones Paralysis of a Speeding Driver: Taking the "Reasonable" Out Of "Reasonable Seizures"
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent Supreme Court Fourth Amendment decision, arising out of an incident in which a high-speed police chase left a fleeing driver -- who had only committed a minor traffic offense -- paralyzed. The driver sued under the federal statute that allows plaintiffs to recover money damages for violations of their constitutional rights, but the Court held that his Fourth Amendment rights had not been violated. Colb argues that the Court not only erred in its interpretation of the Constitution, but has needlessly encouraged dangerous high-speech chases that will take a high toll in lives. She puts the case in the context of a prior Court precedent, to indicate how it might have been decided differently, and, she argues, far more wisely.
Monday, May. 14, 2007
Lessons of the Virginia Tech Shooting: Should We Lock Up All of the Maniacs?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the issue of the involuntary confinement of the mentally ill, based on predictions of future dangerousness, in the wake of the tragic Virginia Tech shootings. Colb contends that there are a number of compelling objections to such "preventive" confinement -- including that it is almost impossible to predict accurately who will, and will not, commit violence; and that the risk of confinement may inhibit mentally ill persons from seeking treatment, and thus actually lead to a greater degree of violence, by people who might otherwise have been helped by treatment.
Monday, Apr. 30, 2007
A Federal Court of Appeals Gets it Wrong on Birth Control: Why Contraceptive Exclusions in Health Coverage Discriminate Against Women
FindLaw columnist and Rutgers law professor Sherry Colb takes strong issue with a recent decision by the U.S. Court of Appeals for the Eighth Circuit -- holding that employers do not violate Title VII or the Pregnancy Discrimination Act (PDA), which amended it, when they deny coverage for oral (and other) contraceptives, yet allow it for other prescription drugs. Colb contends that, to truly enforce Title VII and the PDA, the courts must recognize that men and women are differently situated when it comes to contraception and to childbearing -- a point with which even conservative former Chief Justice William Rehnquist concurred -- and analyze discrimination issues accordingly.
Wednesday, Apr. 18, 2007
Twenty States Consider Mandating the Cervical Cancer Vaccine: The Controversy
FindLaw columnist and Rutgers law professor Sherry Colb discusses a spate of proposed state laws that would mandate that preteen girls must be vaccinated against sexually-transmitted HPV, a virus that can cause cervical cancer. Colb considers two potential objections to mandatory vaccination -- that vaccination condones premarital sex, and that the vaccine is so new, its true risks may be unknown. Colb argues that the first objection should be rejected because once analyzed, it is unconvincing, but that the second objection may be serious enough to leave the question of whether to vaccinate in the hands of parents, not States. She also explains why the Supreme Court case recognizing the right to refuse treatment is not applicable here.
Wednesday, Apr. 04, 2007
Confronting the Ugliness of Appearance-Based Discrimination: DePauw University and the Delta Zeta Sorority Purge
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent instance of what seems to have been appearance-based discrimination by a sorority, with respect to its chapter at DePauw University. (The sorority claims it purged members due to their lack of recruitment efforts; others, including DePauw's President, saw the purge as a case of survival of the prettiest.) Colb compares appearance-based discrimination to other forms of discrimination, considers the pros and cons of making such discrimination illegal, and proposes a non-legal remedy to make organizations incur potentially significant costs when they engage in appearance-based discrimination.
Wednesday, Mar. 21, 2007
The EEOC Receives More Male Complaints of Sexual Harassment: Bad News?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the possible reasons for the recent percentage increase in the complaints of sexual harassment filed by men with the EEOC. Colb argues that the increase may actually be, in some sense, good news -- insofar as men, whether gay and straight, may be becoming more willing to challenge illegal and discriminatory practices in which male supervisors punish them for seeming "unmasculine." Just as it is illegal for a woman to be punished at work because supervisors feel she should walk, talk, or dress more "femininely," so too, Colb explains, it is illegal for a man to be punished because supervisors feel he does not walk, talk, or dress "masculinely" enough.
Thursday, Mar. 01, 2007
Do Car Passengers Enjoy Fourth Amendment Rights? The Supreme Court Grants Review in Brendlin v. California
FindLaw columnist and Rutgers law professor Sherry Colb discusses an intriguing Fourth Amendment that the Supreme Court recently opted to review. The case arose because a police officer stopped a car, based on a false belief that its driver's registration had expired. During the stop, the officer saw substances related to the production of methamphetamine, but was able to connect them not to the driver, but to his passenger -- who was subsequently prosecuted. Were the passenger's Fourth Amendment rights violated? Does the passenger have "standing" to sue in this case? Colb discusses the difference between "Article III standing" and "Fourth Amendment standing," as well as the relevant Supreme Court precedents, in considering the answers to these questions.
Wednesday, Feb. 21, 2007
Texas Man Receives A Life Sentence for the Murder of his Unborn Twins: When Feticide is a Capital Crime
FindLaw columnist and Rutgers law professor Sherry Colb considers a case in which a Texas man was convicted of murder -- and sentenced to life in prison -- for killing his unborn twins (four months along in their gestation) by stepping on his girlfriend's abdomen several times, thus inducing her to miscarry. Colb explains the intersection of criminal law and abortion law in this case -- and why the case is made more complex by the fact that, reportedly, the girlfriend had asked the man to step on her abdomen to induce the miscarriage.
Tuesday, Feb. 06, 2007
Consent Searches and the Fourth Amendment: What's Wrong With "Apparent" Consent?
FindLaw columnist and Rutgers law professor Sherry Colb discusses in depth the Fourth Amendment doctrine that a law-enforcement search is constitutionaly valid if it is based on consent. As Colb explains, two key questions within the doctribe are who can validly consent to a given search, and how far that consent can extend. In the case with which Colb begins, for example, a wife consented to a search of her husband's computer, including his password-protected files. Though the court later found that she lacked authority to consent to this particular search, it also held that the search remained valid -- and the evidence from the password-protected files could be used -- because she had appeared to the law-enforcement searchers to have the necessary authority.
Wednesday, Jan. 24, 2007
The Harsh Wages of Sin: Why Genarlow Wilson is Languishing in Prison
FindLaw columnist and Rutgers law professor Sherry Colb discusses the case of Genarlow Wilson, both in its own right and as a lens into the larger issue of victimless crime, and why it is often harshly punished in America. Wilson is serving a ten-year prison sentence in Georgia simply because, at 17, he had consensual oral sex with a 15-year-old girl. Colb explains why the closeness in their ages was not a defense, and considers the role of the fact that Wilson is African-American. She also discusses the role of the concept of "sin" in the evolution of the law.
Wednesday, Jan. 10, 2007
Why the Public/Private Distinction Should Not Govern the Courtroom: The Supreme Court's Flawed Decision in Carey v. Musladin
FindLaw columnist and Rutgers law professor Sherry Colb focuses on an interesting aspect of a recent Supreme Court decision: The distinction between government (or "state") action, which can trigger a constitutional violation, and private action, which cannot. The decision addressed a case in which a criminal defendant asked the judge in his case to tell the victims' family members not to wear buttons in the courtroom bearing photographs of the victim's face. Colb argues that even though the family members' decision to wear the buttons might have been private action, the judge's decision to deny the defendant's request for a court order directing that the buttons not be worn in the courtroom, was surely state action. Colb also adds insightful commentary about the merits of the constitutional question raised -- which the Court never reached.
Wednesday, Dec. 27, 2006
Should Biological Parents Have More Rights in Adoption? A Hypothetical Conversation
FindLaw columnist and Rutgers law professor Sherry Colb discusses the controversial issue of whether birth parents should have more rights after adoption occurs. Through a hypothetical dialogue, Colb -- herself both a birth mother and an adoptive mother -- illustrates the different perspectives of the child, the birth mother, the biological father, and the adoptive parents. Colb notes that this deep-seated clash among various perspectives will likely always ensure that birth parents' rights remain controversial.
Wednesday, Dec. 13, 2006
The Birth-Control Chief Who Opposes Birth-Control
FindLaw columnist and Rutgers law professor Sherry Colb takes a close look at the views of the newly-appointed Bush Administration Deputy Assistant Secretary for Population Affairs, Eric Keroack. As Colb explains, Dr. Keroack's position makes him the chief of family-planning programs at the Department of Health and Human Services (HHS). Yet, she points out, he opposes a dominant method of family planning: contraception. Colb contends that not only does this view raise reasonable doubt about Dr. Keroack's ability to effectively do his job, but Dr. Keroack's appointment may have a pernicious effect: Through the psychological phenomenon of "anchoring," it may legitimate an extreme view -- that birth control is never appropriate -- and make it seem moderate, thus shifting the entire political continuum regarding reproductive rights in a much more extreme direction.
