Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P20 pot

pretrial publicity, holding that the negative publicity had been so virulent that prejudice could safely be presumed. The Court blamed the trial judge for not minimizing the effect of the publicity, which it likened to a circus atmo- sphere. The decision heightened consideration of criminal defendant’s SIXTH AMENDMENT right to due process. Significantly, the Court did not seek to curtail the FREEDOM OF THE PRESS to report on trials. Instead, the Court said that in a case where a defendant’s rights are threatened by pretrial publicity, the trial judge must protect the defendant. This, it said, could be accomplished by taking such measures as isolating the jury through a process called SEQUESTRATION,inwhich jury members are shielded from contact with the outside world during the course of a trial. Although the Supreme Court did not rule on Sheppard’s guilt or innocence, it reversed his conviction and ordered a new trial. In Novem- ber 1966, 13 years after his conviction, he stood trial again. This time, Sheppard was represented by the high-profile attorney F. LEE BAILEY. Judge Francis Talty imposed tight restrictions for on the new trial, forbidding cameras and sketch artists, prohibiting individuals from moving about the courtroom, and eliminating seats for out-of-town papers, national publications, or television reporters. John T. Corrigan served as the county prosecutor for the case, and his opening statement lacked mention of both the supposed surgical instrument and Susan Hayes. Witnesses were on and off the stand quickly, and Hayes was mentioned only once, in a police statement Sheppard gave denying having an affair with her. The jurors were left to wonder what motive he would have for killing his wife. Bailey’s star witness in the case was natio nally known criminologist Paul Kirk, who impressed the jury with his study of the blood spatter from Marilyn’s body. Kirk claimed that the splatter revealed a left-handed killer and that one blood spot was neither Marilyn’s blood nor Sam’s, indicating the presence of a third person. He also said that Marilyn had broken a tooth biting the finger of her attacker, who must have bled copiously. Sheppard was acquitted. Four years later, after a brief career as a professional wrestler named “Killer Sheppard,” a despondent Sheppard died on April 7, 1970, from liver complications caused by heavy drinking. In 1995, Sheppard’s son, Sam Reese Shep- pard, used his father’s estate to file a law suit against Ohio for the wrongful imprisonment of Dr. Sheppard. To win the case, Sheppard had to prove that his father was innocent, a more difficult standard than for the acquittal Dr. Sheppard was granted at his retrial. Sheppard hoped to prove his father’s innocence using new DNA EVIDENCE. Although he said his sole intention was to clear his father’s name, Sheppard stood to receive as much as $2 million in damages for the ten years his father spent in jail. The younger Sheppard and his attorneys suggested that Marilyn Sheppard may have been killed by Richard Eberling, a window washer who had been employed by the Sheppards at the time of the murder. In 1984 Eberling had been convicted of killing an elderly woman named Ethel Durkin in order to inherit her estate. In 1996 Durkin’s former nurse stated that Eberling had told her that he had killed Marilyn Sheppard. Eberling, who was in prison for Durkin’s murder, denied making the statement. In February 1997 the Sheppard family attorneys announced that DNA testing con- ducted by Dr. Mohammed Tahir showed that the blood found in the Sheppard home the night of Marilyn’s murder could conceivably be that of Richard Eberling. In September of that year Sam Reese Sheppard had his father’sremains exhumed in order to conduct DNA testing. In March 1998 the Sheppard attorneys stated that the results of the DNA testing excluded Dr. Sheppard from the bloodstains found at the murder scene. In July 1998 Eberling died in prison. The state had the bodies of Mrs. Sheppard and the fetus she was carrying exhumed in 1999 so that DNA and other tests could be conducted. Prosecutors stated that the test results still pointed to Dr. Sheppard as the murderer. The wrongful imprisonment trial com- menced in February 2000. Led by William Mason, Ohio prosecutors maintained their position that Dr. Sheppard killed his wife. They challenged Tahir’s DNA results, saying Tahir used contaminated DNA samples. Prominent trial lawyer F. Lee Bailey, who defended Dr. Sheppard during his retrial in 1966, was the first witness. Bailey testified that the 1954 trial was a conspiracy among police, prosecutors, the court, and newspapers to convict an innocent man. The younger Sheppard testified about the night of the murder that took place when he was seven. He said there was no tension between his parents when his mother tucked GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 178 SHEPPARD, SAMUEL H. him into bed that night. In the early morning hours, his uncle and a neighbor woke him to tell him “something terrible had happened.” Antic- ipating the defense’s case, Sheppard admitted that his father had extramarital sexual relations while Marilyn recovered from sexual problems. While Sheppard testified, the prosecutors had a surprise for the jury. Although Sheppard always said he was more interested in clearing his father’s name than making money, prosecu- tor William Mason disclosed in open court that Sheppard once asked for $3.2 million to settle the case