SHERRY COLB Sherry F. Colb is a Professor at Rutgers Law School in Newark. Colb has taught courses in Criminal Procedure, Evidence, Mental Health Law, and Feminist Legal Studies. She has published articles in a variety of law reviews, including Stanford, Columbia, and Georgetown, in areas such as Fourth Amendment privacy, Fourteenth Amendment liberty from physical confinement, and the role of personal character in criminal culpability. She has been a law professor since 1993, prior to which she worked for two years as a law clerk, first to Judge Wilfred Feinberg of the United States Court of Appeals for the Second Circuit (1991-1992), and then to Associate Justice Harry A. Blackmun of the United States Supreme Court (1992-1993). In 1991, Colb received her J.D. magna cum laude from Harvard Law School. In 1988, Colb graduated from the second co-ed class at Columbia College, valedictorian, summa cum laude and junior Phi Beta Kappa.

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"Neither Shall You Commit Adultery": John Edwards, John McCain, and the Relevance of Politicians' Affairs
FindLaw columnist and Cornell law professor Sherry Colb draws upon Supreme Court precedent, including modern cases interpreting the right to privacy, in her analysis of when politicians' sexual conduct should, and should not, be deemed relevant by voters. For example, while Court precedent may arguably imply that adultery cannot constitutionally be criminalized, Colb notes that it still may be relevant to voters because, whether or not it is criminal, it still constitutes wrongdoing with respect to the betrayed spouse. In contrast, Colb notes, Court precedent suggesting that a consensual homosexual relationship cannot constitutionally be criminalized may have a different import: If the Court considers such conduct private, shouldn't voters, too? Colb also contends that attacks based on candidates' adultery may be more fairly lodged against a candidate such as John McCain -- who has a permissive view of the Establishment Clause, allowing some mixing of religion into public life, and often invokes religion in campaign speeches -- than against a candidate who takes a more strongly secular stance.
Wednesday, Aug. 13, 2008

Is Obama "Pro-Infanticide"? Analyzing a Vote in the Illinois Senate
FindLaw columnist and Cornell law professor Sherry Colb discusses claims that Senator Barack Obama opposed an Illinois law that would have banned infanticide, and thus that he must be "pro-infanticide." Colb points out that Obama has supported a federal anti-infanticide law. She also explains that the Illinois law Obama opposed possessed serious flaws that the federal law did not possess -- and that, as a result of its flaws, the Illinois law put abortion rights in serious jeopardy.
Wednesday, Aug. 13, 2008

Is Sex a "Major Life Activity"? Why a Claim of Disability Discrimination Turns on the Answer to this Question
FindLaw columnist and Cornell law professor Sherry Colb discusses a case in which a plaintiff sued for disability discrimination when she was initially accepted by the Foreign Service, but then rejected when she subsequently was diagnosed with treatable breast cancer. As Colb explains, under the Rehabilitation Act, a condition only qualifies as a covered disability if it substantially limits a major life activity. As a result, this particular plaintiff was able to come under the Act's protection only because she was able to allege that the combination of surgery and medication harmed her sexual life. Colb explains how this seemingly odd result derives from the legal rules regarding who is (and who is not) covered by disability law.
Wednesday, Aug. 6, 2008

With the Spanish Parliament Poised to Extend "Human Rights" to Great Apes, What are the Implications for Human Beings and Other Animals?
FindLaw columnist and Cornell law professor Sherry Colb considers the implications of the Great Ape Project (GAP), which observers predict will soon succeed in making protection of the Great Apes the law of Spain. Colb agrees with the GAP that the Great Apes deserve protection, and offers a strong response to the common objection that we should be worrying about human rights, not animal rights. However, she also points out issues regarding the reasons why the Great Apes alone are being protected. For example, should greater intelligence and the capacity to use tools be a reason to protect the Great Apes, but not other nonhuman animals -- despite the fact that they all suffer and feel pain?
Monday, Jul. 21, 2008

The U.S. Court of Appeals for the Eighth Circuit Approves An "Informed Consent" Requirement for Abortions: The Slippery Quality of Statutory Definitions
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent decision by an en banc panel of the Eighth Circuit. The panel vacated a district court's preliminary injunction, on the ground that the plaintiffs were unlikely to prevail on their First Amendment challenge to a South Dakota law requiring doctors to tell patients seeking abortions "that the abortion will terminate the life of a whole, separate, unique, living human being." Colb contends that this requirement is far afield from proper informed-consent requirements, which outline the risks of a medical procedure or treatment, and that doctors do have a First Amendment right not to deliver the value-laden message the statute requires if they do not agree with it.
Wednesday, Jul. 9, 2008

Banning Loaded Words at Criminal Trials: A Well-Meaning But Foolish Approach to Protecting Defendants
FindLaw columnist and Cornell law professor Sherry Colb discusses the phenomenon of courts' employing word bans during trials on the theory that juries will be inappropriately influenced if witnesses use words that suggest or embody legal conclusions -- such as "rape," "victim," "crime scene," "homicide," and "drunk." Colb argues that while word bans do not raise significant First Amendment issues in light of judges' traditional leeway to control trials, they do tend to frustrate, rather than enhance, the trial's core process of seeking the truth. She also notes the special difficulty that occurs in instances where if one word is banned, the alternate word is also freighted -- such as when witnesses banned from saying "rape" must then say "intercourse," which may imply consent.
Tuesday, Jun. 24, 2008

A Thirty-Five Year Prison Sentence for Spitting at a Police Officer: The Danger of Basing Justice on Mistaken Assumptions
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses a recent case in which an arrestee with a record of prior convictions was sentenced to thirty-five years in prison because he spit into a police officer's eye and open mouth, and then informed the officer that he (the arrestee) had AIDS -- which caused the officer to believe that he too would contract HIV. As Colb explains, the length of the sentence is highly questionable in light of the fact that scientific evidence indicates it is impossible for HIV to be transmitted through spitting. In the face of this evidence, Colb suggests that though the offense was objectionable and deserved punishment, the sentence imposed is far too long.
Wednesday, Jun. 11, 2008

Hearsay, the Sixth Amendment, and Framers' Intent: The U.S. Supreme Court Hears Argument in Giles v. California
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses a Sixth Amendment case on which the Supreme Court recently heard oral argument. As Colb explains, the Sixth Amendment's Confrontation Clause guarantees a criminal defendant's right to cross-examine his accuser if his accuser offers testimony against him. The case before the Court asks whether this right is triggered when the defendant is on trial for murder; the prosecution wants the jury to hear the accuser's prior statement to the police; but the accuser is also the defendant's alleged murder victim who, of course, can no longer be subjected to cross-examination. Colb explains the difficult issues the case raises -- including whether the Court should apply the common law rule that a right can be forfeited by the wrongdoing of the person who claims that right.
Wednesday, May. 28, 2008

What's So Special About Genetic Discrimination? Congress Passes a Revealing Bill
FindLaw columnist and visiting Columbia law professor Sherry Colb considers a provocative question: The Genetic Information Nondiscrimination Act (GINA), which prohibits employers and insurance companies from discriminating on the basis of a person's test results showing her predisposition to certain illnesses, has enjoyed across-the-board support in Congress and is poised to be signed by President Bush. Yet a hypothetical parallel law telling insurance companies not to discriminate based upon pre-existing conditions would doubtless prove extremely controversial. What accounts for the difference? To explain this sharp contrast, Colb draws upon the theories of philosopher John Rawls, whose work asks us to imagine that we must make decisions behind a "veil of ignorance" -- that is, in a state in which we do not know what our own attributes (including sickness or health) will be.
Wednesday, May. 14, 2008

Kennedy v. Louisiana and the Lessons of a Supreme Court Oral Argument
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses the Supreme Court's recent oral argument regarding whether it is constitutional to impose the death penalty for the rape of a child. As Colb explains, the oral argument revealed that several of the Justices appear to differ in their interpretation of the precedential effect of a prior Court decision, which held unconstitutional the imposition of the death penalty for the rape of an adult woman. Moreover, the argument indicated how Chief Justice Roberts and Justice Ginsburg view the evolution of society's views on the crime of rape itself.
Wednesday, Apr. 30, 2008

The Implications of Death Penalty Law for Human Euthanasia
FindLaw columnist and Rutgers law professor Sherry Colb argues that the constitutional right not to be subject to cruel and unusual punishment may have interesting implications for a possible constitutional right for suffering, terminally-ill patients to avail themselves of euthanasia with the help of a physician. Colb points out, in support of her argument, that the Supreme Court has already recognized a constitutional right to refuse medical treatment, which includes the right to refuse food and water. The anomalous result, she points out, is that Court precedents have caused a terminally-ill patient to have the painful option of starving to death, but not less painful options with which a doctor could assist.
Wednesday, Apr. 16, 2008

Lethal Injection and Animal Euthanasia: A Fair Comparison?
FindLaw columnist and visiting Columbia law professor Sherry Colb offers an original, thought-provoking perspective on an issue that the Supreme Court must resolve this Term: Is death by lethal injection, as currently administered, cruel and unusual punishment in violation of the Eighth Amendment? Colb notes that some lethal injection opponents object that "even animals" are treated more kindly, when they are euthanized at shelters, than are death row inmates faced with lethal injection. Colb contends, however, that this argument is less convincing than it may seem, for the relevant distinction here is not between animals and human beings, but rather between beloved companions and convicted criminals.
Wednesday, Apr. 02, 2008

Client 9 and President 42: Drawing Parallels Between Spitzer and Clinton
In the wake of New York Governor Eliot Spitzer's decision to resign in light of revelations that he used the services of high-end prostitutes, FindLaw columnist and Columbia visiting law professor Sherry Colb contrasts the scandal with another from ten years ago. In 1998, the world was shocked to learn of President Clinton's inappropriate sexual conduct with White House intern Monica Lewinsky but of course, unlike Spitzer, Clinton did not resign. Colb offers a provocative analysis of possible parallels and contrasts between the two high-profile scandals.
Thursday, Mar. 13, 2008

A Chance to Determine the Fourth Amendment Limits On Search Incident to Arrest: The U.S. Supreme Court Grants Review in Arizona v. Gant
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses an Arizona Supreme Court decision that the Supreme Court recently opted to review. The decision regards whether police, consistent with the Fourth Amendment, can search an arrestee's car under the "search incident to arrest" doctrine, even when he or she is already secured within a police car. Colb explains the evolution of the Supreme Court's Fourth Amendment doctrine regarding the search that can accompany a lawful arrest. In particular, she focuses on the reasons why the Court has sometimes allowed police to conduct such a search even when it was not necessary to ensure that the suspect was fully disarmed or to preserve evidence.
Monday, Mar. 03, 2008