Tuesday, Nov. 28, 2006
A Maryland State Court Rules that Women May Not Withdraw Consent After Penetration: The Perils of Relying on History
FindLaw columnist and Rutgers law professor Sherry Colb discusses a Maryland rape case in which a jury's question led to the issuance of a controversial decision from the state's intermediate appeals court -- a decision Colb argues that Maryland's highest court ought to reverse. The appeals court held that the harm in a woman's rape lies in her "deflowering," and thus that forcibly continuing sex after consensual penetration is not rape. Colb argues that the court was wrong to import archaic sexist beliefs into its analysis of the current state statute.
Wednesday, Nov. 15, 2006
What's The Matter With a False Arrest?: The Supreme Court Considers the Statute of Limitations Defense
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting issue, now before the Supreme Court, which is at the intersection of civil rights and criminal law. The Court will have to decide when the statute of limitations began to run in the case of Andre Wallace, who was unconstitutionally subject to a false arrest, and now is suing the government for damages based on its violation of his Fourth Amendment rights. Colb argues that, under the correct constitutional analysis, Wallace's suit is still timely.
Wednesday, Nov. 01, 2006
Gonzales v. Carhart: The Supreme Court Once Again Considers "Partial-Birth Abortion"
FindLaw columnist and Rutgers law professor Sherry Colb discusses the likely outcome of the Supreme Court's new case on "partial-birth" abortion. Predicting it is likely the Court will uphold the federal Partial Birth Abortion Ban Act (PBABA), Colb analyzes PBABA supporters' claim that partial-birth abortion is tantamount to infanticide. In the course of the argument, Colb draws not only on the reasoning of abortion precedents, but also on the reasoning of precedents dealing with euthanasia and the right to refuse medical treatment.
Wednesday, Oct. 18, 2006
Open the Door and Let Me In (Please)! A New Jersey Supreme Court Ruling Approves Suspicionless "Consent" Searches of Homes
FindLaw columnist and Rutgers law professor Sherry Colb discusses the New Jersey Supreme Court's recent ruling, interpreting the New Jersey state constitution's counterpart to the Fourth Amendment, regarding "consent" searches of homes. Colb contends that the distinction that the court made to justify its different standards for home and car searches is unpersuasive.
Wednesday, Oct. 04, 2006
What Is a Trial?: President Bush Asks Congress to Authorize Military Commissions
With President Bush seeking Congressional authorization to try terrorism suspects before military tribunals, FindLaw columnist and Rutgers law professor Sherry Colb discuss what is the essence of a trial, and whether military commissions will, or will not, be able to honor those essential qualities of trials that are so central to American justice. In particular, Colb focuses on the rule that a defendant has the right to suppress confessions that arise from coercion (including torture), the rule that the court is to exclude hearsay, and the rule that the defendant must have the ability to examine all of the evidence the government offers against him.
Wednesday, Sep. 20, 2006
Taking Notes Without a Computer: How Laptops Distract From Classroom Learning
FindLaw columnist and Rutgers law professor Sherry Colb discusses the issue of whether students should be able to use laptops in the classroom. With researchers finding high web-surfing rates, should Internet access be prohibited? What about note-taking via laptop, rather than via good old-fashioned pen and paper?
Wednesday, Sep. 06, 2006
Misconceiving Reproductive Rights: The Crucial Difference Between "Pro-Choice" and "Pro-Abortion"
FindLaw columnist and Rutgers law professor Sherry Colb discusses what is -- and is not -- implied by taking a "pro-choice" position on abortion. Colb argues that it is a fallacy to suggest that being "pro-choice" implies that one ought to favor abortion in cases where the baby will be disabled, or ought to have an abortion if the father doesn't want a child. She reminds us that the "choice" at issue is that of the mother -- and if she has embraced a pro-choice stances, that also means the choices from there on out ultimately belong to her alone.
Tuesday, Aug. 22, 2006
Criminalizing Interstate Abortion Travel: Congress Targets People Who Assist Minors in Trouble
FindLaw columnist and Rutgers law professor Sherry Colb discusses a law that will make criminals of those who cross state lines to help a minor get an abortion in a state where parental notification is not required. Colb argues that the law is unconstitutional -- explaining that, although minors' abortions are less constitutionally-protected than those of adult women, the Constitution forbids a statute from deliberately taking aim at interstate travel regarding abortion, and only abortion -- leaving out all other legal procedures and activities for which people travel to distant states.
Wednesday, Aug. 09, 2006
Stem Cells, Life, and The President's First Veto
FindLaw columnist and Rutgers law professor Sherry Colb considers the grounds for the President's veto of the Stem Cell Research Enhancement Bill, and finds them wanting. She points out that embryos will inevitably be destroyed as a result of fertility medicine, regardless of whether or not stem cell research is allowed. And she argues that, in light of this reality, even someone who believes embryos are persons can support the use of destroyed embryos to aid others' lives -- much as he or she might support relatives' decision to donate a dying, unconscious loved one's organs to save other lives.
Wednesday, Jul. 26, 2006
At the End of its Term, The Supreme Court Denies Mentally Ill Defendants' Right to a Fair Trial
FindLaw columnist and Rutgers law professor Sherry Colb critiques a recent, end-of-Term Supreme Court decision upholding Arizona's insanity defense statute. Colb argues that, contrary to the Court's decision, Arizona's law was unconstitutional -- in part because, as Justice Kennedy argued in dissent, it makes no sense to convict a killer who acts without knowledge or intent ONLY IF the killer is mentally ill.
Wednesday, Jul. 12, 2006
No Knock-and-Announce? No Problem: The Supreme Court Holds Evidence from No-Knock Entries Admissible In Court
FindLaw columnist and Rutgers law professor Sherry Colb discusses an important recent decision on criminal procedure from the Supreme Court. Typically, the police are supposed to knock and announce their presence before searching a residence -- but what happens if they don't? As Colb explains, the Court declined to punish, and deter, such violations via the Exclusionary Rule -- which forbids the fruit of unconstitutional conduct to be admitted into evidence. Colb takes issue with the Court's ruling, and explains the case for applying the Exclusionary Rule here.
Wednesday, Jun. 28, 2006
Unclean Hands: How Patients Can Prevent Blatant Medical Malpractice
Drawing on both medical evidence and personal experience, FindLaw columnist and Rutgers law professor Sherry Colb discusses a type of medical malpractice that is shockingly common in the United States: Doctors' and nurses' failure to simply wash their hands before touching patients. Colb explains why putting on gloves, alone, is not enough -- and cites statistics as to the large number of deaths, via infection, that are caused by the failure to adhere to this simple rule.
Wednesday, Jun. 14, 2006
A Controversial Search of a Congressman's Office: Obstacles to Challenging the FBI's Investigation of Representative William Jefferson
FindLaw columnist and Rutgers law professor Sherry Colb comments on the constitutionality of the controversial FBI search of Member of Congress William Jefferson's office. Colb considers whether the search violates the Constitution's Fourth Amendment, and/or its "Speech or Debate" clause. She also asks whether a search that sends executive branch investigators into a legislator's domain clashes with the Constitution's basic principle of separation of powers.
Tuesday, May. 30, 2006
Retribution Without Cruelty: The Supreme Court Considers an Eighth Amendment Challenge to Lethal Injections
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent Supreme Court case raising the question whether lethal injection, as a method of execution, violates the Eighth Amendment. Colb notes that the Court might not resolve this question in this particular case, but will have to turn to it eventually -- and suggests a number of considerations that might play into the Court's eventual analysis.
Wednesday, May. 17, 2006
Sins of Omission: Why the Ninth Circuit Was Wrong to Excuse a Lack of Police Diligence
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent decision by the U.S. Court of Appeals for the Ninth Circuit, interpreting the Fourth Amendment's probable cause requirement. Colb agrees with dissenting judge Stephen Reinhardt that the majority of the en banc panel in the case was wrong in upholding the search at issue as constitutional. The defect in the search, according to Colb and Reinhardt, was the police's failure to use a means already within its possession to learn with certainty -- before searching the defendant's house and computer -- whether he had actually downloaded child pornography, as police feared.
Wednesday, May. 03, 2006
Paternity Fraud: When Men Are Forced To Support Their Ex-Wives' "Illegitimate" Children
FindLaw columnist and Rutgers law professor Sherry Colb discusses how the law treats -- and ought to treat "paternity fraud" -- which occurs when a woman claims her husband is the biological father of her baby, but the biological father is actually a man with whom she was having an extramarital affair. Colb acknowledges the argument that it is not fair for a husband to pay for the product of his wife's infidelity, but also notes that the presence of a third party -- a child who may lose the only father he or she has ever known -- is a very important factor here.
