Legal Opinions Page 2
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Suit Challenges Federal Ban on Compensation for Bone Marrow Donor Opinion 17
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent lawsuit that is challenging the federal ban on compensation for bone marrow donors. As she explains, there is a very strong policy argument for lifting the ban — for it is estimated that about 1,000 patients per year in the U.S. are literally dying for lack of bone marrow donors, and compensation could incentivize more donors to come forward. But is there also a strong policy argument in favor of the ban? Colb examines ban supporters’ fears about deception (which could occur if donors seeking money lie about their HIV risk); coercion (which could occur if a person feels that poverty gives her no choice but to donate, or if an unscrupulous third party forces her to donate and then takes the money); and commodification (which would occur if society were debased by the fact that a price tag had been put upon a bodily substance). Colb offers strong responses to each of these policy concerns, and then goes on to analyze whether the case that challenges the ban as unconstitutional can succeed on the merits, as a matter of constitutional law.
Are “Hate Crimes” the Same Thing as “Thought Crimes”?: Opponents of the Federal Hate Crime Bill Invoke Free Speech Opinion 18
FindLaw columnist and Cornell law professor Sherry Colb takes strong issue with a commonly-heard objection to the proposed bill, which President Obama is expected to sign today, that would expand the scope of the federal hate crimes law to encompass hatred based upon gender, sexual orientation, gender identity, or disability. The objection contends that to ban a hate crime is to ban a “thought crime,” when we all ought to have freedom of thought and speech. Colb responds that, to the contrary, to look to a perpetrator’s motivation for committing a proven crime is a far cry from criminalizing thought or speech alone. She also covers the Supreme Court’s two key hate crimes case, explicating the reasoning of the two and explaining why the Court accepts punishment enhancements based on motivation. Finally, she points out that conservative critics of the bill’s emphasis on crimes’ motivations are plainly comfortable with looking to motivation in other contexts — such as in a suit alleging that an employer has committed so-called “reverse discrimination” against a white employee — and thus, she suggests that their real discomfort must be with gay rights, not with the bill’s focus on motivation.
Does the Mere Existence of an Invalid Arrest Warrant Injure Its Target? Opinion 19
FindLaw columnist and Cornell law professor Sherry Colb discusses a fascinating Fourth Amendment case in which the U.S. Court of Appeals for the D.C. Circuit recently heard oral argument. The case poses the question whether a person has standing to bring a civil rights lawsuit in federal court whenever a baseless arrest warrant is issued against him or her. In this case, the government points to the facts that the plaintiff was never actually arrested; that the government has dismissed the warrant; and that the government has indicated it will never prosecute the plaintiff on the charge that had led to the warrant. However, the plaintiff argues that he continues to fear that he will be wrongfully arrested. In considering which side is right here, Colb examines both Fourth Amendment doctrine and the Constitution’s “case or controversy” requirement for the exercise of federal jurisdiction.
Cass Sunstein’s Views About Organ Donation: When is a “Nudge” Illegitimate? Opinion 20
FindLaw columnist and Cornell law professor Sherry Colb argues that the Senate was right to confirm Cass Sunstein as the Administrator of OIRA (the Office of Information and Regulatory Affairs), an office within the Office of Management and Budget that oversees the federal government’s regulatory apparatus. Sunstein’s critics had cited his view that when someone dies, the default rule — if the deceased person did not express a preference — should be that his or her organs are donated so that others may live. Colb makes the case for this particular default rule, while also examining the importance and meaning of default rules more generally. She also contends that Sunstein’s position on which default rule is the correct one should not have posed an impediment to his confirmation, since the position was, at a minimum, reasonable, and punishing nominees for expressing reasonable views would impoverish public debate.
What Vegans Can Learn from the Gay Rights Movement’s Successes Opinion 21
FindLaw columnist and Cornell law professor Sherry Colb parallels some of the features of the vegan movement with those of the gay rights movement. In drawing the parallel, Colb notes that a vegan and a gay person each must make a choice as to how “out” he or she will choose to be, regarding his or her identity, and how avidly he or she will urge others to share the same views. Each also may face difficult family conflicts, and pressure to conform to majority lifestyles. Drawing upon the work of law professor and author Kenji Yoshino, Colb notes that a gay or vegan life may include many disparate instances in which one must decide whether to be “out,” or to “cover” one’s identity, in a particular context, and the answer one gives might not always be the same. Accordingly, she argues that vegans struggling with such questions have much to learn from the gay rights movement.
