Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.
Cornell law professor Sherry F. Colb considers one aspect of the oral argument in California v. Texas, the latest challenge to the Affordable Care Act to come before the U.S. Supreme Court. Specifically, Colb considers the way in which some of the Justices talked during the oral argument about the doctrine of judicial standing, and she calls out those Justices’ hypocrisy as to that issue.
Cornell law professor Sherry F. Colb comments on two particular aspects of a case in which the U.S. Supreme Court heard oral argument last month, Torres v. Madrid. First, Colb discusses the distinction, for Fourth Amendment purposes, between touching someone directly with one’s hands and touching someone indirectly using an inanimate object. Second, she explains the difference between holding and dicta in a court opinion. Using these two points as illustrations, Colb shows how flexible the Constitution can be, lending itself to very different interpretations.
In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.
Cornell law professor Sherry F. Colb comments on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX. In this first part, Colb suggests that men who say “not guilty” in response to a sexual assault accusation are not especially credible and that we accordingly need an explanation for why people find the accuser’s words equally lacking in credibility (and therefore call the dispute a “he said/she said” dilemma for the factfinder).
Cornell law professor Sherry F. Colb comments on a case the U.S. Supreme Court will consider this term that presents the question whether the Eighth Amendment ban on cruel and unusual punishment prohibits sentencing a juvenile offender to life without the possibility of parole. Colb considers the wisdom and constitutionality of imposing such a sentence on a person who was under 18 at the time of his crime.
Cornell law professor Sherry F. Colb considers the case for occasionally including status—“who you are”—in assigning blame in criminal matters. Colb explains that generally, our penal system prohibits “status offenses,” but sometimes, such as in the case of psychopaths, we are comfortable deciding how to punish a person based at least in part on who they are.
Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.
Cornell Law professor Sherry F. Colb explores why people have such strong feelings about the #MeToo movement (whether they are advocates or opponents) and suggests that both sides rest their positions on contested empirical assumptions about the behavior of men and women. Colb argues that what we believe to be true of men and women generally contributes to our conclusions about the #MeToo movement and our perceptions about how best to handle the accusations of those who come forward.
In light of the federal government’s resumption of executions, Cornell law professor Sherry F. Colb describes some of the common arguments of proponents and opponents of capital punishment. Colb observes that many of the moral arguments are based on a consequentialist perspective and suggests that a deontological perspective might lead to novel arguments and considerations about the death penalty.
Cornell law professor Sherry F. Colb describes how the U.S. Supreme Court purported to allow the state of Kansas to substitute one insanity defense for another, but in fact approved its abolishment of the insanity defense altogether. Colb explains the difference between the insanity defense—an affirmative defense to the commission of a crime—and facts that negate mens rea—the mental element of a crime. Colb also notes how in dissent, Justice Stephen Breyer made a case for veganism, albeit probably inadvertently.
Cornell law professor Sherry F. Colb considers the policy question of whether, since the Constitution requires jury unanimity to convict a defendant of a serious crime, states should require a unanimous verdict to acquit a defendant, as well. Colb describes the reasons behind jury unanimity convictions and assesses whether they apply similarly to acquittals.
Cornell law professor Sherry F. Colb proposes revising the third-party doctrine in a way that reconciles two of the U.S. Supreme Court’s decisions that some critics view as conflicting. Colb suggests that, contrary to what most critics argue and what she herself has long assumed, the prior decision, Katz v. United States rather than the later one, United States v. White, is the anomaly.
Cornell law professor Sherry F. Colb describes an incident where her dog “K” stalked and killed a rabbit, and she considers what criminal-law inferences we might draw from observing such predators’ behavior toward their prey. Colb ponders what distinguishes a dog who kills a rabbit from psychopaths who commit heinous crimes, noting that among humans, a so-called “moral imbecile” lacks conscience and empathy for others, and our society deems such individuals as deserving punishment.
Cornell law professor Sherry F. Colb comments on the recent oral argument before the U.S. Supreme Court in Our Lady of Guadalupe School v. Morrissey-Berru, which raises the question how broadly to construe the word “minister” within the ministerial exception to anti-discrimination law required by the First Amendment. Colb explains where the ministerial exception doctrine might be headed and suggests that an exemption even for criminal misconduct against ministers might be within the existing doctrine.
Cornell law professor Sherry F. Colb considers what people mean when they say that a sexual assault allegation seems “out of character” for a particular person and explains why that reasoning is logically flawed. Focusing on differences between how people behave publicly and privately, Colb argues that the lack of an observed pattern of sexual misconduct is not evidence that a person did not engage in sexual misconduct on a specific occasion.
Cornell Law professor Sherry F. Colb comments on recent sexual assault allegations against presumptive Democratic nominee Joe Biden. Colb argues that if the only choices for President are Donald Trump and Joe Biden, the sexual assault allegation against the latter will take second fiddle to the need to defeat the former and defends this perspective as not manifesting hypocrisy or indifference to sexual assault or other intimate violence.
Cornell law professor Sherry F. Colb comments on the insanity defense, considering when and why juries (and others) might perceive a criminal defendant to be not guilty by reason of insanity. Colb proposes that if a criminal defendant’s mental illness looks like an outside force that made him behave in an out-of-character fashion, then the jury is more likely to find him not guilty by reason of insanity.
Cornell law professor Sherry F. Colb discusses the four purported goals of the criminal justice system—deterrence, incapacitation, retribution, and rehabilitation—and argues that retribution may preclude rehabilitation. Colb considers whether restorative justice—wherein a victim has a conversation with the offender and talks about what he did to her and why it was wrong—might better serve the rehabilitative purpose than long prison sentences do.
Cornell law professor Sherry F. Colb argues that while consent is an important and necessary condition of many activities in which adults engage, it does not necessarily follow that consent is a sufficient condition as well. Colb describes some circumstances in which the apparent consent of the parties does not make the result desirable or good.