Tuesday, Apr. 18, 2006
No Bickering Over Consent: The Supreme Court Correctly Decides A Search And Seizure Case
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent, significant Supreme Court ruling interpreting the Fourth Amendment. Colb argues that the Court's decision -- which held that when one resident of a home refuses to consent to a police search, the police cannot rely on the consent of another resident -- was the right one. In particular, Colb contends that the dissenting Justices' concern that the ruling may stymie domestic violence investigations and prosecutions is misplaced.
Wednesday, Apr. 05, 2006
Should Men Have the Right to a "Financial Abortion"? A Biological Father Cries Sex Discrimination When Forced to Pay Child Support for an Unwanted Baby
FindLaw columnist and Rutgers law professor Sherry Colb takes on the controversial recent case in which a biological father argues he shouldn't have to pay child support, because his girlfriend allegedly lied to him, saying she was unable to conceive. The case raises the question whether it is sex discrimination if women and men who want to end a pregnancy, or terminate parental rights with respect to a child, are treated differently under the law.
Tuesday, Mar. 21, 2006
The Death Knell of Residual Doubt: The Supreme Court Underestimates the Relevance of Innocence
FindLaw columnist and Rutgers law professor Sherry Colb takes issue with a recent, unanimous Supreme Court death penalty decision -- which she argues was wrongly decided. The decision held that a convicted defendant could not -- for the first time, at his sentencing hearing -- offer alibi evidence to suggest that though he was convicted, "residual doubt" as to his guilt still should linger. Colb argues that "residual doubt" evidence should -- contrary to the Court's ruling -- be admissible at sentencing, for it ought to count as "mitigating" evidence militating against the imposition of the death penalty.
Wednesday, Mar. 08, 2006
The Essence of Marriage and Equality: The New Jersey Supreme Court Considers Same-Sex Marriage
With another state's high court -- New Jersey's -- confronting the same-sex marriage issue, FindLaw columnist and Rutgers law professor Sherry Colb analyzes the arguments on both sides -- including claims as to what the "essence" of marriage may be, and what equality requires. Colb asks: Is marriage defined by sexual desire; the desire or ability to have or raise children; neither; or both? And how does the Supreme Court's decision in Lawrence v. Texas -- which struck down as unconstitutional a state statute criminalizing gay sex -- fit into the analysis?
Wednesday, Feb. 22, 2006
Should Sexually Active Minors Have a Right to Privacy? A Kansas Case Reveals the Dark Side of Mandatory Reporting
FindLaw columnist and Rutgers law professor Sherry Colb discusses the Kansas Attorney General's broad interpretation of the state's statute requiring that "helping" professionals, such as doctors, report sexual abuse of minors. The Attorney General argues that, under state law, sex involving under-16 minors is inherently abusive (even if consensual), and thus must be reported under the statute. Colb explores why this may be a misinterpretation of state law -- for that law honors, in some cases, marriages of under-16 minors. She also explains why this issue is a very difficult one even for those who feel that teenage sex inflicts serious harm on the teens involved and in an ideal world, would never occur.
Wednesday, Feb. 08, 2006
Too Old To Die?: Considering Clarence Ray Allen's Last Plea for Clemency
FindLaw columnist and Rutgers law professor Sherry Colb considers the argument for clemency made by Clarence Ray Allen -- a death-row inmate recently executed in California. Allen had argued that because he was old and infirm, legally both blind and death, his execution should be stopped, but both Governor Schwarzenegger and the U.S. Supreme Court declined to stop it. Colb assesses the strength of Allen's argument - comparing it, along the way, to the argument for clemency made by Stanley "Tookie" Williams, the Crips-founder-turned-antiviolence-activist who was also recently executed in California.
Wednesday, Jan. 25, 2006
Virginity Tests in South Africa and Judicial Bypass in the U.S.: Ritually Scrutinizing the Virtue of Girls
FindLaw columnist and Rutgers law professor Sherry F. Colb draws a provocative parallel between the Zulu ritual, practiced in South Africa, of conducting virginity tests upon young girls and announcing their results; and the legal requirement of U.S. states that girls seeking abortions must either get parental approval, or justify their choice to a judge. In making the comparison, Colb relies on research indicating that "judicial bypass" procedures in America are both humiliating and demeaning -- with judges sometimes inquiring into how the girl came to be pregnant and whether she is sorry for what she did.
Wednesday, Jan. 11, 2006
Why Get A Warrant?: The President's Admission that He Authorized Warrantless Domestic Surveillance
FindLaw columnist and Rutgers law professor Sherry Colb puts the argument over the President's authorization of warrantless domestic surveillance in legal context -- discussing the reasons that the Constitution and federal statutes require warrants in the first place. Colb explains, for instance, the value of having someone outside the executive review whether probable cause to believe a crime is being committed exists.
Wednesday, Dec. 28, 2005
Why Not Coerce a Confession?
How New Revelations about Iraq Bear on this Question
FindLaw columnist and Rutgers law professor Sherry Colb explains the relevance of recent reports about Ibn al Shaykh al Libbi -- a prisoner who, after being tortured using the now-infamous technique known as "waterboarding," reportedly gave CIA interrogators false information claiming a link between Iraq and al Qaeda. Colb discusses how this case study of how a torture subject may say exactly what he knows his interrogator wants to hear, even if it is a lie, may inform the various arguments that have been made, from different philosophical and legal perspectives, about whether torture can be justified.
Wednesday, Dec. 14, 2005
Pre-Implantation Genetic Diagnosis: Should Our Laws Allow Parents to Pre-Screen Their Children?
FindLaw columnist and Rutgers law professor Sherry Colb explores the ethics -- and, potentially, legality -- of screening embryos prior to implantation for "undesirable" genetic features. Colb contrasts this practice with the practice of performing amniocentesis to ascertain such genetic features -- and argues that the processes are likely to be significantly different in their societal effects, because they are experienced very differently. She also asks whether it would be wrong if our society were to virtually eliminate the occurrence of Downs syndrome -- given that those with Downs are typically very happy to have been born.
Wednesday, Nov. 30, 2005
Can Transsexuals Sue Their Employers For Sex Discrimination?
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting case that the Supreme Court recently declined to review but that, she argues, raises important questions about sex discrimination law theory. The specific question the case raised was whether an employee who faces discrimination as a result of being a transsexual, may sue under federal anti-discrimination law on the ground that this type of discrimination is a kind of sex discrimination.
Wednesday, Nov. 16, 2005
Pharmacist Choice and the Morning-After Pill
A woman who has been raped seeks to fill a prescription for the morning-after pill. But her pharmacist refuses to do so -- saying he won't abet an act that, in his view, is murder. Who has the better of the argument? In a fascinating back-and-forth, FindLaw columnist and Rutgers law professor Sherry Colb presents both sides, and gives her own view of the arguments of each.
Wednesday, Nov. 02, 2005
Does the U.S. Constitution Allow Government To Limit the Use of Assisted Reproduction Technologies to Married Couples?
FindLaw columnist and Rutgers law professor Sherry Colb discusses questions raised by a now-withdrawn, intensely controversial Indiana measure that would, if enacted into law, have restricted the use of "assisted reproduction" -- that is, the use of modern reproductive technologies such as IVF -- to married couples alone. Colb examines past Supreme Court precedent on the right to choose whether or not to reproduce, in assessing whether this, or similar measures, could be held to be constitutional.
Wednesday, Oct. 19, 2005
God On Trial: How Can An "Intelligent Design" Include So Much Suffering?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the age-old question of how a benevolent God could allow so much suffering to occur. Colb puts a new spin on the question by noting its implications for the "intelligent design" movement, and by drawing a contrast between the kind of good that is chosen, and the kind that comes naturally. Provocatively, Colb asks: Given our own limitations, as humans, do we have the wisdom to judge God?
Wednesday, Oct. 05, 2005
Michigan's Proposed Law Admitting Prior Crimes in Child Sex Abuse Cases:
Why It Has Broader Implications for the Law of Evidence
FindLaw columnist and Rutgers law professor Sherry Colb discusses the subject of "propensity" evidence in criminal cases. She addresses the topic generally, and also, in particular, in the context of a new Michigan bill that, if it becomes law, will allow evidence of prior similar crimes to be admitted in court in child sex abuse cases, even if the defendant does not take the stand. Traditionally, evidence rules have refused to allow the admission of such evidence -- except if the defendant does take the stand, whereupon the evidence can be used as fodder for cross-examination. Colb examines whether the justification for the rule stands up to close examination.
Wednesday, Sep. 21, 2005
The Journal of the American Medical Association Says Fetuses Under 28 Weeks Do Not Feel Pain: The Legal Implications for Mandatory Information Sessions
FindLaw columnist and Rutgers law professor Sherry Colb discusses the legal implications of a recent factual finding, reported by the Journal of the American Medical Association, that says that until 28 weeks' gestation, fetuses do not feel pain. In light of this finding, Colb asks, can the government mandate that women seeking abortions attend information sessions that stress that, after 28 weeks' gestation, fetuses DO feel pain, and that offer fetal anesthesia with respect to any abortion that takes place after that time?
