Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P21 pps

SHIELD LAWS Shield laws are statutes affording a privilege to journalists not to disclose in legal proceedings confidential information or sources of information obtained in their professional capacities. They restrict or prohibit the use of certain evidence in sexual offense cases, such as evidence regarding the lack of chastity of the victim. Journalist Shield Laws Journalist shield laws, which afford news reporters the privilege to protect their sources, are controversial because the privilege must be balanced against a variety of competing govern- ment interests such as the right of the govern- ment to apprehend criminals and to prevent the impairment of GRAND JURY investigations. Still, most states have enacted such laws, based on the FIRST AMENDMENT guarantee of FREEDOM OF THE PRESS . There is no federal journalist shield law, however, because the U.S. Supreme Court has refused to interpret the First Amendment as mandating a news reporter’s privilege. There is a long history behind the current state statutes that provide a privilege for journalists to protect the sources of their information. Benjamin Franklin’s older brother James was jailed for refusing to reveal the source of a story he published in his newspaper. The first reported case, however, was not until 1848 when a reporter was jailed for CONTEMPT of the Senate for refusing to disclose who had given him a copy of the secret proposed treaty to end the Mexi can-American War (Ex Parte Nugent, 18 F. Cas. 471 [Cir. Ct. D.C.]). Similar conflicts between a reporter’s desire to keep sources confidential and the demands of the courts or legislatures for disclosure continued throughout the nineteenth century. During the early 1900s, journalists repeatedly were brought to the WITNESS STAND to reveal their sources in the growing number of news stories about labor unrest and municipal corruption. These early conflicts led to the advancement of several legal theories that justified the re- porter’s refusal to disclose. For example, re- porters maintained that they were acting pursuant to a journalistic code of ethics, that their employers would not let them reveal their sources, that they were relying on the PRIVILEGE AGAINST SELF -INCRIMINATION, and that the forced disclosure of sources amounted to the taking of proprietary information. However, the courts did not widely accept any of these theories because the common law did not recognize reporters’ privilege. Legislatures were more receptive to the journalists’ plight, and the states began to enact privilege statutes, albeit slowly. In 1898, Mary- land became the first state to enact such a privilege, and 33 years later, New Jersey was the second state to do so. By 1973, half of the states had followed suit. Legislatures enacted their statutes under various theories, such as the claim that the PUBLIC INTEREST in the free flow of information is useless without a journalist’s right of access to information and that journal- ists must rely on confidential informants to gain access to information. Legislatures also accepted the argument that journalists are entitled to privilege rights in their professions, similar to those of doctors, lawyers, or clergy. Critics point out that the professional privilege of doctors, lawyers, or clergy belongs to the client, not the professional; it is the client’s right to assert the privilege and withhold information. Critics also contend that journalists are not in a service business like other professionals who are afforded privileges. The states that did enact journalist shield laws generally enacted them in a hasty man ner, resulting in many different types of laws that often did not provide adequate protection. As a result, journalists began to rely instead on the theory that the First Amendment freedom of the press supports the journalist privilege. In the late 1960s, with the trial of the CHICAGO EIGHT, a group of antiwar activists, the reporters’ privilege entered a new era of height- ened public awareness and controversy. A large number of press subpoenas were issued in that case, perhaps as a result of the growing ad- versarial stance taken by journalists who, during the VIETNAM WAR, had become increasingly skep- tical of government officials. In 1972 the U.S. Supreme Court rejected the argument of reporters’ privilege. In Branz- burg v. Hayes (408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626), the Court held that news reporters do not have a right under the First Amendment to refuse to appear or testify before a grand jury. The Court stated that the burden on news- gathering in not allowing reporters’ privilege was not sufficient to override the compelling public interest in law enforcement and effective grand jury proceedings. Lower courts that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 188 SHIELD LAWS interpreted this