out of court. The judge described Mason’s disclosure as “improper” because the offer had been confidential. Mason’s tactic worked, however, as jurors got to hear damag- ing evidence they should not have heard. When it came time for the prosecutors’ case, they belittled Tahir’s DNA evidence as “mumbo jumbo.” They said Dr. Sheppard was a playboy who had an affair with his lab technician and then killed his pregnant wife to get out of the marriage. Dr. Robert White used medical records to testify that Dr. Sheppard’s story of being knocked out by an intruder was shaky. In closing arguments, Prosecutor William Mason said to the jury, “It may just be that you are being asked to award the killer’s son for the killer bludgeoning his wife.” After listening to testimony for two months, the jury deliberated for less than three hours on April 12, 2000, before finding in favor of the Ohio prosecutors. In a short statement after his loss, Sam Reese Sheppard said, “The Sheppard family may be bloodied, but we are unbowed. We’ve been unbowed for 45 years. We ’ll be unbowed for all time.” FURTHER READINGS Cooper, Cynthia L., and Reese Sam Sheppard. 1995. Mockery of Justice: The True Story of the Sheppard Murder Case. Boston: Northeastern Univ. Press. Flynn, Joseph F. 1993. “Prejudicial Publicity in Criminal Trials: Bringing Sheppard v. Maxwell into the Nineties.” New England Law Review 27 (spring). Neff, James. 2002. The Wrong Man: The Final Verdict on the Dr. Sam Sheppard Murder Case. New York: Random House. CROSS REFERENCES DNA Evidence; First Amendment; Sequestration. SHERIFF Usually the chief peace officer of a county. The modern office of sheriff in the United States descends from a 1,000 year-old English tradition: a “shire-reeve” (shire-keeper) is the oldest appointment of the English crown. Because county governments were typically the first established units of government in newly settled American territories, sheriffs were among the first elected public officials in an area and thus developed a leading role in local law enforcement. A dichotomy frequently exists in the early 2000s between a sheriff’s jurisdiction and the jurisdiction of a local police department. A metropolitan area may encompass an entire county or more; police departments and sheriffs will often maintain concurrent jurisdiction in the overlapping area. A sheriff may assume that a local police department will do its duty in enforcing the law, but the primary obligation rests with the sheriff and requires him to act when evidence of neglect of that duty exists. Some state constitutions specifically provide for the office of sheriff, and state legislatures frequently establish conditions of office. Sheriffs are typically chosen in a county election. To serve as sheriff, an individual must usually meet certain requirements: residence within the jurisdiction, no criminal record, U.S. citizenship, and compliance with provisions guarding against nepotism. Sometimes officeholders must also satisfy certain age, physical, and educational requirements. A sheriff typically takes an oath and posts a bond upon taking office to ensure the faithful performance of the duties of the office. Compensation typically consists of commissions or fees for particular services performed, a fixed salary, or a combination of fees and salary. State statutes or state constitutions regulate many duties of a sheriff and emphasize preserv- ing the peace and enforcing criminal laws. Sheriffs arrest and commit to jail felons and other lawbreakers, including pretrial detainees and sentenced prisoners. They transport prison- ers to state penal facilities and mental patients to state commitment facilities. In addition, a sheriff is usually responsible for the custody and care of the county courthouse and the jail, attends upon courts of record in serving process, and often has the power to summon jurors. As an officer of the court, a sheriff is subject to a court’sordersand direction. Sheriffs also have the power to serve process, including summons, mesne (intermedi- ate) process, and final process. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHERIFF 179 State statutes define a sheriff’s role in serving process. Generally a sheriff is the proper officer to execute all writs returnable to court, unless another person is appointed. A sheriff must execute process without attempting to determine its validity. A court will not direct or advise a sheriff as to the manner of executing process, but she has a duty to effect service promptly, respectfully, and without unnecessary violence. A sheriff must exercise due diligence but need not expend all possible efforts in effecting service. As part of the traditional common-law duties passed down from the English, sheriffs retain the power to summon the aid of a posse, or POSSE COMITATUS , as it is sometimes called. Ideally, a posse furnishes immediate, able-bodied assis- tance to a sheriff in need. For example, a sheriff may summon bystanders to assist in recapturing an escaped prisoner. These persons are neither officers nor private citizens. They are generally clothed with the same protection of the law as the sheriff and have full authority to provide the sheriff with any necessary assistance. Sheriffs also levy writs of attachment, that is, the seizure of a debtor’s property pursuant to a court order. The sheriff must safeguard seized goods from damage or loss, but he does not absolutely ensure their safety. Generally, prop- erty that is lost, destroyed, or damaged by something