Sherry F. Colb

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published articles in a variety of law reviews, including Stanford, Columbia, N.Y.U., and G.W., on such topics as privacy from police searches, incarceration, reproductive rights, and why courts are more offended by wrongdoing that results in concrete rather than abstract harm. Colb has also published a book about sex equality in the Twenty-First Century, entitled When Sex Counts, and a book about veganism entitled Mind If I Order the Cheeseburger?. Before beginning her career in law teaching, Colb clerked for Judge Wilfred Feinberg of the U.S. Court of Appeals for the Second Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. She received her J.D. magna cum laude from Harvard Law School and her A.B. summa cum laude and valedictorian from Columbia College.

Columns by Sherry F. Colb

The U.S. Supreme Court Considers Anonymous Tips Part Two of a Two-Part Series of Columns

In Part Two of this two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her examination of Navarette v. California, the case in which the U.S. Supreme Court will decide whether anonymous tips are sufficient to create reasonable suspicion to support a stop by officers. The case involves the relationship between probable cause and reasonable suspicion, as well as the role of known informants and anonymous informants in helping police meet each of these standards, in turn, to shed light on what is normally required to justify an arrest or stop.

The U.S. Supreme Court Considers Anonymous Tips: Part One of a Two-Part Series of Columns

In Part One in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb considers the Supreme Court case of Navarette v. California, which asks whether police may lawfully stop a vehicle for reckless driving on the basis of an anonymous tip. Colb explains why that question is difficult, for two key reasons.

What’s Wrong With In Vitro Meat?

Justia columnist and Cornell law professor Sherry Colb argues that eating meat from a laboratory culture does not allow diners to evade the ethical problems that otherwise arise from eating meat. For one thing, Colb explains how animals still die from cultured meat, for contrary to popular belief, cultured meat, contrary to popular belief, involves the use and slaughter of animals, as Colb explains. Colb also notes that, unlike a person who needs an organ transplant and has no alternative, a person who buys In Vitro meat has numerous vegan alternatives.

What To Expect From the Supreme Court’s Abortion Case This Term

Justia columnist and Cornell law professor Sherry Colb comments on the United States Supreme Court’s June grant of certiorari in Cline v. Oklahoma Coalition for Reproductive Justice. The new case confronts the regulation of medically induced abortion and, Colb predicts, may prove to be important and surprising. Colb provides a particular focus here on Justice Kennedy’s possible views on abortion issues.

The New Mexico Supreme Court Applies Anti-Discrimination Law to Wedding Photographer Refusing to Photograph Same-Sex Commitment Ceremonies

Justia columnist and Cornell law professor Sherry Colb comments on the New Mexico Supreme Court's decision to uphold the application of the state’s anti-discrimination law to a wedding photography business that had refused to photograph a same-sex commitment ceremony. The decision, as Colb explains, means that, in New Mexico, most businesses may not refuse service to gay and lesbian couples on the basis of either the First Amendment freedom of expression or the First Amendment freedom of religion, even if the business at issue involves an expressive component, and even though the people who own or operate the business might harbor religious objections to same-sex relationships. Colb focuses, among other points, on a concurring opinion that she contends shows a laudable sensitivity to the feelings of people who experience themselves as aggrieved by anti-discrimination laws.

A Federal Court Holds New York Stop-and-Frisk Policy Unconstitutional in Floyd v. City of New York

Justia columnist and Cornell law professor Sherry Colb discusses a recent federal court decision finding New York City liable for its stop-and-frisk policy. The court found that the City had violated the Fourth Amendment’s guarantee against unreasonable searches and seizures, as well as the Fourteenth Amendment’s Equal Protection Clause’s guarantee against discrimination. Colb notes that the ruling is significant in that it validates the sense of some New Yorkers, especially those who belong to minority groups, that there has been unsupportable and arbitrary police behavior in this respect. In addition, Colb raises a narrow disagreement with a portion of the court's analysis that may help clarify some of the obstacles we face in detecting discriminatory intent, in this and other contexts where the issue arises. Relatedly, Colb also comments on the use of baselines in decisionmaking.