decision did so narrowly. For example, they tended to limit the scope of the privilege to investigations before grand juries. Following the Supreme Court decision, Con- gress, in 1975, passed Federal Rule of Evidence 501 concerning privileges. Under this rule, privilege as outlined in state law is to be applied in all civil actions and proceedings. LEGISLATIVE HISTORY behind the enactment of Federal Rule of Evidence 501 indicates that Congress intended it to provide qualified reporters’ privilege. A number of problems have arisen, however, concerning the scope and application of this privilege. One such dilemma is determining to whom the privilege applies. Unlike other privileged professionals, journalists are not licensed or certified in any manner. Many state statutes attempt to define a journalist as one who com- municates via newspaper, is employed by a newspaper, or whose communication is classi- fied as “news.” The question then becomes whether books, magazine articles, or pamphlets are encompassed in the definition of a newspa- per. Some of the broader state statutes do cover these media. Most state statutes also protect television and radio broadcasts, although some limit protection to “news” programs. In addi- tion, some courts have held that documentary films should be included in the scope of the privilege protection. Another question is how the term news should be defined. Statutes seldom define the term, and some commentators are not con- vinced that an adequate definition can be devised. Presumably poetry or works of fiction are not news, but it is a more difficult question when considering sensationalism or gossip. Some legal scholars advocate avoiding consid- eration of the supposed worth of the commu- nication and making the privilege available to those who generally acquire information for public dissemination. Another important issue that arises under state statutes that protect only the journalist’s sources is whether a “source” can only be a human informant or whether it can include a book, document, tape recording, or photo- graph. These and many other issues have led to varying court decisions based on the particular state statute and facts before the court. The debate over whether a federal shield law is necessary to protect journalists seeking to keep the identity of a source confidential took center stage in 2005 when Judith Miller, a former New York Times report er, was jailed for refusing to reveal a confidential source. A federal judge ordered Miller to be taken into custody for contempt of court based upon her refusal to testify before a grand jury investigat- ing the leak of the identity of CIA agent Valerie Plame. Miller spe nt 85 days in jail, agreeing to testify only after her source, former vice presidential chief of staff Lewis “Scooter” Libby, waived confidentiality. Rape Shield Laws In the context of criminal SEX OFFENSES, RAPE shield laws forbid certain evidence in the trial that is believed to be prejudicial and harassing. These statutes are called rape shield laws because they first originated in the context of rape cases. Up until the 1970s, under the common law in England and the United States, evidence of a rape victim’s past sexual conduct was broadly admissible and accepted in every rape case. It was believed that if a rape victim consented to sex in the past, she was more likely to have consented to the sexual acts that she claimed in the present amounted to rape. This evidence was also admitted under the theory that a woman’s past sexual history could be important in assessing her credibility as a witness. The common-law rules discouraged women from bringing rape charges for fear they would be embarrassed and humiliated at trial. Great strides were made to reform such rules in the 1970s. Within little more than a decade every jurisdiction in the United States had reformed its laws to prohibit using a woman’s past sexual history in rape cases. Special evidentiary rules were enacted on the state and federal level to protect the privacy of the victim and to encourage rape victims to report offenses and to participate in the prosecution of offenses. Typical rape shield laws provide that in a prosecution for rape, attempted rape, or CONSPIRACY to co mmit rape, reputation or OPINION EVIDENCE of the alleged victim’s prior sexual conduct is not admissible. Evidence of specific instances of the victim ’s prior sexual conduct is also inadmissible except in the fol- lowing circumstances: (1) the evidence regards the sexual conduct between the victim and the DEFENDANT and is introduced to show consent; (2) the evidence is introduced to prove GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHIELD LAWS 189 an alternate source or origin of semen, disease, or pregnancy; (3) the evidence regard s the immediate surrounding circumstances of the alleged crime; or (4) the evidence of previously chaste character is necessary