other than a sheriff’s neglect will not result in liability for the sheriff. After seizure, the goods are sold at a sheriff’s auction to satisfy creditors’ claims. A sheriff decides the time, manner, and place of a JUDICIAL SALE, collects purchase monies, and distributes the proceeds pursuant to court instructions. A sheriff may not purchase property at a sheriff’s sale. In general, a sheriff may be liable in damages to any person injured as a consequence of a breach of duty connected with the office. A sheriff may not exceed the authority given by law: a sheriff who uses legal authority for illegal conduct is liable as if she had acted without process of law. Some instances where liability may be imposed include a negligent failure to seize sufficient available property that would reasonably be expected to satisfy a debt, a failure to execute process delivered for execution, a levy upon the wrong party, or an excessive levy. Liability is in a personal capacity, not in an official capacity. Limited IMMUNITY usually pro- tects a sheriff from liability for acts performed in conjunction with official duties but will not shield her from liability caused by overstepping the authority of the office. A sheriff typically has broad discretion in appointing, removing, and setting conditions of employment for deputies. A deputy is said to be clothed with the power and authority of the sheriff with respect to the sheriff ’s ministerial duties. For example, a deputy may act for the sheriff in the service and return of process, in making an execution or other judicial sale (including the appraisal of the property as a prerequisite to such sale), in executing a deed to a purchaser, in serving an execution for taxes, and in serving a GARNISHMENT summons. A deputy’s acts, breaches, or misconduct committed in the performance of official duties may result in liability on the sheriff’s behalf. For example, in the absence of statutory authority to the contrary, a sheriff could be held liable for a deputy’s reckless or wanton acts during an arrest, NEGLIGENCE in caring for and protecting prisoners, or failure to serve process or return a writ. A sheriff may be removed from office for a variety of reasons, including habit ual intoxica- tion or intoxi cation on the job; misconduct in office, such as misuse of public funds or property; refusal to enforce the law; mistreat- ment of prisoners; neglect of duty; nepotism; or conviction of a crime. RESOURCES Brennan, Columb. 1992. “Sheriffs’ 1,000 Years.” Law Institute Journal 66 (December). Gullion, Steve. 1992. “Sheriffs in Search of a Role.” New Law Journal (August 14). National Sheriff’s Association Website. Available online at http://www.sheriffs.org/ (accessed September 7, 2009). U.S. Department of Justice. Census of State and Local Law Enforcement Agencies, 2004. Available online at http:// www.ojp.usdoj.gov/bjs/abstract/csllea04.htm; website home page: http://www.ojp.usdoj.gov (accessed September 7, 2009). CROSS REFERENCE Service of Process. SHERIFF’S DEED A document giving ownership rights in property to a buyer at a sheriff’s sale (a sale held by a sheriff to pay a court judgment against the owner of the property). A deed given at a sheriff’s sale in fore- closure of a mortgage. The givi ng of said deed begins a STATUTORY REDEMPTION period. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 180 SHERIFF’ SDEED SHERMAN ANTI-TRUST ACT The Sherman Anti-Trust Act of 1890 (15 U.S.C. A. §§ 1 et seq.), the first and most significant of the U.S. antitrust laws, was signed into law by President BENJAMIN HARRISON and is named after its primary supporter, Ohio Senator JOHN SHERMAN . The prevailing economic theory supporting antitrust laws in the United States is that the public is best served by free competition in trade and industry. When businesses fairly compete for the consumer’s dollar, the quality of products and services increases while the prices decrease. However, many businesses would rather dictate the price, quantity, and quality of the goods that they produce, without having to compete for consumers. Some busi- nesses have tried to eliminate competition through illegal means, such as fixing prices and assigning exclusive territories to different competitors within an industry. Antitrust laws seek to eliminate such illegal behavior and promote free and fair marketplace competition. Until the late 1800s, the federal government encouraged the growth of big business . By the end of the century, however, the emergence of powerful trusts began to threaten the U.S. business climate. Trusts were corporate holding companies that, by 1888, had consolidated a very large share of U.S. manufacturing and mining industries into nationwide monopolies. The trusts found that through consolidation they could charge monopoly prices and thus make excessive financial gains. Access to greater political power at the state and national levels led to further economic benefits for the trusts, such as tariffs or discriminatory railroad rates or rebates. The most notorious of the trusts were the Sugar Trust, the Whisky Trust, the Cordage Trust, the Beef Trust, the Tobacco Trust, John D. Rockefeller’s Oil Trust (Standard Oil of New Jersey), and J. P. Morgan’s Steel Trust (U.S. Steel Corporation). Consumers, workers, farmers, and other sup- pliers were directly hurt monetarily as a result of the monopolizations. Even more important, perhaps, was that the trusts bolstered a traditional U.S. fear and hatred of unchecked power, whether political or