The trial judge and the Supreme Judicial Court agreed that Raab’s behavior constituted sexual harassment because it interfered with the three plaintiffs’ work performance by creating an
Trang 1employee handbooks These policies use the EEOC definition of prohibited conduct as a guideline The prohibited conduct must be stated in an understandable way
A complaint procedure is typically part of the policy Most employers recognize that a prompt and thorough investigation of a complaint, fol-lowed by appropriate disciplinary action, can
Same-Sex Sexual Harassment
S
B
exual harassment in the workplace is usually
associated with a heterosexual employee
making unwelcome sexual advances to another
heterosexual employee of the opposite gender There
are also cases where a homosexual employee
haras-ses an employee of the same sex But can a
hetero-sexual employee hetero-sexually harass another heterohetero-sexual
employee of the same gender?
The Supreme Judicial Court of Massachusetts,
in Melnychenko v 84 Lumber Company, 424 Mass
285, 676 N.E.2d 45 (1997), concluded that same-sex
sexual harassment is prohibited under state law
regardless of the sexual orientation of the parties
Leonid Melnychenko and two other employees
at a Massachusetts lumberyard were subjected to
humiliating verbal and physical conduct by Richard
Raab and two other employees Raab loudly
demanded sexual favors from the men, exposed
himself, and simulated sexual acts Eventually the
three employees quit their jobs with the lumber
company and sued, claiming that sexual
harass-ment was the reason for their departure
At trial, the judge concluded that Raab’s actions
were not“true romantic overtures to the plaintiffs, and
that they were not inspired by lust or sexual desire.”
Raab, who was “physically violent and sadistic,”
sought to“degrade and humiliate” the men
The trial judge and the Supreme Judicial Court
agreed that Raab’s behavior constituted sexual
harassment because it interfered with the three
plaintiffs’ work performance by creating an
intimi-dating, hostile, humiliating, and sexually offensive
work environment Raab’s sexual orientation did not
excuse the conduct The unwelcome sexual
advances and requests for sexual favors were
more than lewd horseplay and raunchy talk They
constituted sexual harassment
In a subsequent case involving charges of
same-sex same-sexual harassment, the Supreme Court held in
Oncale v Sundowner Offshore Services, Inc., et al.,
523 U.S 75, 118 S.Ct 998, 140 L.Ed.2d 201 (U.S 1998),
that Title VII prohibits sexual harassment even when the harasser and target of harassment are of the same sex Joseph Oncale worked for Sundowner Offshore Services on an oil platform in the Gulf of Mexico from August to November 1991 Oncale’s supervisor and two co-workers forcibly subjected Oncale to humiliating sex-related actions in the presence of the rest of the crew Oncale had even been threatened with rape Oncale complained to other supervisors, but no remedial action was taken
Oncale eventually quit, requesting that Sundowner indicate that he voluntarily left due to sexual harassment and verbal abuse He subsequently filed
a Title VII action in the U.S District Court for the Eastern District of Louisiana
The Fifth Circuit ruled against Oncale, stating that the Title VII prohibition against sexual harassment does not include same-sex sexual harassment, even harassment as blatant as Oncale’s supervisor expos-ing his penis and placexpos-ing it on Oncale’s body, and also, along with two co-workers, attacking Oncale in a shower and forcing a bar of soap into his anus while threatening rape Justice Scalia wrote the opinion for
a unanimous court that reversed the lower court In a strongly worded opinion, he complained of the lack of common sense demonstrated by the lower courts that had hitherto excluded same-sex claims, and also those that had conditioned liability on a same-sex sexual harasser being gay or lesbian
FURTHER READINGS Black, Jessica 1997 “Same-Sex Harassment—Employment Discrimination —Civil Rights.” Massachusetts Law Review
82 (fall).
Pierce, Karla J 2003 “Title VII and Same-sex Sexual Harassment after Oncale —Uncertainty Lingers.” Colorado Lawyer 32 (June).
Weizer, Paul I 2002 Sexual Harassment: Cases, Case Studies,
& Commentary New York: P Lang.
CROSS REFERENCES Assault; Civil Rights Acts; Sex Offenses.
168 SEXUAL HARASSMENT
Trang 2minimize liability These procedures usually
specify to whom a victim of harassment can
complain if the victim’s supervisor is the alleged
harasser Companies also routinely train
super-visors to recognize sexual harassment Finally,
some employers provide sexual harassment
training for all their employees as a way of trying
to improve workplace culture and behavior, as
well as minimizing their legal liability
The U.S Supreme Court, in Pennsylvania
State Police v Suders, 542 U.S 129, 124 S.Ct
2342, 159 L.Ed.2d 204 (2004), ruled that a
woman who quit her job because of sexual
harassment could sue her employer under the
doctrine of constructive discharge However, the
Court also gave the employer the right to assert
an affirmative defense to such a charge To
establish constructive discharge as part of a
hostile environment claim under Title VII, a
former employee must prove that she was the
victim of a hostile work environment such that
“the abusive working environment became so
intolerable that [the employee’s] resignation
qualified as a fitting response.” The employer
will not be able to use the Ellerth—Faragher
defense if the former employee can establish that
she resigned “in reasonable response to an
employer-sanctioned adverse action officially
changing employment status or situation, for
example, a humiliating demotion, extreme cut in
pay, or transfer to a position in which [he or she]
would face unbearable working conditions.”