to the successful prosecution of the particular criminal charge. The procedure involved in introducing evidence covered by rape shield laws is also fairly typica l. Generally the defendant must make a motion supported by an offer of proof in which the defendant details what evidence he wishes to introduce and why. The court will generally require that a hearing be held out of the presence of the jury to review the motion and hear arguments in support of and against the motion. If the court finds some of the evidence admissible pursuant to one of the exceptions under the applicable laws, an order must be issued stating the scope of the evidence that may be admitted. Rape shield laws have expanded to include other evidence that legislatures deem prejudicial, such as clothing of the victim that the defendant tries to introduce to show that the victim consented to or asked for the sexual contact. Those state statutes that do restrict the admissi- bility of clothing, however, make exceptions where it is introduced to show a struggle (or lack thereof) or proof of the presence (or absence) of bodily fluid such as semen or blood. Rape shield laws have also been expanded in most states to protect victims of all different sexual offenses, regardless of the victim’s age or sex. Defendants have challenged the constitution- ality of rape shield laws on many occasions, generally arguing that the laws violate their right to due process and their right to confront their accuser. However, the constitutionality of these laws has consistently been upheld. Specifically, courts have held that the state’s interest in protecting sexual ASSAULT victims from harass- ment and humiliation at trial, as well as the highly prejudicial effect such evidence may have on a jury, outweighs the rights of the defendant that may be implicated. FURTHER READINGS Fargo, Anthony L. 2002. “The Journalists’ Privilege for Nonconfidential Information in States without Shield Laws.” Communication Law and Policy 7 (summer). Frieden, Terry. “New York Times Reporter Jailed.” October 28, 2005. CNN.com. Available online at www.cnn.com/ 2005/LAW/07/06/reporters.contempt/ (accessed Sep- tember 22, 2009). Morosco, B. Anthony. 1996. The Prosecution and Defense of Sex Crimes. New York: Bender. Pincus, Walter. “Leaks Questions Slow Reporter Shield Law.” September 19, 2009. Washingtonpost.com. Available online at www.washingtonpost.com/wp-dyn/ content/article/2009/09/18/AR2009091803506.html (accessed September 22, 2009). Pracene, Ulan C. 2005. Journalists, Shield Laws, and the First Amendment. New York: Novinka Books. White, John T. 2001. “Smoke Screen: Are State Shield Laws Really Protecting Speech or Simply Providing Cover for Criminals Like the Serial Arsonist?” Arizona State Law Journal 33 (fall). Wright, Charles Alan, and Kenneth W. Graham Jr. 1980. Federal Practice and Procedure. Vol. 23. St. Paul, Minn.: West. CROSS REFERENCES Evidence “Journalists’ Privilege” (In Focus); Privileged Communication. SHIFTING THE BURDEN OF PROOF The process of transferring the obligation to affirmatively prove a fact in controversy or an issue brought during a lawsuit from one party in a legal controversy to the other par ty. When the individual upon whom the BURDEN OF PROOF initially rested has brought evidence that tends to prove a particular fact or issue, the other party then takes on the duty to rebut such fact or issue through the use of defensive or contradictory evidence. CROSS REFERENCES Burden of Proof. SHIPPING LAW Shipping law covers the area of maritime law that is concerned with ships and the individuals employed in or around them, as well as the shipment of goods by merchant vessels. U.S. shipping law is a complex body of customs, legislation, international treaties, and court decisions dealing with the rights and responsibilities of ownership and operation of vessels that travel on the high seas. Much of the COMMERCIAL LAW surrounding transportation of goods by ship involves contractual agreements between the shipowner and the party wishing to ship the goods. However, these agreements generally are based on longstanding cus toms and business practices peculiar to the shipping industry. Registration and Ownership A sovereign nation has the authority to regulate all vessels that fly its flag on the high seas. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 190 SHIFTING THE BURDEN OF PROOF Congress, accordingly, is empowered to enact legislation controlling domestic merchant ships that sail the high seas. Title 46 of the United States Code Annotated, entitled “Shipping,” contains most of the pertinent federal laws regarding U.S. shipping. All the ships in the U.S. merchant fleet are registered in the United States and completely staffed by U.S. citizens. Because of the higher labor costs associated with employing U.S. personnel, many ships are registered in other countries to avoid this labor requirement. Ships can be owned by either one person or co-owners. Because of the enormous cost of merchant vessels, the majority are held by more than one owner. A BILL OF SALE is the ordinary evidence of title to, and ownership of, a vessel. Between co-owners, the right to co ntrol and use the vessel is generally reserved for the majority interest. In the event that co-owners absolutely cannot come to an agreement on how to use the vessel, one or more of them may obtain a court decree for sale of it. In general, howev er, a part owner shares in the profits and expenses from use of the ship in proportion to that owner’s interest. Agents The owners of merchant vessels are bound by the acts of their agents and must pay for all services, supplies, and repairs that they order. A ship’s husband is the general agent of the owner for affairs conducted in the home port of the vessel. Generally known as the managing owner, this person determines that the ship is prepared for navigation and commercial use. In the absence of express authority, a ship’s husband usually is powerless to bind the co-owners for money borrowed on the accoun t of the vessel. He is entitled to be reimbursed for services rendered and to be paid for expendi- tures incurred. Shipping Contracts The great majority of contracts governing the transportation of goods by ships are made either by bills of lading or charter parties. The term charter party is a corruption of the Latin carta partita, or “divided charter.” It is used to des- cribe three types of contracts dealing with the use of ships owned or controlled by others. Under a demise charter, the shipowner gives possession of the vessel to the charterer, who engages the ship’s master and crew, arranges for repairs and supplies, takes on the cargo, and acts much like the owner during the term of the charter. A more common arrangement is the time charter. In this arrangement, the shipowner employs the master and crew, and the charterer only acquires the right, within contractual limits, to direct the movements of the ship and decide what cargoes are to be transported during the charter period. Under both demise and time charters, the charterer pays charter hire for the use of the ship at a specified daily or monthly rate. Twenty Largest Merchant Fleets in the World in 2006 a 684 587 500 482 428 385 334 259 249 242 239 222 177 171 147 1,622 693 1,798 2,259 2,506 0 1,5001,000500 United Arab Emirates Monaco Canada Russia India Switzerland Turkey Cyprus Italy Denmark South Korea Taiwan United Kingdom Singapore United States Norway Germany China P.R. Japan Greece 2,000 2,500 3,000 Country Number of vessels SOURCE: U.S. Department of Transportation, Maritime Administration. a Vessels of 10,000 deadweight tons or greater. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SHIPPING LAW 191 The third type is the voyage charter, which is a contract of affreightment, or carriage. Essen- tially, a voyage charter is a contract to rent all or part of the cargo space of a me rchant vessel on one voyage or a series of voyages. When a charterer contracts for only a portion of the cargo space, the governing contract is called a space charter. Under a voyage charter, it is customary for the master or the master’s agent to issue a BILL OF LADING to the shipper, who is usually the charterer. However, the voyage charter remains the governing contract. A bill of lading is an ACKNOWLEDGMENT,by the master or owner, that serves as confirmation of the receipt of the goods specified to be taken aboard the vessel. Each charterer is entitled to receive a bill of lading from the shipowner or an agent of the owner. In ordinary transactions, a bill of lading, signed by the master, is binding upon the owner of a vessel. It can circumvent disputes that might otherwise arise over whether goods were ever received and their condition when placed upon the vessel. Ocean bills of lading are usually in order form, calling for delivery of the order to the shipper or some other designated party. This type of bill of lading may be negotiated similarly to a check, draft, or NEGOTIABLE INSTRUMENT, which means that a bona fide purchaser of the bill of lading takes it free and clear of any defects not appearing on its face. A bona fide purchaser is one who has purchased property for value without any notice of any defects in the title of the seller. Therefore, if cargo is externally damaged on shipment but the damag e is not recorded on the bill of lading, the carrier will be barred from establishing that the cargo was damaged before it came into the carrier’s custody. Once a bill of lading issued under a voyage charter is negotiated to a bona fide purchaser, it becomes the governing contract between the carrier and the holder of the bill. Under the Carriage of Goods by Sea Act (46 U.S.C.A. §§ 1300 et seq.), a clause paramount must be included in any bill of lading involving a contract for transportation