economic, and particularly of monopolies that ended or threatened equal opportunity for all businesses. The public demanded legislative action, which prompted Congress to pass the Sherman Act in 1890. The act was followed by several other antitrust acts, including the CLAYTON ACT of 1914 (15 U.S.C.A. §§ 12 et seq.), the FEDERAL TRADE COMMISSION Act of 1914 (15 U.S.C.A. §§ 41 et seq.), and the ROBINSON-PATMAN ACT of 1936 (15 U.S.C.A. §§ 13a, 13b, 21a). All of these acts attempt to prohibit anticompetitive practices and prevent unreasonable concentrations of economic power that stifle or weaken competition. The Sherman Act made agreements “in restraint of trade” illegal. It also made it a crime to “monopolize, or attempt to mono- polize any part of the trade or commerce.” The purpose of the act was to maintain competition in business. However, enforcement of the act proved to be difficult. Congress had enacted the Sherman Act pursuant to its cons- titutional power to regulate interstate com- merce, but this was only the second time that Congress relied on that power. Because Con- gress was somewhat uncertain of the reach of its legislative power, it framed the law in broad COMMON LAW concepts that lacked detail. For example, such key terms as monopoly and trust were not defined. In effect, Congress passed the problem of enforcing the law to the executive branch, and to the judicial branch it gave the responsibility of interpreting the law. Still, the act was a far-reaching legislative departure from the predominant laissez -faire philosophy of the era. Initial enforcement of the Sherman Act was halting, set back in part by the decision of the U.S. SUPREME COURT in United States v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325 (1895), that manufacturing was not inter- state commerce. This problem was soon cir- cumvented, and President THEODORE ROOSEVELT promoted the antitrust cause, calling himself a “trustbuster.” In 1914 Congress established the Federal Trade Commission (FTC) to formalize rules for fair trade and to investigate and curtail unfair trade practices. As a result, a number of major cases were successfully brought in the first decade of the century, largely terminating trusts and basically transforming the face of U.S. industrial organization. During the 1920s enforcement efforts were more modest, and during much of the 1930s, the national recovery program of the NEW DEAL encouraged industrial collaboration rather than competition. During the late 1930s, an intensive enforcement of antitrust laws was undertaken. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHERMAN ANTI-TRUST ACT 181 Since WORLD WAR II, antitrust enforcement has become increasingly institutionalized in the Antitrust Division of the U.S. DEPARTMENT OF JUSTICE and in the Federal Trade Commission, which over time was granted greater authority by Congress. Department of Justice enforcement activities against cartels are particularly vigorous, and criminal sanctions are increasingly sought. In 1992 the Department of Justice expanded its enforcement policy to cover foreign company conduct that harms U.S. exports. Restraint of Trade Section 1 of the Sherman Act provides that “[e]very contract, combination in the form of trust or otherwise, or CONSPIRACY,inRESTRAINT OF TRADE or commerce among the several state s, or with foreign nations is hereby declared to be illegal.” The broad language of this section has been slowly defined and narrowed through judicial decisions. The courts have interpreted the act to forbid only unreasonable restraints of trade. The U.S. Supreme Court promulgated this flexible rule, called the “Rule of Reason,” in Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S. Ct. 502, 55 L. Ed. 619 (1911). Under the Rule of Reason, the courts will look to a number of factors in deciding whether the particular restraint of trade unreasonably restricts competi- tion. Specifically, the court considers the makeup of the relevant industry, the defendants’ positions within that industry, the ability of the defen- dants’ competitors to respond to the challenged practice, and the defendants’ purpose in adopt- ing the restraint. This analysis forces courts to consider the pro-competitive effects of the restraint as well as its anticompetitive effects. The Supreme Court has also declared certain categories of restraints to be illegal per se; that is, they are conclusively presumed to be unreason- able and therefore illegal. For those types of restraints, the court does not have to go any further in its analysis than to recognize the type of restraint, and the PLAINTIFF does not have to show anything other than that the restraint occurred. Restraints of trade can be classified as horizontal or vertical. A horizontal agreement is one involving direct competitors at the same level in a particular industry, and a vertical agreement involves participants who are not direct competitors because they are at different levels. Thus, a horizontal agreement can be among manufacturers or retailers or whole- salers, but it does not involve participants from across the different groups. A vertical agreement involves participants from one or more of the groups—for example, a manufacturer, a whole- saler, and a retailer. These distinctions become difficult to make in certain fact situations, but they can be significant in determining whether to apply a per se rule of illegality or the Rule of Reason. For example, horizontal market alloc a- tions are per se illegal, but vertical