Sherry Colb | Cornell University (original) (raw)

Papers by Sherry Colb

Law & Contemp. Prob., 2010

Human beings often have difficulty applying abstract statistical information to concrete circumst... more Human beings often have difficulty applying abstract statistical information to concrete circumstances. In particular, we are more comfortable acting in a potentially harmful way when the anticipated harm is abstract and statistical rather than concrete and specific. For illustration, contrast the willingness of many repeatedly to risk causing death or serious injury by driving while talking on the telephone, 1 with our apparent unwillingness knowingly to drive over a pedestrian's foot to get to the hospital faster, even if the net potential gain is greater (and the cumulative harm lesser, over time) in the latter case than in the former. Like most standards of proof, "probable cause" necessarily contemplates that official action may be undertaken in situations under which there is some probability that the action will prove to have been "correct" (it will accomplish the objective for which it was initiated), and some probability that the action will prove to have been "incorrect" (it will cause harm that, ex post, was not justified). The inevitable consequence of such standards of proof is that, over time, some number of people (better estimated as the total grows) will suffer an undeserved harm. For example, if there must be a ninety-nine percent probability of guilt before it is permissible to convict a person of a crime, then when 10,000 people are convicted on this standard, we know that approximately one hundred of them are innocent. A ninety-nine percent standard of proof may nonetheless

The Fourth Amendment exclusionary rule provides that a criminal defendant may suppress the fruits... more The Fourth Amendment exclusionary rule provides that a criminal defendant may suppress the fruits of unreasonable searches and seizures at his prosecution. The Fourth Amendment standing requirement limits the class of criminal defendants who may invoke the exclusionary rule to those who have personally suffered a violation of their rights. This Article argues that the two doctrines are logically inconsistent with each other. The exclusionary rule rests on a foundation of deter-rence that takes as its point of departure the police officer's subjective perspective of events and asks: did the information known to him justify his conduct? The standing requirement, by contrast, takes an objective approach and asks: did the reality of the criminal defendant's situation entitle her to privacy? From an objective perspective, however, no one who uses her privacy to commit a crime deserves that privacy. Therefore, the entire class of people in a position to invoke the exclu-sionary ru...

American constitutional jurisprudence has long accepted the notion that the exercise of certain r... more American constitutional jurisprudence has long accepted the notion that the exercise of certain rights can only be restricted by the government if the restriction satisfies strict scrutiny. The Supreme Court has identified such rights as fundamental often by relying on an expansive interpretation of the word "liberty" in the due process clause of the fourteenth amendment. In this Article, Professor Colb argues that the Supreme Court has failed to recognize the right to physical liberty itself as a fundamental right She demonstrates that at present conduct that is not itself constitutionally protected may serve as the basis for imprisonment even if the government lacks a compelling interest in preventing the conduct. Professor Colb argues that a governmental decision to restrict a person's fundamental freedom from incarceration, like the decision to restrict any other fundamental right, should be subjected to strict scrutiny. She demonstrates the inadequacy of possible ...

In virtually every jurisdiction in the United States, the Law of Evidence prohibits parties from ... more In virtually every jurisdiction in the United States, the Law of Evidence prohibits parties from offering proof of an individual's general character traits to suggest that, on a specific occasion, the individual behaved in a manner consistent with those traits. In a criminal trial in particular, the law prohibits a prosecutor's introduction of evidence about the defendant's character as proof of his guilt. In this article, Professor Colb proposes that the exclusion of defendant character evidence is appropriate in one category of cases, but inappropriate in another. In the first category, which Professor Colb calls "whodunit" cases, the parties agree that a crime was committed, but disagree over whether it was the defendant who carried out the crime. In such cases, character evidence about the defendant ought to be excluded, because the defendant's salience in the courtroom may make his character traits appear far more damning than they actually are, given ...