Supreme Court Considers Constitutionality of Juvenile Life Without Parole Opinion 22
FindLaw columnist and Cornell law professor Sherry Colb details and assesses the precedents and arguments that may inform the Supreme Court’s deliberation as it considers, during its coming term, two important companion cases. The cases raise the question whether imposing sentences of life imprisonment without parole upon juvenile offenders violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Colb argues that, as a matter of policy, the case against sentencing juvenile offenders to life without parole is strong. However, after analyzing relevant Court precedents, she finds that they offer little support for an Eighth Amendment argument against sentencing juveniles to life without parole. Nevertheless, Colb expresses the hope that the Court will modify its doctrine in this case, and remove this harsh punishment as an option.
Lessons From an Animal Cruelty Case In the U.S. Supreme Court Opinion 23
FindLaw columnist and Cornell law professor Sherry Colb discusses an important First Amendment and animal cruelty case that the Supreme Court recently decided to review. The case involves the constitutionality of a statute through which Congress responded to the phenomenon of “crush” videos, in which a woman tortures and slowly kills animals to appeal to those with a sexual fetish for watching such abuse. However, as Colb notes, in the case the Court will review, Robert J. Stevens was convicted not of any crush-video offense, but of filming and distributing violent videos of pit-bull fights and pit-bull attacks. After the U.S. Court of Appeals for the Third Circuit struck down Stevens’s conviction on First Amendment grounds, the Supreme Court opted to take the case. Colb covers the key First Amendment precedents that may influence the Court’s ruling, drawing on cases from the context of child pornography to argue that the state has a legitimate interest in destroying the market for certain materials. She also contends that those who are horrified by crush videos, but who are not vegans, should look within to consider whether their practices of eating meat or animal products do not create a valid analogy between themselves and the repellent crush video makers.
Child Obesity as Child Neglect: Is the Standard American Diet Dangerous? Opinion 24
FindLaw columnist and Cornell law professor Sherry Colb comments on a controversial South Carolina case in which the state’s Social Services Department accused a mother of neglecting her 14-year-old son because he was morbidly obese. Colb contends that the state’s decision was clearly the wrong one, as this is not a case of an abusive or neglectful mother, but rather of an apparently loving mother without the resources or information she needs. Colb parallels the situation to one in which a hypothetical loving parent might have an anorexic child — a situation which ought not to lead to neglect charges. Colb also raises the broader point of how this case fits into our country’s obesity epidemic, citing the deeply unhealthful nature of the Standard American Diet, and ways the government could and should protect the health of children, ranging from better information about the link between nutrition and health, to improving the healthfulness of public schools’ lunches.
The Right of Confrontation: A Supreme Court Decision Reveals Strong Schisms Opinion 25
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent Supreme Court decision regarding the meaning of the Constitution’s Confrontation Clause, which gives criminal defendants the right to be confronted with the witnesses against them. As Colb explains, the Court recently split on the question whether the government, when submitting forensic test results (such as the results of a test as to whether a substance is cocaine), must provide the analyst who performed the test to be questioned by the defense. In addition to analyzing that decision, Colb also traces the Court’s troubled Confrontation Clause history.
The Highest Court of New York State Protects Privacy from GPS Monitoring Opinion 26
FindLaw columnist and Cornell law professor Sherry Colb discusses an important recent decision by the New York Court of Appeals, holding that police should have obtained a search warrant before they attached a GPS device to a suspect’s car and continuously monitored its whereabouts for over two months. Colb contrasts the approach of New York’s highest court with that of the U.S. Supreme Court when it comes to Fourth Amendment issues involving the tracking of suspects. She also predicts that the New York decision’s approach could influence federal courts considering cases involving GPS and the Fourth Amendment in the future.
Kansas v. Ventris: The Supreme Court Misconstrues the Right to Counsel Opinion 27
FindLaw columnist and Cornell law professor Sherry Colb comments on a recent Supreme Court Sixth Amendment right-to-counsel decision, and reflects on how well the decision does — or does not — square with prior Court precedent. As Colb explains, the decision required the Court to confront the following question: When police or prosecutors cause a suspect’s cellmate to ask him about his alleged crime, can the damning answer the suspect gives to the cellmate (without the benefit of counsel) later be offered as inculpatory evidence against the suspect at trial, to contradict other, exculpatory statements that he makes? The Court said yes, but Colb contends that its ruling justifying that answer is incoherent — and she points to serious problems, as well, with a closely-related Court precedent in this area of law.