market allocations are subjec t to the test of the Rule of Reason test. Concerted Action Section 1 of the Sherman Act prohibits concer- ted action, which requires more than a uni- lateral act by a person or business alone. The Supreme Court has stated that an organization may deal, or refuse to deal, with whomever it wants, as long as that organization is acting independently. But if a manufacture r and certain retailers agree that a manufacturer will only provide products to those retailers and not to others, then that is a concerted action that may violate the Sherman Act. A company and its employees are considered an individual entity for the purposes of this act. Likewise, a PARENT COMPANY and its wholly owned subsidiar- ies are considered an individual entity. Evidence of a concerted action may be shown by an express or written agreement, or it may be inferred from CIRCUMSTANTIAL EVIDENCE. Conscious parallelism (similar patterns of conduct among competitors) is not sufficient in and of itself to imply a conspiracy. The courts have held that conspiracy requires an additional element such as complex actions that would benefit each competitor only if all of them acted in the same way. Joint ventures, which are a form of business association between or among competitors designed to further a business purpose, such as sharing cost or reducing redundancy, are generally scrutinized under the Rule of Reason. But courts first look at the reason that the JOINT VENTURE was established, to determine whether its purpose was to fix prices or engage in some other unlawful activity. Congress passed the National Cooperative Research Act of 1984 (15 U.S.C.A. §§ 4301-06) to permit and en- courage competitors to engage in joint ventures that promote research and development of new GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 182 SHERMAN ANTI-TRUST ACT technologies. The Rule of Reason will apply to those types of joint ventures. Price Fixing The agreement to inhibit price competition by raising, depressing, fixing, or stabilizing prices is the most serious example of a per se violation under the Sherman Act. Under the act, it is immaterial whether the fixed prices are set at a maximum price, a minimum price, the actual cost, or the fair market price. It is also im- material under the law whether the fixed price is reasonable. All horizontal and vertical price-fixing agreements are illegal per se. Horizontal price- fixing agreements include agreements among sellers to establish maximum or minimum prices on certain goods or services. This can also include competitors changing their prices simultaneously in some circumstances. Also significant is the fact that horizontal price- fixing agreements may be direct or indirect and still be illegal. Thus, a promotion or discount that is tied closely to price cannot be raised, depressed, fixed, or stabilized, without a Sher- man Act violation. Vertical price-fixing agree- ments include situations where a wholesaler mandates the minimum or maximum price at which retailers may sell certain products. The Supreme Court, in Texaco Inc. v. Dagher, 547 U.S. 1, 126 S.Ct. 1276, 164 L.Ed.2d 1 (2006), narrowed the per se rule, holding that it did not apply to joint ventures entered into by business competitors. The Court noted that in passing the act, Congress only sought to ban unreasonable restraints on competition. The rule of reason addressed this approach, while per se liability was reserved only for agreements that were “so plainly anticompetitive that no elaborate study of the industry is needed to establish their ille- gality.” The per se rule was not to be applied to practices where the economic impact was not “immediately obvious.” Market Allocations Market allocations are situations where compe- titors agree to not compete with each other in specific markets, by dividing up geographic areas, types of products, or types of customers. Market allocations are another form of price fixing. All horizontal market allocations are illegal per se. If there are only two computer manufacturers in the country, and they enter into a market-allocation agreement whereby manufacturer A will only sell to retailers east of the Mississippi, and manufacturer B will only sell to retailers west of the Mississippi, they have created monopolies for themselves, a violation of the Sherman Act. Likewise, it is an illegal agreement that manufacturer A will only sell to retailers C and D, and manufacturer B will only sell to retailers E and F. Territorial and customer vertical market allocations are not per se illegal but are judged by the Rule of Reason. In 1985 the Department of Justice announced that it would not challenge any restraints by a company that has less than 10 percent of the relevant market or whose vertical price index, a measur e of the relevant market share, indicates that collusion and exclusion are not possible for that company in that market. Boycotts A boycott, or a concerted refusal to deal, occurs when two or more companies agree not to deal with a THIRD PARTY. These agreements may be clearly anticompetitive and may violate the Sherman Act because they can result in the elimination of competition or the reduction in the number of participants entering the market to compete with existing participants. Boycotts that are created by groups with market power and that are designed to eliminate a competitor or to force that competitor to agree to a group standard are per se illegal. Boycotts that are more cooperative in