Even as her life ebbed, Professor Sherry Colb was remarkably committed to scholarship. Among the works she produced in her last year was A New and Improved Doctrine of Double Effect: Not Just for Trolleys, posthumously published in the Connecticut Law Review. It was creative, enormously ambitious, wide-ranging, and entertaining—but, I think, at least in one crucial respect, wrong. It might seem unfair to criticize the work of someone who can no longer defend it, but because most scholars hope their work will outlive them, I offer my thoughts on A New and Improved Doctrine of Double Effect in the spirit of taking Professor Colb’s work seriously.
My criticism is limited. I have no command of the larger philosophical question her article addresses, nor much knowledge about most of the areas of application it addresses; she may be right about them all. However, with respect to Professor Colb’s application of her revised doctrine of double effect to race discrimination, I do have relevant expertise, and I think she was wrong. Interestingly, it seems to me that there is a tension between Professor Colb’s prior work on racial motivation and the approach she takes in A New and Improved Doctrine of Double Effect. For reasons I set out below, I both think that Colb’s earlier work is a better explanation of the law related to racial motivation and double effect than is her newer article and have additional objections to the approach she takes therein. I want to emphasize, however, that my observations are limited to the application of her revised doctrine of double effect to racial motivation, and not intended to address the broader merits of her proposed revision of the doctrine of double effect.
To read this Article, please click here: Race and a Revised Doctrine of Double Effect: A Reservation About Professor Colb’s Revision.
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