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Does Denying Opposite-Sex Couples Access to Civil Partnership Violate Their Equality Rights? Opinion 1
FindLaw columnist and Cornell law professor Sherry Colb comments on an unusual type of lawsuit that is being brought in the U.K., and that could be brought in some states in the U.S., as well. The plaintiffs in the suit are a straight U.K. couple who seek access to the civil-partnership status that was enacted in the U.K. as an alternative to gay marriage. In the U.K., as Colb explains, the benefits of marriages and civil partnerships are identical; all that is different is the name. Is the straight couple correct that equality necessitates that straight couples have access to civil partnership, even though they already have access to marriage, which carries the same benefits? Colb examines a variety of interesting arguments that might cause us to answer “Yes” or “No,” respectively, to that question.
Does Routinely Sampling DNA From Arrested Felons Violate The Fourth Amendment? Opinion 2
FindLaw columnist and Cornell law professor Sherry Colb comments on a case that the U.S. Court of Appeals for the Third Circuit has set for oral argument before the entire 14-judge court. As Colb explains, the issue in the case is whether, consistent with the Fourth Amendment, the government can routinely collect DNA samples from arrestees (without any showing of probable cause, and without a warrant). Colb notes that this important issue is likely to eventually make its way to the U.S. Supreme Court, and she considers the arguments and precedents on both sides. She also notes that the issue is made more complex by the point that there are two arguable rights-infringements here — the taking of a buccal (inside-of-the-cheek) swab, and the analysis of the DNA collected via that swab.
D.C. Circuit Holds that Month-Long Police GPS Monitoring Triggers Fourth Amendment Opinion 3
FindLaw columnist and Cornell law professor Sherry Colb analyzes a recent decision by the U.S. Court of Appeals for the D.C. Circuit regarding the constitutionality of allowing the police to attach GPS devices to suspects’ cars, and then to use the devices to monitor the suspects’ movements. (In the case at issue, the monitoring went on for a month.) More specifically, the Court had to resolve whether the Fourth Amendment allows the police to attach and use GPS devices, or whether their doing so falls afoul of the Amendment’s prohibition on unreasonable searches and seizures. Colb covers the difference between one-time and long-term monitoring; discusses the relevant precedents, including a key U.S. Supreme Court precedent on phone-booth privacy; and explains why the GPS-monitoring issue is also likely to end up before the Court. Colb also comments on how the Court ought to rule when and if such a case does come before it.
Evaluating the Eighth Amendment’s Ban on Only Cruel and Unusual Punishments Opinion 4
Cornell law professor Sherry Colb notes that, while it’s evident why the Constitution might want to ban cruel punishments, it is less plain why it bans punishments that are “cruel and unusual.” Why should it matter if a punishment is unusual? As a case study of a punishment that is both cruel and unusual, Colb focuses on a recent stoning in Afghanistan, of a couple who had done nothing but marry without their parents’ blessing. She also considers a U.S. Supreme Court case involving a convict who was tied to a hitching post for hours in the hot sun. In examining why the Constitution is troubled by cruel AND unusual punishments, Colb considers whether targeting unusual punishments may be a way to constrain judicial discretion by compelling the judge to refer to community norms. In addition, she contends that the Constitution’s ban may not be sufficient — since in some cases, society can become acclimated to, and treat as “usual,” conduct that, on closer examination, may be cruel. In other words, Colb suggests, the very fact that a kind of conduct is usual in American society may mask its cruelty — citing factory farming as an example. Yet in other instances, Colb observes, when society increasingly becomes more enlightened over time, then the unusualness of a punishment may indeed be a good proxy for whether it should be permissible.
How The Supreme Court May Have Quietly Undermined the Constitutional Requirement of “Probable Cause” Opinion 5
FindLaw columnist and Cornell law professor Sherry Colb focuses on an unusual per curiam opinion from the last Supreme Court Term that she argues may have quietly changed the Court’s Fourth Amendment doctrine — in particular, its doctrine regarding the “probable cause” requirement. Colb begins by explaining the Court’s practice with respect to per curiam opinions, which are not signed by any Justice, are not preceded by briefing on the merits, and are not the subject of oral argument. Colb explains why the Justices sometimes issue per curiam opinions, but contends that the Fourth Amendment case at issue, Michigan v. Fisher, was a poor candidate for per curiam treatment, because it is far more significant and potentially wide-ranging in its doctrinal effects than per curiam opinions usually are.