nature, designed to in- crease economic efficiency or make markets more competitive, are subject to the Rule of Reason. Generally, most courts have found that horizontal boycotts, but not vertical boycotts, are per se illegal. Tying Arrangements When a seller conditions the sale of one product on the purchase of another product, the seller has set up a TYING ARRANGEMENT, which calls for close legal scrutiny. This situation generally occurs with related products, such as a printer and paper. In that example, the seller only sells a certain printer (the tying product) to consumers if they agree to buy all their printer paper (the tied product) from that seller. Tying arrangements are closely scrutinized because they exploit market power in one product to expand market power in another product. The results of tying arrangements are to reduce the choices for the buyer and to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHERMAN ANTI-TRUST ACT 183 exclude competitors. Such arrangements are per se illegal if the seller has considerable economic power in the tying product and affects a substantial amount of interstate commerce in the tied product. If the seller does not have economic power in the tying product’s market, the tying arrangement is judged by the Rule of Reason. A seller is considered to have economic power if it occupies a dominant position in the market, its product is advantaged over other competing products as a result of the tying, or a substantial number of consumers have accepted the tying arrangement (evidencing the seller’s economic power in the market). Monopolies Section 2 of the Sherman Act prohibits mono- polies, attempts to monopolize, or conspiracies to monopolize. A monopoly is a form of market structure where only one or very few companies dominate the total sales of a particular product or service. Economic theories show that mon o- polists will use their power to restrict produc- tion of goods and raise prices. The public suffers under a monopolistic market because it does not have the be nefit of the quantity of goods or the low prices that a competitive market could offer. Although the language of the Sherman Act forbids all monopolies, the courts have held that the act only applies to those monopolies attained through abused or unfair power. Monopolies that have been created through efficient, competitive behavior are not illegal under the Sherman Act, as long as honest methods have been employed. In determining whether a particular situation that involves more than one company is a monopoly, the courts must determine whether the presence of “monopoly power” exists in the market. Monopoly power is defined as the ability to control price or to exclude competitors from the marketplace. The courts look to several criteria in determining market power, but they primarily focus on market share (the company’s fractional share of the total relevant product and geographic market). A market share greater than 75 percent indicates monopoly power, a share less than 50 percent does not, and shares between 50 and 75 percent are inconclusive in and of themselves. In focusing on market shares, courts will include not only products that are exactly the same but also those that may be substituted for the company’s product based on price, quality, and adaptability for other purposes. For example, an oat-based, round-shaped breakfast cereal may be considered a substitutable product for a rice- based, square-shaped breakfast cereal, or possibly even a granola breakfast bar. In addition to the product market, the geo- graphic market is also important in determining market share. The relevant geographic market, the territory in which the firm sells its products or services, may be national, regional, or local in nature. Geographic market may be limited by transportation costs, the types of product or service, and the location of competitors. Once sufficient monopoly power has been proved, the Sherman Act requires a showing that the company in question engaged in unfair conduct. The courts have differing opinions as to what constitutes unfair conduct. Some courts require the company to prove that it acquired its monopoly power passively or that the power was thrust upon them. Other courts consider it an unfair power if the monopoly power is used in conjunction with conduct designed to exclude competitors. Still other courts find an unfair power if the monopoly power is combined with some predatory practice, such as pricing below marginal costs. Attempts to Monopolize Section 2 of the Sher- man Act also prohibits attempts to monopolize. As with other behavior prohibited under the Sherman Act, courts have had a difficult time developing a standard that distinguishes unlawful attempts to monopolize from normal competi- tive behavior. The standard that the courts have developed requires a showing of SPECIFIC INTENT to monopolize, along with a dangerous probability of success. However, the courts have no uniform definition for the terms intent or success. Cases suggest that the more market power a company has acquired, the less flagrant its attempt to monopolize must be. Conspiracies to Monopolize Conspiracies to monopolize are unlawful under Section 2 of the Sherman Act. This offense is rarely charged alone, because a conspiracy to monopolize is also a COMBINATION IN RESTRAINT OF TRADE, which violates Section 1 of the Sherman Act. In accordance with traditional conspiracy law, conspirators to monopolize are liable for the acts of each co-conspirator, even their supe- riors and employees, if they are aware of, and participate in, the overall mission of the cons- piracy. Conspirators who join in the conspira cy GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 184 SHERMAN ANTI-TRUST ACT after it has already started are liable for every act durin g the course of the conspiracy, even those events that occurred before they joined. FURTHER READINGS Hylton, Keith N. 2003. Antitrust Law: Economic Theory and Common Law Evolution. New York: Cambridge Univ. Press. Mann, Richard A., and Barry S. Roberts. 