of goods by sea from U.S. ports in foreign trade. This clause states that the bill of lading is subject to the act, which governs the rights, obligations, and liabilities of the issuer to the holder of the bill of lading in regard to the loss or damage of goods. When a ship strands or collides with another vessel, cargo loss or damage may occur. If the damage was caused by a sea peril or an error in navigation, the carrier will not be liable if the goods were being carried under a statutory or contractual provision based on the 1923 Brussels Convention on Limitation on Liability. If, however, the damage was caused by the carrier’s failure to exercise due diligence to make the ship seaworthy and to ensure that it was properly staffed, equipped, and supplied, the carrier will be held responsible. Congress deregulated much of the foreign shipping taking place in the United States with the passage of the Shipping Act of 1984 (46 U.S.C. app. § 1701 et seq.). Congress further deregulated the industry by passing the Ocean Shipping Reform Act of 1998 (Pub. L. No. 105– 258, 112 Stat. 1902), which allows shippers and carriers to enter into individual, confidential service contracts and prevents carrier agree- ments from interfering with these service contracts. Ten years after the passage of the Ocean Shipping Reform Act, the Global Ship- pers Forum (GSF) encouraged the United States “to undertake a comprehensive review of its own shipping laws to determine whether an antitrust exemption should continue to exist for liner carriers.” GSF asserted that “antitrust IMMUNITY as it relates to the ability of liner carriers to benchmark, discuss, set or fix rates, service terms and/or surcharges is not necessary and s hould b e terminated.” As of 2009, Congress had not considered such a reform. Maritime Liens When a ship is charged with a maritime TORT,or when services have been rendered to it to facilitate its use in navigation and the shipowner has not paid fo r the services, a MARITIME LIEN can be placed on the ship. A maritime lien is a special PROPERTY RIGHT in a ship given to a creditor by law as security for a debt or claim. The ship may be sold and the debt paid out of the proceeds. The Maritime Lien Act (46 U.S.C.A. §§ 971–975 [2000]) provides that an action can be brought in rem, against the vessel, cargo, or freight itself. Under the act, the ship is personified to the extent that it may sometimes be held responsible under circumstances in which the shipowner would not be liable. For example, where a state law requires that a local pilot guide the ship in and out of the harbor, the pilot’s NEGLIGENCE is not imputed to the shipowner. In rem proceedings allow the ship GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 192 SHIPPING LAW itself to be charged with the pilot’s fault and make it subject to a maritime lien enforceable in court. In an in rem proceeding, the vessel, cargo, or freight can be arrested and kept in the custody of the court unless the owner posts a bond or some other security. Usually the owner posts security to avoid an arrest, and the pro- perty is never taken into custody. Where the owner fails to post security and the PLAINTIFF is awarded a judgment against the vessel, the court will order that the property be sold or the freight released to satisfy the judgment. Marine Insurance Marine insurance plays an important role in the shipping industry and in shipping law. Most shipowners carry hull insurance on their ships and protect themselves against claims by third parties by purchasing protection and indemnity insurance. Cargo is usually insured against the perils of the sea, which are defined as natural accidents peculiar to the sea. For example, storms, waves, and all types of actions caused by wind and water are classified as perils of the sea. If a shipowner or cargo owner wishes to be protected against losses incurred from war, the owner must purchase separate war-risk insur- ance or pay an additional premium to include war risk in the basic policy. Salvage In shipping law, salvage is the compensation allowed to persons who voluntarily assist in saving a vessel or its cargo from impending or actual peril from the sea. Generally salvage is limited to vessels and their cargoes or to pro- perty lost in the sea or other NAVIGABLE WATERS that have been subsequently found and rescued. Except for salvage performed under contract, the rescuer, known as the salvor, must act voluntarily without being under any legal duty to do so. As long as the owner or the owner’s agent remains on the ship, unwanted offers of salvage may be refused. Typical acts of salvage include releasing ships that have run aground or on reefs, raising sunken ships or their cargo, or putting out fires. The salvor has a maritime lien on the sal- vaged property in an amount determined by a court based on the facts and circumstances of the case. The salvor may retain