Can A Person be Pro-Life and Pro-Choice at the Same Time?: The Film "4 Months, 3 Weeks, and 2 Days" Confronts Abortion in Ceausescu's Romania
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses the recent film "4 Months, 3 Weeks and 2 Days," which illustrates the human cost of the abortion ban in Romania under Ceausescu, by depicting a woman's desperate search for an illegal abortion. Colb also considers, more generally, the role that the inevitability of a black market in abortions should play in our thinking about whether abortion should be legal. She suggests that for some, it may be a reasonable stance to be "pro-life and pro-choice" -- that is, to be pro-life, in very strongly opposing abortion, yet pro-choice, in accepting abortion's legality in order to prevent the horrors of the black market.
Tuesday, Feb. 19, 2008

Does the Fifth Amendment Protect the Refusal to Reveal Computer Passwords? In a Dubious Ruling, A Vermont Magistrate Judge Says Yes
FindLaw columnist and visiting Columbia law professor Sherry Colb clarifies the complex law surrounding a difficult and significant question: Can a criminal suspect invoke his or her Fifth Amendment right against self-incrimination when asked for the password necessary to access his or her computer files? Colb discusses a recent ruling by a Vermont-based federal magistrate judge concluding that, indeed, the defendant's Fifth Amendment rights were implicated in a password request. However, she suggests that the better answer was that the right did not apply, because, under the factual circumstances of the case, the provision of the password was not "testimonial," as Fifth Amendment doctrine requires.
Monday, Feb. 04, 2008

Should Pregnant High School Students Receive Maternity Leave? The Complexity of Accommodating a Less-than-Ideal Status
FindLaw columnist and visiting Columbia law professor Sherry Colb discusses the difficult issue of whether public high schools should grant maternity leave to students who become pregnant, above and beyond the leave required simply to give birth. Recently, a Denver public high school faced a request from pregnant students for a four-week leave, and had to decide whether to grant it, or to allow students to suffer unexcused absences that could delay their graduation dates. Colb covers both sides of the argument and comes down in favor of granting leave, but she notes that the leave question should be revisited if the grant of leave were to itself be connected to a rise in teen pregnancy rates.
Wednesday, Jan. 23, 2008

Abortion Clinic Violence: Is "Pro-Life" Murder An Oxymoron?
FindLaw columnist and visiting Columbia law professor Sherry Colb considers the division, in the "pro-life" movement, between those who condemn abortion clinic violence as reprehensible, and those who perpetrate it. Colb explains why even someone who deeply believes that a fetus is a person may not also support employing violence in an attempt to defend the fetus.
Wednesday, Jan. 09, 2008

Is the Nighttime the Wrong Time for Searching Houses?: The Supreme Court of Minnesota Reads the U.S. Constitution to Say Yes
FindLaw columnist, visiting Columbia law professor, and Rutgers law professor Sherry Colb discusses a recent decision by the Minnesota Supreme Court interpreting the Fourth Amendment to the U.S. Constitution to suggest that searches conducted by the police at night at citizens' homes should be subject to stricter standards than searches conducted in the daytime. Colb argues that this analysis -- grappling with a question the U.S. Supreme Court has not resolved conclusively -- is the correct one.
Wednesday, Dec. 26, 2007

The Issue of "Me Too" Evidence in Employment Discrimination Cases: The U.S. Supreme Court Considers Sprint v. Mendelsohn
FindLaw columnist, visiting Columbia law professor, and Rutgers law professor Sherry Colb discusses an issue the Supreme Court will confront this Term: the admissibility of "me too" evidence -- evidence that suggests that not only the plaintiff, but other employees as well, suffered employment discrimination perpetrated by the defendant corporation. Colb explores the idea that an institution itself (as opposed to an institution as represented by a single supervisor) can be guilty of discrimination, therefore making all its supervisors' employment decisions relevant in a discrimination case.
Monday, Dec. 10, 2007

Divorce, Religion, and Circumcision: What A Conflict Tells Us About Parental Rights
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb discusses an Oregon case involving divorced parents' dispute over whether their twelve-year-old son may be circumcised in accordance with his converted Jewish father's wishes. Colb considers the specific questions the case poses, and also addresses a related presumption that she contends is implicit in American law: If a couple's beliefs, stemming from their adherence to a mainstream religion, require them to inflict what could be seen as harm on their child, then the law will not interfere. Colb considers why we generally are loath to intervene when it comes to parental decisions of this kind.
Wednesday, Nov. 28, 2007

What Counts as a "Crime" For Fourth Amendment Purposes? Why Arrests for "No Arrest Offenses" Violate the Fourth Amendment
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb discusses a complex, important case that the U.S. Supreme Court will hear this Term. As Colb explains, the case asks the following question: If state law prohibits arrest for a given offense, may police nonetheless arrest a suspect for that very offense and search him, without violating the Fourth Amendment? (In the case before the Court, the offense was driving with a suspended license, and Virginia law directed that this offense must lead to citation, not arrest.) Colb untangles the complex intersection of federal constitutional law and the law of the various states in this context.
Wednesday, Nov. 14, 2007

Why Does the U.S. Sentence Adolescents To Life Without Parole?
FindLaw columnist, visiting Columbia law professor, and Rutgers law professor Sherry Colb discusses why the U.S., unlike so many other nations, sentences adolescent offenders to life without parole. Indeed, Colb notes, twenty U.S. states allowed the execution of adolescent offenders until the Supreme Court held in 2005 that such executions are unconstitutional. Colb considers possible answers to the question of why, on one hand, we recognize adolescents' immature decisionmaking powers with parental consent regulations for abortions and age requirements for voting and drinking, yet, on the other hand, we seem to consider adolescents mature enough to face maximum penalties when they commit criminal offenses.
Monday, Oct. 29, 2007

When Does Pregnancy Begin?: A Federal Appeals Court Decision Implicates a New Abortion Question
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb discusses an interesting case, recently decided by the U.S. Court of Appeals for the Third Circuit, and the provocative question it raises: When does pregnancy begin? The case arose when a 16-year-old girl received a "morning after" pill from a Philadelphia clinic. Her parents sued on their own behalf and hers, arguing that the clinic should have told their daughter that the pill could prevent a fertilized egg from implanting inside her uterus -- which, according to their religious beliefs, constitutes abortion. Colb argues that the Third Circuit panel was right to dismiss the case. In addition, she considers when stopping a chain of events that could eventually lead to a birth does, and does not, constitute terminating a pregnancy.
Monday, Oct. 15, 2007

The Senate Approves the "2007 Mental Health Parity Act": Achieving Equal Treatment for the Mentally Ill
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb asks whether the new 2007 Mental Health Parity Act, if enacted into law, will truly create parity, as between the way health plans cover physical health and mental health, respectively. In assessing the new Act as compared to its predecessor, the 1996 Mental Health Parity Act, Colb sees great improvement, deeming the 2007 Act to have moved much closer to the goal of parity. However, she also points out key reasons why true parity is still a goal to be aspired to for the future.
Monday, Oct. 01, 2007

Should People Be Free To Be Enslaved?: Polygamy, Prostitution, and the "Consenting Adults" Argument
FindLaw columnist, Rutgers law professor, and visiting Columbia law professor Sherry Colb considers the often-raised "consenting adults" argument against the criminalization of polygamy and prostitution. She asks how the law should respond when, in the real world, theoretical freedom of choice is often wholly or partially replaced by significant coercion that is brought to bear on the women involved in these practices. Colb contends that one way to respond to concerns about the mix of coercion and choice is to retain criminal penalties for these practices, but exempt the women at issue from their scope.
Wednesday, Sep. 19, 2007

The Homage Vice Pays to Virtue: Lessons of the Michael Vick Story
FindLaw columnist and Rutgers law professor Sherry Colb contends that even as we pat ourselves on the back, as a society, for punishing NFL quarterback Michael Vick harshly for his involvement in dogfighting, we should also consider the extent to which we may be hypocritical in doing so. Colb asks how, if we judge and punish Vick harshly for torturing and killing animals, the overwhelming majority of us can still continue to eat meat and other animal products, and to wear leather goods, in light of the cruelty through which all of these are produced. Colb contends that while we understandably love and cherish pets such as dogs more than we do the chickens and cows we raise for food, that provides no reason to treat the latter differently in this respect.
Monday, Sep. 10, 2007

Who Wants to Imprison Pregnant Women For Having Abortions?: Not Necessarily the Pro-Life Community
FindLaw columnist and Rutgers law professor Sherry Colb continues her series of columns addressing the justifications for supporting various exceptions to abortion laws, yet otherwise assuming a "pro-life" viewpoint. Having previously considered the justifications for exceptions for pregnancies resulting from rape and incest, respectively, Colb now considers a different kind of exception: An exception from prosecution under the criminal law for women who opt to have illegal abortions. Colb considers whether it makes sense for one who holds a pro-life position to support this exception either under the criminal law doctrines of justification and excuse, or pursuant to the belief that the woman herself is a victim.
Wednesday, Aug. 22, 2007

Can Nothing Be Done About the Pedophile Blogger?: How the Law Deals With Dangerous People
FindLaw columnist and Rutgers law professor Sherry Colb discusses whether there is any way, through the legal system, to address parents' concerns about Jack McClellan, who blogs about his sexual interest in little girls and calls readers' attention to places where large numbers of children can be found. Parents have fought back by attempting to track McClellan's whereabouts, but can more be done without violating the Constitution? Colb surveys the legal terrain, and notes that, in fact, if McClellan's blog is properly categorized as a map for child molesters, legal remedies may indeed be available.
Monday, Aug. 06, 2007

Should Pro-Choice and Pro-Life Approaches to Reproductive Rights Carry an "Incest Exception"?
Following up on her prior column examining the rationales for the position that abortion should be illegal, but that there should be an exception when the pregnancy results from rape, FindLaw columnist Sherry Colb discusses the position that abortion should be illegal, but that there should be an exception when the pregnancy results from incest. As with the "rape exception," Colb contends that the rationales for being pro-life, yet supporting the "incest exception," are, once closely examined, much less simple and straightforward than they appear.
Wednesday, Jul. 25, 2007

What Proponents of the "Rape Exception" Teach Us About Abortion
FindLaw columnist and Rutgers law professor Sherry Colb discusses potential justifications for the position, held by many who describe themselves as "pro-life," that, while abortion should be illegal, an exception should be made in instances where the pregnancy is the result of rape. Colb compares and contrasts these arguments with the argument in favor of a general ban on abortion coupled with a "life of the mother" exception.
Wednesday, Jul. 11, 2007