48 Connecticut Law Review (2016)Feminist and some other abortion rights advocates typically groun... more 48 Connecticut Law Review (2016)Feminist and some other abortion rights advocates typically ground the right to abortion in bodily integrity, thus conceptualizing abortion as vindicating a right to disassociate oneself from an intruder. Although valid as a matter of logic, the bodily integrity argument is libertarian and seemingly selfish. But a fundamentally associative interest also grounds the abortion right. A woman who cannot raise a child but is legally required to bear one must undergo the psychic pain of forced separation from an infant whom she is biologically programmed to love. Human mothers, like other mammalian mothers, grieve the loss of their young, as illustrated by the sad plight of dairy cows. Accordingly, the abortion right may be best understood as protecting not only an interest in bodily separation, but an interest in avoiding loss, that is, an interest in “never having loved at all.”

Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist a... more Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist argues that the Fourth Amendment standing doctrine is fundamentally incompatible with the existing Fourth Amendment exclusionary rule. Fourth Amendment standing provides that only a person who has suffered an invasion of her own normatively reasonable expectations of privacy, given the facts about her situation that police may not even know (including whether she owns the property searched), may suppress evidence that police turned up through a violation of the Fourth Amendment. Meanwhile, the existing exclusionary rule doctrine maintains that the sole objective of Fourth Amendment suppression is to motivate police officers, given facts available to them (such as whether they have probable cause), to conform their conduct to the law prohibiting unreasonable searches and seizures. This Article proposes that by taking into account the actual facts about the defendant’s situation in assessin...

III, for reading earlier drafts of this Article and offering unusually helpful comments, suggesti... more III, for reading earlier drafts of this Article and offering unusually helpful comments, suggestions, and encouragement. Finally, the author expresses appreciation to Lisa Gertsman, Thomas McGuiness, Deborah Nicholas, and Cara Simonetti for their wonderful research assistance.

Buchanan, for reading early drafts and providing extremely helpful comments, suggestions, and enc... more Buchanan, for reading early drafts and providing extremely helpful comments, suggestions, and encouragement. The author also thanks the faculties of Fordham Law School, Hofstra Law School, and the University of Pennsylvania Law School for giving her invaluable feedback on the paper and presentations at their respective faculty workshop series.

American constitutional jurisprudence has long accepted the notion that the exercise of certain r... more American constitutional jurisprudence has long accepted the notion that the exercise of certain rights can only be restricted by the government if the restriction satisfies strict scrutiny. The Supreme Court has identified such rights as fundamentat often by relying on an expansive interpretation of the word "liberty" in the due process clause of the fourteenth amendmenL In this Article, Professor Colb argues that the Supreme Court has failed to recognize the right to physical liberty itself as a fundamental right She demonstrates tha4 at presen4 conduct that is not itself constitutionally protected may serve as the basis for imprisonmen4 even if the government lacks a compelling interest in preventing the conducL Professor Colb argues that a governmental decision to restrict a person's fundamental freedom from incarceration, like the decision to restrict any other fundamental right, should be subjected to strict scrutiny. She demonstrates the inadequacy of possible justifications for the Supreme Court's present failure to protect the freedom from incarceration. Finally, Professor Colb begins the process of scrutinizing decisions to incarcerate by positing possible applications of her theory.

Insane Fear: The Discriminatory Category of "Mentally 111 and Dangerous" Sherry... more Insane Fear: The Discriminatory Category of "Mentally 111 and Dangerous" Sherry F. Colb* I. Introduction Seven years ago, the United States Supreme Court held that a person committed to a mental institution after an acquittal by reason of insanity has a right to leave the ...

... The author gratefully acknowledges the valuable contributions of Michael C. Dorf and NomiStol... more ... The author gratefully acknowledges the valuable contributions of Michael C. Dorf and NomiStolzenberg. Thanks are due also to Erwin Chemerinsky, Richard Craswell, Richard Parker and Elyn Saks. ... See, eg, CAROL GILLIGAN, IN A DIFFERENT VOICE (1982). ...

... analysis, while existing Fourth Amendment doctrine nominally protects normatively and empiric... more ... analysis, while existing Fourth Amendment doctrine nominally protects normatively and empirically reasonable expectations of privacy, in practice, in almost all cases, the doctrine protects only property (in a broad and flexible sense, so that it includes rented spaces, for example ...

