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

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.)

Salinas v. Texas in the U.S. Supreme Court: Does the Fifth Amendment Protect the Right to Remain Silent? Part One in a Two-Part Series of Columns

In Part One of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb comments 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 Two of this two-part series will appear on Justia on Wednesday, February 13th.)

Evans v. Michigan: The Supreme Court Mulls Over Double Jeopardy, Again

Justia columnist and Cornell law professor Sherry Colb discusses two Supreme Court Double Jeopardy cases, Evans v. Michigan and Blueford v. Arkansas, that turn on what ought to happen when a judge makes a mistake about state law and consequently takes a case away from the jury. Since the mistake in Evans helped the defendant, Colb argues that the resolution of Evans will tell us a lot about how principled—or unprincipled—the Court’s application of its Double Jeopardy doctrine will be: Will the Court be consistent about the Double Jeopardy doctrine, even despite the possibility that its ruling might help criminal defendants? Colb also comments on the contrast between Evans and last year’s ruling in Blueford, where the judge also made a mistake, but not, in that case, a mistake that helped the defendant.

The U.S Court of Appeals for the Sixth Circuit Upholds Restrictions on Medical Abortion: Why Should Anyone Care?

Justia columnist and Cornell law professor Sherry Colb discusses the ramifications of the U.S. Court of Appeals for the Sixth Circuit’s decision to uphold a series of restrictions on medical abortions (such as abortions effected by taking the drug RU-486) against various constitutional challenges by Planned Parenthood and others. Colb explains why making medical (as opposed to surgical) abortions more difficult can also have other ramifications, as well. For instance, she suggests that the restrictions at issue may be motivated by politics, and not by concern for women’s health. In particular, Colb points out that medical abortions do not require clinic visits where women seeking abortions must face down pro-life protesters; and that such abortions, with no health care provider involved, may defeat a pro-life strategy of vilifying abortion providers and painting women who seek abortions as victims of society’s decision not to fully support motherhood.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

In Part One of a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb begins 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.

A German Court Bans Circumcision

Justia columnist and Cornell law professor Sherry Colb comments on a German court’s recent ruling banning circumcision under the criminal law. Colb notes that the ruling has caused a great deal of controversy, both domestically and internationally, because child circumcision is central to both the Jewish and Muslim faiths, and because of Germany’s history of bias and of genocide. The court claimed, however, that it was acting to preserve the child’s bodily integrity, and his ability to choose his own religion later in life. Colb covers the facts, the outraged reaction, and the arguments that might be made to the effect that the court was possibly acting out of sympathy for the child, rather than out of bias. She also compares and contrasts religious circumcision with procedures ranging from infant ear piercing, to female genital mutilation, to infant circumcision that is not performed for religious reasons. In addition, Colb raises a disturbing specter of bias based on the reported availability, in Germany, of circumcision based on medical, but not religious, reasons. Especially since child circumcision has medical benefits, she says, governments should continue to allow it regardless of whether it is motivated by religious or secular intent, or both.

Was It Wrong for Chief Justice Roberts to “Flip Flop” on Obamacare?

Justia columnist and Cornell law professor Sherry Colb raises an intriguing question regarding the Supreme Court’s recent decision upholding the Affordable Care Act, also known as the ACA or, more colloquially, as Obamacare. Colb notes that leaks from the Court have suggested that Chief Justice Roberts initially was inclined to vote with his four conservative colleagues to strike down the ACA, but later changed his mind to side with the Court’s liberals and uphold the legislation. Assuming for purposes of argument that (1) the leaked information is accurate, and (2) Chief Justice Roberts’s claimed flip-flop was based in part on public sentiment, did Roberts do anything wrong? Colb suggests, interestingly, that the correct answer to that question may be “No.” Using two hypothetical court scenarios, as well as the ACA case itself, Colb isolates the kinds of cases and issues in which a judge would be wrong—or right—to take public sentiment into account.

What’s Wrong With “Doping” to Get A’s In High School?

Justia columnist and Cornell law professor Sherry Colb comments on the recent phenomenon of high school students’ using stimulants such as Adderall and Ritalin to attempt to improve their academic performance, often getting the stimulants by faking Attention Deficit Hyperactivity Disorder (ADHD). Colb notes that for those who do not have ADHD, the drugs act as a stimulant, allowing the user to better concentrate and focus. Colb compares and contrasts the issues raised by steroids scandals in professional sports to illustrate what, exactly, is wrong with this kind of use of Adderall and Ritalin. Among other points, Colb expresses concern that students’ use of such drugs will become the “new normal”—which is especially worrisome as the drugs carry side effects and serious risks. She also suggests that we, as a society, reconsider the competitive model of high school studying, and instead focus on students’ learning about subjects that interest and inspire them individually.

Some Reflections on the Texas Pre-Abortion Ultrasound Law, a Year After Its Passage: Part Two in a Two-Part Series of Columns

In the second in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb continues her analysis of the constitutionality of the Texas law, enacted about a year ago, requiring abortion providers to (1) perform an ultrasound on a patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen. Here, in Part Two, Colb continues to address the important question whether a law mandating ultrasounds, as the Texas law does, imposes a burden on women that is qualitatively different from the burdens that the U.S. Supreme Court has already approved in the context of abortion, which express a pro-childbirth value judgment. Colb also analyzes the abortion-related laws that the Court has struck down, and explains why. Moreover, she considers the relevance, here, of cases regarding unwanted speech and targeted picketing. Finally, Colb parallels the law with another context in which disturbing images may be shown, and if they are, the showing can be controversial: Animal Rights classes.

Some Reflections on the Texas Pre-Abortion Ultrasound Law, a Year After Its Passage: Part One in a Two-Part Series of Columns

In the first in a two-part series of columns, Justia columnist and Cornell law professor Sherry Colb considers the constitutionality of the Texas law, enacted about a year ago, requiring abortion providers to (1) perform an ultrasound on a patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen. Colb focuses especially on the question whether a law mandating ultrasounds, as the Texas law does, imposes a burden on women that is qualitatively different from the burdens that the U.S. Supreme Court has already approved in the context of abortion, which express a pro-childbirth value judgment.