Wednesday, Sep. 07, 2005
Is Pornography The Same As Prostitution? A New York Judge Says "No," But the Answer Is Less Clear
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent challenge to New York's prostitution laws. An alleged Upper East Side madam, facing charges, argues that it violates the equal protection of the law for New York to target prostitutes, and ignore distributors of pornography. The judge ruled against the madam, but as Colb explains, the differences between prostitution and pornography are far less obvious than one might at first think.
Wednesday, Aug. 10, 2005
John Roberts's Pro-Life Spouse: The Relevance of Jane Roberts's Politics
Can a spouse's politics ever be relevant to a Supreme Court confirmation process? FindLaw columnist and Rutgers law professor Sherry Colb says yes -- pointing to specific facts that, she argues, make Jane Roberts's views on abortion relevant to John Roberts's confirmation process. Colb carefully analyzes the views of the organization on the board of which Jane Roberts served for four years, Feminists For Life, noting that one of the group's goals, according to its President, is to overrule Roe v. Wade. And she contends that this evidence suggests that it's likely that when John Roberts, as a high-level government attorney, repeatedly urged overruling Roe, it wasn't just a job requirement, but a personal passion too.
Wednesday, Jul. 27, 2005
When Should Fourth Amendment Violations Lead to Suppression of Evidence? The Supreme Court Takes a "Knock and Announce" Case
FindLaw columnist and Rutgers law professor Sherry Colb discusses a complex Fourth Amendment question the Supreme Court will soon confront: When the police fail to properly knock and announce their presence prior to a search, should that failure lead to suppression of the evidence they discover in the search that follows? Colb discusses a number of different strands of Fourth Amendment doctrine, explaining the considerations that might cause the Court to rule in favor of, or against, suppression of evidence in this situation.
Wednesday, Jul. 13, 2005
Should Parents Who Home-School Their Children Have Access to Public School Extracurricular Programs?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the arguments for and against allowing home-schooled students to take advantage of extracurricular activities offered by their local public schools. Colb comes down on the side of allowing districts to bar participation by home-schooled students when it would be to the detriment of the school -- which, she suggests, may often be the case. She also explains why analogies used to argue for home-schooled students' participation -- such as the idea that their parents have already "purchased" the extracurriculars by paying taxes -- may be faulty.
Thursday, Jun. 30, 2005
Hospital-Induced Infections: A Serious Crime Against Our Nation's Patients
FindLaw columnist and Rutgers law professor Sherry Colb cites evidence of an estimated 103,000 American deaths per year from hospital-induced infections to argue that such deaths should be prosecuted by state and local district attorneys as cases of criminally negligent homicide. Colb focuses on New York's statute to show that criminally negligent homicide statutes' requirements can be fulfilled in many cases of hospital-induced infections -- especially in the surprisingly common instances in which basic procedures such as changing clothes, cleaning washrooms, or washing hands, have simply been ignored.
Wednesday, Jun. 15, 2005
Can Capital Defendants Be Visibly Restrained During Sentencing? The Supreme Court Says No
FindLaw columnist and Rutgers law professor Sherry Colb takes issue with the logic of a recent Supreme Court decision, Deck v. Missouri, which held that absent proof of a compelling need, death-penalty defendants cannot be visibly restrained (with cuffs and the like) during the sentencing phase of trial, when the jury decides whether to opt for a death sentence. Colb acknowledges the Court's worthy emphasis on being fair to the defendant, but points out that the restraints -- which would protect those in the courtroom from any retaliation by a convicted killer -- hardly tell the jury, which just convicted the defendant of a capital crime, anything they do not already know about his dangerousness.
Wednesday, Jun. 01, 2005
When You Refuse to Consent to a Police Search, Can Your Spouse Override That Refusal?:
The U.S. Supreme Court Takes An Important Fourth Amendment Case
FindLaw columnist and Rutgers law professor Sherry Colb explains the issue in an important Fourth Amendment case that the U.S. Supreme Court recently opted to review. The case addresses the following fact scenario: Two spouses share a house. One refuses a request from police to search the house. But the police return later, and the other spouse consents to a search. Under the Fourth Amendment, is the search constitutional -- or illegal? Colb argues that the Court should deem the search illegal, but explains why precedent indicates the Court may hold to the contrary.
Wednesday, May. 18, 2005
New York D.A. Robert Morgenthau Urges Repeal of the Statute of Limitations for Rape: Why He Is Right
FindLaw columnist and Rutgers law professor Sherry Colb argues that controversial New York District Attorney Robert Morgenthau is right to call for repeal of the state's statute of limitations for the crime of rape. Like the crime of murder, Colb contends, the crime of rape should have no statute of limitations -- especially in light of the modern availability of DNA evidence, which, she points out, undermines many of the reasons the statute of limitations exists in the first place.
Wednesday, May. 04, 2005
Using a Baseball Bat to End a Pregnancy: The Strange Michigan Case and the Questions It Raises
FindLaw columnist and Rutgers law professor Sherry Colb considers a Michigan case in which a teen couple allegedly agreed that the boy would hit the girl's abdomen with a bat in order to terminate her pregnancy. The state is charging the boy, but not the girl, with a crime. Is that the right result? Colb discusses the complicated intersection of different areas of law -- including the law of abortion, and the law of battery (unconsented touching) -- that inform this case.
Wednesday, Apr. 20, 2005
A Proposed Bill to Ban Male Circumcision:
The Clash of Gender, Religion, and the Protection of Children
FindLaw columnist and Rutgers law professor Sherry Colb discusses a proposed federal law that would ban male circumcision, despite the practice's religious significance for Muslims and for Jews. Colb argues that the bill's supporters are wrong to parallel female genital mutilation (which is prohibited by federal law) and male circumcision, and that a ban on male circumcision should raise a number of concerns related to the fact that it would make illegal religious practices of American religious minorities.
Wednesday, Apr. 06, 2005
What a Shame: Oakland Announces Plans to Post Photos of Convicted Johns
FindLaw columnist and Rutgers law professor Sherry Colb discusses the City of Oakland's plan to put photos of convicted johns -- men who have solicited prostitutes -- on billboards. Colb uses the Oakland case as a springboard to discuss "shaming" punishments more generally, and to delve into the reasons why society criminalizes prostitution and solicitation in the first place.
Wednesday, Mar. 23, 2005
When Oral Sex Results in a Pregnancy: Can Men Ever Escape Paternity Obligations?
FindLaw columnist and Rutgers law professor Sherry Colb discusses an Illinois appellate case that raises a difficult question: When a woman performs oral sex on a man and then -- without his knowledge -- takes his sperm and inseminates herself, then conceives a child, does the man take on paternity obligations? With a series of intriguing hypotheticals, Colb examines our intuitions as to whether such a man should, or should not, be treated legally as the child's parent if he argues against it.
Wednesday, Mar. 09, 2005
An Illinois Judge Declares that Frozen Embryos Are People: What Difference Does It Make?
FindLaw columnist and Rutgers law professor Sherry Colb takes issue with a Illinois's judge's ruling that frozen embryos are people, rather than property -- a ruling that caused the judge to refuse to dismiss a couple's wrongful death suit based on the destruction of their nine frozen embryos. Colb explains the legal implications of the distinction, and how it plays into the abortion debate. She points out that it would be possible to create a cause of action that viewed embryos as property, but also respected the damage to the couple whose sperm and eggs created them, if they are destroyed.
Wednesday, Feb. 23, 2005
Big Brother in the Bathroom: A Federal Court Puts the "Public" In "Public Restrooms"
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting recent Fourth Amendment federal appeals case, arising from an incident in which police forced their way into a single-stall restroom that a couple had entered together. Colb argues that the appeals court was wrong to say that the entrance was not a search at all, but also notes that under the circumstances, police may have had enough reasonable suspicion to render the search that occurred legal.
Wednesday, Feb. 09, 2005
China Announces That It Will Criminalize Sex-Selection Abortions:
What, If Anything, Should the U.S. Do About the Practice in this Country?
FindLaw columnist and Rutgers law professor Sherry Colb discusses a reported plan by the Chinese government to not only prohibit, but also criminalize abortions performed because of the fetus's sex -- which, in China, virtually always means because the fetus is female. Colb then contrasts the situation with respect to sex-selection abortion in the United States -- and examines the relevant constitutional law precedents.
Wednesday, Jan. 26, 2005
Makeup Requirements for Female Employees Violate Anti-Discrimination Law:
Why A Federal Appeals Court Erred in Ruling to the Contrary
FindLaw columnist and Rutgers law professor Sherry Colb argues that a recent federal appellate decision was wrong to hold that forcing female employees alone -- in this case, a casino bartender -- to wear makeup did not count as sex discrimination. Colb contends that such a policy is discriminatory for two distinct reasons -- the extra monetary cost imposed on female employees, and the sex-based stereotyping that is part and parcel of the requirement.