Resistant Tuberculosis and the Return of Quarantine: Justifications and Accompanying Risks
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting aspect of the scandal relating to Andrew Speaker's decision to travel after being diagnosed with drug-resistant tuberculosis (TB): The U.S. has now quarantined Speaker, under the first quarantine imposed in this country since 1963. Meanwhile, another man with drug-resistant TB, Robert Daniels, has also been confined, in Arizona. Colb discusses several related questions: Why aren't such quarantines deemed to violate constitutitional rights? And is it a good or a bad idea, as a matter of policy, to impose them?
Monday, Jun. 25, 2007

Opposition to Abortion and Physician Assistance-In-Dying: The Claim that Choice Can Evolve Into Coercion
Is it possible that legalizing a particular practice can actually reduce, rather than enhance, choice? FindLaw columnist and Rutgers law professor Sherry Colb considers this argument as presented by opponents of legal abortion and legal euthanasia, respectively. Both groups, as Colb explains, contend that legalizing a given practice may set up a "new normal" that makes it more difficult to opt away from that practice -- such that young women are pressured into abortion, or terminally ill patients are pressured into euthanasia. Colb analyzes and parallels these arguments, but in the end finds them unconvincing.
Monday, Jun. 11, 2007

Alleged Death by Veganism: Why a False Story Has Legs
FindLaw columnist and Rutgers law professor Sherry Colb discusses a defense that, she argues, is as fallacious as it is unusual: The claim that a couple charged with murder after their child died of starvation, were simply innocently feeding the child a vegan diet. Taking issue with a recent New York Times Op Ed concerning the case, entitled "Death by Veganism," Colb notes that children not only can, but often do, thrive on a vegan diet -- indeed, for children intolerant of dairy, such a diet, based on soy protein, is precisely what pediatricians will prescribe.
Tuesday, May. 29, 2007

The U.S. Supreme Court Condones Paralysis of a Speeding Driver: Taking the "Reasonable" Out Of "Reasonable Seizures"
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent Supreme Court Fourth Amendment decision, arising out of an incident in which a high-speed police chase left a fleeing driver -- who had only committed a minor traffic offense -- paralyzed. The driver sued under the federal statute that allows plaintiffs to recover money damages for violations of their constitutional rights, but the Court held that his Fourth Amendment rights had not been violated. Colb argues that the Court not only erred in its interpretation of the Constitution, but has needlessly encouraged dangerous high-speech chases that will take a high toll in lives. She puts the case in the context of a prior Court precedent, to indicate how it might have been decided differently, and, she argues, far more wisely.
Monday, May. 14, 2007

Lessons of the Virginia Tech Shooting: Should We Lock Up All of the Maniacs?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the issue of the involuntary confinement of the mentally ill, based on predictions of future dangerousness, in the wake of the tragic Virginia Tech shootings. Colb contends that there are a number of compelling objections to such "preventive" confinement -- including that it is almost impossible to predict accurately who will, and will not, commit violence; and that the risk of confinement may inhibit mentally ill persons from seeking treatment, and thus actually lead to a greater degree of violence, by people who might otherwise have been helped by treatment.
Monday, Apr. 30, 2007

A Federal Court of Appeals Gets it Wrong on Birth Control: Why Contraceptive Exclusions in Health Coverage Discriminate Against Women
FindLaw columnist and Rutgers law professor Sherry Colb takes strong issue with a recent decision by the U.S. Court of Appeals for the Eighth Circuit -- holding that employers do not violate Title VII or the Pregnancy Discrimination Act (PDA), which amended it, when they deny coverage for oral (and other) contraceptives, yet allow it for other prescription drugs. Colb contends that, to truly enforce Title VII and the PDA, the courts must recognize that men and women are differently situated when it comes to contraception and to childbearing -- a point with which even conservative former Chief Justice William Rehnquist concurred -- and analyze discrimination issues accordingly.
Wednesday, Apr. 18, 2007

Twenty States Consider Mandating the Cervical Cancer Vaccine: The Controversy
FindLaw columnist and Rutgers law professor Sherry Colb discusses a spate of proposed state laws that would mandate that preteen girls must be vaccinated against sexually-transmitted HPV, a virus that can cause cervical cancer. Colb considers two potential objections to mandatory vaccination -- that vaccination condones premarital sex, and that the vaccine is so new, its true risks may be unknown. Colb argues that the first objection should be rejected because once analyzed, it is unconvincing, but that the second objection may be serious enough to leave the question of whether to vaccinate in the hands of parents, not States. She also explains why the Supreme Court case recognizing the right to refuse treatment is not applicable here.
Wednesday, Apr. 04, 2007

Confronting the Ugliness of Appearance-Based Discrimination: DePauw University and the Delta Zeta Sorority Purge
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent instance of what seems to have been appearance-based discrimination by a sorority, with respect to its chapter at DePauw University. (The sorority claims it purged members due to their lack of recruitment efforts; others, including DePauw's President, saw the purge as a case of survival of the prettiest.) Colb compares appearance-based discrimination to other forms of discrimination, considers the pros and cons of making such discrimination illegal, and proposes a non-legal remedy to make organizations incur potentially significant costs when they engage in appearance-based discrimination.
Wednesday, Mar. 21, 2007

The EEOC Receives More Male Complaints of Sexual Harassment: Bad News?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the possible reasons for the recent percentage increase in the complaints of sexual harassment filed by men with the EEOC. Colb argues that the increase may actually be, in some sense, good news -- insofar as men, whether gay and straight, may be becoming more willing to challenge illegal and discriminatory practices in which male supervisors punish them for seeming "unmasculine." Just as it is illegal for a woman to be punished at work because supervisors feel she should walk, talk, or dress more "femininely," so too, Colb explains, it is illegal for a man to be punished because supervisors feel he does not walk, talk, or dress "masculinely" enough.
Thursday, Mar. 01, 2007

Do Car Passengers Enjoy Fourth Amendment Rights? The Supreme Court Grants Review in Brendlin v. California
FindLaw columnist and Rutgers law professor Sherry Colb discusses an intriguing Fourth Amendment that the Supreme Court recently opted to review. The case arose because a police officer stopped a car, based on a false belief that its driver's registration had expired. During the stop, the officer saw substances related to the production of methamphetamine, but was able to connect them not to the driver, but to his passenger -- who was subsequently prosecuted. Were the passenger's Fourth Amendment rights violated? Does the passenger have "standing" to sue in this case? Colb discusses the difference between "Article III standing" and "Fourth Amendment standing," as well as the relevant Supreme Court precedents, in considering the answers to these questions.
Wednesday, Feb. 21, 2007

Texas Man Receives A Life Sentence for the Murder of his Unborn Twins: When Feticide is a Capital Crime
FindLaw columnist and Rutgers law professor Sherry Colb considers a case in which a Texas man was convicted of murder -- and sentenced to life in prison -- for killing his unborn twins (four months along in their gestation) by stepping on his girlfriend's abdomen several times, thus inducing her to miscarry. Colb explains the intersection of criminal law and abortion law in this case -- and why the case is made more complex by the fact that, reportedly, the girlfriend had asked the man to step on her abdomen to induce the miscarriage.
Tuesday, Feb. 06, 2007

Consent Searches and the Fourth Amendment: What's Wrong With "Apparent" Consent?
FindLaw columnist and Rutgers law professor Sherry Colb discusses in depth the Fourth Amendment doctrine that a law-enforcement search is constitutionaly valid if it is based on consent. As Colb explains, two key questions within the doctribe are who can validly consent to a given search, and how far that consent can extend. In the case with which Colb begins, for example, a wife consented to a search of her husband's computer, including his password-protected files. Though the court later found that she lacked authority to consent to this particular search, it also held that the search remained valid -- and the evidence from the password-protected files could be used -- because she had appeared to the law-enforcement searchers to have the necessary authority.
Wednesday, Jan. 24, 2007

The Harsh Wages of Sin: Why Genarlow Wilson is Languishing in Prison
FindLaw columnist and Rutgers law professor Sherry Colb discusses the case of Genarlow Wilson, both in its own right and as a lens into the larger issue of victimless crime, and why it is often harshly punished in America. Wilson is serving a ten-year prison sentence in Georgia simply because, at 17, he had consensual oral sex with a 15-year-old girl. Colb explains why the closeness in their ages was not a defense, and considers the role of the fact that Wilson is African-American. She also discusses the role of the concept of "sin" in the evolution of the law.
Wednesday, Jan. 10, 2007

Why the Public/Private Distinction Should Not Govern the Courtroom: The Supreme Court's Flawed Decision in Carey v. Musladin
FindLaw columnist and Rutgers law professor Sherry Colb focuses on an interesting aspect of a recent Supreme Court decision: The distinction between government (or "state") action, which can trigger a constitutional violation, and private action, which cannot. The decision addressed a case in which a criminal defendant asked the judge in his case to tell the victims' family members not to wear buttons in the courtroom bearing photographs of the victim's face. Colb argues that even though the family members' decision to wear the buttons might have been private action, the judge's decision to deny the defendant's request for a court order directing that the buttons not be worn in the courtroom, was surely state action. Colb also adds insightful commentary about the merits of the constitutional question raised -- which the Court never reached.
Wednesday, Dec. 27, 2006

Should Biological Parents Have More Rights in Adoption? A Hypothetical Conversation
FindLaw columnist and Rutgers law professor Sherry Colb discusses the controversial issue of whether birth parents should have more rights after adoption occurs. Through a hypothetical dialogue, Colb -- herself both a birth mother and an adoptive mother -- illustrates the different perspectives of the child, the birth mother, the biological father, and the adoptive parents. Colb notes that this deep-seated clash among various perspectives will likely always ensure that birth parents' rights remain controversial.
Wednesday, Dec. 13, 2006

The Birth-Control Chief Who Opposes Birth-Control
FindLaw columnist and Rutgers law professor Sherry Colb takes a close look at the views of the newly-appointed Bush Administration Deputy Assistant Secretary for Population Affairs, Eric Keroack. As Colb explains, Dr. Keroack's position makes him the chief of family-planning programs at the Department of Health and Human Services (HHS). Yet, she points out, he opposes a dominant method of family planning: contraception. Colb contends that not only does this view raise reasonable doubt about Dr. Keroack's ability to effectively do his job, but Dr. Keroack's appointment may have a pernicious effect: Through the psychological phenomenon of "anchoring," it may legitimate an extreme view -- that birth control is never appropriate -- and make it seem moderate, thus shifting the entire political continuum regarding reproductive rights in a much more extreme direction.
Tuesday, Nov. 28, 2006

