Legal Analysis and Commentary from Justia

More Analysis and Commentary by Sherry F. Colb

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Do Rapists Have the Right to Parent Children Conceived in Rape? Part Two of a Two-Part Series of Columns

In Part One of this two-part series of columns, which appeared on December 12, Justia columnist and Cornell law professor Sherry Colb commented on the following question: Do men who father children through rape, and whose victims take their pregnancies to term, have parental rights vis-à-vis those children? If so, that would mean that the rapist father could seek visitation with, or even custody of, those children. Now, in Part Two of the series, Colb examines how and why many state laws seem to support even rapist fathers’ visitation rights, due to the burdens of proof they impose, with alleged rapists often needing to be convicted of rape beyond a reasonable doubt before their visitation rights are refused or terminated. Colb outlines a number of alternative legal approaches that she argues would be preferable to those that currently exist. Continue reading →

Posted In: Family Law

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Do Rapists Have the Right to Parent Children Conceived in Rape? Part One of a Two-Part Series of Columns

In Part One of this two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on the following question: Do men who father children through rape, and whose victims take their pregnancies to term, have parental rights vis-à-vis those children? If so, that would mean that the rapist father could seek visitation with, or even custody of, those children. Colb describes both the argument in favor of allowing such men paternal rights, and the argument against doing so. In Part Two of this series, appearing on December 17, Colb examines how and why many state laws seem to support even rapist fathers’ visitation. Continue reading →

Posted In: Family Law

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The European Court of Human Rights Upholds German Ban on PETA’s “Holocaust On Your Plate” Campaign: Lessons For Animal Activists and for Animal Product Consumers

Justia columnist and Cornell law professor Sherry Colb comments on a controversy in Germany in which Germany’s branch of People for the Ethical Treatment of Animals, PETA-D, compared animal exploitation and slaughter to the Nazi Holocaust, in a series of seven graphic posters. The European Court of Human Rights (ECHR) subsequently held that Germany’s censorship of the images was lawful. Colb, who is both an ethical vegan and the daughter of Holocaust survivors, critically analyzes (1) PETA-D’s decision to launch a campaign comparing animal slaughter to the Holocaust; (2) the ECHR’s decision that such a comparison diminishes Holocaust victims and survivors; and (3) the specific nature of the offense that is felt by those who condemn the analogy between animal exploitation and the Holocaust. In her analysis, Colb refers to sources ranging from Adorno, Singer, and Coetzee on animal suffering, to Seinfeld’s “Soup Nazi,” a comparison to which most people don’t object, but perhaps logically should. Continue reading →

Posted In: International Law, Speech and Religion

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The U.S. Supreme Court Considers Dog Sniffs and the Fourth Amendment

In the second in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her commentary on the constitutional issues raised by dog sniffs, in light of two cases in which the U.S. Supreme Court will address the issue. As Colb explains, one case asks whether a dog sniff is itself a search, for Fourth Amendment purposes; and the other asks what is the evidentiary significance of a dog’s positively alerting after a drug sniff for narcotics. Here, Colb builds on her prior commentary on the cases, and also addresses related precedents. In addition, she discusses the complexities that may arise because dogs have minds of their own—and are able to sniff not only drugs but, for example, cancer and pregnancy. Moreover, dogs can also sense humans’ feelings, and will want to please humans with whom they have bonded. Colb considers these and other factors as they play into the Fourth Amendment analysis. She also predicts the likely outcomes of the cases before the Court, and describes the issues the Justices seemed to find salient at oral argument. She also predicts which Justices will be the “swing votes” in the case. Continue reading →

Posted In: Constitutional Law, Criminal Procedure

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The U.S. Supreme Court Considers Dog Sniffs and the Fourth Amendment

In the first in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments on the constitutional issues raises by dog sniffs, in light of two cases in which the U.S. Supreme Court will address the issue. As Colb explains, one case asks whether a dog sniff is itself a search for Fourth Amendment purposes, and the other asks what is the evidentiary significance of a dog’s positively alerting after a drug sniff for narcotics. Colb examines some of the main factors that may prove important in the cases, and suggests that the Court’s analysis will be significantly improved if it takes into account the differences between a living, breathing dog and a mere evidence-gathering machine. Continue reading →

Posted In: Constitutional Law, Criminal Procedure

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Is Cellphone Tracking Okay If There’s No Trespass? A Sixth Circuit Panel Says Yes: Part Two in a Two-Part Series of Columns