2007. Essentials of Business Law. 9th ed. St. Paul, Minn.: Thomson West. Posner, Richard A. 2002. Antitrust Law. 2d ed. Chicago: Univ. of Chicago Press. CROSS REFERENCES Antitrust Law; Mergers and Acquisitions; Unfair Competi- tion; Vertical Merger. SHERMAN COMPROMISE The Philadelphia Convention convened in 1787 to discuss the establishment of a new federal government to replace the unsatisfactory system that existed under the ARTICLES OF CONFEDERATION. Representatives from 12 of the 13 states attended the meeting; Rhode Island feared changes in the existing monetary system and refused to send delegates. One of the most pressing issues was the formation of a legislative body that would fairly represent the interests of the states. ROGER SHERMAN of Connecticut proposed a plan known as the Sherman Compromise, or Connecticut Compromise, or Great Compro- mise. Sherman advocated a BICAMERAL legislature with the two houses of Congress composed of members from all the states; the number of delegates to the HOUSE OF REPRESENTATIVES would be determined by the population of each state, but each state would be equally represented in the SENATE. The plan was accepted and is the basis for the congressional representation of today. CROSS REFERENCE Constitution of the United States. v SHERMAN, JOHN John Sherman was an attorney who devoted most of his professional life to public service. He served in the U.S. House of Representatives, the U.S. Senate, and the cabinets of Presidents RUTHERFORD B. HAYES and WILLIAM MCKINLEY.An unsuccessful candidate for president, Sherman is best known for sponsoring the SHERMAN ANTI- TRUST ACT OF 1890 (15 U.S.C.A. § 1 et seq.), the landmark federal legislation that sought to prevent industrial monopolie s. Sherman was born on May 10, 1823, in Lancaster, Pennsylvania. His father was a judge and his older brother, William Tecumseh Sher- man, became a renowned Union general during the Civil War. Sherman was admitted to the Ohio bar in 1844 and established a successful law practice in Mansfield, Ohio. Soon, however, his interests turned to politics. Elected to the U.S. House of Representatives as a Republican in 1854, Sherman soon gained a reputation as an expert on government finance. He served as chair of the House Ways and Means Committee, the chief budgetary body, from 1859 to 1861. Sherman was then elected to the Senate, where he served from 1861 to 1877. From 1867 to 1877, he chaired the Senate Finance Committee. During the 1870s Sherman’s fiscal policies drew national attention. As a senator, he helped establish a national banking system, but he aroused the wrath of farmers in 1873 when he John Sherman 1823–1900 ❖ ◆ ◆ ▼▼ 18001800 18501850 18751875 19001900 18251825 ▼▼ 1823 Born, Lancaster, Pa. 1844 Admitted to Ohio bar 1812–14 War of 1812 1861–65 U.S. Civil War 1898 Spanish American War ❖ ◆ 1854–61 Served in U.S. House 1873 Secured passage of bill that discontinued coinage of silver dollars 1859–61 Chaired the House Ways and Means Committee 1890 Authored the Sherman Anti-Trust Act; sponsored Sherman Silver Purchase Act 1893 Sherman Silver Purchase Act repealed 1897–98 Served as secretary of state under McKinley 1877–81 Served as secretary of the Treasury under Hayes 1881–97 Served in U. S. Senate 1861–77 Served in U.S. Senate 1900 Died, Washington, D.C. ◆◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHERMAN, JOHN 185 secured the passage of a bill that discontinued the coinage of silver dollars. As secretary of the treasury during the Hayes administration (1877–1881), he placed the United States on the gold standard. Ultimately, however, he was forced to compromise and support legislation that restored the silver dollar as legal tender. Although Sherman was a conservative, he was a master of political compromise, always willing to grant small concessions to his opponents. This skill, however, proved fatal to his higher political ambitions. He lost the Republican presidential nomination in 1880, 1884, and 1888. Sherman was reelected to the Senate in 1880, serving until 1897. During the late 1880s, public concern mounted about the increasing concen- tration of economic power in monopolistic businesses. Sherman’s 1888 presidential bid had focused on this problem, and in 1890 he became the author of the antitrust act that bears his name. The Sherman Anti-Trust Act deliberately contained general language that required the Supreme Court to define its scope. Though not always an effective tool, the act remains a central part of federal antitrust enforcement. Sherman continued to be a force in gov- ernment currency policy. In 1890 he sponsored the Sherman Silver Purchase Act (28 Stat. 4), which required the federal government to in- crease its purchase of silver by 50 percent. The act was designed as a subsidy for silver miners, but was repealed in 1893 in the after- math of a financial panic. President McKinley appointed Sherman SECRETARY OF STATE in 1897, but Sherman soon realized that