Law & Contemp. Prob., 2010

Human beings often have difficulty applying abstract statistical information to concrete circumst... more Human beings often have difficulty applying abstract statistical information to concrete circumstances. In particular, we are more comfortable acting in a potentially harmful way when the anticipated harm is abstract and statistical rather than concrete and specific. For illustration, contrast the willingness of many repeatedly to risk causing death or serious injury by driving while talking on the telephone, 1 with our apparent unwillingness knowingly to drive over a pedestrian's foot to get to the hospital faster, even if the net potential gain is greater (and the cumulative harm lesser, over time) in the latter case than in the former. Like most standards of proof, "probable cause" necessarily contemplates that official action may be undertaken in situations under which there is some probability that the action will prove to have been "correct" (it will accomplish the objective for which it was initiated), and some probability that the action will prove to have been "incorrect" (it will cause harm that, ex post, was not justified). The inevitable consequence of such standards of proof is that, over time, some number of people (better estimated as the total grows) will suffer an undeserved harm. For example, if there must be a ninety-nine percent probability of guilt before it is permissible to convict a person of a crime, then when 10,000 people are convicted on this standard, we know that approximately one hundred of them are innocent. A ninety-nine percent standard of proof may nonetheless

The Fourth Amendment exclusionary rule provides that a criminal defendant may suppress the fruits... more The Fourth Amendment exclusionary rule provides that a criminal defendant may suppress the fruits of unreasonable searches and seizures at his prosecution. The Fourth Amendment standing requirement limits the class of criminal defendants who may invoke the exclusionary rule to those who have personally suffered a violation of their rights. This Article argues that the two doctrines are logically inconsistent with each other. The exclusionary rule rests on a foundation of deter-rence that takes as its point of departure the police officer's subjective perspective of events and asks: did the information known to him justify his conduct? The standing requirement, by contrast, takes an objective approach and asks: did the reality of the criminal defendant's situation entitle her to privacy? From an objective perspective, however, no one who uses her privacy to commit a crime deserves that privacy. Therefore, the entire class of people in a position to invoke the exclu-sionary ru...

American constitutional jurisprudence has long accepted the notion that the exercise of certain r... more American constitutional jurisprudence has long accepted the notion that the exercise of certain rights can only be restricted by the government if the restriction satisfies strict scrutiny. The Supreme Court has identified such rights as fundamental often by relying on an expansive interpretation of the word "liberty" in the due process clause of the fourteenth amendment. In this Article, Professor Colb argues that the Supreme Court has failed to recognize the right to physical liberty itself as a fundamental right She demonstrates that at present conduct that is not itself constitutionally protected may serve as the basis for imprisonment even if the government lacks a compelling interest in preventing the conduct. Professor Colb argues that a governmental decision to restrict a person's fundamental freedom from incarceration, like the decision to restrict any other fundamental right, should be subjected to strict scrutiny. She demonstrates the inadequacy of possible ...

In virtually every jurisdiction in the United States, the Law of Evidence prohibits parties from ... more In virtually every jurisdiction in the United States, the Law of Evidence prohibits parties from offering proof of an individual's general character traits to suggest that, on a specific occasion, the individual behaved in a manner consistent with those traits. In a criminal trial in particular, the law prohibits a prosecutor's introduction of evidence about the defendant's character as proof of his guilt. In this article, Professor Colb proposes that the exclusion of defendant character evidence is appropriate in one category of cases, but inappropriate in another. In the first category, which Professor Colb calls "whodunit" cases, the parties agree that a crime was committed, but disagree over whether it was the defendant who carried out the crime. In such cases, character evidence about the defendant ought to be excluded, because the defendant's salience in the courtroom may make his character traits appear far more damning than they actually are, given ...