A Maryland State Court Rules that Women May Not Withdraw Consent After Penetration: The Perils of Relying on History
FindLaw columnist and Rutgers law professor Sherry Colb discusses a Maryland rape case in which a jury's question led to the issuance of a controversial decision from the state's intermediate appeals court -- a decision Colb argues that Maryland's highest court ought to reverse. The appeals court held that the harm in a woman's rape lies in her "deflowering," and thus that forcibly continuing sex after consensual penetration is not rape. Colb argues that the court was wrong to import archaic sexist beliefs into its analysis of the current state statute.
Wednesday, Nov. 15, 2006

What's The Matter With a False Arrest?: The Supreme Court Considers the Statute of Limitations Defense
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting issue, now before the Supreme Court, which is at the intersection of civil rights and criminal law. The Court will have to decide when the statute of limitations began to run in the case of Andre Wallace, who was unconstitutionally subject to a false arrest, and now is suing the government for damages based on its violation of his Fourth Amendment rights. Colb argues that, under the correct constitutional analysis, Wallace's suit is still timely.
Wednesday, Nov. 01, 2006

Gonzales v. Carhart: The Supreme Court Once Again Considers "Partial-Birth Abortion"
FindLaw columnist and Rutgers law professor Sherry Colb discusses the likely outcome of the Supreme Court's new case on "partial-birth" abortion. Predicting it is likely the Court will uphold the federal Partial Birth Abortion Ban Act (PBABA), Colb analyzes PBABA supporters' claim that partial-birth abortion is tantamount to infanticide. In the course of the argument, Colb draws not only on the reasoning of abortion precedents, but also on the reasoning of precedents dealing with euthanasia and the right to refuse medical treatment.
Wednesday, Oct. 18, 2006

Open the Door and Let Me In (Please)! A New Jersey Supreme Court Ruling Approves Suspicionless "Consent" Searches of Homes
FindLaw columnist and Rutgers law professor Sherry Colb discusses the New Jersey Supreme Court's recent ruling, interpreting the New Jersey state constitution's counterpart to the Fourth Amendment, regarding "consent" searches of homes. Colb contends that the distinction that the court made to justify its different standards for home and car searches is unpersuasive.
Wednesday, Oct. 04, 2006

What Is a Trial?: President Bush Asks Congress to Authorize Military Commissions
With President Bush seeking Congressional authorization to try terrorism suspects before military tribunals, FindLaw columnist and Rutgers law professor Sherry Colb discuss what is the essence of a trial, and whether military commissions will, or will not, be able to honor those essential qualities of trials that are so central to American justice. In particular, Colb focuses on the rule that a defendant has the right to suppress confessions that arise from coercion (including torture), the rule that the court is to exclude hearsay, and the rule that the defendant must have the ability to examine all of the evidence the government offers against him.
Wednesday, Sep. 20, 2006

Taking Notes Without a Computer: How Laptops Distract From Classroom Learning
FindLaw columnist and Rutgers law professor Sherry Colb discusses the issue of whether students should be able to use laptops in the classroom. With researchers finding high web-surfing rates, should Internet access be prohibited? What about note-taking via laptop, rather than via good old-fashioned pen and paper?
Wednesday, Sep. 06, 2006

Misconceiving Reproductive Rights: The Crucial Difference Between "Pro-Choice" and "Pro-Abortion"
FindLaw columnist and Rutgers law professor Sherry Colb discusses what is -- and is not -- implied by taking a "pro-choice" position on abortion. Colb argues that it is a fallacy to suggest that being "pro-choice" implies that one ought to favor abortion in cases where the baby will be disabled, or ought to have an abortion if the father doesn't want a child. She reminds us that the "choice" at issue is that of the mother -- and if she has embraced a pro-choice stances, that also means the choices from there on out ultimately belong to her alone.
Tuesday, Aug. 22, 2006

Criminalizing Interstate Abortion Travel: Congress Targets People Who Assist Minors in Trouble
FindLaw columnist and Rutgers law professor Sherry Colb discusses a law that will make criminals of those who cross state lines to help a minor get an abortion in a state where parental notification is not required. Colb argues that the law is unconstitutional -- explaining that, although minors' abortions are less constitutionally-protected than those of adult women, the Constitution forbids a statute from deliberately taking aim at interstate travel regarding abortion, and only abortion -- leaving out all other legal procedures and activities for which people travel to distant states.
Wednesday, Aug. 09, 2006

Stem Cells, Life, and The President's First Veto
FindLaw columnist and Rutgers law professor Sherry Colb considers the grounds for the President's veto of the Stem Cell Research Enhancement Bill, and finds them wanting. She points out that embryos will inevitably be destroyed as a result of fertility medicine, regardless of whether or not stem cell research is allowed. And she argues that, in light of this reality, even someone who believes embryos are persons can support the use of destroyed embryos to aid others' lives -- much as he or she might support relatives' decision to donate a dying, unconscious loved one's organs to save other lives.
Wednesday, Jul. 26, 2006

At the End of its Term, The Supreme Court Denies Mentally Ill Defendants' Right to a Fair Trial
FindLaw columnist and Rutgers law professor Sherry Colb critiques a recent, end-of-Term Supreme Court decision upholding Arizona's insanity defense statute. Colb argues that, contrary to the Court's decision, Arizona's law was unconstitutional -- in part because, as Justice Kennedy argued in dissent, it makes no sense to convict a killer who acts without knowledge or intent ONLY IF the killer is mentally ill.
Wednesday, Jul. 12, 2006

No Knock-and-Announce? No Problem: The Supreme Court Holds Evidence from No-Knock Entries Admissible In Court
FindLaw columnist and Rutgers law professor Sherry Colb discusses an important recent decision on criminal procedure from the Supreme Court. Typically, the police are supposed to knock and announce their presence before searching a residence -- but what happens if they don't? As Colb explains, the Court declined to punish, and deter, such violations via the Exclusionary Rule -- which forbids the fruit of unconstitutional conduct to be admitted into evidence. Colb takes issue with the Court's ruling, and explains the case for applying the Exclusionary Rule here.
Wednesday, Jun. 28, 2006

Unclean Hands: How Patients Can Prevent Blatant Medical Malpractice
Drawing on both medical evidence and personal experience, FindLaw columnist and Rutgers law professor Sherry Colb discusses a type of medical malpractice that is shockingly common in the United States: Doctors' and nurses' failure to simply wash their hands before touching patients. Colb explains why putting on gloves, alone, is not enough -- and cites statistics as to the large number of deaths, via infection, that are caused by the failure to adhere to this simple rule.
Wednesday, Jun. 14, 2006

A Controversial Search of a Congressman's Office: Obstacles to Challenging the FBI's Investigation of Representative William Jefferson
FindLaw columnist and Rutgers law professor Sherry Colb comments on the constitutionality of the controversial FBI search of Member of Congress William Jefferson's office. Colb considers whether the search violates the Constitution's Fourth Amendment, and/or its "Speech or Debate" clause. She also asks whether a search that sends executive branch investigators into a legislator's domain clashes with the Constitution's basic principle of separation of powers.
Tuesday, May. 30, 2006

Retribution Without Cruelty: The Supreme Court Considers an Eighth Amendment Challenge to Lethal Injections
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent Supreme Court case raising the question whether lethal injection, as a method of execution, violates the Eighth Amendment. Colb notes that the Court might not resolve this question in this particular case, but will have to turn to it eventually -- and suggests a number of considerations that might play into the Court's eventual analysis.
Wednesday, May. 17, 2006

Sins of Omission: Why the Ninth Circuit Was Wrong to Excuse a Lack of Police Diligence
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent decision by the U.S. Court of Appeals for the Ninth Circuit, interpreting the Fourth Amendment's probable cause requirement. Colb agrees with dissenting judge Stephen Reinhardt that the majority of the en banc panel in the case was wrong in upholding the search at issue as constitutional. The defect in the search, according to Colb and Reinhardt, was the police's failure to use a means already within its possession to learn with certainty -- before searching the defendant's house and computer -- whether he had actually downloaded child pornography, as police feared.
Wednesday, May. 03, 2006

Paternity Fraud: When Men Are Forced To Support Their Ex-Wives' "Illegitimate" Children
FindLaw columnist and Rutgers law professor Sherry Colb discusses how the law treats -- and ought to treat "paternity fraud" -- which occurs when a woman claims her husband is the biological father of her baby, but the biological father is actually a man with whom she was having an extramarital affair. Colb acknowledges the argument that it is not fair for a husband to pay for the product of his wife's infidelity, but also notes that the presence of a third party -- a child who may lose the only father he or she has ever known -- is a very important factor here.
Tuesday, Apr. 18, 2006

No Bickering Over Consent: The Supreme Court Correctly Decides A Search And Seizure Case
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent, significant Supreme Court ruling interpreting the Fourth Amendment. Colb argues that the Court's decision -- which held that when one resident of a home refuses to consent to a police search, the police cannot rely on the consent of another resident -- was the right one. In particular, Colb contends that the dissenting Justices' concern that the ruling may stymie domestic violence investigations and prosecutions is misplaced.
Wednesday, Apr. 05, 2006

Should Men Have the Right to a "Financial Abortion"? A Biological Father Cries Sex Discrimination When Forced to Pay Child Support for an Unwanted Baby
FindLaw columnist and Rutgers law professor Sherry Colb takes on the controversial recent case in which a biological father argues he shouldn't have to pay child support, because his girlfriend allegedly lied to him, saying she was unable to conceive. The case raises the question whether it is sex discrimination if women and men who want to end a pregnancy, or terminate parental rights with respect to a child, are treated differently under the law.
Tuesday, Mar. 21, 2006

The Death Knell of Residual Doubt: The Supreme Court Underestimates the Relevance of Innocence
FindLaw columnist and Rutgers law professor Sherry Colb takes issue with a recent, unanimous Supreme Court death penalty decision -- which she argues was wrongly decided. The decision held that a convicted defendant could not -- for the first time, at his sentencing hearing -- offer alibi evidence to suggest that though he was convicted, "residual doubt" as to his guilt still should linger. Colb argues that "residual doubt" evidence should -- contrary to the Court's ruling -- be admissible at sentencing, for it ought to count as "mitigating" evidence militating against the imposition of the death penalty.
Wednesday, Mar. 08, 2006

The Essence of Marriage and Equality: The New Jersey Supreme Court Considers Same-Sex Marriage
With another state's high court -- New Jersey's -- confronting the same-sex marriage issue, FindLaw columnist and Rutgers law professor Sherry Colb analyzes the arguments on both sides -- including claims as to what the "essence" of marriage may be, and what equality requires. Colb asks: Is marriage defined by sexual desire; the desire or ability to have or raise children; neither; or both? And how does the Supreme Court's decision in Lawrence v. Texas -- which struck down as unconstitutional a state statute criminalizing gay sex -- fit into the analysis?
Wednesday, Feb. 22, 2006