Tuesday, Jan. 11, 2005
Killing A Woman to Kidnap Her Fetus: Why This Is An Especially Appalling Murder
FindLaw columnist and Rutgers law professor Sherry Colb discusses the recent, high-profile case in which a woman murdered another woman in order to kidnap her unborn baby. Colb notes the widespread intuition that this murder/kidnapping was especially abhorrent -- perhaps, in the view of some, even meriting the death penalty -- and examines the reasoning that underlines that intuition.
Wednesday, Dec. 29, 2004
The Ku Klux Klan Versus the NYPD:
Why a Federal Appeals Decision Rejecting a First Amendment Right to Wear Masks is Flawed
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial New York case in which the Ku Klux Klan sought to wear masks at their rally, despite a New York law prohibiting them from doing so. Did they have the First Amendment right to remain anonymous and/or to send a message with their masks? Colb considers these arguments, and faults the federal court of appeals that ruled against the Klan for coming to what she argues may or may not have been the right result, for very wrong reasons.
Wednesday, Dec. 15, 2004
Breast Exams at the Airport:
Do the New Security Measures Go Too Far?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the privacy implications of a new, intrusive kind of airport search that is aimed at discovering non-metallic explosives carried upon passengers' persons. Colb notes that a number of women have complained about the searches' involving inappopriate touching. She argues that the searches are unjustified in light of the fact that the intrusion is severe, and their effectiveness in detecting the kind of explosives they are meant to uncover is dubious.
Wednesday, Dec. 01, 2004
Is Your Scalp a Constitution-Free Zone?
A Federal Appeals Court Approves Suspicionless Hair Sampling
FindLaw columnist and Rutgers law professor Sherry Colb analyzes an unusual constitutional question: When police officers snip a substantial amount of visible hair off a suspect, is that a violation of the Fourth Amendment? Colb discusses whether this kind of snipping -- a prelude, in this case, to drug testing -- is the kind of "search" or "seizure" the Fourth Amendment covers.
Wednesday, Nov. 17, 2004
Racially-Based Suppression of the African-American Vote:
The Role It May Play in the Upcoming Presidential Election
FindLaw columnist and Rutgers law professor Sherry Colb traces the history of racially-based suppression of the African-American vote in America. Colb notes that this practice still continues today, and argues that it is not only morally ground, but especially contemptible under the Constitution's standards. Colb explains how the Reconstruction Amendments accord African-Americans' voting rights a special place in our Constitution. She also contends that even if African-American votes are suppressed on political grounds, the suppression is still invidious race discrimination.
Friday, Oct. 29, 2004
The Candidates Clash on Abortion Law:
A Window Into Their Capacity to Listen
FindLaw columnist and Rutgers law professor Sherry Colb closely analyzes the presidential candidates' positions on partial birth abortion -- as expressed in the second debate. Colb contends that when Bush took Kerry to task for his vote on the Partial Birth Abortion Ban Act, Bush mischaracterized the import of Kerry's vote -- which, she argues, only reflected Supreme Court precedent and the need for a humane "life and health of the mother" exception. Colb also contends that this mischaracterization suggests the President lacks the capacity to listen closely to others' differing views
Tuesday, Oct. 19, 2004
The Supreme Court Reconsiders the Constitutionality of Executing Minors:
The Case of Roper v. Simmons
FindLaw columnist and Rutgers law professor Sherry Colb discusses a key case that the Supreme Court will address this Term. The case asks the Court to decide whether to reconsider its earlier ruling that it is constitutional to execute sixteen- and seventeen-year-olds (though not fifteen-year-olds). Colb offers a thought-provoking analysis that contrasts the Court's cases on execution of the mentally retarded, with its cases on the execution of juveniles. She points out that teens are likely to transform mentally between the time of crime, and the time of potential execution -- but also points out that the significance of this evolution depends on its nature, and that mental transformation is neither the necessary, nor the exclusive, province of teens.
Wednesday, Oct. 06, 2004
Who Gets Custody When the Fertility Clinic Makes a Mistake?:
The Hidden Sexism in Focusing on DNA
FindLaw columnist and Rutgers law professor Sherry Colb discusses a tragic case in which a fertility clinic implanted the wrong embryo in a woman's womb. The woman brought the child to term, and has raised the child as her own. But now the couple who provided the embryo seek custody of the child. Colb argues that, under these circumstances, a woman who gestates and raises a child has as much right to be deemed the "biological mother" as a woman and man who provide the sperm and egg have to be deemed the child's "biological parents." Indeed, she contends, it would be sexist to focus only on contributions of DNA -- ignoring the uniquely female contribution of pregnancy and gestation.
Wednesday, Sep. 22, 2004
A Federal Appeals Court Approves the DNA Profiling of Criminals:
Are Innocent People Next?
FindLaw columnist and Rutgers law professor Sherry Colb raises a key Fourth Amendment question for the Twenty-First Century: Does DNA collection -- even if it does not require a physical intrusion such as blood sampling violate the Constitution? As Colb explain, a recent decision by the U.S. Court of Appeals for the Ninth Circuit raises this very question -- and also raises the issue of whether the answer might be different for those who have criminal records, and those who do not.
Wednesday, Sep. 08, 2004
The U.S. Court of Appeals for the Ninth Circuit Upholds a "Shaming" Penalty:
Why Prison Conditions are Relevant to the Debate
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent, controversial federal appeals court ruling allowing a "shaming" penalty to be imposed despite statutory and constitutional challenges. The penalty, in this case, was that the convict had to wear or hold a large sign saying 'I stole mail; this is my punishment,' while standing in front of a San Francisco postal facility. Colb suggests that even the possibility that this kind of penalty could be deemed cruel and unusual, should make us rethink the cruelty of a punishment we take for granted: imprisonment, with its risks of beatings and of rape.
Tuesday, Aug. 24, 2004
Woman On Trial for Delivering Cocaine to her Unborn Child:
A Surprisingly Difficult Case
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent prosecution of a Texas woman alleged to have "delivered" a drug to her unborn child by taking cocaine when she was pregnant. Are such prosecutions constitutional? Colb explains why simply citing the right to abortion does not answer the question, and considers whether the fact that the drug the woman ingested was not only harmful to the future child, but also illegal, makes a difference.
Wednesday, Aug. 11, 2004
When Danger and Repression Go Hand in Hand:
Why A New York Federal Judge's Controversial Ruling on Protester Bag Searches Was Correct
FindLaw columnist and Rutgers law professor Sherry Colb offers a strong defense of Southern District of New York federal judge Robert Sweet -- whose recent ruling prohibiting generalized searches of Republican National Convention protesters' bags has been blasted by some New York editorialists. Colb argues that Judge Sweet's Fourth Amendment argument was solid, and that such searches are likely to be not only rights-infringing, but ineffective as well.
Wednesday, Jul. 28, 2004
When Legal Protection Isn't Enough
FindLaw columnist and Rutgers law professor Sherry Colb discusses what nursing mothers can do when the legal protections for breast feeding don't protect them effectively in practice. Colb explains why breastfeeding is a crucial option for a mother to have, and argues that "in your face" protests, similar to those of the gay rights movement, can help to desensitize the public and erase the taboo against nursing outside the privacy of one's home.
Wednesday, Jul. 14, 2004
A Significant Decision that May Not Matter:
The Supreme Court Holds That Only Juries, Not Judges, Can Make the Factual Determinations That Increase Sentences
FindLaw columnist and Rutgers law professor Sherry Colb discusses a new Supreme Court ruling on sentencing that has put into doubt not only state sentencing statutes, but also the federal sentencing guidelines system. Colb explains the decision, and notes that while it may indeed lead to changes in state and federal sentencing, in the end, these changes may be less profound than they appear -- with judges able to impose the very same sentences, based on the same kind of fact findings -- that they previously could have.
Tuesday, Jun. 29, 2004
When Victims' Families Eschew Vengeance:
The Exclusion of Pro-Defendant Victim Impact Statements in Terry Nichols's Trial
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial evidentiary decision by the judge in the recent death penalty trial of Oklahoma bombing co-conspirator Terry Nichols. When the jury was deciding between a death sentence and life imprisonment, the defense sought to present relatives' please against the death penalty, but the judge did not allow their admission. Colb argues that if pro-death-penalty victim impact statements should be allowed at sentencing, anti-death-penalty victim impact statements should too.
Wednesday, Jun. 16, 2004
The Supreme Court's Recent Automobile Search Case:
The Culmination of a Doctrine Filled With Pretextual Reasoning
FindLaw columnist and Rutgers law professor Sherry Colb discusses the recent, controversial Supreme Court decision in an automobile search case. As Colb notes, the Court held a search permissible even though, she points out, "there was never a moment during which the police officer made demands of the suspect, while he was in his car, that could possibly have led to the destruction of evidence or to reaching for a weapon in the car." Colb argues that not only is this decision wrong, but also this and similar "search incident to arrest" precedents undermine the Court's credibility.