the property until the claim is satisfied or until security to meet an award is given. The owner may elect to pay salvage money to the salvor or to not reclaim the property. General Average Under the law of general average, if cargo is jettisoned in a successful effort to refloat a grounded vessel, the owners of the vessel and the cargo saved are required to absorb a proportionate share of the loss to compensate the owner of the cargo that has been singled out for sacrifice. All participants in the maritime venture contribute to offset the losses incurred. The law of general average became an early form of marine insurance. The YORK-ANTWERP RULES of General Average establish the rights and obligations of the parties when cargo mu st be jettisoned from a ship. These uniform rules on the law of general average are included in private shipping agree- ments and depend on voluntary acceptance by the maritime community. The rules are incor- porated by reference into most bills of lading, contracts of affreightment, and marine insur- ance policies. The rules provide for the shipowner to recover the costs of repair, loading and unload- ing cargo, and maintaining the crew, if these expenses are necessary for the safe completion of the voyage. Claims are generally made against the insurer of the cargo and the shipowner’s insurance underwriters. Personal Tort Liability Until 1920 U.S. seapersons who were injured or killed as a result of negligence by a shipowner, master, or a fellow seaperson had a difficult time obtaining compensation through a tort action. Shipowners often defeated such actions by claiming contributory negligence on the injured seaperson’spart.Inaddition,underfederallaw the seaperson did not have a right to a jury trial. Congress enacte d the JONES ACT of 1920 (46 U.S.C.A. § 688) to correct these problems. It granted the seaperson a right to a jury trial and abolished the contributory negligence defense. Under the act, an injured seaperson or a PER- SONAL REPRESENTATIVE in the event of the sea- person’s death can sue the shipowner if the injury or death occurred in the course of the seaperson’s employment on, or in connection with, a vessel. In addition, Congress granted rights to those persons who work near ships in the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHIPPING LAW 193 Longshoremen’s and Harbor WORKERS’ COMPEN- SATION Act of 1927 (33 U.S.C.A. §§ 901–910). This act established a federal system to com- pensate maritime workers for work-related injuries. FURTHER READINGS Federal Maritime Commission. 2001. The Impact of the Ocean Shipping Reform Act of 1998. Boston: Kluwer Law. Pamborides, G. P. 1999. International Shipping Law: Legislation and Enforcement. Boston: Kluwer Law. Policy Research Project on Texas Seaport and Waterborne Commerce and Its Role in International Trade. 1996. Port-Related State Programs and Federal Legislative Issues: A Report. Austin: Lyndon B. Johnson School of Public Affairs, Univ. of Texas at Austin. CROSS REFERENCES Admiralty and Maritime Law; Carriers; Collision; Com- merce; Common Carrier. v SHIRAS, GEORGE, JR. George Shiras Jr. served on the U.S. Supreme Court as an associate justice from 1892 to 1903. Plucked by political necessity at the age of sixty from his highly successful law practice, Shiras, who had never been a judge or politician, brought a lawyerly, pragmatic perspective to the Court. He wrote some opinions in favor of civil liberties, occasionally blocked the Court’s full embrace of laissez-faire economics, and became notorious as the justice whose vote in 1895 torpedoed the new federal INCOME TAX. This last decision, for which Shiras was incorrectly blamed, ultimately led to the ratification of the SIXTEENTH AMENDMENT in 1913. Shiras was born in Pittsburgh, Pennsylvania, on January 26, 1832, to a wealthy brewing family. He attended Yale Law School in 1853. Two years later he completed his training at a law office in Allegheny County, Pennsylvania, before starting a legal practice with his brother. The practice specialized in representing the railroads and other big industries during the boom era of Pittsburgh. So successful was Shiras that, by the late 1880s, he was earning the then- phenomenal income of $75,0 00 annually. He developed no national reputation, steering clear of partisan politics even when the state legisla- ture nominated him for a senate seat. Indepen- dent in nature, he sometimes represented interests opposed to his business clients. In 1892 President BENJAMIN HARRISON nomi- nated Shiras to fill the vacancy on the Supreme Court left by the death of Justice JOSEPH P. BRADLEY. Like Bradley, Shiras was a Pennsylvania Republican, and convention dictated that Brad- ley’s replacement be of similar political and geographic origin. Thus for political reasons Shiras was a good choice, even though he had no judicial or political experience. Strong opposition to the nomination