Should Sexually Active Minors Have a Right to Privacy? A Kansas Case Reveals the Dark Side of Mandatory Reporting
FindLaw columnist and Rutgers law professor Sherry Colb discusses the Kansas Attorney General's broad interpretation of the state's statute requiring that "helping" professionals, such as doctors, report sexual abuse of minors. The Attorney General argues that, under state law, sex involving under-16 minors is inherently abusive (even if consensual), and thus must be reported under the statute. Colb explores why this may be a misinterpretation of state law -- for that law honors, in some cases, marriages of under-16 minors. She also explains why this issue is a very difficult one even for those who feel that teenage sex inflicts serious harm on the teens involved and in an ideal world, would never occur.
Wednesday, Feb. 08, 2006

Too Old To Die?: Considering Clarence Ray Allen's Last Plea for Clemency
FindLaw columnist and Rutgers law professor Sherry Colb considers the argument for clemency made by Clarence Ray Allen -- a death-row inmate recently executed in California. Allen had argued that because he was old and infirm, legally both blind and death, his execution should be stopped, but both Governor Schwarzenegger and the U.S. Supreme Court declined to stop it. Colb assesses the strength of Allen's argument - comparing it, along the way, to the argument for clemency made by Stanley "Tookie" Williams, the Crips-founder-turned-antiviolence-activist who was also recently executed in California.
Wednesday, Jan. 25, 2006

Virginity Tests in South Africa and Judicial Bypass in the U.S.: Ritually Scrutinizing the Virtue of Girls
FindLaw columnist and Rutgers law professor Sherry F. Colb draws a provocative parallel between the Zulu ritual, practiced in South Africa, of conducting virginity tests upon young girls and announcing their results; and the legal requirement of U.S. states that girls seeking abortions must either get parental approval, or justify their choice to a judge. In making the comparison, Colb relies on research indicating that "judicial bypass" procedures in America are both humiliating and demeaning -- with judges sometimes inquiring into how the girl came to be pregnant and whether she is sorry for what she did.
Wednesday, Jan. 11, 2006

Why Get A Warrant?: The President's Admission that He Authorized Warrantless Domestic Surveillance
FindLaw columnist and Rutgers law professor Sherry Colb puts the argument over the President's authorization of warrantless domestic surveillance in legal context -- discussing the reasons that the Constitution and federal statutes require warrants in the first place. Colb explains, for instance, the value of having someone outside the executive review whether probable cause to believe a crime is being committed exists.
Wednesday, Dec. 28, 2005

Why Not Coerce a Confession?
How New Revelations about Iraq Bear on this Question
FindLaw columnist and Rutgers law professor Sherry Colb explains the relevance of recent reports about Ibn al Shaykh al Libbi -- a prisoner who, after being tortured using the now-infamous technique known as "waterboarding," reportedly gave CIA interrogators false information claiming a link between Iraq and al Qaeda. Colb discusses how this case study of how a torture subject may say exactly what he knows his interrogator wants to hear, even if it is a lie, may inform the various arguments that have been made, from different philosophical and legal perspectives, about whether torture can be justified.
Wednesday, Dec. 14, 2005

Pre-Implantation Genetic Diagnosis: Should Our Laws Allow Parents to Pre-Screen Their Children?
FindLaw columnist and Rutgers law professor Sherry Colb explores the ethics -- and, potentially, legality -- of screening embryos prior to implantation for "undesirable" genetic features. Colb contrasts this practice with the practice of performing amniocentesis to ascertain such genetic features -- and argues that the processes are likely to be significantly different in their societal effects, because they are experienced very differently. She also asks whether it would be wrong if our society were to virtually eliminate the occurrence of Downs syndrome -- given that those with Downs are typically very happy to have been born.
Wednesday, Nov. 30, 2005

Can Transsexuals Sue Their Employers For Sex Discrimination?
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting case that the Supreme Court recently declined to review but that, she argues, raises important questions about sex discrimination law theory. The specific question the case raised was whether an employee who faces discrimination as a result of being a transsexual, may sue under federal anti-discrimination law on the ground that this type of discrimination is a kind of sex discrimination.
Wednesday, Nov. 16, 2005

Pharmacist Choice and the Morning-After Pill
A woman who has been raped seeks to fill a prescription for the morning-after pill. But her pharmacist refuses to do so -- saying he won't abet an act that, in his view, is murder. Who has the better of the argument? In a fascinating back-and-forth, FindLaw columnist and Rutgers law professor Sherry Colb presents both sides, and gives her own view of the arguments of each.
Wednesday, Nov. 02, 2005

Does the U.S. Constitution Allow Government To Limit the Use of Assisted Reproduction Technologies to Married Couples?
FindLaw columnist and Rutgers law professor Sherry Colb discusses questions raised by a now-withdrawn, intensely controversial Indiana measure that would, if enacted into law, have restricted the use of "assisted reproduction" -- that is, the use of modern reproductive technologies such as IVF -- to married couples alone. Colb examines past Supreme Court precedent on the right to choose whether or not to reproduce, in assessing whether this, or similar measures, could be held to be constitutional.
Wednesday, Oct. 19, 2005

God On Trial: How Can An "Intelligent Design" Include So Much Suffering?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the age-old question of how a benevolent God could allow so much suffering to occur. Colb puts a new spin on the question by noting its implications for the "intelligent design" movement, and by drawing a contrast between the kind of good that is chosen, and the kind that comes naturally. Provocatively, Colb asks: Given our own limitations, as humans, do we have the wisdom to judge God?
Wednesday, Oct. 05, 2005

Michigan's Proposed Law Admitting Prior Crimes in Child Sex Abuse Cases:
Why It Has Broader Implications for the Law of Evidence
FindLaw columnist and Rutgers law professor Sherry Colb discusses the subject of "propensity" evidence in criminal cases. She addresses the topic generally, and also, in particular, in the context of a new Michigan bill that, if it becomes law, will allow evidence of prior similar crimes to be admitted in court in child sex abuse cases, even if the defendant does not take the stand. Traditionally, evidence rules have refused to allow the admission of such evidence -- except if the defendant does take the stand, whereupon the evidence can be used as fodder for cross-examination. Colb examines whether the justification for the rule stands up to close examination.
Wednesday, Sep. 21, 2005

The Journal of the American Medical Association Says Fetuses Under 28 Weeks Do Not Feel Pain: The Legal Implications for Mandatory Information Sessions
FindLaw columnist and Rutgers law professor Sherry Colb discusses the legal implications of a recent factual finding, reported by the Journal of the American Medical Association, that says that until 28 weeks' gestation, fetuses do not feel pain. In light of this finding, Colb asks, can the government mandate that women seeking abortions attend information sessions that stress that, after 28 weeks' gestation, fetuses DO feel pain, and that offer fetal anesthesia with respect to any abortion that takes place after that time?
Wednesday, Sep. 07, 2005

Is Pornography The Same As Prostitution? A New York Judge Says "No," But the Answer Is Less Clear
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent challenge to New York's prostitution laws. An alleged Upper East Side madam, facing charges, argues that it violates the equal protection of the law for New York to target prostitutes, and ignore distributors of pornography. The judge ruled against the madam, but as Colb explains, the differences between prostitution and pornography are far less obvious than one might at first think.
Wednesday, Aug. 10, 2005

John Roberts's Pro-Life Spouse: The Relevance of Jane Roberts's Politics
Can a spouse's politics ever be relevant to a Supreme Court confirmation process? FindLaw columnist and Rutgers law professor Sherry Colb says yes -- pointing to specific facts that, she argues, make Jane Roberts's views on abortion relevant to John Roberts's confirmation process. Colb carefully analyzes the views of the organization on the board of which Jane Roberts served for four years, Feminists For Life, noting that one of the group's goals, according to its President, is to overrule Roe v. Wade. And she contends that this evidence suggests that it's likely that when John Roberts, as a high-level government attorney, repeatedly urged overruling Roe, it wasn't just a job requirement, but a personal passion too.
Wednesday, Jul. 27, 2005

When Should Fourth Amendment Violations Lead to Suppression of Evidence? The Supreme Court Takes a "Knock and Announce" Case
FindLaw columnist and Rutgers law professor Sherry Colb discusses a complex Fourth Amendment question the Supreme Court will soon confront: When the police fail to properly knock and announce their presence prior to a search, should that failure lead to suppression of the evidence they discover in the search that follows? Colb discusses a number of different strands of Fourth Amendment doctrine, explaining the considerations that might cause the Court to rule in favor of, or against, suppression of evidence in this situation.
Wednesday, Jul. 13, 2005

Should Parents Who Home-School Their Children Have Access to Public School Extracurricular Programs?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the arguments for and against allowing home-schooled students to take advantage of extracurricular activities offered by their local public schools. Colb comes down on the side of allowing districts to bar participation by home-schooled students when it would be to the detriment of the school -- which, she suggests, may often be the case. She also explains why analogies used to argue for home-schooled students' participation -- such as the idea that their parents have already "purchased" the extracurriculars by paying taxes -- may be faulty.
Thursday, Jun. 30, 2005

Hospital-Induced Infections: A Serious Crime Against Our Nation's Patients
FindLaw columnist and Rutgers law professor Sherry Colb cites evidence of an estimated 103,000 American deaths per year from hospital-induced infections to argue that such deaths should be prosecuted by state and local district attorneys as cases of criminally negligent homicide. Colb focuses on New York's statute to show that criminally negligent homicide statutes' requirements can be fulfilled in many cases of hospital-induced infections -- especially in the surprisingly common instances in which basic procedures such as changing clothes, cleaning washrooms, or washing hands, have simply been ignored.
Wednesday, Jun. 15, 2005

Can Capital Defendants Be Visibly Restrained During Sentencing? The Supreme Court Says No
FindLaw columnist and Rutgers law professor Sherry Colb takes issue with the logic of a recent Supreme Court decision, Deck v. Missouri, which held that absent proof of a compelling need, death-penalty defendants cannot be visibly restrained (with cuffs and the like) during the sentencing phase of trial, when the jury decides whether to opt for a death sentence. Colb acknowledges the Court's worthy emphasis on being fair to the defendant, but points out that the restraints -- which would protect those in the courtroom from any retaliation by a convicted killer -- hardly tell the jury, which just convicted the defendant of a capital crime, anything they do not already know about his dangerousness.
Wednesday, Jun. 01, 2005

When You Refuse to Consent to a Police Search, Can Your Spouse Override That Refusal?:
The U.S. Supreme Court Takes An Important Fourth Amendment Case
FindLaw columnist and Rutgers law professor Sherry Colb explains the issue in an important Fourth Amendment case that the U.S. Supreme Court recently opted to review. The case addresses the following fact scenario: Two spouses share a house. One refuses a request from police to search the house. But the police return later, and the other spouse consents to a search. Under the Fourth Amendment, is the search constitutional -- or illegal? Colb argues that the Court should deem the search illegal, but explains why precedent indicates the Court may hold to the contrary.
Wednesday, May. 18, 2005