Otherwise, the employer may use the affirmative
defense to minimize potential liability
Title VII is applicable to employers with
fifteen or more employees Since its enactment,
the lower federal courts were divided over
whether the numerical qualification affects
federal subject-matter jurisdiction or sets out a
substantive element of a Title VII claim If the
15-employee provision were jurisdictional, then
a court could not hear the Title VII action If the
provision were an element of the case that must
be considered by the jury, then the plaintiff will
have her day in court The Supreme Court, in
the sexual harassment case of Arbaugh v Y & H
Corporation, 546 U.S 500, 126 S.Ct 1235, 163
L Ed 2d 1097 (2006), concluded that the
provision was not jurisdictional The Court
found that nothing in the provisions of Title VII
indicated that Congress “intended courts, on
their own motion, to assure that the
employee-numerosity requirement is met.” If “an essential
element of a claim for relief is at issue,” the jury was the“proper trier of contested facts.” Con-gress had the power to make this Title VII requirement jurisdictional, but the employee requirement was not located in the jurisdic-tional section of the statute Instead, it appeared
in a separate provision that did not “speak in jurisdictional terms.” Absent an explicit statu-tory limitation,“courts should treat the restric-tion as nonjurisdicrestric-tional in character.” There-fore, the threshold number of employees was
an element of a plaintiff’s claim for relief that could be proven at trial
FURTHER READINGS Covington, Robert and Decker, Kurt 2002.Employment Law
in a Nutshell 2d ed Saint Paul, Minn.: West Group.
Foote, William E., and Jane Goodman-Delahunty 2004.
Evaluating Sexual Harassment: Psychological, Social, and Legal Considerations in Forensic Examinations.
Washington, D.C.: American Psychological Association.
Howard, Linda Gordon 2007 The Sexual Harassment Handbook New York: Career Press.
Lewis, Jr., Harold and Norman, Elizabeth 2004 Civil Rights Law and Practice.Saint Paul, Minn.: West Group.
CROSS REFERENCES Employment Law; Quid Pro Quo; Women ’s Rights.
SHAM False; without substance
A shamPLEADINGis one that is good in form but is so clearly false in fact that it does not raise any genuine issue
vSHAPIRO, ROBERT LESLIE Robert Leslie Shapiro is a prominent West Coast defense lawyer He entered private practice in
1972 after a brief stint as aPROSECUTOR Within
a decade he was representing film stars, produ-cers, professional athletes, and other celebrities
Shapiro is known for his calm, tactful manner
in negotiations and for building relationships with law enforcement agencies and the press
In 1994, he turned these abilities to the defense
of O.J (Orenthal James) Simpson in a case that was followed closely throughout the nation
Shapiro was born on September 2, 1942, in Plainfield, New Jersey While still a child, he moved to California with his family He later studied finance at the University of California, Los Angeles, and then law at Loyola Law School
After earning his law degree in 1968, he joined
PUT SIMPLY,A DEFENSE ATTORNEY’S JOB IS TO SEE TO IT THAT THE MAN OR WOMAN WHO STANDS UNDER SCRUTINY DOES NOT STAND ALONE
—R OBERT S HAPIRO
Trang 3the Los Angeles County District Attorney’s Office
as an assistant district attorney That same office also served as a stepping stone for another noted West Coast attorney,JOHNNIE L.COCHRAN JR., who later became Shapiro’s colleague on the Simpson defense team In 1972 Shapiro left the public sector for private practice
Shapiro’s first well-known case was his defense of Linda Lovelace, an adult film star who had been charged with a cocaine offense in
1975 Shapiro got the charges dismissed Famous figures in sports and entertainment began to call
on Shapiro He represented television comedian Johnny Carson, New York Mets outfielder Vince
Coleman, film producer Robert Evans, and Christian Brando, the son of actor Marlon Brando Shapiro also won anACQUITTAL for his friend, attorney F (Francis) Lee Bailey, who had been charged with drunk driving
After two decades of success, Shapiro published some of his insights for other lawyers
In February 1993, he wrote an essay called
“Using the Media to Your Advantage,” which was published by the National Association of Criminal Defense Lawyers The essay’s message was that big cases are tried as much in the media
as in court, and usually to the prosecution’s advantage Prosecutors know how to play to reporters, and defense attorneys usually do not Shapiro contended that media headlines pro-claiming an arrest destroy the PRESUMPTION OF INNOCENCEand instead create a presumption of guilt Shapiro believed that combating the public mindset that “if the press said it, it must be true,” is the defense attorney’s most challenging task He advised defense lawyers to get to know reporters, to look into the camera, and to speak in sound bites, so that the defense’s position also finds its way into news reports Shapiro’s most prominent case was the trial
of former football starO.J.SIMPSONfor the 1994 murders of his ex-wife, Nicole Brown Simpson, and her friend, Ronald Lyle Goldman One of Shapiro’s first moves in the case was to arrange for Simpson’s surrender to Los Angeles police, something that he had done for other clients Instead of surrendering as arranged, however, Simpson fled, leaving a suicide note; shortly thereafter, he led police on a long, slow-speed
1950–53 Korean War
1961–73 Vietnam War
1942 Born,
Plainfield, N.J.
