Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P19 pps

employee 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 sexually harass another heterosexual 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 th e 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, exp osed 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’sactions 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 m e n. 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, hostil e, 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 sexual harassment, the Supreme Court held in Oncale v. Sundowner Offshore Services, Inc., et al., 523 U.S. 7 5, 118 S.Ct. 998, 140 L.Ed.2d. 201 ( U.S. 1 998), 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 placing it on Oncale’sbody,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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 168 SEXUAL HARASSMENT minimize 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 “spe ak in jurisdictional terms.” Absent an explicit statu- tory limitation, “courts should treat the restric- tion as nonjurisdictional 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 sham PLEADING is one that is good in form but is so clearly false in fact that it does not raise any genuine issue. v SHAPIRO, ROBERT LESLIE Robert Leslie Shapiro is a prominent West Coast defense lawyer. He entered private practice in 1972 after a brief stint as a PROSECUTOR. Within a decade he was representing film stars, produ- cers, professional athletes, and other cele brities. 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 . —ROBERT SHAPIRO GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHAPIRO, ROBERT LESLIE 169 the Los Angeles County District Attorney’sOffice 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 an ACQUITTAL 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 INNOCENCE and 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 de fense 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 star O.J. SIMPSON for 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 surre nder 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 Robert leslie Shapiro 1942– ▼▼ ▼▼ ❖ 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 170 SHAPIRO, ROBERT LESLIE chase 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 Ecsta sy 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. v SHAW, 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 commer cial 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 state POLICE POWER and to address the distinction between police power and EMINENT DOMAIN.In Brown v. Kendall (1850), Shaw invoked NEGLI- GENCE as 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 LAW and 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 dec ades, he practiced some law while immersing himself in his home state’s politics. He was by turns a JUSTICE OF THE PEACE, an ardent Federalist or ganizer, 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 of COMMERCIAL 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 . —LEMUEL SHAW GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHAW, LEMUEL 171 agrarian 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 the NEGLIGENCE 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 English COMMON LAW the so- called FELLOW-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’ COMPENSATION laws 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 on CIVIL RIGHTS were 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 ▼▼ ▼▼ Lemuel Shaw 1781–1861 1775 1825 1850 1875 1800 ❖ 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 172 SHAW, LEMUEL he 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 AMENDMENT to 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 Caroli na legislature prepared a new plan that creat ed two black- majority districts, the Firs t 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. Justice SANDRA 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 s ignific antly i mproved GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHAW V. HUNT 173 for 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 Caroli na 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 the STRICT SCRUTINY standard 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. 199 4]). 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 first COURT 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 174 SHAW V. HUNT Under 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 district s. 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 Apportionm ent; Elections; Gerrymander; Vot ing. 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 of TREASON, they marched on the federal arsenal in Springfield on January 25, 1784, planning to continue on to the courthouse. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHAYS’ S REBELLION 175 Shays had some 1,100 men under his com- mand. But the militia there, under the com- mand of Major General William Shepherd, easily held them off: four people died before a sing le 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 See RULE 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 shepardizing 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. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 176 SHELLEY’ SCASE He 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]). With out addressing Sheppard’s innocence or guilt, Wein- man held that he had been denied DUE 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 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SHEPPARD, SAMUEL H. 177 . justice of the Supreme Judicial Court of Mass. 18 49 Upheld the segregation of African American schoolchildren in Roberts v. City of Boston Lemuel Shaw. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN. CASTE , PREJUDICE, IF IT EXISTS , IS NOT CREATED BY LAW , AND PROBABLY CANNOT BE CHANGED BY LAW . —LEMUEL SHAW GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHAW, LEMUEL 171 agrarian society into. Shapiro Foundation for Drug and Alcohol Awareness 2000 197 5 195 0 Robert L. Shapiro. JESSE GRANT/ GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 170 SHAPIRO, ROBERT LESLIE chase along