New York D.A. Robert Morgenthau Urges Repeal of the Statute of Limitations for Rape: Why He Is Right
FindLaw columnist and Rutgers law professor Sherry Colb argues that controversial New York District Attorney Robert Morgenthau is right to call for repeal of the state's statute of limitations for the crime of rape. Like the crime of murder, Colb contends, the crime of rape should have no statute of limitations -- especially in light of the modern availability of DNA evidence, which, she points out, undermines many of the reasons the statute of limitations exists in the first place.
Wednesday, May. 04, 2005

Using a Baseball Bat to End a Pregnancy: The Strange Michigan Case and the Questions It Raises
FindLaw columnist and Rutgers law professor Sherry Colb considers a Michigan case in which a teen couple allegedly agreed that the boy would hit the girl's abdomen with a bat in order to terminate her pregnancy. The state is charging the boy, but not the girl, with a crime. Is that the right result? Colb discusses the complicated intersection of different areas of law -- including the law of abortion, and the law of battery (unconsented touching) -- that inform this case.
Wednesday, Apr. 20, 2005

A Proposed Bill to Ban Male Circumcision:
The Clash of Gender, Religion, and the Protection of Children
FindLaw columnist and Rutgers law professor Sherry Colb discusses a proposed federal law that would ban male circumcision, despite the practice's religious significance for Muslims and for Jews. Colb argues that the bill's supporters are wrong to parallel female genital mutilation (which is prohibited by federal law) and male circumcision, and that a ban on male circumcision should raise a number of concerns related to the fact that it would make illegal religious practices of American religious minorities.
Wednesday, Apr. 06, 2005

What a Shame: Oakland Announces Plans to Post Photos of Convicted Johns
FindLaw columnist and Rutgers law professor Sherry Colb discusses the City of Oakland's plan to put photos of convicted johns -- men who have solicited prostitutes -- on billboards. Colb uses the Oakland case as a springboard to discuss "shaming" punishments more generally, and to delve into the reasons why society criminalizes prostitution and solicitation in the first place.
Wednesday, Mar. 23, 2005

When Oral Sex Results in a Pregnancy: Can Men Ever Escape Paternity Obligations?
FindLaw columnist and Rutgers law professor Sherry Colb discusses an Illinois appellate case that raises a difficult question: When a woman performs oral sex on a man and then -- without his knowledge -- takes his sperm and inseminates herself, then conceives a child, does the man take on paternity obligations? With a series of intriguing hypotheticals, Colb examines our intuitions as to whether such a man should, or should not, be treated legally as the child's parent if he argues against it.
Wednesday, Mar. 09, 2005

An Illinois Judge Declares that Frozen Embryos Are People: What Difference Does It Make?
FindLaw columnist and Rutgers law professor Sherry Colb takes issue with a Illinois's judge's ruling that frozen embryos are people, rather than property -- a ruling that caused the judge to refuse to dismiss a couple's wrongful death suit based on the destruction of their nine frozen embryos. Colb explains the legal implications of the distinction, and how it plays into the abortion debate. She points out that it would be possible to create a cause of action that viewed embryos as property, but also respected the damage to the couple whose sperm and eggs created them, if they are destroyed.
Wednesday, Feb. 23, 2005

Big Brother in the Bathroom: A Federal Court Puts the "Public" In "Public Restrooms"
FindLaw columnist and Rutgers law professor Sherry Colb discusses an interesting recent Fourth Amendment federal appeals case, arising from an incident in which police forced their way into a single-stall restroom that a couple had entered together. Colb argues that the appeals court was wrong to say that the entrance was not a search at all, but also notes that under the circumstances, police may have had enough reasonable suspicion to render the search that occurred legal.
Wednesday, Feb. 09, 2005

China Announces That It Will Criminalize Sex-Selection Abortions:
What, If Anything, Should the U.S. Do About the Practice in this Country?
FindLaw columnist and Rutgers law professor Sherry Colb discusses a reported plan by the Chinese government to not only prohibit, but also criminalize abortions performed because of the fetus's sex -- which, in China, virtually always means because the fetus is female. Colb then contrasts the situation with respect to sex-selection abortion in the United States -- and examines the relevant constitutional law precedents.
Wednesday, Jan. 26, 2005

Makeup Requirements for Female Employees Violate Anti-Discrimination Law:
Why A Federal Appeals Court Erred in Ruling to the Contrary
FindLaw columnist and Rutgers law professor Sherry Colb argues that a recent federal appellate decision was wrong to hold that forcing female employees alone -- in this case, a casino bartender -- to wear makeup did not count as sex discrimination. Colb contends that such a policy is discriminatory for two distinct reasons -- the extra monetary cost imposed on female employees, and the sex-based stereotyping that is part and parcel of the requirement.
Tuesday, Jan. 11, 2005

Killing A Woman to Kidnap Her Fetus: Why This Is An Especially Appalling Murder
FindLaw columnist and Rutgers law professor Sherry Colb discusses the recent, high-profile case in which a woman murdered another woman in order to kidnap her unborn baby. Colb notes the widespread intuition that this murder/kidnapping was especially abhorrent -- perhaps, in the view of some, even meriting the death penalty -- and examines the reasoning that underlines that intuition.
Wednesday, Dec. 29, 2004

The Ku Klux Klan Versus the NYPD:
Why a Federal Appeals Decision Rejecting a First Amendment Right to Wear Masks is Flawed
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial New York case in which the Ku Klux Klan sought to wear masks at their rally, despite a New York law prohibiting them from doing so. Did they have the First Amendment right to remain anonymous and/or to send a message with their masks? Colb considers these arguments, and faults the federal court of appeals that ruled against the Klan for coming to what she argues may or may not have been the right result, for very wrong reasons.
Wednesday, Dec. 15, 2004

Breast Exams at the Airport:
Do the New Security Measures Go Too Far?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the privacy implications of a new, intrusive kind of airport search that is aimed at discovering non-metallic explosives carried upon passengers' persons. Colb notes that a number of women have complained about the searches' involving inappopriate touching. She argues that the searches are unjustified in light of the fact that the intrusion is severe, and their effectiveness in detecting the kind of explosives they are meant to uncover is dubious.
Wednesday, Dec. 01, 2004

Is Your Scalp a Constitution-Free Zone?
A Federal Appeals Court Approves Suspicionless Hair Sampling
FindLaw columnist and Rutgers law professor Sherry Colb analyzes an unusual constitutional question: When police officers snip a substantial amount of visible hair off a suspect, is that a violation of the Fourth Amendment? Colb discusses whether this kind of snipping -- a prelude, in this case, to drug testing -- is the kind of "search" or "seizure" the Fourth Amendment covers.
Wednesday, Nov. 17, 2004

Racially-Based Suppression of the African-American Vote:
The Role It May Play in the Upcoming Presidential Election
FindLaw columnist and Rutgers law professor Sherry Colb traces the history of racially-based suppression of the African-American vote in America. Colb notes that this practice still continues today, and argues that it is not only morally ground, but especially contemptible under the Constitution's standards. Colb explains how the Reconstruction Amendments accord African-Americans' voting rights a special place in our Constitution. She also contends that even if African-American votes are suppressed on political grounds, the suppression is still invidious race discrimination.
Friday, Oct. 29, 2004

The Candidates Clash on Abortion Law:
A Window Into Their Capacity to Listen
FindLaw columnist and Rutgers law professor Sherry Colb closely analyzes the presidential candidates' positions on partial birth abortion -- as expressed in the second debate. Colb contends that when Bush took Kerry to task for his vote on the Partial Birth Abortion Ban Act, Bush mischaracterized the import of Kerry's vote -- which, she argues, only reflected Supreme Court precedent and the need for a humane "life and health of the mother" exception. Colb also contends that this mischaracterization suggests the President lacks the capacity to listen closely to others' differing views
Tuesday, Oct. 19, 2004

The Supreme Court Reconsiders the Constitutionality of Executing Minors:
The Case of Roper v. Simmons
FindLaw columnist and Rutgers law professor Sherry Colb discusses a key case that the Supreme Court will address this Term. The case asks the Court to decide whether to reconsider its earlier ruling that it is constitutional to execute sixteen- and seventeen-year-olds (though not fifteen-year-olds). Colb offers a thought-provoking analysis that contrasts the Court's cases on execution of the mentally retarded, with its cases on the execution of juveniles. She points out that teens are likely to transform mentally between the time of crime, and the time of potential execution -- but also points out that the significance of this evolution depends on its nature, and that mental transformation is neither the necessary, nor the exclusive, province of teens.
Wednesday, Oct. 06, 2004

Who Gets Custody When the Fertility Clinic Makes a Mistake?:
The Hidden Sexism in Focusing on DNA
FindLaw columnist and Rutgers law professor Sherry Colb discusses a tragic case in which a fertility clinic implanted the wrong embryo in a woman's womb. The woman brought the child to term, and has raised the child as her own. But now the couple who provided the embryo seek custody of the child. Colb argues that, under these circumstances, a woman who gestates and raises a child has as much right to be deemed the "biological mother" as a woman and man who provide the sperm and egg have to be deemed the child's "biological parents." Indeed, she contends, it would be sexist to focus only on contributions of DNA -- ignoring the uniquely female contribution of pregnancy and gestation.
Wednesday, Sep. 22, 2004

A Federal Appeals Court Approves the DNA Profiling of Criminals:
Are Innocent People Next?
FindLaw columnist and Rutgers law professor Sherry Colb raises a key Fourth Amendment question for the Twenty-First Century: Does DNA collection -- even if it does not require a physical intrusion such as blood sampling violate the Constitution? As Colb explain, a recent decision by the U.S. Court of Appeals for the Ninth Circuit raises this very question -- and also raises the issue of whether the answer might be different for those who have criminal records, and those who do not.
Wednesday, Sep. 08, 2004

The U.S. Court of Appeals for the Ninth Circuit Upholds a "Shaming" Penalty:
Why Prison Conditions are Relevant to the Debate
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent, controversial federal appeals court ruling allowing a "shaming" penalty to be imposed despite statutory and constitutional challenges. The penalty, in this case, was that the convict had to wear or hold a large sign saying 'I stole mail; this is my punishment,' while standing in front of a San Francisco postal facility. Colb suggests that even the possibility that this kind of penalty could be deemed cruel and unusual, should make us rethink the cruelty of a punishment we take for granted: imprisonment, with its risks of beatings and of rape.
Tuesday, Aug. 24, 2004