◆
1969–72 Worked as an assistant district attorney in the Los Angeles County District Attorney’s Office
1975 Defended Linda Lovelace and got her cocaine-related offense charges dropped
1982 Won acquittal of drunk driving charges against F Lee Bailey; represented Johnny Carson when he pleaded
no contest to the same charge
1991 Negotiated voluntary manslaughter plea bargain for Christian Brando when he killed sister’s boyfriend Dag Droilet
1993 “Using the Media to Your Advantage” published
2003 Represented music producer Phil Spector
in murder investigation
1995 Led defense team that won acquittal in O.J Simpson’s trial
1996 The Search for Justice: A Defense Attorney’s Brief on the O J Simpson Case published
1999 Defended actor Robert Downey Jr in probation violation case 2001
Misconception,
written with Walt Becker, published; co-founded online legal services company LegalZoom.com
2005 Founded the Brent Shapiro Foundation for Drug and Alcohol Awareness
2000 1975
1950
Robert L Shapiro.
JESSE GRANT/
GETTY IMAGES
170 SHAPIRO, ROBERT LESLIE
Trang 4chase along Los Angeles freeways, driven by his
friend and former Buffalo Bills teammate, Al
“A.C.” Cowlings Massive publicity followed,
putting the case and Shapiro under virtually
ceaseless scrutiny
Shapiro worked to ensure that the defense’s
perspective would be part of the media’s
coverage of the case He also assembled a
powerful team of lawyers and scientific experts
to prepare for trial Shapiro’s team of experts,
though widely praised, may have been as big a
challenge as the media, for the many
well-known attorneys did not always agree on
strategy or on who should play what role
Serious disagreements arose within the team,
including one between Shapiro and Bailey,
whom Shapiro accused of trying to undermine
his reputation Although Shapiro handled most
of the early trial work, it was Cochran who
assumed the lead role toward the end of the
trial, delivering the most widely quoted defense
remarks in the closing arguments
Simpson was ultimately acquitted of
MUR-DER, and the team that Shapiro had assembled
disbanded By the trial’s conclusion in 1995,
Shapiro had gained nationwide fame for his part
in one of the most widely followed cases in U.S
history
In 1996 Shapiro published his recounting
of the Simpson trial in a book titled The Search
for Justice: A Defense Attorney’s Brief on the O.J
Simpson Case Since then, Shapiro has written
and lectured extensively on legal issues and
procedures and also co-authored a novel titled
Misconception, a legal thriller Shapiro is the
co-founder of LegalZoom.com, an online provider
of legal documentation services, and as of 2009
practices law as a partner in the firm of Glaser,
Weil, Fink, Jacobs, Howard & Shapiro
In 2005 Shapiro’s son Brent died after
ingesting Ecstasy and alcohol Shapiro founded
The Brent Shapiro Foundation for Drug and
Alcohol Awareness and serves as the
founda-tion’s chair
FURTHER READINGS
Shapiro, Robert L., with Larkin Warren 1996 The Search for
Justice: A Defense Attorney’s Brief on the O.J Simpson
Case New York: Warner.
Toobin, Jeffrey 1997.The Run of His Life: The People versus
O.J Simpson New York: Touchstone Books.
Williams, Linda 2002 Playing the Race Card: Melodramas of
Black and White from Uncle Tom to O.J Simpson.
Princeton, N.J.: Princeton Univ Press.
CROSS REFERENCES Clark, Marcia Rachel; Simpson, O J.