In Part Two in a two-part series of columns on an interesting set of Fourth Amendment issues, Justia columnist and Cornell law professor Sherry Colb continues to address the question whether law enforcement may constitutionally, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Specifically, here in Part Two, Colb considers the two possible ways in which the Supreme Court uses the phrase “reasonable expectations of privacy” in practice in Fourth Amendment cases. In the phrase, Colb notes, “reasonable” may mean “empirically realistic,” but it also may mean “morally justifiable.” Colb gives examples of Supreme Court and Sixth Circuit cases in which the phrase is used in these two different ways. In addition, she examines the exclusionary rule’s role here—noting that the rule, which forbids evidence from being admitted in court if it was obtained unconstitutionally, may in concrete cases seem to simply help out criminals, but at a more abstract theoretical level, protects us all from police misconduct. Colb also predicts that the Supreme Court will need to revisit these issues sooner, rather than later, to ensure that the law is clear. Continue reading →

Posted In: Constitutional Law, Criminal Procedure, Privacy, Technology Law

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Is Cellphone Tracking Okay If There’s No Trespass? A Sixth Circuit Panel Says Yes: Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns on an interesting set of Fourth Amendment issues, Justia columnist and Cornell law professor Sherry Colb discusses the question whether law enforcement may constitutionally, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Previously, Colb explains, the U.S. Supreme Court held in United States v. Jones that police need a warrant and probable cause to attach a global positioning device to a vehicle and thereby track a suspect’s whereabouts. But now, the U.S. Court of Appeals for the Sixth Circuit has held that police may, without a warrant or probable cause, use global positioning technology to track a suspect’s whereabouts through his cellular phone. Colb examines the legal concepts that the Supreme Court and Sixth Circuit decisions invoke, including those of trespass, and of privacy, and comments on the court’s analysis. Continue reading →

Posted In: Constitutional Law, Criminal Procedure, Privacy, Technology Law

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The Downside of Juries in a World That Can’t Stop Talking

Justia columnist and Cornell law professor Sherry Colb comments on the roles that introverts and extroverts, respectively, may play on juries. Drawing on the book Quiet: The Power of Introverts in a World That Can’t Stop Talking, by Susan Cain, Colb notes that the American legal system assumes that extroversion is optimal, and both law schools and the legal world, more generally, reward it. But, Colb asks, what if we’re wrong in our assumptions about introverts and extroverts? Colb describes some of the detrimental effects that our collective elevation of extroversion may be having on the criminal justice system, and on society more generally, especially as extroverts tend to have overly optimistic views, when more balanced views would ideally be better (as is, perhaps, illustrated by the run-up to the 2008 financial crisis). Meanwhile, studies also show that in groups, people’s views tend to follow those of others in a group—in a tendency toward conformity. Thus, Colb asks us to consider our juries: Are we really getting twelve individual views of the case in jury deliberations, or are the influences of conformity and extroversion undermining that ideal? If, indeed, they are, Colb offers an intriguing solution. Continue reading →

Posted In: Courts and Procedure, Philosophy and Ethics

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The Significance of Blind Spots in Moral Reasoning

Justia columnist and Cornell law professor Sherry Colb takes strong issue with a set of hypothetical scenarios that NYU professor Jonathan Haidt presents in his book, published earlier in 2012, The Righteous Mind: Why Good People Are Divided by Politics and Religion. While focusing on these moral dilemmas insofar as they affect humans, Colb argues, Haidt exposes his own blind spot with respect to the morality of eating animals. Colb then offers her own, fresh set of hypothetical moral dilemmas, in order to illustrate her contention that Haidt has not isolated all the pertinent questions and issues that his own moral hypotheticals raise. Even while considering the less significant issue of humans doing harmless but disgusting things to animals who are already dead, Colb notes, Haidt fails to consider the much more important issue of humans killing animals. Continue reading →

Posted In: Philosophy and Ethics

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Two New York State Court Panels Suppress Evidence and Spark Great Controversy: Part Two

In Part Two of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her analysis of two controversial rulings issued at the end of June and the beginning of July, respectively, by two panels of a New York State appeals court (the Appellate Division, First Department). Each ruling concluded that police had violated a suspect’s state constitutional rights against unreasonable searches and seizures, and that as a result, the trial judges should have “suppressed” the weapons found on the suspects—that is, held that the weapons could not be introduced against the suspects if and when they became defendants at a criminal trial. Colb explains the logic behind the rulings, which is related to New York’s “Stop and Frisk” laws. She also contrasts New York and federal law in this area, and contends that the differences between them may have contributed to the New York controversy. Continue reading →

Posted In: Constitutional Law, Criminal Procedure