Ten Angry Men?: Why The Supreme Court Should Take a Jury Unanimity Case Opinion 28
The movie “12 Angry Men” told the story of how a lone holdout juror can make a profound difference in a criminal case. But — as FindLaw columnist and Cornell law professor Sherry Colb explains — there are two American states, Oregon and Louisiana, where prosecutors can procure a criminal conviction, for a lesser felony than murder, by convincing only ten jurors out of twelve. In 1972, the U.S. Supreme Court okayed such split-verdict criminal convictions, but Colb argues that it should grant review in a case that would allow the Court to reverse itself. Colb points out that even when unanimity is required, holdouts may be rare due to the human tendency to conform, and adds that, when unanimity is not required, there is little incentive for the majority even to listen to dissenters. She contends that if the Court required unanimous juries under the Sixth Amendment, it would also effectively be requiring a process of dialogue and persuasion that would improve the accuracy and fairness of verdicts.
Implications of the “Holier-than-Thou Effect” For Criminal Justice Opinion 29
FindLaw columnist and Cornell law professor Sherry Colb examines how the “holier-than-thou effect” — in which individuals predict that they would act more morally in certain situations than, in fact, they do in practice — may be negatively influencing America’s criminal justice system. Colb asks whether America’s stunningly high incarceration rate may have resulted, in part, from Americans’ refusal to empathize with prisoners, due to the “holier-than thou effect.” For instance, if we believed that we ourselves might turn to dealing drugs under certain life circumstances, would our laws be less harsh on drug dealers? Colb suggests that a more accurate ability to predict our own behavior might convince us to adopt a perspective far closer to “There but for the grace of God go I,” and to shift from an objective of retribution to one of rehabilitation. in the case of some offenses and offenders.
Avoiding Race Discrimination Between a Rock and a Hard Place: The U.S. Supreme Court Hears Argument in Ricci v. DeStefano Opinion 30
FindLaw columnist and Cornell law professor Sherry Colb discusses Ricci v. DeStefano, a case in which the Supreme Court recently heard oral argument. As Colb explains, the case seems to present a paradox: If an employer takes an action to avoid engaging in one form of race discrimination – disparate-impact discrimination – can that very action constitute another form of race discrimination – disparate-treatment discrimination? And if so, what is the employer to do? In the case before the Court, a fire department found that its test for employees yielded promotions only for three white employees, and learned that the test was more likely than similar tests to favor whites over African-Americans. The department decided to junk the test’s results on the ground that the test might be discriminatory — but the white employees who would otherwise have been promoted said that it was they who had now become victims of discrimination.
Feminists For Life and the Hard Questions It Must Confront Opinion 31
FindLaw columnist and Cornell law professor Sherry Colb reflects upon a speech recently given at Cornell by Karen Shablin, a spokesperson for the group Feminists for Life (FFL). Colb contends that Shablin is right to question whether pregnant college women truly have a free choice to decide to opt to have children, in light of the daunting practical obstacles that would be involved. Pro-life and pro-choice feminists, Colb argues, should be able to agree that women should never feel compelled to give up the chance to have children in order to pursue an education and career. However, Colb also takes strong issue with FFL’s failure to take any position on whether women should avail themselves of contraception; she argues that an organization like FFL, which is expressly seeking to provide alternatives to abortion, should endorse the very common alternative of contraception.
Why A Botched Abortion Case Should, and Does, Inspire Outrage: The Sycloria Williams Story Opinion 32
FindLaw columnist and Cornell law professor Sherry Colb discusses the criminal charges recently brought against a woman, Belkis Gonzalez, who allegedly suffocated a fetus that was inadvertently delivered alive at an abortion clinic that Gonzalez owned. This month, Gonzalez was charged with tampering with evidence and the unlicensed practice of a health-care profession resulting in serious bodily injury — but not with homicide. She also faces a wrongful-death suit from the infant’s mother, Sycloria Williams. Colb contends that this should not be seen as an abortion case, because the infant had been delivered alive when Gonzalez killed it; explains the key moral and legal differences between these facts and a true abortion scenario; and considers why Gonzalez might have acted as she allegedly did: What rationale — even if an indefensible one — might have gone through her mind?
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