Wednesday, Jun. 02, 2004
What Is A Mother? The California "Egg Donor" Case Gets It Wrong
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial California case in which one member of a lesbian ex-couple was held to have lost parental rights with respect to twins who were born from her egg, but gestated in her ex-partner's womb. Colb argues that the court's decision was wrong -- and that it was plain that the woman who gave her eggs so that the twins would be born, intended to, and did, act as a co-mother of the twins -- despite her signing a consent form to the contrary.
Wednesday, May. 19, 2004
Autonomies of Scale:
A New York Capital Case Asks Whether Defendants Should be Forced To Exercise their Rights
FindLaw columnist and Rutgers law professor Sherry Colb discusss an interesting issue raised by a New York death penalty case. At sentencing, the defendant chose not to put on mitigating evidence -- that is, evidence that would have made the death penalty less likely. He was sentenced to death. Now, he claims that he should have been required to put on the mitigating evidence. Is he correct? Colb explains why one might think so -- or think not -- given the principles of our judicial system.
Wednesday, May. 05, 2004
What's in a Warning?
The FDA Hesitates to Link Antidepressants and Risk of Suicide
FindLaw columnist and Rutgers law professor Sherry Colb probes the reasons why the FDA might, or might not, want to alert parents if there is some risk that putting their children on antidepressants might cause the children to commit suicide. As Colb explains, since warnings themselves can have side effects, and since lack of antidepressants can also be a factor in suicide, the question whether to warn is not a simple one.
Wednesday, Apr. 21, 2004
Under the Penalty of Perjury:
Condoleezza Rice, the 9/11 Commission, and The Difference An Oath Makes
What was at the heart of the debate over whether Condoleezza Rice would give under-oath testimony to Congress? FindLaw columnist and Rutgers law professor Sherry Colb discusses the different categories in which we might put everyday lies, and illuminates why we think certain lies are justified, while others are not. Colb also discusses the difference it may make -- from a legal and ethical perspective -- when a lie is told under oath.
Wednesday, Apr. 07, 2004
Crying Murder When A Woman Refuses a C-Section:
The Disturbing Implications of a Utah Prosecution
FindLaw columnist and Rutgers law professor Sherry Colb discusses the controversial Utah prosecution of a pregnant woman who refused a Caesarean section and allegedly therefore caused the death of one of her unborn twins. Colb discusses facts that ought to make us hesitate before trusting doctors' C-Section decisions, and explains the legal principles that ought to apply to the woman's case.
Tuesday, Mar. 16, 2004
What's Wrong with Nonconsensual Medical Treatment?
A Florida Case Explores the Boundary Between Malpractice and Battery
FindLaw columnist and Rutgers law professor Sherry Colb discusses a Florida case of a man who alleges that he was given a blood transfusion without his consent, and despite the fact that as a Jehovah's Witness, he would have refused the transfusion. The issue the case raises is whether the man's allegation is fundamentally one of medical malpractice, or of battery -- defined in the law as a "trespass against the body," or, in other words, an unconsented touching. The distinction is crucial because Florida imposes a cap on the non-economic damages a plaintiff in a medical malpractice case may receive, but there is no such limit for battery.
Wednesday, Mar. 10, 2004
The Night Before the Morning After:
Why Has the FDA Delayed Approval of Over-The-Counter Emergency Contraception?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the reasons why the FDA has not yet approved the so-called "morning after" bill, which prevents conception for up to 72 hours after sex. Colb argues that a number of the rationales for withholding approval simply make no sense -- and that others are either disingenuous, or unpersuasive when closely examined.
Wednesday, Feb. 25, 2004
A Ten Year Sentence for Marcus Dwayne Dixon:
The Pros & Cons of Statutory Rape Laws
FindLaw columnist and Rutgers law professor Sherry Colb discusses the controversial case of Marcus Dwayne Dixon -- an 18-year old high school football player who had sex with a 15-year-old classmate. Dixon was convicted of statutory rape and aggravated child molestation, but acquitted of rape and several other charges. Colb raises the question whether, in modern times, statutory rape laws still make sense -- and offers reason why we might think they do, or do not. She also considers the merits of a potential constitutional challenge to statutory rape laws, based on its omission of any "lack of consent" element.
Wednesday, Feb. 11, 2004
Is Killing an Undiscovered First-Trimester Fetus Murder in California?
The Answer Probably Is, and Should Be, "Yes"
FindLaw columnist and Rutgers law professor Sherry Colb discusses a criminal case upon which the California Supreme Court recently heard oral argument. The case pose the following question: When a man intentionally kills a woman who -- unbeknownst to both of them -- is pregnant, is it a murder or a double murder? Colb argues that under California law, and more generally, the better answer is that man has committed not one murder, but two.
Wednesday, Jan. 28, 2004
When Types of Discrimination Compete for Legal Recognition
Should Anti-Gay Religious Practices Be Accommodated in the Workplace?
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent Court of Appeals case that pits two competing legal rules against each other. The case began when a company put up posters in the workplace supporting its gay employees, among other employees. An employee then put up a counter-poster with anti-gay quotations from the Bible -- and claimed his religion required his doing so. The company fired him, and he sued. Who should win the suit? Colb explains why, in this case, the value of tolerance ought to prevail.
Wednesday, Jan. 14, 2004
Can A Parent Sue When his Adult Child is Killed by the Police?
A Recent Case Says "No" and Highlights a Division Among Appellate Courts
FindLaw columnist and Rutgers law professor Sherry Colb discusses an important question of legal standing that has divided the federal appeals courts. The question is whether a parent has a "special relationship" with his or her adult child, so that the parent has standing to sue based on an injury to the child -- or, in the case that Colb discusses, the child's death.
Wednesday, Dec. 31, 2003
Are Strip Searches Special?
A New York Appellate Court Says Yes, But the U.S. Supreme Court's Views Remain Unknown
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent New York case in which a suspect was publicly strip searched on the street -- and the surprising truth that the U.S. Supreme Court has not definitively weighed in on the Fourth Amendment status of strip searches. Colb discusses two different lines of Fourth Amendment precedent to consider which provides the better analogy to the strip searches issue.
Wednesday, Dec. 17, 2003
A Lawsuit Against "Big Alcohol" for Advertising to Underage Drinkers
Are Minors Accountable for Their Actions?
FindLaw columnist and Rutgers law professor Sherry Colb argues that there is a logical inconsistency between two areas of contemporary American law: On the one hand, recent lawsuits argue that companies that produce cigarettes and alcohol ought to be held liable when they sell to minors -- suggesting minors are not responsible for their own actions. On the other hand, the states recently have tried juveniles as adults, and even sought the death penalty for them -- suggesting minors are deeply responsible for their own actions. Colb discusses how this tension might -- or might not -- be resolved.
Wednesday, Dec. 03, 2003
Dismemberment and Doubt
How Could the Jury Have Acquitted Robert Durst?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the famous and controversial recent acquittal in the case of eccentric millionaire Robert Durst, who admitted killing and dismembering another man, but says he did so in self-defense. Colb takes a close look at the evidence in the case, and argues that the jury's verdict may have been understandable, after all. Colb also contrasts the case with other famous, criticized acquittals such those of O.J. Simpson; the Rodney King police officers; and the Amadou Diallo police officers.
Wednesday, Nov. 19, 2003
Too Religious for the Jury?
A Federal Court Upholds Peremptory Challenges Based on Religious Involvement
FindLaw columnist and Rutgers law professor Sherry Colb talks whether courts should accept a new and novel form of Batson challenge. The Supreme Court held in Batson that peremptory challenges to jurors (that is, those that are not "for cause," and need not be explained) cannot constitutionally be exercised on the basis of race. Colb considers whether it is also true that a peremptory challenge cannot constitutionally be exercised on the basis that a given juror is very religious.
Wednesday, Nov. 05, 2003
Animosity Toward Kobe Bryant's Accuser
Is the Presumption of Innocence A Presumption of False Accusation in Date Rape Cases?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the presumption of innocence and the Kobe Bryant prosecution. Colb argues that this presumption is widely misunderstood -- and the Bryant case provides one example of how. Colb stresses that the presumption of innocence does not require anything of the public, but only of jurors -- and that even jurors are in no way required to presume, at a case's outset, that a date rape accuser is probably lying.
Wednesday, Oct. 22, 2003
Do Reasonable Minors Feel Less Free Than Adults Do?