48 Connecticut Law Review (2016)Feminist and some other abortion rights advocates typically groun... more 48 Connecticut Law Review (2016)Feminist and some other abortion rights advocates typically ground the right to abortion in bodily integrity, thus conceptualizing abortion as vindicating a right to disassociate oneself from an intruder. Although valid as a matter of logic, the bodily integrity argument is libertarian and seemingly selfish. But a fundamentally associative interest also grounds the abortion right. A woman who cannot raise a child but is legally required to bear one must undergo the psychic pain of forced separation from an infant whom she is biologically programmed to love. Human mothers, like other mammalian mothers, grieve the loss of their young, as illustrated by the sad plight of dairy cows. Accordingly, the abortion right may be best understood as protecting not only an interest in bodily separation, but an interest in avoiding loss, that is, an interest in “never having loved at all.”

Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist a... more Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist argues that the Fourth Amendment standing doctrine is fundamentally incompatible with the existing Fourth Amendment exclusionary rule. Fourth Amendment standing provides that only a person who has suffered an invasion of her own normatively reasonable expectations of privacy, given the facts about her situation that police may not even know (including whether she owns the property searched), may suppress evidence that police turned up through a violation of the Fourth Amendment. Meanwhile, the existing exclusionary rule doctrine maintains that the sole objective of Fourth Amendment suppression is to motivate police officers, given facts available to them (such as whether they have probable cause), to conform their conduct to the law prohibiting unreasonable searches and seizures. This Article proposes that by taking into account the actual facts about the defendant’s situation in assessin...

III, for reading earlier drafts of this Article and offering unusually helpful comments, suggesti... more III, for reading earlier drafts of this Article and offering unusually helpful comments, suggestions, and encouragement. Finally, the author expresses appreciation to Lisa Gertsman, Thomas McGuiness, Deborah Nicholas, and Cara Simonetti for their wonderful research assistance.

Buchanan, for reading early drafts and providing extremely helpful comments, suggestions, and enc... more Buchanan, for reading early drafts and providing extremely helpful comments, suggestions, and encouragement. The author also thanks the faculties of Fordham Law School, Hofstra Law School, and the University of Pennsylvania Law School for giving her invaluable feedback on the paper and presentations at their respective faculty workshop series.

American constitutional jurisprudence has long accepted the notion that the exercise of certain r... more American constitutional jurisprudence has long accepted the notion that the exercise of certain rights can only be restricted by the government if the restriction satisfies strict scrutiny. The Supreme Court has identified such rights as fundamentat often by relying on an expansive interpretation of the word "liberty" in the due process clause of the fourteenth amendmenL In this Article, Professor Colb argues that the Supreme Court has failed to recognize the right to physical liberty itself as a fundamental right She demonstrates tha4 at presen4 conduct that is not itself constitutionally protected may serve as the basis for imprisonmen4 even if the government lacks a compelling interest in preventing the conducL Professor Colb argues that a governmental decision to restrict a person's fundamental freedom from incarceration, like the decision to restrict any other fundamental right, should be subjected to strict scrutiny. She demonstrates the inadequacy of possible justifications for the Supreme Court's present failure to protect the freedom from incarceration. Finally, Professor Colb begins the process of scrutinizing decisions to incarcerate by positing possible applications of her theory.

Insane Fear: The Discriminatory Category of "Mentally 111 and Dangerous" Sherry... more Insane Fear: The Discriminatory Category of "Mentally 111 and Dangerous" Sherry F. Colb* I. Introduction Seven years ago, the United States Supreme Court held that a person committed to a mental institution after an acquittal by reason of insanity has a right to leave the ...

... The author gratefully acknowledges the valuable contributions of Michael C. Dorf and NomiStol... more ... The author gratefully acknowledges the valuable contributions of Michael C. Dorf and NomiStolzenberg. Thanks are due also to Erwin Chemerinsky, Richard Craswell, Richard Parker and Elyn Saks. ... See, eg, CAROL GILLIGAN, IN A DIFFERENT VOICE (1982). ...

... analysis, while existing Fourth Amendment doctrine nominally protects normatively and empiric... more ... analysis, while existing Fourth Amendment doctrine nominally protects normatively and empirically reasonable expectations of privacy, in practice, in almost all cases, the doctrine protects only property (in a broad and flexible sense, so that it includes rented spaces, for example ...