leaving the Senate had been a mistake. An opponent of U.S. imperial ambi- tions, he resigned on April 25, 1898, the day Congress declared war against Spain. Two years later, on October 22, 1900, Sherman died in Washington, D.C. RESOURCES Bronson, S.A. 2007. John Sherman: What He Has Said and Done. Whitefish, MT: Kessinger. Burton, Theodore E. 1972. John Sherman. Boston, Houghton Mifflin. Sherman, John. 1895. Recollections of Forty Years in the House, Senate, and Cabinet: An Autobiography. Reprint, 2009. Charleston, SC: BiblioLife. CROSS REFERENCES Antitrust Law; Monopoly; Sherman Anti-Trust Act. v SHERMAN, ROGER Roger Sherman was a colonial and U.S. politician and judge who played a critical role at the Constitutional Convention of 1787, devising a plan for legislative representation that was accepted by large and small states. His actions at the convention in Philadelphia came near the end of a distinguished life in public service. Sherman was born on April 19, 1721, in Newton, Massachusetts. He was admitted to the Massachusetts bar in 1754 and later served as a JUSTICE OF THE PEACE. In 1761 Sherman moved to New Haven, Connecticut, where he established a business as a merchant. From 1764 to 1785 he served in the Connecticut legislature and was a superior court judge from 1766 to 1788. During these years Sherman became recognized as a national political leader. Though conservative, he was an early supporter of American inde- pendence from Great Britain. Sherman’s belief in independence led him to serve as a delegate to the CONTINENTAL CONGRESS from 1774 to 1784. He was instrumental in the creation of the Declaration of Independenc e in 1776 and signed the declaration. He also helped draft the ARTICLES OF CONFEDERATION. After America won its independence, Sher- man devoted himself to Connecticut politics, serving as the first mayor of New Haven from John Sherman. LIBRARY OF CONGRESS [THE EXECUTIVE BRANCH ] IS NOTHING MORE THAN AN INSTITUTION FOR CARRYING THE WILL OF THE LEGISLATURE INTO EFFECT . —ROGER SHERMAN GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 186 SHERMAN, ROGER 1784 to 1793. He also helped revise Connecticut statutes, eliminating material related to the state’s former colonial status. In 1787 Sherman was a member of the Constitutional Convention in Philadelphia. He recognized that the Articles of Confederation had not provided a stable and secure method of national government. The convention, however, was soon divided over the issue of legislative representation. The small states feared a federal Congress apportioned by population, in which a few large states would control most of the seats. Therefore, WILLIAM PATERSON of New Jersey proposed a plan that provided for equal representation in Congress. EDMUND RANDOLPH of Vir ginia, speaking for the interests of the large states, proposed a plan for a bicameral legislature, with representation in both houses based on population or wealth. Neither side would yield on the issue of representation. Sherman, along with OLIVER ELLSWORTH , proposed the Connecticut Compro- mise, or Great Compromise. This plan created a bicameral legislature, with proportional repre- sentation in the lower house and equal representation in the upper house. All revenue measures would originate in the lower house. The compromise was accepted, and the con- vention soon approved the Constitution. Sherman served in the U.S. House of Representatives from 1789 to 1791 and in the U.S. Senate from 1791 to 1793. He strongly supported the establishment of a national bank and the enactment of a tariff. Sherman died on July 23, 1793, in New Haven, Connecticut. FURTHER READINGS Collier, Christopher. 1971. Roger Sherman’s Connecticut: Yankee Politics and the American Revolution. Middle- town, Conn.: Wesleyan Univ. Press. Boardman, Roger Sherman. 1938. Roger Sherman, Signer and Statesman. Reprint. New York: Da Capo Press, 1971 Yoo, John. 2010. Crisis and Command: A History of Executive Power from George Washington to George W. Bush. New York: Kaplan Publishing. CROSS REFERENCES Congress of the United States; Constitution of the United States. Roger Sherman 1721–1793 ❖ ◆◆ ▼▼ 17001700 17501750 17751775 18001800 17251725 ▼▼ 1721 Born, Newton, Mass. 1754 Admitted to the Mass. bar 1775–83 American Revolution ❖ ◆◆ 1764–85 Served in the Conn. legislature 1766–88 Served as superior court judge in Conn. 1774–84 Attended the Continental Congress 1776 Signed the Declaration of Independence 1777 Helped draft the Articles of Confederation 1784–93 Served as mayor of New Haven, Conn. 1787 Proposed the Connecticut Compromise along with Oliver Ellsworth at the Constitutional Convention 1789–91 Served in U.S. House 1791–93 Served in U.S. Senate 1793 Died, New Haven, Connecticut Roger Sherman. PRINT BY JOHN F. WEIR AFTER A MINIATURE PAINTING BY JOHN TRUMBULL. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SHERMAN, ROGER 187 . Senate 190 0 Died, Washington, D.C. ◆◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHERMAN, JOHN 185 secured the passage of a bill that discontinued the coinage of silver dollars. As secretary of. owner of the property). A deed given at a sheriff’s sale in fore- closure of a mortgage. The givi ng of said deed begins a STATUTORY REDEMPTION period. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E. Research Act of 198 4 (15 U.S.C.A. §§ 4301-06) to permit and en- courage competitors to engage in joint ventures that promote research and development of new GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E