The Significance of the New “Pain Capable Abortion” Laws

Justia columnist and Cornell law professor Sherry Colb comments on recent laws enacted by several states banning abortion procedures at 20 weeks post-fertilization (or 22 weeks after a pregnant woman’s last menstrual period or “LMP”), and a similar federal measure passed by the House of Representatives, the “Pain-Capable Unborn Child Protection Act (PCUCPA), which would—in the unlikely event that it passed—yield a national prohibition against abortion at 20 weeks post-fertilization (with various exceptions). Some see such laws as a way to subtly advance a pro-life agenda, but Colb notes that an emphasis on the importance of pain, sentience, and suffering in morality surely should, especially, make us ask why we ignore the terrible suffering of the animals we use for food, when we should, instead, Colb contends—focusing on pain—choose to become vegan.

Sexual Surrogacy: Better Than Prostitution?

Justia columnist and Cornell law professor Sherry Colb compares and contrasts the use of a prostitute with that of a sexual surrogate. One impetus for Colb’s column was the recent determination of France’s National Ethics Committee that sexual surrogacy is unethical because it uses the human body for commercial purposes. In light of that determination, Colb considers the arguments for and against considering sexual surrogacy to be ethically distinct from and superior to, prostitution. In the course of her analysis, Colb also considers two novel ways of thinking about sexual surrogacy: as (1) sexual harassment of the therapist, and as (2) sexual harassment of the patient.

What Does the Sixth Amendment Right to Jury Trial Protect?: The Supreme Court Decides Alleyne v. United States

Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court’s recent decision in Alleyne v. United States, which concerns the Sixth Amendment right to a jury trial. The Court ruled there that a jury, not a judge, must make factual findings that raise the mandatory minimum sentence for an offense. Colb analyzes both the majority opinion and Chief Justice Roberts’s dissent, and explains which she finds more persuasive, and why. She also draws on social psychology research in her analysis.

A Restroom of One’s Own: The Maine Supreme Court Considers A Transgender Student’s Exclusion From the Girls’ Bathroom

Justia columnist and Cornell law professor Sherry Colb comments on a Maine Supreme Court case regarding a child who was born male, but identified as a girl (“Susan Doe”). Susan’s school allowed her to use the girls’, rather than the boys’ bathroom, until a student’s grandfather complained, and Susan was required to use a separate, staff-only restroom that no other students used. Colb discusses the arguments—pro and con—for allowing Susan to use the girls’ bathroom at the school, just as other girls would.

The Road to Justice Scalia Is Paved With (Some) Intentions: The Supreme Court Decides Maryland v. King

Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court’s recent decision upholding a Maryland law authorizing the collection of DNA samples from people who are arrested for violent crimes, and Justice Scalia’s dissent to that decision, raising Fourth Amendment concerns. She covers the three main points of the majority’s decision, and the three main points that the dissent raised, examining the logic and persuasiveness of each.

Antipathy to Lawyers and Litigation as a “Bullies Will Be Bullies” Attitude

Justia columnist and Cornell law professor Sherry Colb looks at the possible roots of many Americans’ antipathy to lawyers and litigation. This hostility, Colb suggests, likely stems from a mindset, shared by Republicans and Democrats alike, that holds that the law should not intervene in private interactions. Thus, Americans may be surprised to learn that medical malpractice suits actually make us safer, or that bringing lawyers into a business dispute might at times be the right thing to do. The American way, many think, is instead to work things out on one’s own. But the flaw in that thinking, Colb suggests, is that the disputants in a disagreement may well have significantly unequal power—a situation that often calls for the law to intervene. Colb also contrasts criminal prosecutions with civil litigation, noting that Americans are typically much more comfortable with the former (with some exceptions, like “date rape” prosecutions) than they are with the latter. Finally, Colb contends that we should see anti-lawyer prejudice as, at times, a form of bullying, for sometimes only legal intervention can ensure a fair outcome.

The U.S. Supreme Court Rules That Blood Tests for Drunk Driving Suspects Require a Search Warrant: A Wise Decision?