SHARE
A portion or part of something that may be divided into components, such as a sum of money
A unit of stock that represents ownership in a corporation
vSHAW, LEMUEL Lemuel Shaw served as chief justice of the Supreme Judicial Court of Massachusetts from
1830 to 1860 Shaw was a judicial pioneer His long career as a judge coincided with a crucial period in the development of the United States, and his personal, idiosyncratic opinions fash-ioned legal doctrines that accommodated the tumultuous changes of the time Shaw wielded much influence in the areas of commercial and
CONSTITUTIONAL LAW This influence was not merely on law in his state: Shaw’s ideas and precedents were adopted nationally His deci-sion in Commonwealth v Alger (1851) was in-fluential in his attempt to define the extent of statePOLICE POWERand to address the distinction between police power and EMINENT DOMAIN In Brown v Kendall (1850), Shaw invoked NEGLI-GENCEas the precedent in determining cases of
TORT LAW, ruling that plaintiffs suffering injuries caused by defendants must prove that the acts stemmed from negligence Many decades after his death in 1861, Shaw’s ideas still affected
EMPLOYMENT LAWand CIVIL RIGHTS CASES Born on January 9, 1781, in West Barn-stable, Massachusetts, Shaw was the second son
of the Reverend Oaks Shaw, who taught his son English, the classics, and the Bible In 1800 Shaw graduated from Harvard University with high distinction A brief writing career led to studying law with a Boston lawyer, and in 1804 Shaw was admitted to the bar in both New Hampshire and Massachusetts Over the next two decades, he practiced some law while immersing himself in his home state’s politics
He was by turns aJUSTICE OF THE PEACE, an ardent Federalist organizer, a delegate to the Massa-chusetts Constitutional Convention of 1820, and a state senator in 1821 and 1822
Shaw’s decision to devote himself fully to legal practice marked the turning point in his career From 1823 on, he devoted himself to the practice ofCOMMERCIAL LAW The nation was
in the process of transforming itself from an
[WHILE]THE MAINTENANCE OF SEPARATE SCHOOLS TENDS TO DEEPEN AND PERPETUATE THE ODIOUS DISTINCTION
OF CASTE,
PREJUDICE,IF IT EXISTS,IS NOT CREATED BY LAW,
AND PROBABLY CANNOT BE CHANGED
BY LAW
—L EMUEL S HAW
SHAW, LEMUEL 171
Trang 5agrarian society into a modern urban industrial one Alert to the changes underway, Shaw became wealthy and prominent as a lawyer to growing industrial concerns In 1830, on the basis of this reputation, Governor LEVI LINCOLN
offered Shaw the office of chief justice of the Supreme Judicial Court of Massachusetts Shaw took the offer despite the sacrifice of a lucrative career and the prospect of long absences from his family
Shaw’s opinions often broke from prece-dent In Farwell v Boston and Worcester Rail Road, 45 Mass (4 Met.) 49 (1842), he denied recovery of damages to a railroad worker whose hand was lost due to theNEGLIGENCE of another
worker The injured worker had sued the employer Shaw’s concern was to limit the liability of employers, and he accomplished this
by importing from EnglishCOMMON LAWthe so-calledFELLOW-SERVANT RULE This rule protected employers from being sued in such cases on the theory that workers know that they take risks and that their salaries are compensation enough By introducing to U.S law this doctrine, which became widely popular, Shaw hoped to benefit the commonwealth with unhindered industrial growth His decision helped frustrate injured workers’ claims for more than a half century, until the advent of
WORKERS’COMPENSATIONlaws in the early twenti-eth century eviscerated the doctrine in most jurisdictions
Yet Shaw was not against labor In his best-known and most praised decision, Shaw cleared the way for LABOR UNIONS to operate freely in Massachusetts Commonwealth v Hunt, 45 Mass (4 Met.) 111 (1842), freed the state’s unions from the prevailing judicial application
of the law of criminal CONSPIRACY to labor actions In the twentieth century, the opinion has been hailed as the foremost nineteenth-century ruling on labor unions because it removed from them the stigma of criminality Shaw’s views onCIVIL RIGHTSwere among his most controversial He was praised by aboli-tionists and condemned by southern slave states for his opinion in Commonwealth v Aves, 35 Mass (18 Pick.) 193 (1836) Aves held that a slave brought voluntarily into the state became free and could not be required by his or her master to leave to return to SLAVERY But subsequently, Shaw always denied writs of
HABEAS CORPUS to free fugitive slaves In 1849
1775 1800 1825 1850 1875
❖
1781 Born,
Barnstable,
Mass.
1775–83
American Revolution
◆
1800 Graduated from Harvard University
◆
1804 Admitted to bar in New Hampshire and Mass.
1812–14 War of 1812
◆ ◆
1823 Took up practice of commercial law full time
1820 Attended Mass Constitutional Convention
1821–22 Served in Mass Senate
1836 Held that slaves brought voluntarily into the state became free in
Commonwealth
v Aves
1842 Used fellow-servant rule to limit the liability of employers
in Farwell v Boston and Worcester Railroad; upheld labor unions' right to operate in Commonwealth v Hunt
❖
1861–65 U.S Civil War
1861 Died, Boston, Mass.
1830–60 Served as chief justice of the Supreme Judicial Court of Mass.
1849 Upheld the segregation of African American schoolchildren
in Roberts v
City of Boston
Lemuel Shaw.
