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.
Cornell law professor Sherry F. Colb comments on a case in which the U.S. Supreme Court will consider whether a police officer who shot and hit a fleeing suspect “seized” that suspect, thereby triggering the Fourth Amendment, even though the wounded suspect escaped the police. Colb explains some of the arguments and predicts an outcome that would affirm precedents and offers a compromise between competing constitutional concerns.
Cornell law professor Sherry F. Colb discusses the concept of “conditional irrelevance”—which she first identified in a law review article in 2001—and explains why the concept is useful for understanding the arguments before the U.S. Supreme Court in Kansas v. Glover. Through the lens of conditional irrelevance, Colb explains why the knowledge of one fact (that the owner of the vehicle in that case lacked a valid license) should not itself provide police reasonable suspicion to stop the vehicle.
Cornell law professor Sherry F. Colb comments on case in which Animal Legal Defense Fund (ALDF) brought a civil damages suit on behalf of an abused horse, now named Justice, against the horse’s former owner. Colb dismantles three arguments critics raise in opposition to recognizing abused animals as plaintiffs in lawsuits such as this one.
Cornell law professor Sherry F. Colb proposes the psychological effects of the “silent treatment” as a possible reason that arrested individuals who understand their Miranda rights nevertheless confess to the police. Rather than seeking to dispute or displace other explanations of the phenomenon, Colb suggests that when police leave a suspect alone in his cell, he may experience their exit as the silent treatment and confess as an attempt to end it.
Cornell law professor Sherry F. Colb considers whether an explanation for the affection dogs express for their humans might be explained by the Stockholm Syndrome, the condition that afflicts many kidnapped people and other abuse victims in which they form an attachment, sometimes called a trauma bond, that manifests as seeking the abuser’s approval and craving closeness rather than trying to escape. Colb argues that even though pet owners might not intend abuse, the unpredictable repetition of house arrest and silent treatment, followed by intermittent returns, might amount to abuse in the minds of these animals we hold as pets.
Cornell law professor Sherry F. Colb reflects on why, if God is all-knowing, all-powerful, and benevolent, there is still evil in the world. Colb argues that one common answer—free will—does not truly resolve that question.
Cornell law 3L Jareb Gleckel and professor Sherry F. Colb discuss, in point-counterpoint style, one aspect of the legal issue presented in Altitude Express v. Zarda—in which the U.S. Supreme Court will decide whether Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against their employees based on sexual orientation. Gleckel argues that sexual orientation discrimination does not qualify as sex discrimination under the text of Title VII and describes a hypothetical example in support of his argument. In response, Colb first addresses Gleckel’s formalistic argument and then contends, even assuming Gleckel’s premise to be true, that because the policy at issue in Zarda discriminates between men and women both formally and in a manner that inflicts a gender-relevant injury, it violates the text of Title VII.
Cornell law professor Sherry F. Colb discusses blackmail and the paradox of coercion, that is, the phenomenon where the law permits two different actions but prohibits a person from making one action a condition of the other. Colb proposes that our laws should evolve over time toward a framework that is less and less supportive of coercion.
Cornell law professor Sherry F. Colb comments on a minority practice by a number of male faculty at law schools and other institutions of announcing an “open door” policy in their offices, purportedly to protect against false accusations of sexual assault or sexual harassment. For purposes of discussion, Colb steps into the role of a hypothetical male faculty member who has such a policy, and then stepping back out of role, she discusses the pros and cons of such policies.
Cornell law professor Sherry F. Colb why the question whether a state may abolish the insanity defense (presently before the Supreme Court) is similar to the question whether a state should adopt so-called animal welfare laws. Colb argues that both the insanity defense and animal welfare measures provide the public with a sense of moral relief but only if we willfully ignore the reality of how animals and criminal defendants are treated.