An Oklahoma Abortion Law Raises New and Different Rights Questions Opinion 6
FindLaw columnist and Cornell law professor Sherry Colb analyzes the legal questions raised by a new Oklahoma abortion law that, as she explains, operates differently than many abortion restrictions do. Specifically, the law prevents a patient from suing her doctor for failing to reveal to her, during her pregnancy, the presence of a fetal abnormality. Colb notes that most abortion restrictions stop pregnant women from obtaining abortions at the time, at the place, and/or in the manner of their choosing — or compel young women to gain permission for their abortion from a parent or judge. But this restriction is different: It does not interfere with a woman’s ability to get an abortion at a time when she wants one, but it does allow doctors to withhold from women information that might cause some women to decide to abort — by rendering doctors immune from a lawsuit based on their withholding that information. Using Colb’s terms, the law thus does not interfere with a woman’s Bodily Integrity Interest (as limits on abortion may), but it does interfere with her Offspring Selection Interest — but should the latter interest be honored? Colb considers the arguments.
The Supreme Court Denies A Public Employee’s Privacy in Electronic Communications: What’s Next? Opinion 7
FindLaw columnist and Cornell law professor Sherry Colb comments on the Supreme Court’s recent, end-of-Term decision in Ontario v. Quon. Colb contends that the Court’s outcome — holding that a public employer can, under some circumstances, read the text messages an employee sends on an employer-owned pager that is meant to be used for work purposes — should have been unsurprising to Court observers. She also explains that the case before the Court was made easier by a number of facts — such as the employer’s express warning to its employees that its policy was that it could read their texts without prior notice. Much more surprising than the outcome here, Colb contends, was the explicit decision by the Court to refrain from interpreting what privacy rights mean in the area of electronic communications, on the ground that the technology is in a state of flux. Colb argues that Justice Scalia was right to ask the Court not to shrink from deciding cases in this area of law.
The Miranda Right to Counsel Shrinks at the Supreme Court Opinion 8
FindLaw columnist and Cornell law professor Sherry Colb comments on a significant recent right-to-counsel Supreme Court decision, Maryland v. Shatzer. The case posed the following question: An incarcerated prisoner is interrogated about a second crime that he is suspected of committing. He invokes his Miranda rights to ask for an attorney, which cuts off the questioning. Two weeks later, while he is still incarcerated, police would like to re-approach him, to question him again about the second crime, while giving him new Miranda warnings. Can they do so? The Court answered yes, but Colb seriously questions the theory that drove the Court’s result — which suggested that a prisoner’s returning to the general prison population, after being interrogated, is akin to a person outside of prison being released by the police being released after interrogation, and resuming his normal daily life.
The Supreme Court Holds That Responding to Police Interrogation Waives The Right to Remain Silent Opinion 9
FindLaw columnist and Cornell law professor Sherry Colb comments on a recent Supreme Court decision regarding the scope and meaning of the famous “right to remain silent” established by the Court in Miranda v. Arizona. As Colb explains, the Court held that a suspect who had been read his Miranda rights, and then was subjected to an almost three-hour-long near-monologue of police questioning, still waived those rights when he finally responded to the police. Colb — who predicted this very holding at an earlier stage of the case — argues that the Court’s decision breaks with the spirit of Miranda, which was meant to serve as a genuine protection against coercive interrogation.
High Court Rejects Life Without Parole for All Juvenile, Non-Homicide Crimes Opinion 10
FindLaw columnist and Cornell law professor Sherry Colb discusses a recent, highly significant Supreme Court decision, Graham v. Florida. As Colb explains, the Court held that it is an Eighth Amendment violation to sentence a juvenile to life imprisonment without parole for the commission of a lesser crime than homicide. Colb sets forth the facts of the case, explains why the Eighth Amendment claim that was made was audacious, puts the decision in the context of prior Eighth Amendment precedent, and explains what the Justices’ views on this case may mean for future cases. In particular, Colb explains why Eighth Amendment cases — which typically have involved death penalty challenges — may now more frequently include challenges to lengthy prison sentences.