LIBRARY OF CONGRESS
172 SHAW, LEMUEL
Trang 6he upheld the SEGREGATION of black
school-children in Roberts v City of Boston, 59 Mass
(5 Cush.) 198 As the first in a line of state
and federal cases that supported school
segre-gation, Shaw’s opinion in Roberts was cited
by the Supreme Court in 1896 when it upheld
a Louisiana law requiring the separation of
races in railroad cars in the infamous case
of PLESSY V FERGUSON, 163 U.S 537, 16 S Ct
1138, 41 L Ed 256
Shaw’s 30 years on the Massachusetts bench
ended with his retirement in 1860 He died in
Boston on March 30, 1861
FURTHER READINGS
Adlow, Elijah 1962 The Genius of Lemuel Shaw: Expounder
of the Common Law Boston: Massachusetts Bar
Association.
Brown, Thomas J 2001 “‘Thomas Sims’s Case’ after 150
Years: A Motion to Reconsider ” Massachusetts Legal
History 7 (annual).
Levy, Leonard Williams 1986 The Law of the
Common-wealth and Chief Justice Shaw New York: Oxford Univ.
Press.
Shaw, Lemuel 1970 The Lemuel Shaw Papers (microform).
Ed by Frederick S Allis Jr Boston: Massachusetts
Historical Society.
SHAW V HUNT
In 1996 the U.S Supreme Court dealt a severe
blow to states’ attempts to create election districts
containing a majority of minority voters to
ensure minority representation In Shaw v Hunt,
517 U.S 899, 116 S Ct 1894, 135 L Ed 2d 207,
the Court ruled that the redrawing of a North
Carolina congressional district into a
“bizarre-looking” shape to include a majority of African
Americans could not be justified by the VOTING
RIGHTS ACT OF 1965 (42 U.S.C.A § 1973c),
because it violated the EQUAL PROTECTION Clause
of the FOURTEENTH AMENDMENTto the U.S
Cons-titution
The case arose out of two disputed
congres-sional election districts created by the North
Carolina legislature following the 1990 census
North Carolina increased its congressional
delegation from 11 to 12 seats in the HOUSE OF
REPRESENTATIVES In 1991, the state legislature
reapportioned the election districts and
in-cluded one black-majority district The
DEPART-MENT OF JUSTICE, which under the Voting Rights
Act must“preclear” redistricting plans, rejected
it The department found that one
black-majority district was insufficient in a state
where 22 percent of the population is black
In 1992 the North Carolina legislature prepared a new plan that created two black-majority districts, the First and the Twelfth In November 1992, Eva Clayton and Mel Watt were elected from these districts, the first blacks to represent North Carolina since 1901
However, the REPUBLICAN PARTY and five white voters challenged the two election districts in federal court The white plaintiffs argued that the two districts amounted to unlawful racial gerrymandering
The Twelfth District was worm-shaped, stretching 160 miles from Gastonia to Durham, hugging the thin line of Interstate 85 The district was so narrow at one point that drivers
in the northbound lane of the interstate were in the district, while drivers in the southbound lane were in another district Of the ten counties through which the district passed, five were cut into three different districts, with some towns divided The First District was hook-shaped, with fingerlike extensions It had been com-pared to a“Rorschach ink-blot test” and a “bug splattered on a windshield.”
A three-judge panel reviewed the claims of the plaintiffs and dismissed the case The court ruled that the plaintiffs had failed to state an equal protection claim because favoring minority voters was not discriminatory in the constitu-tional sense, and the plan did not lead to proportional underrepresentation of white voters statewide (808 F Supp 461[E.D.N.C 1992])
An appeal followed to the U.S Supreme Court (Shaw v Reno, 509 U.S 630, 113 S Ct
2816, 125 L Ed 2d 511[1993]), which laid the groundwork for the Court’s 1996 decision On a 5–4 vote, the Supreme Court reversed the three-judge panel and reinstated the lawsuit, ruling that the plaintiffs did have a CAUSE OF ACTION
under the Fourteenth Amendment’s Equal Protection Clause JusticeSANDRA DAY O’CONNOR,
in her majority opinion, noted the long history of court cases involving efforts by southern states to restrict voting rights for black Americans In Gomillion v Lightfoot, 364 U.S
339, 81 S Ct 125, 5 L Ed 2d 110 (1960), the state of Alabama redefined the boundaries of the city of Tuskegee “from a square to an uncouth twenty-eight-sided figure” to exclude black voters from the city limits The passage of the Voting Rights Act of 1965 had a dramatic effect on these kinds of practices By the early 1970s, voter registration had significantly improved
SHAW V HUNT 173
Trang 7for black voters But black voters were frustrated
in their efforts to elect their candidates because
of multimember or at-large districts, which diluted their votes and enabled the white majority to elect its candidates In 1982 Section
2 of the Voting Rights Act was amended to prohibit legislation that results in the dilution of
a minority’s voting strength, regardless of the legislature’s intent
It was against this background that O’Con-nor shaped her analysis Reviewing the two districts in dispute, she found it“unsettling how closely the North Carolina plan resembles the most egregious racial gerrymandering of the past.” She agreed that prior cases had never made race-conscious redistricting “impermissi-ble in all circumstances,” yet she agreed with the plaintiffs that the redistricting was“so extremely irregular on its face that it rationally can be viewed only as an effort to segregate races for purposes of voting, without regard for tradi-tional districting principles and without suffi-ciently compelling justification.”