Woman On Trial for Delivering Cocaine to her Unborn Child:
A Surprisingly Difficult Case
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent prosecution of a Texas woman alleged to have "delivered" a drug to her unborn child by taking cocaine when she was pregnant. Are such prosecutions constitutional? Colb explains why simply citing the right to abortion does not answer the question, and considers whether the fact that the drug the woman ingested was not only harmful to the future child, but also illegal, makes a difference.
Wednesday, Aug. 11, 2004

When Danger and Repression Go Hand in Hand:
Why A New York Federal Judge's Controversial Ruling on Protester Bag Searches Was Correct
FindLaw columnist and Rutgers law professor Sherry Colb offers a strong defense of Southern District of New York federal judge Robert Sweet -- whose recent ruling prohibiting generalized searches of Republican National Convention protesters' bags has been blasted by some New York editorialists. Colb argues that Judge Sweet's Fourth Amendment argument was solid, and that such searches are likely to be not only rights-infringing, but ineffective as well.
Wednesday, Jul. 28, 2004

Public Breastfeeding:
When Legal Protection Isn't Enough
FindLaw columnist and Rutgers law professor Sherry Colb discusses what nursing mothers can do when the legal protections for breast feeding don't protect them effectively in practice. Colb explains why breastfeeding is a crucial option for a mother to have, and argues that "in your face" protests, similar to those of the gay rights movement, can help to desensitize the public and erase the taboo against nursing outside the privacy of one's home.
Wednesday, Jul. 14, 2004

A Significant Decision that May Not Matter:
The Supreme Court Holds That Only Juries, Not Judges, Can Make the Factual Determinations That Increase Sentences
FindLaw columnist and Rutgers law professor Sherry Colb discusses a new Supreme Court ruling on sentencing that has put into doubt not only state sentencing statutes, but also the federal sentencing guidelines system. Colb explains the decision, and notes that while it may indeed lead to changes in state and federal sentencing, in the end, these changes may be less profound than they appear -- with judges able to impose the very same sentences, based on the same kind of fact findings -- that they previously could have.
Tuesday, Jun. 29, 2004

When Victims' Families Eschew Vengeance:
The Exclusion of Pro-Defendant Victim Impact Statements in Terry Nichols's Trial
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial evidentiary decision by the judge in the recent death penalty trial of Oklahoma bombing co-conspirator Terry Nichols. When the jury was deciding between a death sentence and life imprisonment, the defense sought to present relatives' please against the death penalty, but the judge did not allow their admission. Colb argues that if pro-death-penalty victim impact statements should be allowed at sentencing, anti-death-penalty victim impact statements should too.
Wednesday, Jun. 16, 2004

The Supreme Court's Recent Automobile Search Case:
The Culmination of a Doctrine Filled With Pretextual Reasoning
FindLaw columnist and Rutgers law professor Sherry Colb discusses the recent, controversial Supreme Court decision in an automobile search case. As Colb notes, the Court held a search permissible even though, she points out, "there was never a moment during which the police officer made demands of the suspect, while he was in his car, that could possibly have led to the destruction of evidence or to reaching for a weapon in the car." Colb argues that not only is this decision wrong, but also this and similar "search incident to arrest" precedents undermine the Court's credibility.
Wednesday, Jun. 02, 2004

What Is A Mother? The California "Egg Donor" Case Gets It Wrong
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial California case in which one member of a lesbian ex-couple was held to have lost parental rights with respect to twins who were born from her egg, but gestated in her ex-partner's womb. Colb argues that the court's decision was wrong -- and that it was plain that the woman who gave her eggs so that the twins would be born, intended to, and did, act as a co-mother of the twins -- despite her signing a consent form to the contrary.
Wednesday, May. 19, 2004

Autonomies of Scale:
A New York Capital Case Asks Whether Defendants Should be Forced To Exercise their Rights
FindLaw columnist and Rutgers law professor Sherry Colb discusss an interesting issue raised by a New York death penalty case. At sentencing, the defendant chose not to put on mitigating evidence -- that is, evidence that would have made the death penalty less likely. He was sentenced to death. Now, he claims that he should have been required to put on the mitigating evidence. Is he correct? Colb explains why one might think so -- or think not -- given the principles of our judicial system.
Wednesday, May. 05, 2004

What's in a Warning?
The FDA Hesitates to Link Antidepressants and Risk of Suicide
FindLaw columnist and Rutgers law professor Sherry Colb probes the reasons why the FDA might, or might not, want to alert parents if there is some risk that putting their children on antidepressants might cause the children to commit suicide. As Colb explains, since warnings themselves can have side effects, and since lack of antidepressants can also be a factor in suicide, the question whether to warn is not a simple one.
Wednesday, Apr. 21, 2004

Under the Penalty of Perjury:
Condoleezza Rice, the 9/11 Commission, and The Difference An Oath Makes
What was at the heart of the debate over whether Condoleezza Rice would give under-oath testimony to Congress? FindLaw columnist and Rutgers law professor Sherry Colb discusses the different categories in which we might put everyday lies, and illuminates why we think certain lies are justified, while others are not. Colb also discusses the difference it may make -- from a legal and ethical perspective -- when a lie is told under oath.
Wednesday, Apr. 07, 2004

Crying Murder When A Woman Refuses a C-Section:
The Disturbing Implications of a Utah Prosecution
FindLaw columnist and Rutgers law professor Sherry Colb discusses the controversial Utah prosecution of a pregnant woman who refused a Caesarean section and allegedly therefore caused the death of one of her unborn twins. Colb discusses facts that ought to make us hesitate before trusting doctors' C-Section decisions, and explains the legal principles that ought to apply to the woman's case.
Tuesday, Mar. 16, 2004

What's Wrong with Nonconsensual Medical Treatment?
A Florida Case Explores the Boundary Between Malpractice and Battery
FindLaw columnist and Rutgers law professor Sherry Colb discusses a Florida case of a man who alleges that he was given a blood transfusion without his consent, and despite the fact that as a Jehovah's Witness, he would have refused the transfusion. The issue the case raises is whether the man's allegation is fundamentally one of medical malpractice, or of battery -- defined in the law as a "trespass against the body," or, in other words, an unconsented touching. The distinction is crucial because Florida imposes a cap on the non-economic damages a plaintiff in a medical malpractice case may receive, but there is no such limit for battery.
Wednesday, Mar. 10, 2004

The Night Before the Morning After:
Why Has the FDA Delayed Approval of Over-The-Counter Emergency Contraception?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the reasons why the FDA has not yet approved the so-called "morning after" bill, which prevents conception for up to 72 hours after sex. Colb argues that a number of the rationales for withholding approval simply make no sense -- and that others are either disingenuous, or unpersuasive when closely examined.
Wednesday, Feb. 25, 2004

A Ten Year Sentence for Marcus Dwayne Dixon:
The Pros & Cons of Statutory Rape Laws
FindLaw columnist and Rutgers law professor Sherry Colb discusses the controversial case of Marcus Dwayne Dixon -- an 18-year old high school football player who had sex with a 15-year-old classmate. Dixon was convicted of statutory rape and aggravated child molestation, but acquitted of rape and several other charges. Colb raises the question whether, in modern times, statutory rape laws still make sense -- and offers reason why we might think they do, or do not. She also considers the merits of a potential constitutional challenge to statutory rape laws, based on its omission of any "lack of consent" element.
Wednesday, Feb. 11, 2004

Is Killing an Undiscovered First-Trimester Fetus Murder in California?
The Answer Probably Is, and Should Be, "Yes"
FindLaw columnist and Rutgers law professor Sherry Colb discusses a criminal case upon which the California Supreme Court recently heard oral argument. The case pose the following question: When a man intentionally kills a woman who -- unbeknownst to both of them -- is pregnant, is it a murder or a double murder? Colb argues that under California law, and more generally, the better answer is that man has committed not one murder, but two.
Wednesday, Jan. 28, 2004

When Types of Discrimination Compete for Legal Recognition
Should Anti-Gay Religious Practices Be Accommodated in the Workplace?
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent Court of Appeals case that pits two competing legal rules against each other. The case began when a company put up posters in the workplace supporting its gay employees, among other employees. An employee then put up a counter-poster with anti-gay quotations from the Bible -- and claimed his religion required his doing so. The company fired him, and he sued. Who should win the suit? Colb explains why, in this case, the value of tolerance ought to prevail.
Wednesday, Jan. 14, 2004

Can A Parent Sue When his Adult Child is Killed by the Police?
A Recent Case Says "No" and Highlights a Division Among Appellate Courts
FindLaw columnist and Rutgers law professor Sherry Colb discusses an important question of legal standing that has divided the federal appeals courts. The question is whether a parent has a "special relationship" with his or her adult child, so that the parent has standing to sue based on an injury to the child -- or, in the case that Colb discusses, the child's death.
Wednesday, Dec. 31, 2003

Are Strip Searches Special?
A New York Appellate Court Says Yes, But the U.S. Supreme Court's Views Remain Unknown
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent New York case in which a suspect was publicly strip searched on the street -- and the surprising truth that the U.S. Supreme Court has not definitively weighed in on the Fourth Amendment status of strip searches. Colb discusses two different lines of Fourth Amendment precedent to consider which provides the better analogy to the strip searches issue.
Wednesday, Dec. 17, 2003

A Lawsuit Against "Big Alcohol" for Advertising to Underage Drinkers
Are Minors Accountable for Their Actions?
FindLaw columnist and Rutgers law professor Sherry Colb argues that there is a logical inconsistency between two areas of contemporary American law: On the one hand, recent lawsuits argue that companies that produce cigarettes and alcohol ought to be held liable when they sell to minors -- suggesting minors are not responsible for their own actions. On the other hand, the states recently have tried juveniles as adults, and even sought the death penalty for them -- suggesting minors are deeply responsible for their own actions. Colb discusses how this tension might -- or might not -- be resolved.
Wednesday, Dec. 03, 2003

Dismemberment and Doubt
How Could the Jury Have Acquitted Robert Durst?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the famous and controversial recent acquittal in the case of eccentric millionaire Robert Durst, who admitted killing and dismembering another man, but says he did so in self-defense. Colb takes a close look at the evidence in the case, and argues that the jury's verdict may have been understandable, after all. Colb also contrasts the case with other famous, criticized acquittals such those of O.J. Simpson; the Rodney King police officers; and the Amadou Diallo police officers.
Wednesday, Nov. 19, 2003