The Supreme Court Takes On A New Miranda Issue
FindLaw columnist and Rutgers law professor Sherry Colb discusses the key issue in a case that the Supreme Court just agreed to review: In deciding whether a suspect is in "custody," and thus must be read his Miranda rights, should the fact that he is a minor be taken into account? Colb argues that the Court's answer should be yes -- but also explains why a procedural issue may stop it from reaching the merits of the case.
Wednesday, Oct. 08, 2003
Protecting the Right to Protest Discrimination:
Law Schools Sue the Defense Department
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent case in which several organizations of law schools, professors, and students have sued the Department of Defense and other federal agencies. The plaintiffs in the suit challenge a federal law -- the Solomon Amendment -- pursuant to which the government has threatened to withdraw funds from schools that do not allow the military to recruit on campus on the same terms as other employers. They argue that the military's "Don't ask, don't tell" policy is discriminatory, and that they have a First Amendment right to oppose discrimination. Colb contends that they are correct.
Wednesday, Sep. 24, 2003
Is Capital Punishment Too Harsh for Rapists?
A Louisiana Jury Sentences a Child's Rapist to Death
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial legal issue: Does the Eighth Amendment's ban on cruel and unusual punishment prohibit the imposition of the death penalty for the rape of a child? In a recent Louisiana case, the death penalty was imposed for the rape of an eight-year-old child. Colb predicts that the Supreme Court may grant review. She argues that when it does, it should reconsider the major precedent on rape and the death penalty -- Coker v. Georgia, which holds that the death penalty cannot be imposed for rape of an adult woman.
Wednesday, Sep. 10, 2003
Governor Jeb Bush Sends Lawyers to Represent a Fetus:
Targeting A Mentally Retarded Pregnant Woman for Pro-Life Intervention
FindLaw columnist and Rutgers law professor Sherry Colb discusses a new angle on the controversial decision by Governor Jeb Bush to seek the appointment of a fetal guardian in an abortion controversy. In the case in which he has sought a guardian, the woman at issue is a mentally disabled rape victim. Colb argues that the fact that Governor Bush chose hers as the test case for fetal guardianship should trouble all Americans -- whether pro-life or pro-choice.
Wednesday, Aug. 27, 2003
John Doe Indictments in New York:
An Opportunity to Examine Statutes of Limitations
FindLaw columnist and Rutgers law professor Sherry Colb discusses New York Mayor Michael Bloomberg's recent "John Doe" indictment proposal, under which prosecutors would issue indictments relating to unsolved sex crimes that would identify the defendant not by name, but based on DNA alone. Colb considers the pros and cons of such indictments, and explains the serious fairness concerns raised if such indictments are allowed to stop the clock on the relevant statutes of limitations.
Wednesday, Aug. 13, 2003
Why Lynne Stewart, Attorney for a Terrorist, Is No Heroine:
Crossing the Line Between Advocate and Accomplice
FindLaw columnist and Rutgers law professor Sherry Colb discusses a New York federal judge's recent decision to strike several counts of the indictment against Lynne Stewart. The government's decision to go after Stewart for breaking restrictions on what lawyers can say to dangerous clients has made her a civil liberties heroine to some. But Colb argues that that perspective is entirely wrong given what is alleged in the indictment, which, if true, indicates Stewart may have put lives in danger.
Wednesday, Jul. 30, 2003
The New York Racist Float Case:
How the First Amendment Does -- and Does Not -- Protect Racist Cops and Firemen
FindLaw columnist and Rutgers law professor Sherry Colb weighs in on a controversial recent decision by New York federal judge John Sprizzo. The case arose when two New York City firefighters, and one police officer, were terminated because, while off duty, they had ridden on a racist float during the Broad Channel, Queens Labor Day Parade. Colb argues that Judge Sprizzo erred by directing their reinstatement on First Amendment grounds.
Wednesday, Jul. 16, 2003
Welcoming Gay People Back Into the Fold:
The Supreme Court Overrules Bowers v. Hardwick
FindLaw columnist and Rutgers law professor Sherry Colb explains the reasoning and significance of last week's landmark Supreme Court decision in Lawrence v. Texas. In Lawrence, the Court struck down a anti-sodomy law that had extended only to same-sex sodomy. But, as Colb explains, the Court chose not to rest its opinion on Equal Protection concerns alone, but rather protected gay civil rights more broadly.
Monday, Jun. 30, 2003
Sending Out Partial Birth Announcements:
Symbolism and Deception by Pro-Life Legislators
FindLaw columnist and Rutgers law professor Sherry Colb takes issue with the recent "partial birth abortion" bill. Colb argues that the pro-life movement's focus on a rare kind of very late-term abortion that resembles infanticide is deceptive. In particular, she contends that this focus distracts from realities relating to more typical abortions, and to many pro-life persons' opposition of all abortions, no matter how early in pregnancy.
Wednesday, Jun. 18, 2003
The Verdict in the Lemrick Nelson Trial:
Jury Deliberations Expose a Troubling Reality
FindLaw columnist and Rutgers law professor Sherry Colb discusses the most recent event in the controversial New York City hate crime case of Lemrick Nelson, who allegedly stabbed a stranger, Yankel Rosenbaum, because he was Jewish. In Nelson's recent civil rights trial, a jury found that Nelson indeed stabbed Rosenbaum, but also found that the stabbing did not cause Rosenbaum's death. Colb argues that these two findings not only make no sense, taken together, but also expose problems endemic to our jury system.
Wednesday, Jun. 04, 2003
Better to Have Never Been Born?
Wrongful Life Litigation
FindLaw columnist and Rutgers law professor Sherry Colb investigates the unusual legal area of "wrongful life" litigation, through the lens of two New York cases. As Colb explains, such litigation proceeds on a theory that may sounds strange: The child plaintiff says to the court, in essence, "I, who should not have been born, hereby sue the doctor whose negligence led to my existence." But upon reflection, Colb contends, such suits are not so strange after all.
Wednesday, May. 21, 2003
Will the Apple Fall Far From the Tree?
The Supreme Court Takes a Case About Miranda "Fruits"
FindLaw columnist and Rutgers law professor Sherry Colb discusses an important criminal procedure case that the Supreme Court recently decided to review. The case raises this issue: When a suspect is not properly read his Miranda rights, and his statements lead to incriminating physical evidence, can that evidence constitutionally be presented by the prosecution at trial?
Wednesday, May. 07, 2003
The Israeli Supreme Court Denies Women The Right to Pray at the Western Wall:
A Misguided Decision Parallels the U.S. "Fighting Words" Doctrine
FindLaw columnist and Rutgers law professor Sherry Colb contrasts Israeli and U.S. rulings on a particular legal issue: Can speech, or even prayer, be restrained because hearers may react to it violently? Colb describes both an Israeli decision prohibiting women from praying at Jerusalem's Western Wall due to the likelihood a violent backlash will ensue, and the U.S.'s "fighting words" doctrine, which says that words likely to provoke an immediate violent reaction from the hearer do not enjoy First Amendment protection.
Wednesday, Apr. 23, 2003
Smoking Bans in New York:
Outrageous or Reasonable?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the arguments in favor of, and against, the smoking bans currently in place in New York City, and forthcoming state-wide. The bans have inspired intense debate in the City; Colb analyzes the arguments to separate the serious from the makeweight.
Wednesday, Apr. 09, 2003
The Supreme Court Hears the Texas Sodomy Case:
Embracing the Right to Privacy
FindLaw columnist Sherry Colb explores the privacy aspect of the constitutional challenge the Supreme Court will hear today, March 26, to Texas's anti-homosexual-sodomy statute. Colb draws a parallel between two different types of constitutional protections for privacy, and explains why the Texas statutes raises not just equality, but also privacy concerns.
Wednesday, Mar. 26, 2003
The Family that Dare Not Speak Its Name:
Florida's Ban on Gay Adoption Reaches the U.S. Court of Appeals For the Eleventh Circuit
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial Florida case, concerning whether gays and lesbians (including gay and lesbian foster parents) may constitutionally be denied the opportunity to adopt children. Colb contends that Florida's approach to gay adoption fails to pass even the Supreme Court's "rational basis" test.
Wednesday, Mar. 12, 2003
Medicating Prisoners So They Can Be Killed:
A Federal Court Approves Forcible Antipsychotic Treatment of Mentally Incompetent Convicts
FindLaw columnist and Rutgers law professor Sherry Colb discusses a legal concept unique to the death penalty: the idea that one can be "incompetent" -- that is, too mentally impaired -- to be punished. A federal appeals court recently held that a death row inmate can be forcibly medicated, so that he is competent to be executed. Colb surveys the Supreme Court precedents relevant to the question.
Wednesday, Feb. 26, 2003
The Conviction of Ed Rosenthal for Growing Medicinal Marijuana:
Why It Was Wrong to Prosecute
FindLaw columnist and Rutgers law professor Sherry Colb argues that the federal government should not have prosecuted Ed Rosenthal for marijuana offenses. Though the jury was not told these facts, Rosenthal is an agent of Oakland, California's medical marijuana program, and California's Proposition 215 expressly authorized the program. Colb contends that these facts make a great deal of difference.