Under a constitutional challenge regarding the Equal Protection Clause, legislation that involves racial classification requires a court to use theSTRICT SCRUTINYstandard of review A law will be upheld under strict scrutiny if it is supported by a compelling STATE INTEREST and
is narrowly drawn to achieve that interest in the least restrictive manner possible O’Connor agreed that district lines “obviously drawn for the purpose of separating voters by race”
required application of the strict scrutiny standard
In examining the districts, O’Connor held that race-based districts will be considered suspect if they disregard traditional districting principles “such as compactness, contiguity, and respect for political subdivisions.” These
“objective” criteria are required because in reapportionment, “appearances do matter.”
O’Connor stated that a reapportionment plan that draws in persons of one race from widely separated geographic and political boundaries and“who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apart-heid.” This type of redistricting reinforces
“impermissible racial stereotypes” and may
“exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.”
O’Connor also characterized the redistricting plan as“pernicious,” sending a message to voters that elected officials are to represent members of their voting group and not their entire constitu-ency For these reasons, the majority concluded that a reapportionment statute may be challenged when the plaintiffs claim that the plan is an
“effort to separate voters into different districts
on the basis of race, and that the separation lacks sufficient justification.”
The Supreme Court remanded the case to the lower court, directing it to apply the standards articulated in the opinion to its analysis of the congressional districts The lower-court panel ruled that the redistricting plan was narrowly tailored to serve compelling state interests and did not violate equal protection (861 F Supp 408 [E.D.N.C 1994]) The plaintiffs again appealed
In Shaw v Hunt, the Court again split 5–4, with Chief Justice WILLIAM H REHNQUIST writing the majority opinion that struck down the redistricting plan Compared with the firstCOURT OPINION, the decision was relatively brief and to the point Rehnquist applied the strict scrutiny test because race had been the predominant consideration in drawing the district lines Therefore, North Carolina had to prove that its scheme had been narrowly tailored to serve a compelling state interest This burden, the majority concluded, it did not meet
Rehnquist found the three “compelling interests” asserted by North Carolina to be lacking in merit In addition, none was narrowly tailored North Carolina had claimed that it had
an interest in eradicating the effects of past
DISCRIMINATION, but the lower court had found that this interest did not precipitate the use of race in the redistricting plan As Rehnquist noted, to prove a“compelling interest,” North Carolina had to show that the alleged objective was the legislature’s “actual purpose” for the redistricting plan Therefore, the state could not assert this interest after the fact
North Carolina also asserted a compelling interest in complying with Section 5 of the Voting Rights Act, arguing that it was the state’s duty to follow the mandates of the Department
of Justice in the preclearance process and create two, rather than one, black-majority districts Rehnquist rejected this argument because the Court disagreed with the Department of Justice that Section 5 requires maximizing the number
of black-majority districts wherever possible
174 SHAW V HUNT
Trang 8Under the legislature’s original plan, it had only
proposed one black-majority district Rehnquist
concluded that this maximization policy was
not grounded in Section 5; therefore, no
com-pelling interest was at stake
Rehnquist also saw no merit in the state’s
argument that under section 2 of the Voting
Rights Act it had a compelling interest to create a
second black-majority district North Carolina
contended that failure to do so would have
brought a charge under Section 2 that it was
diluting minority voting strength by confining
most African Americans to one district
Rehnquist found this contention misplaced
because a potential Section 2 violation could only
be lodged if the minority group were
“geographi-cally compact.” In this case, the original
one-district plan was anything but compact
In 2001 the U.S Supreme Court made a
final ruling on the issue in Hunt v Cromartie,
526 U.S 541, 121 S.Ct 1452, 149 L.Ed.2d 430
(2001) In the Hunt decision, the court ruled
that a largely black district is constitutional, but
only if it is drawn to satisfy political, rather than
racial, motives Although there have been
subsequent lower court decisions that have
declined to extend the Supreme Court’s
deter-mination, it remains the prevailing standard
governing the use of racial classifications as a
consideration when drawing voter districts
FURTHER READINGS
Amy, Douglas J 1995 Real Choices—New Voices: The Case
for Proportional Representation Elections in the United
States New York: Columbia University Press.
Patrick, Deval 1997 “Toward a More Colorblind Society?