Justia columnist and Cornell law professor Sherry Colb considers the merits of the Supreme Court’s approach to cases where drunk driving is suspected, as set forth in Missouri v. McNeely. There, the Court held that police must conduct a “totality of the circumstances” exigency analysis to determine whether seeking a warrant prior to performing a blood test would significantly undermine the efficacy of the search in an individual case. Colb considers whether the Court’s ruling makes sense, in light of what generally happens in DWI cases, and discusses an alternative approach that was proposed by the Chief Justice, as well as the approach described in Justice Thomas’s dissent and its witty hypothetical.

Rape by Deception, Rape by Impersonation, and a New California Bill

Justia columnist and Cornell law professor Sherry Colb discusses two types of rape that may not at first come to mind when one thinks of the crime, but that are very traumatic for the victim: rape by impersonation, and rape by deception. Colb illuminates the law with respect to these little-known crimes, and describes a California bill that is meant to ensure that rape by impersonation of the victim's partner can be prosecuted even if the victim is an unmarried woman, as was historically required. Colb also discusses other aspects of modern and historic rape law (such as the now-abolished marital rape exception), and raises the question whether lying about oneself to obtain sex should be deemed a crime, as an Israeli court ruled.

The U.S. Supreme Court Declares Warrantless Dog Sniffs of Private Front Porches Unconstitutional, Or Does it? A Closer Look at Florida v. Jardines

Justia columnist and Cornell law professor Sherry Colb comments on the recent Supreme Court Fourth Amendment case concerning the constitutionality of the police’s conducting a warrantless dog sniff on the front porch of a private house in order to detect drugs. Colb analyzes both the majority and concurring opinions from the High Court, and explains why the drugs that were found by the police were suppressed, so that they could not be admitted into evidence in a criminal case against the defendant, Jardines. She also predicts the result that will follow when a similar, but not identical, Fourth Amendment case arises in the future, as it surely will.

Do People Under Arrest Have a Privacy Right in Their DNA? The U.S. Supreme Court Hears Argument in Maryland v. King Part Two in a Two-Part Series of Columns

In Part Two of a two-part series of columns on the Supreme Court case of Maryland v. King, Justia columnist and Cornell law professor Sherry Colb continues her analysis of the case, which raises questions about the Fourth Amendment significance of DNA collection from arrestees, in light of the government interests and privacy entitlements that are at stake when a person is taken into custody. Part One of this series appeared on March 20, here on Justia’s Verdict.

Do People Under Arrest Have a Privacy Right in Their DNA? The U.S. Supreme Court Hears Argument in Maryland v. King Part One in a Two-Part Series of Columns

In Part One in a two-part series of columns relating to the pending Supreme Court case Maryland v. King, Justia columnist and Cornell law professor Sherry Colb considers the Fourth Amendment significance of DNA collection from arrestees, in light of the government interests and privacy entitlements that are at stake when a person is taken into custody. Part Two of this series will appear next Wednesday, March 27.

Is Veganism a Religion Under Anti-Discrimination Law? An Ohio Federal District Court Says Perhaps

Justia columnist and Cornell law professor Sherry Colb comments on a discrimination case in which the Cincinnati Children’s Hospital Medical Center fired a Customer Service Representative, Sakile S. Chenzira, for refusing to get a seasonal flu vaccine, in contravention of hospital policy. Chenzira refused the vaccine because she is a vegan and the vaccine is produced in chicken eggs. After her firing, Chenzira went to federal district court, arguing that her firing violated her right to be free of religious discrimination. The court denied the hospital’s motion to dismiss the case, and decided to hear the evidence. Colb describes in detail what it means to be a vegan, and explains why, for some vegans, the decision whether or not to be vaccinated is a difficult one. She also discusses when, under federal law, a belief system counts as a religion, noting that veganism ought to qualify under that definition. Colb also offers a prediction as to the likely outcome of Ms. Chenzira’s case.

Salinas v. Texas in the U.S. Supreme Court: Does the Fifth Amendment Protect the Right to Remain Silent?

In Part Two of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her commentary on an upcoming Supreme Court case that raises the following question: Does the Fifth Amendment’s guarantee of protection against compelled self-incrimination protect a suspect’s “right to remain silent” outside of the custodial setting? That is, does a suspect who has neither received any Miranda warnings nor is currently in custody have a right not to speak? In this series, Colb analyzes the question and suggests possible answers. (Part One of this two-part series appeared here on Justia’s Verdict on Wednesday, February 6.)