A Prisoner Seeks Vegan Food in Prison: Why Refusing Him is Both Illegal and Foolish Opinion 11
FindLaw columnist and Cornell law professor Sherry Colb argues that a prisoner who is seeking a vegan diet has a right to such a diet under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). She contends that the practice of veganism meets RLUIPA’s requirements, as developed in federal courts’ caselaw, when it is connected to a prisoner’s practice of Buddhism or another religion, and perhaps also when it is simply a tenet of a prisoner’s ethical veganism. In addition, she suggests that — putting legal issues aside — there is a compelling policy case for allowing prisoners to opt for vegan diets, particularly when such diets are part of a prisoner’s larger renunciation of all types of violence against living beings.
Anti-Abortion Billboards Claim “Black Children Are An Endangered Species”: A Meaningful Contention? Opinion 12
FindLaw columnist and Cornell law professor Sherry Colb discusses the controversial billboards that have recently appeared in majority-minority communities in Georgia. The billboards include a photo of an unhappy-looking African-American infant, and the legend “Black Children Are an Endangered Species.” They also include the Internet address of a related website. Colb explains that, when read in conjunction with the text on the website, the billboards serve to protest the claimed disproportion between the number of African-American women who use abortion services, and the number of white women who do. The website and billboards also together suggest that adopting an anti-abortion stance is the answer. But should racial disparities in abortion — if proven — trigger the same kind of outrage and concern that, say, racial disparities in incarceration do? Colb offers a nuanced answer to this provocative question.
Should Possession of Child Pornography Require Reparations to the Child? Opinion 13
FindLaw columnist and Cornell law professor Sherry Colb takes on a question that has sharply divided courts: Should a person who is found to have committed the crime of possessing child pornography be required to pay restitution to each child who appears in those images? The question has been posed very sharply recently, because images of one child victim — whose pseudonym is “Amy” — have been at issue in 350 criminal cases across the country. Moreover, the difference in the amount of restitution awarded in those cases is dramatic: Two Florida judges together awarded over three million dollars; a California judge awarded only $5000; and a Texas judge refused any award at all.
Can Violence Be Allowed When a Warning Is Prohibited? The Kansas High Court Issues a Perplexing Ruling Opinion 14
FindLaw columnist and Cornell law professor Sherry Colb analyzes a complex and, she argues, very troubling recent decision from the Kansas Supreme Court in a criminal case. In the case, the defendant admitted that he had threatened to break his sister’s neck. But the defendant claimed that he had only made the threat because he was afraid, at the moment he spoke, that his sister was about to attack him. He therefore argued that he was entitled to have the trial court instruct the jury on self-defense — a defense which, if proven, would have compelled an acquittal. Colb argues that the Kansas Supreme Court was wrong to hold that no such instruction was warranted — and that its reasoning was deeply flawed, for it implied that the defendant could have invoked self-defense if he had actually harmed his sister, but not if he had taken the lesser step of threatening harm. Colb thus deems the ruling both counterintuitive and perverse.
The Vermont Supreme Court Considers “Loss of Companionship” Damages for a Dog’s Death Opinion 15
FindLaw columnist and Cornell law professor Sherry Colb comments on an interesting case that is before the Vermont Supreme Court. The case arose when a couple’s dog wandered into a neighbor’s yard, and the neighbor shot and killed the dog. The couple is now seeking damages from the neighbor for their emotional distress, and for the loss of their dog’s companionship. Colb contends that the damages the couple are seeking should be available under the law, but she also warns that claims that this case could be the first step in ushering in a larger recognition of animal rights in America are seriously overstated. Rather than embracing animal rights, Colb suggests, a decision in favor of the couple who lost their dog would likely have a much narrower significance — in that it would recognize that some people put special meaning and importance upon their pets, and would recognize the wrongness of the neighbor’s criminal act.
Excluding Illegally-Obtained Evidence and the Doctrine of Double Effect Opinion 16
FindLaw columnist and Cornell law professor Sherry Colb offers an interesting and original perspective on the Fourth Amendment’s prohibition on unreasonable searches and seizures and the “exclusionary rule.” (The exclusionary rule forbids courts from admitting into evidence the fruit of an unconstitutional search, and has always been the subject of Supreme Court debate.) Colb contends that the Catholic Doctrine of Double Effect (DDE) can shed new light on the morality and logic behind the exclusionary rule. The DDE holds that the following two actions are morally distinct (1) intentionally and directly causing harm as a means of accomplishing a positive outcome, and (2) intentionally and directly bringing about the same positive outcome, while knowingly causing the same harm as an undesired side effect.
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