Congressional Redistricting after Shaw v Hunt and
Bush v Vera.” North Carolina Law Review 75 (September).
Rubin, Peter J 2000 “Reconnecting Doctrine and Purpose:
A Comprehensive Approach to Strict Scrutiny after
Adarand and Shaw ” University of Pennsylvania Law
Review 149 (November).
Rush, Mark E 1998 Voting Rights and Redistricting in the
United States Westport, Conn.: Greenwood.
Rush, Mark E., 2000 Does Redistricting Make a Difference?:
Partisan Representation and Electoral Behavior Lanham,
Md.: Lexington Books.
CROSS REFERENCES
Apportionment; Elections; Gerrymander; Voting.
SHAYS’S REBELLION
A revolt by desperate Massachusetts farmers
in 1786, Shays’s Rebellion arose from the
economic hardship that followed the WAR OF
INDEPENDENCE Named for its reluctant leader, Daniel Shays, the rebellion sought to win help from the state legislature for bankrupt and dispossessed farmers More than a thousand rebels blocked courts, skirmished with state militia, and were ultimately defeated, and many
of them were captured But the rebellion bore fruit Acknowledging widespread suffering, the state granted relief to debtors More significantly, the rebellion had a strong influence on the future course of federal government Because the federal government had been powerless under the ARTICLES OF CONFEDERATION to intervene, the Framers created a more powerful national government in the U.S Constitution
Three years after peace with Great Britain, the states were buffeted by inflation, devalued currency, and mounting debt Among the hardest hit was Massachusetts Stagnant trade and rampant unemployment had devastated farmers who, unable to sell their produce, had their property seized by courts in order to pay off debts and overdue taxes Hundreds of farmers were dispossessed; dozens of them were jailed The conditions for revolt were ripe, stoked by rumors that the state’s wealthy merchants were plotting
to seize farm lands for themselves and turn the farmers into peasants
The rebellion that followed came in two stages The first steps were taken in the summer and fall of 1786 In five counties, mobs of farmers stopped the courts from sitting Their goal was to stop the trials of debtors until elections could be held They hoped that a new legislature would follow the example of other states by providing legal relief for them This action provoked the state’s governor, James Bowdoin, into sending out the state militia
Reluctantly, Daniel Shays, a destitute 39-year-old former captain in the Continental Army, was pressed into leadership of the insurgents
Shays sought to prevent the court from sitting
in Springfield, and on September 26 he defied the state militia with his own force of 500 men
The men prevailed at first, forcing the court to adjourn But with the capture of another rebel leader in November, the rebellion collapsed
By December the rebels had regrouped for another stand Because they feared that this time the state was going to indict them on charges ofTREASON, they marched on the federal arsenal in Springfield on January 25, 1784, planning to continue on to the courthouse
SHAYS’S REBELLION 175
Trang 9Shays had some 1,100 men under his mand But the militia there, under the com-mand of Major General William Shepherd, easily held them off: four people died before
a single cannon volley dispersed Shays’s men, who were pursued and arrested Despite scat-tered resistance, the rebellion was crushed by February 4
However, by popularizing the plight of debtors, the defeated rebels succeeded in their goals Massachusetts elected a new legislature that quickly acceded to several demands of Shays’s followers, chiefly by enacting relief measures Moreover, although 14 of the rebel leaders were convicted and sentenced to death, they all received pardons or short prison sentences Within a year’s time, the state was prosperous again and enmities had cooled
The most lasting and significant impact came at the federal level In light of the events in Massachusetts, it was clear to the congress of the Confederation that it lacked the legal power to send aid to the states in a time of crisis Only six years earlier, the 13 original states had drawn up their governing document, the Articles of Confederation Now the congress invited the states to send delegates to a convention in Philadelphia in May 1787 to revise the Articles
This plan was quickly dropped in favor of much broader action—the drafting of a new constitu-tion that would establish a more powerful national government In part due to the weaknesses exposed by Shays’s Rebellion, many delegates at the Constitutional Convention gave support to greater federal power, ultimately embodied in the Constitution
FURTHER READINGS Formisano, Ronald P 2007 For the People: American Populist Movements from the Revolution to the 1850s.
Chapel Hill, NC: Univ of North Carolina Press.
Priest, Claire 1999 “Colonial Courts and Secured Credit:
Early American Commercial Litigation and Shays’
Rebellion.” Yale Law Journal 108 (June).
Richards, Leonard L 2002 Shays’s Rebellion: The American Revolution’s Final Battle Philadelphia, PA: Univ of Pennsylvania Press.
Thompson, Paul M 1998 “The Reaction to Shays’
Rebellion ” Massachusetts Legal History 4 (annual).
CROSS REFERENCE Constitution of the United States.