Wednesday, Feb. 12, 2003
WHY SUING MCDONALD'S COULD BE A GOOD THING:
COMPELLING COMPANIES TO BEAR THE COSTS THEY INFLICT ON OTHERS
FindLaw columnist and Rutgers law professor Sherry Colb discusses the recent suits by obese plaintiffs against McDonald's, putting them in a new light. The judge in one of the suits recently required the plaintiffs to allege and prove that McDonald's deceived them as to its food's health effects. Colb argues, however, that there are good reasons for asking McDonald's to pay the health costs of its product even if it does not deceive customers as to those costs.
Wednesday, Jan. 29, 2003
WITHDRAWING CONSENT DURING INTERCOURSE:
CALIFORNIA'S HIGHEST COURT CLARIFIES THE DEFINITION OF RAPE
FindLaw columnist and Rutgers law professor Sherry Colb discusses an issue recently addressed by the California Supreme Court: When a women initially gives consent to intercourse but changes her mind, and the man still persists, and refuses to stop, is it rape? Colb discusses the logic behind the California Supreme Court's ruling that it is, and other courts' rulings suggesting the contrary.
Wednesday, Jan. 15, 2003
DOES COERCING A CONFESSION VIOLATE THE FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION?
THE SUPREME COURT CONSIDERS THE QUESTION
FindLaw columnist and Rutgers law professor Sherry Colb considers a tricky case the Supreme Court confronts this Term, Chavez v. Martinez. The case involves the interpretation of the Fifth Amendment's privilege against self-incrimination: Is the Amendment violated as soon as a suspect's confession is coerced, or only when (and if) the confession is later offered at trial against the suspect?
Wednesday, Jan. 01, 2003
THE SUPREME COURT TAKES A SAME-SEX SODOMY CASE:
WHY SEXUAL ORIENTATION DISCRIMINATION IS ALSO SEX DISCRIMINATION
FindLaw columnist and Rutgers law professor Sherry Colb analyzes the Supreme Court's second high-profile sodomy case. Colb contends that while the court erred in rejecting a challenge to Georgia's anti-sodomy statute in Bowers v. Hardwick in 1986, it may well strike down Texas's anti-sodomy statute this time.
Wednesday, Dec. 18, 2002
A QUESTION OF DIVERSITY:
AFFIRMATIVE ACTION IN ADMISSIONS REACHES THE SUPREME COURT
FindLaw columnist and Rutgers law professor Sherry Colb discusses a set of cases the Supreme Court has recently decided to review. The cases concern affirmative action in undergraduate and law school admissions at the University of Michigan. Colb explains Bakke, the key prior Supreme Court precedent on affirmative action in admissions, and its legacy of emphasizing diversity.
Wednesday, Dec. 04, 2002
THE SUPREME COURT EVALUATES MEGAN'S LAWS:
PROBABLY VALID BUT STILL WRONG
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent
Supreme Court case -- in which oral argument was held last week -- involving
constitutional challenges to two states' versions of Megan's Law. Drawing on
a provocative question by Chief Justice Rehnquist, Colb explains why, even if
the laws survive these challenges, they will remain troubling.
Wednesday, Nov. 20, 2002
THE BOUNDARY BETWEEN NEUTRALITY AND HOSTILITY TOWARD
THE RECENT THIRD CIRCUIT DECISION ABOUT THE TENAFLY
FindLaw columnist and Rutgers law professor Sherry Colb discusses an unusual
case regarding the Constitution's guarantees of religious freedom. In
Tenafly, New Jersey, a town forbade a group of Orthodox Jews to place thin
plastic rods (which had religious significance for them, as "lechis" of an
"eruv") on utility poles, while at the same time allowing others to place
their own materials on the poles.
Wednesday, Nov. 06, 2002
WHEN A PROSTITUTE KILLS: THE EXECUTION OF AILEEN CAROL WUORNOS
FindLaw columnist and Rutgers law professor Sherry Colb comments on the
execution this month of Aileen Carol Wuornos, a prostitute who the
prosecution contended was also a confessed serial killer. Colb discusses the
problems prostitutes have when they try to claim self-defense in a murder
prosecution, and makes an interesting comparison to the Bernhard Goetz subway
Wednesday, Oct. 23, 2002
A RIGHT OF JURY NULLIFICATION IN SOUTH DAKOTA?
WHY AMENDMENT A SHOULD BE REJECTED
FindLaw columnist and Rutger law professor Sherry Colb discusses an unusual
proposed amendment to the South Dakota Constitution. The amendment would
allow a defendant to admit guilt but argue that the law under which he or she
was charged was unjust, and thus should not be applied. Is allowing
nullification a good idea? Colb discusses its pros and cons.
Wednesday, Oct. 09, 2002
HELPING BATTERED WOMEN WITHOUT HOLDING THEM IN CONTEMPT
FindLaw columnist and Rutgers law professor Sherry Colb uses a recent
Pennsylvania case as a springboard to investigate the ins and outs of the way
that the spousal privilege -- which generally prevents married people from
testifying against one another -- is modified in domestic violence cases.
Colb considers questions such as: Should a battered wife be forced to testify
against her husband? Should she be jailed if she refuses? Could other
evidence, in some cases, substitute for the wife's testimony?
Wednesday, Sep. 25, 2002
TWO FLORIDA MURDER TRIALS FOR THE KILLING OF TERRY KING:
WHEN PROSECUTORS HAVE REASONABLE DOUBT
FindLaw columnist and Rutgers law professor Sherry Colb discusses an unusual
set of trials -- both for the killing of Floridian Terry King. In one, the
defendant was a 40-year-old neighbor of King's named Ricky Chavis. In the
other, the defendants were King's two sons Alex and Derek -- aged twelve and
thirteen. One might wonder: How can prosecutors conduct two trials for the
same murder? Colb contends that this can sometimes be appropriate, but was
not in the King case -- in which the prosecution theories for the two trials
could not be reconciled, and the prosecution itself seemed unsure who was the
Tuesday, Sep. 10, 2002
THE COSTS OF THE BUSH ADMINISTRATION'S
PROMOTING "EMBRYO ADOPTION"
FindLaw columnist and Rutgers law professor Sherry Colb discusses the Bush
Administration's plan to soon distribute almost a million dollars for public
awareness campaigns promoting "embryo adoption" -- that is, the decision to
donate unwanted embryos produced during in vitro fertilization to other
infertile couples. Colb contends that while the program might seem
innocuous, that is far from the case -- indeed, it will be likely to cause
serious harm. She also relates the program to the ongoing stem cell debate,
and discusses the respective positions on embryo issues of President Bush
and Senator Arlen Specter, a key "embryo adoption" proponent.
Wednesday, Aug. 28, 2002
SHOULD KENNETH POWELL HAVE BEEN TRIED FOR HOMICIDE
FOR TAKING A DRUNK FRIEND TO HIS CAR?:
THE PERILS OF CREATIVE PROSECUTION
When prosecutors stretch the law to reach a person they believe is culpable, are they acting wrongfully, or just being creative in their jobs? FindLaw columnist and Rutgers law professor Sherry Colb argues that the answer is often the former. As evidence, she cites the recent homicide prosecution of a man who did no more than drop his drunk friend off at his car, and a South Carolina case in which a hospital reported pregnant women who tested positive for cocaine -- leading to their arrests for "delivering drugs to a minor." Colb also explains the criminal law's "rule of lenity," which militates strongly against such "creative" prosecutions.
Monday, Aug. 12, 2002
THE MINOR ISSUE OF ABORTION:
PRISCILLA OWEN'S CONFIRMATION BATTLE
FindLaw columnist and Rutgers law professor Sherry Colb argues that Bush federal appellate court nominee Priscilla Owen's stance on abortion for minors is highly relevant to her confirmation hearings and, indeed, a strong reason to vote against her. Colb contends that while some may see minors' right to choose as only a sidelight to the more general abortion debate -- in part because parents control many other decisions minors make -- their logic is deeply flawed. Colb argues that the decision to choose abortion is actually quite unlike the type of decisions that are appropriate for parents to make on minors' behalf.
Wednesday, Jul. 31, 2002
ALLEN IVERSON AND THE PRESUMPTION OF INNOCENCE
FindLaw columnist and Rutgers law professor Sherry Colb uses the example of NBA star Allen Iverson's recent troubles with the law to examine the following question: Must we all entertain a presumption of innocence with regards to someone who, like Iverson, has been accused of a crime, or is the obligation to respect the presumption one that only jurors must honor? Colb argues for the latter view, using the O.J. Simpson case to illustrate her points.
Monday, Jun. 17, 2002
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