The Co-Authored Article I'll Present at the Symposium in Honor of Sherry Colb

As I have previously noted, next Friday, September 29, Rutgers School of Law in Newark will host a symposium co-sponsored by the Cornell Law Review and honoring the life and work of Sherry Colb. On behalf of myself and the other members of the organizing committee, I'm happy to say that we have a good-sized audience registered, but I have also heard from various of Sherry's former students, colleagues, and admirers who have said that they plan to attend but haven't yet registered. By the end of the week, we need to give final numbers to the caterer (for the free food throughout the day -- vegan, of course), so I would much appreciate if you plan to attend but have not yet register, please do so here. It's free. If you want CLE credit, you can get that (for a modest administration fee with a discount for public interest lawyers) by registering for CLE credit here. All of that info is easily accessible via the tabs on the symposium webpage.

We also have a terrific schedule of speakers, which is available on the symposium webpage, but I've also pasted it at the end of this essay. Speakers are hard at work on their papers, which will be published in the Cornell Law Review. Because various papers are at various stages of completeness, we're not making all of the drafts publicly available yet; panelists will briefly summarize their papers for the audience at the symposium, before the moderators launch into questions and comments.

I'm in a somewhat different position from the other panelists because the work on my paper started much earlier. I'm presenting a paper based on an early draft that Sherry had been working on when she died. Because I had more time to work on the paper I'm presenting, it's ready to share already--although I expect to make some further revisions to it based on feedback I receive at the symposium. 

As I noted back in the spring, Sherry left behind two papers. One was an essentially completed article that had been accepted for publication: because my work on that article (other than providing comments on an early draft) consisted mostly of approving (or in a few instances rejecting) the editors' proposals, it appears entirely under her name as A New and Improved Doctrine of Double Effect: Not Just for Trolleys in the May 2023 issue of the Connecticut Law Review.

By contrast, although most of the core ideas for the other paper appeared in Sherry's unfinished draft, I found it necessary to write and reorganize much of it to get it into shape for publication. When I was done, I realized that I was responsible for much of the content. Accordingly, I took the liberty of making myself a co-author. Wherever possible, I tried to retain Sherry's ideas, but I'm sure there are some parts of the article that express views with which she would have disagreed or at least would have stated differently.

In any event, I'll present the paper--which I've titled Mandating Nature's Course--at the symposium. You can read a reasonably complete draft on SSRN. Here's the abstract:

Laws that substantially restrict abortion, gender-affirming care, and aid in dying do not merely forbid particular acts; they effectively mandate burdensome bodily obligations. Yet many proponents of such restrictions purport to support a right to bodily autonomy in other contexts, for example by opposing public health vaccination and masking mandates. They distinguish the former restrictions on the ground that such laws merely allow nature to take its course (NTIC). The NTIC claim is widespread. It may appeal to religion, a tendency to equate nature with wholesomeness, or a version of the act/omission distinction. Nonetheless, the NTIC defense fails because it rests on unarticulated normative grounds for attributing to nature some but not all results of legal prohibitions. Setting aside NTIC claims rightly focuses attention on whether strong countervailing interests justify restrictions on bodily autonomy.

It was Sherry's core insight that these three categories of prohibitions--on abortion, gender-affirming care for minors, and aid in dying--all imprison people in their bodies in various ways, even as their proponents and defenders claim that such prohibitions merely allow nature to take its course. Her original notes emphasized the role of religion in NTIC arguments. My revised version of the article does as well, but it also describes the ways in which even people who are not especially religious attribute normativity to nature.

Finally, as readers who follow the SSRN link and peruse the full article will discover, it analogizes the laws under discussion to the infamous Tuskegee study. Sherry made that connection in her original notes. In fleshing it out, I tried very hard to contextualize in accordance with her observation (quoted in footnote 145) that one should be very careful in comparing any current injustice to a historical injustice, lest the reader be left with the impression that the authors are merely exploiting the historical injustice. If I failed in making that clear or in any other respect, that's my doing.

Postscript: As promised above, here's the symposium schedule:

Friday, September 29, 2023 at Rutgers School of Law, Newark

Welcome Remarks (9:00 – 9:15 am; breakfast available beginning at 8:15 am)

Johanna Bond, Dean, Rutgers Law School

Crosscurrents (9:15 – 10:30 am)

Michael Dorf, Robert S. Stevens Professor of Law, Cornell Law School

Sheri Lynn Johnson, James and Mark Flanagan Professor of Law, Cornell Law School

John H. Blume, Samuel S. Leibowitz Professor of Trial Techniques and Director of the Cornell Death Penalty Project, Cornell Law School

Moderator: John Leubsdorf, Distinguished Professor of Law and Judge Frederick B. Lacey Scholar, Rutgers Law School

Break (10:30 – 10:45 am)

Animal Rights (10:45 am – 12:00 pm)

Taimie L. Bryant, Professor of Law, UCLA School of Law

Mariann Sullivan, Adjunct Professor of Law, Cornell Law School

Michael Dorf, Robert S. Stevens Professor of Law, Cornell Law School

Moderator: Andrew Gelfand, Cornell Law Review, Editor-in-Chief 2022-23

Lunch and Personal Reminiscences (12:00 – 1:30 pm)

Hosted by David Troutt, Distinguished Professor of Law and Justice John J. Francis Scholar, Rutgers Law School

Criminal Law (1:30 – 2:45 pm)

Tracey Maclin, Raymond & Miriam Ehrlich Chair in U.S. Constitutional Law, University of Florida Levin College of Law

George Thomas, Board of Governors Professor of Law and Judge Waugh Distinguished Scholar, Rutgers Law School

Erwin Chemerinsky, Dean and Jesse H. Chopper Distinguished Professor of Law, UC Berkeley Law School

Moderator: Vera Bergelson, Distinguished Professor of Law and Robert E. Knowlton Scholar, Rutgers Law School

Break (2:45 – 3:00 pm)

Feminist Jurisprudence (3:00 – 4:30 pm)

Deborah Dinner, Dorothea S. Clarke Professor of Law, Cornell Law School

Neil Buchanan, James J. Freeland Eminent Scholar Chair in Taxation and Professor of Law, University of Florida Levin College of Law

Penny Venetis, Distinguished Clinical Professor of Law and Director of the International Human Rights Clinic, Rutgers Law School

Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law and Co-Director, Supreme Court Litigation Clinic, Stanford Law School

Moderator: Sally Goldfarb, Professor of Law, Rutgers Law School

Concluding Remarks (4:30 – 4:35 pm)

Jens David Ohlin, Allan R. Tessler Dean and Professor of Law, Cornell Law School

Reception (4:35 – 5:30 pm)