SHELLEY’S CASE SeeRULE IN SHELLEY’S CASE
SHELTER
A general term used in statutes that relates to the provision of food, clothing, and housing for speci-fied individuals; a home with a proper environ-ment that affords protection from the weather
A tax shelter refers to any method used by an individual or entity to reduce taxable income and thus reduce the amount of taxes paid to a state or federal government
SHEPARDIZING
A term used in the legal profession to describe the process of using a citator to discover the history of
a case or statute to determine whether it is still good law
The expression is derived from the act of using Shepard’s Citations An individual check-ing a citation by shepardizcheck-ing a case will be able
to find out various information, such as how often the opinion has been followed in later cases and whether a particular case has been overruled or modified
CROSS REFERENCE Shepard ’s® Citations.
SHEPARD’S®CITATIONS
A set of volumes published primarily for use by judges when they are in the process of writing judicial decisions and by lawyers when they are preparing briefs, or memoranda of law, that contain a record of the status of cases or statutes Shepard’s Citations provide a judicial history
of cases and statutes, make note of new cases, and indicate whether the law in a particular case has been followed, modified, or overruled in subsequent cases They are organized into col-umns of citations, and various abbreviations indicate whether a case has been overruled, superseded, or cited in the dissenting opinion of
a later case
The term shepardizing is derived from the act of using Shepard’s citators
SHEPPARD, SAMUEL H
In 1954 a sensational murder trial laid the groundwork for a significant U.S Supreme Court ruling on the rights of criminal defendants to a fair trial Dr Samuel H Sheppard, a prominent Cleveland osteopath, was convicted of murder-ing his pregnant wife, Marilyn Sheppard
176 SHELLEY’S CASE
Trang 10He was sentenced to life in prison, where he
remained before his appeal reached the Supreme
Court in 1966 The Court ordered a new trial,
which led to Sheppard’s eventual acquittal
Sheppard v Maxwell, 384 U.S 333, 86 S Ct
1507, 16 L Ed 2d 600, became the leading case
on PRETRIAL PUBLICITY, shaping how judges have
since treated the difficult problem of
guarantee-ing a defendant a fair trial in the face of massive
media attention
On July 4, 1954, 31-year-old Marilyn
Shep-pard, who was four months pregnant, was
bludgeoned to death in the bedroom of the
couple’s impressive Lake Erie, Pennsylvania
home According to Sheppard, he had been
sleeping on a downstairs couch when he heard
noises and moans coming from the bedroom
where his wife was sleeping He ran to help her
but was knocked unconscious by a bushy-haired
man He awoke to find that his wife had been
murdered and then chased the intruder across the
lawn where he was knocked out a second time
After awakening outside the house, he
immedi-ately telephoned the mayor of Cleveland, his
friend, and related the story
Both prosecutors and the media seized on
Sheppard as the murderer Even before his
arrest three weeks later, police interrogated
Sheppard at the coroner’s inquest without his
lawyer present Rumors of marital difficulties
and Sheppard’s alleged extra-marital affairs led
the Cleveland newspapers to sensationalize the
case until it became notorious nationwide
At the trial in the fall of 1954, prosecutors had
no clear-cut motive to explain why Sheppard had
allegedly killed his wife The best they could offer
was the intimation that he had been having an
affair with a former laboratory technician, which
was supported by friends and witnesses The first
witnesses, friends of both Sam and Marilyn,
testified on November 4 and said that the couple
had talked of divorce The key trial witness was
Susan Hayes, the lab technician, who under
gentle questioning told of trysts with Sheppard
starting in 1952 She claimed that Sheppard called
her when he visited Los Angeles and that she
stayed with him Another key witness, Dr
Gerber, told the jury that the blood left on
Marilyn’s pillowcase revealed the impression of a
surgical instrument Following a chaotic trial, in
which the media had telephones, special tables,
opportunities to photograph the jurors, and even
interviews with the judge on the courthouse
steps, the jury returned a guilty verdict Sheppard received a life sentence
From 1954 to 1966, Sheppard continuously appealed the jury’s verdict He argued that pretrial publicity had destroyed his chance of a fair trial by prejudicing jurors His appeals failed until 1964, when U.S District Court Judge Carl
A Weinman ruled in his favor (Sheppard v
Maxwell, 231 F Supp 37 [S.D Ohio]) Without addressing Sheppard’s innocence or guilt, Wein-man held that he had been deniedDUE PROCESS
because negative reporting by the Cleveland press had adversely affected the jurors’ verdict
But a year later, the U.S Court of Appeals in Cincinnati overruled Judge Weinman (Sheppard
v Maxwell, 346 F.2d 707 [6th Cir 1965]) The appeals court said that qualified jurors are able to make thoughtful rulings in the face of publicity
The U.S Supreme Court ultimately ruled that Sheppard’s trial had been prejudiced by
Physician Sam Sheppard spent over a decade in prison for the murder of his wife before he was acquitted in a second trial ordered by the Supreme Court.
AP IMAGES
SHEPPARD, SAMUEL H 177