Too Religious for the Jury?
A Federal Court Upholds Peremptory Challenges Based on Religious Involvement
FindLaw columnist and Rutgers law professor Sherry Colb talks whether courts should accept a new and novel form of Batson challenge. The Supreme Court held in Batson that peremptory challenges to jurors (that is, those that are not "for cause," and need not be explained) cannot constitutionally be exercised on the basis of race. Colb considers whether it is also true that a peremptory challenge cannot constitutionally be exercised on the basis that a given juror is very religious.
Wednesday, Nov. 05, 2003

Animosity Toward Kobe Bryant's Accuser
Is the Presumption of Innocence A Presumption of False Accusation in Date Rape Cases?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the presumption of innocence and the Kobe Bryant prosecution. Colb argues that this presumption is widely misunderstood -- and the Bryant case provides one example of how. Colb stresses that the presumption of innocence does not require anything of the public, but only of jurors -- and that even jurors are in no way required to presume, at a case's outset, that a date rape accuser is probably lying.
Wednesday, Oct. 22, 2003

Do Reasonable Minors Feel Less Free Than Adults Do?
The Supreme Court Takes On A New Miranda Issue
FindLaw columnist and Rutgers law professor Sherry Colb discusses the key issue in a case that the Supreme Court just agreed to review: In deciding whether a suspect is in "custody," and thus must be read his Miranda rights, should the fact that he is a minor be taken into account? Colb argues that the Court's answer should be yes -- but also explains why a procedural issue may stop it from reaching the merits of the case.
Wednesday, Oct. 08, 2003

Protecting the Right to Protest Discrimination:
Law Schools Sue the Defense Department
FindLaw columnist and Rutgers law professor Sherry Colb discusses a recent case in which several organizations of law schools, professors, and students have sued the Department of Defense and other federal agencies. The plaintiffs in the suit challenge a federal law -- the Solomon Amendment -- pursuant to which the government has threatened to withdraw funds from schools that do not allow the military to recruit on campus on the same terms as other employers. They argue that the military's "Don't ask, don't tell" policy is discriminatory, and that they have a First Amendment right to oppose discrimination. Colb contends that they are correct.
Wednesday, Sep. 24, 2003

Is Capital Punishment Too Harsh for Rapists?
A Louisiana Jury Sentences a Child's Rapist to Death
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial legal issue: Does the Eighth Amendment's ban on cruel and unusual punishment prohibit the imposition of the death penalty for the rape of a child? In a recent Louisiana case, the death penalty was imposed for the rape of an eight-year-old child. Colb predicts that the Supreme Court may grant review. She argues that when it does, it should reconsider the major precedent on rape and the death penalty -- Coker v. Georgia, which holds that the death penalty cannot be imposed for rape of an adult woman.
Wednesday, Sep. 10, 2003

Governor Jeb Bush Sends Lawyers to Represent a Fetus:
Targeting A Mentally Retarded Pregnant Woman for Pro-Life Intervention
FindLaw columnist and Rutgers law professor Sherry Colb discusses a new angle on the controversial decision by Governor Jeb Bush to seek the appointment of a fetal guardian in an abortion controversy.  In the case in which he has sought a guardian, the woman at issue is a mentally disabled rape victim.  Colb argues that the fact that Governor Bush chose hers as the test case for fetal guardianship should trouble all Americans -- whether pro-life or pro-choice.
Wednesday, Aug. 27, 2003

John Doe Indictments in New York:
An Opportunity to Examine Statutes of Limitations
FindLaw columnist and Rutgers law professor Sherry Colb discusses New York Mayor Michael Bloomberg's recent "John Doe" indictment proposal, under which prosecutors would issue indictments relating to unsolved sex crimes that would identify the defendant not by name, but based on DNA alone.  Colb considers the pros and cons of such indictments, and explains the serious fairness concerns raised if such indictments are allowed to stop the clock on the relevant statutes of limitations.
Wednesday, Aug. 13, 2003

Why Lynne Stewart, Attorney for a Terrorist, Is No Heroine:
Crossing the Line Between Advocate and Accomplice
FindLaw columnist and Rutgers law professor Sherry Colb discusses a New York federal judge's recent decision to strike several counts of the indictment against Lynne Stewart.  The government's decision to go after Stewart for breaking restrictions on what lawyers can say to dangerous clients has made her a civil liberties heroine to some.  But Colb argues that that perspective is entirely wrong given what is alleged in the indictment, which, if true, indicates Stewart may have put lives in danger. 
Wednesday, Jul. 30, 2003

The New York Racist Float Case:
How the First Amendment Does -- and Does Not -- Protect Racist Cops and Firemen
FindLaw columnist and Rutgers law professor Sherry Colb weighs in on a controversial recent decision by New York federal judge John Sprizzo.  The case arose when two New York City firefighters, and one police officer, were terminated because, while off duty, they had ridden on a racist float during the Broad Channel, Queens Labor Day Parade.  Colb argues that Judge Sprizzo erred by directing their reinstatement on First Amendment grounds.
Wednesday, Jul. 16, 2003

Welcoming Gay People Back Into the Fold:
The Supreme Court Overrules Bowers v. Hardwick
FindLaw columnist and Rutgers law professor Sherry Colb explains the reasoning and significance of last week's landmark Supreme Court decision in Lawrence v. Texas.  In Lawrence, the Court struck down a anti-sodomy law that had extended only to same-sex sodomy.  But, as Colb explains, the Court chose not to rest its opinion on Equal Protection concerns alone, but rather protected gay civil rights more broadly.
Monday, Jun. 30, 2003

Sending Out Partial Birth Announcements: 
Symbolism and Deception by Pro-Life Legislators
FindLaw columnist and Rutgers law professor Sherry Colb takes issue with the recent "partial birth abortion" bill.  Colb argues that the pro-life movement's focus on a rare kind of very late-term abortion that resembles infanticide is deceptive.  In particular, she contends that this focus distracts from realities relating to more typical abortions, and to many pro-life persons' opposition of all abortions, no matter how early in pregnancy.
Wednesday, Jun. 18, 2003

The Verdict in the Lemrick Nelson Trial:
Jury Deliberations Expose a Troubling Reality
FindLaw columnist and Rutgers law professor Sherry Colb discusses the most recent event in the controversial New York City hate crime case of Lemrick Nelson, who allegedly stabbed a stranger, Yankel Rosenbaum, because he was Jewish.  In Nelson's recent civil rights trial, a jury found that Nelson indeed stabbed Rosenbaum, but also found that the stabbing did not cause Rosenbaum's death.  Colb argues that these two findings not only make no sense, taken together, but also expose problems endemic to our jury system.
Wednesday, Jun. 04, 2003

Better to Have Never Been Born?
Wrongful Life Litigation
FindLaw columnist and Rutgers law professor Sherry Colb investigates the unusual legal area of "wrongful life" litigation, through the lens of two New York cases.  As Colb explains, such litigation proceeds on a theory that may sounds strange:  The child plaintiff says to the court, in essence, "I, who should not have been born, hereby sue the doctor whose negligence led to my existence."  But upon reflection, Colb contends, such suits are not so strange after all.
Wednesday, May. 21, 2003

Will the Apple Fall Far From the Tree?
The Supreme Court Takes a Case About Miranda "Fruits"
FindLaw columnist and Rutgers law professor Sherry Colb discusses an important criminal procedure case that the Supreme Court recently decided to review.  The case raises this issue: When a suspect is not properly read his Miranda rights, and his statements lead to incriminating physical evidence, can that evidence constitutionally be presented by the prosecution at trial?
Wednesday, May. 07, 2003

The Israeli Supreme Court Denies Women The Right to Pray at the Western Wall:
A Misguided Decision Parallels the U.S. "Fighting Words" Doctrine
FindLaw columnist and Rutgers law professor Sherry Colb contrasts Israeli and U.S. rulings on a particular legal issue: Can speech, or even prayer, be restrained because hearers may react to it violently?  Colb describes both an Israeli decision prohibiting women from praying at Jerusalem's Western Wall due to the likelihood a violent backlash will ensue, and the U.S.'s "fighting words" doctrine, which says that words likely to provoke an immediate violent reaction from the hearer do not enjoy First Amendment protection.
Wednesday, Apr. 23, 2003

Smoking Bans in New York:
Outrageous or Reasonable?
FindLaw columnist and Rutgers law professor Sherry Colb discusses the arguments in favor of, and against, the smoking bans currently in place in New York City, and forthcoming state-wide. The bans have inspired intense debate in the City; Colb analyzes the arguments to separate the serious from the makeweight.
Wednesday, Apr. 09, 2003

The Supreme Court Hears the Texas Sodomy Case:
Embracing the Right to Privacy
FindLaw columnist Sherry Colb explores the privacy aspect of the constitutional challenge the Supreme Court will hear today, March 26, to Texas's anti-homosexual-sodomy statute. Colb draws a parallel between two different types of constitutional protections for privacy, and explains why the Texas statutes raises not just equality, but also privacy concerns.
Wednesday, Mar. 26, 2003

The Family that Dare Not Speak Its Name:
Florida's Ban on Gay Adoption Reaches the U.S. Court of Appeals For the Eleventh Circuit
FindLaw columnist and Rutgers law professor Sherry Colb discusses a controversial Florida case, concerning whether gays and lesbians (including gay and lesbian foster parents) may constitutionally be denied the opportunity to adopt children. Colb contends that Florida's approach to gay adoption fails to pass even the Supreme Court's "rational basis" test.
Wednesday, Mar. 12, 2003

Medicating Prisoners So They Can Be Killed:
A Federal Court Approves Forcible Antipsychotic Treatment of Mentally Incompetent Convicts
FindLaw columnist and Rutgers law professor Sherry Colb discusses a legal concept unique to the death penalty: the idea that one can be "incompetent" -- that is, too mentally impaired -- to be punished.  A federal appeals court recently held that a death row inmate can be forcibly medicated, so that he is competent to be executed.  Colb surveys the Supreme Court precedents relevant to the question.
Wednesday, Feb. 26, 2003

The Conviction of Ed Rosenthal for Growing Medicinal Marijuana:
Why It Was Wrong to Prosecute
FindLaw columnist and Rutgers law professor Sherry Colb argues that the federal government should not have prosecuted Ed Rosenthal for marijuana offenses. Though the jury was not told these facts, Rosenthal is an agent of Oakland, California's medical marijuana program, and California's Proposition 215 expressly authorized the program. Colb contends that these facts make a great deal of difference.
Wednesday, Feb. 12, 2003

WHY SUING MCDONALD'S COULD BE A GOOD THING:
COMPELLING COMPANIES TO BEAR THE COSTS THEY INFLICT ON OTHERS
FindLaw columnist and Rutgers law professor Sherry Colb discusses the recent suits by obese plaintiffs against McDonald's, putting them in a new light. The judge in one of the suits recently required the plaintiffs to allege and prove that McDonald's deceived them as to its food's health effects. Colb argues, how