came from the president’s enemies. But support from power- ful, private figures, including Andrew Carnegie, was ultimately persuasive. When Shiras joined the Court, the chief issue of the day was regulation of business. The Court was conservative, believing in the hands- off policy of laissez-faire economics. Shiras usually joined his fellow justices in voting to restrict antitrust and labor legislation. But he occasionally stood apart, as in Brass v. North Dakota, 153 U.S. 391, 14 S. Ct. 857, 38 L. Ed. 757 (1894), where he upheld state power to regulate. Moreover, he was committed to civil liberties. In Wong Wing v. United States, 163 George Shiras Jr. 1832–1924 ❖ ◆◆ ◆ ◆ ▼▼ 18251825 18751875 19001900 19251925 18501850 ▼▼ 1832 Born, Pittsburgh, Pa. 1861–65 U.S. Civil War 1914–18 World War I ❖ ◆ 1855 Admitted to Allegheny Co. (Pa.) bar; started to practice law with his brother in Iowa 1894 Upheld state's power to regulate in Brass v. N. Dakota; joined majority in striking down a federal income tax in Pollock v. Farmers' Loan & Trust 1896 Wrote opinion extending basic rights to Chinese immigrants in Wong Wing v. United States; upheld separate- but-equal treatment of African Americans in Plessy v. Ferguson 1913 Ratification of Sixteenth Amendment allowed Congress to levy a federal income tax 1892–1903 Served as associate justice of the Supreme Court 1924 Died, Pittsburgh, Pa. 1853 Earned B.A. from Yale; began studying law 1862 Took over his mentor Judge Hopewell Hepburn's law practice in Pittsburgh ◆ TO DECLARE UNLAWFUL RESIDENCE WITHIN THE COUNTRY TO BE AN INFAMOUS CRIME , PUNISHABLE BY DEPRIVATION OF LIBERTY AND PROPERTY [WITHOUT] A JUDICIAL TRIAL .IS NOT CONSISTENT WITH THE THEORY OF OUR GOVERNMENT . —GEORGE SHIRAS JR. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 194 SHIRAS, GEORGE, JR. U.S. 228, 16 S. Ct. 977, 41 L. Ed. 140 (1896), he wrote a landmark opinion extending basic rights to Chinese immigrants; it held that Congress had unconstitutionally allowed federal authorities to summarily sentence illegal Chi- nese ALIENS to twelve months of hard labor without indictment or a jury trial. In his lifetime, Shiras became notorious for having cast the swing vote to kill the first peacetime federal income tax. The tax, passed in 1894, was a popular response to the growing disparity in income levels caused by industrial growth. The case was POLLOCK V. FARMERS’ LOAN & TRUST, 158 U.S. 601, 15 S. Ct. 912, 39 L. Ed. 1108, decided in three parts in 1895. The final vote, on May 20, was 5–4 against. Critics vilified Shiras for apparently changing his mind from an earlier vote. For nearly three decades, his reputation suffered until, after his death, it was persuasively argued that another justice had provided the swing vote. Pollock led directly to the ratification of the Sixteenth Amendment in 1913, allowing Congress to levy a federal income tax. Shiras stepped down from the Court in 1903 at age 70. He died on August 2, 1924, in Pittsburgh. RESOURCES Friedman, Leon, and Fred L. Israel, eds. 1995. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volumes I–V. New York: Chelsea House. Shiras, George III. 1953. Justice George Shiras, Jr., of Pittsburgh, Associate Justice of the United States Supreme Court, 1892–1903: A Chronicle of His Family, Life, and Times. Ed. and completed by Winfield Shiras. Pitts- burgh: Univ. of Pittsburgh Press. Warren, Charles. 2009. The Supreme Court in United States History. Reprint. Charleston, SC: BiblioLife. SHOCK-THE-CONSCIENCE TEST A shock-the-conscience test is a determination of whether a state agent’s actions fall outside the standards of civilized decency. The U.S. SUPREME COURT established the “shock-the-cons cience test” in ROCHIN V. CALIFORNIA (342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 [ 1952]). Based on the Fourteenth Amen dment’sprohibi- tion against states depriving any person of “life, liberty, or property without due process of law,” the t est prohibits conduct by s tate agents tha t falls outside the standards of civilized decency. Little used since the 1960s, the test has been criticized for permitting judges t o as sert their subjective views on what constitutes “shoc king.” The Rochin decision was made during an era when the Supreme Court still adhered to the precedent that the BILL OF RIGHTS applied only to actions by the federal government. Thus, all the rights afforded federal criminal defendants in the Fourth, Fifth, and Sixth Amendments were not available to state criminal defendants. This reading made the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT difficult to apply to state actions. The Supreme Court, in Twining v. New Jersey (211 U.S. 78, 29 S. Ct. 14, 53 L. Ed. 97 [1908]), concluded that some of the rights contained in the Bill of Rights “are of such a nature that they are included [with]in the conception of due process of law” and are applicable to the states. But succeeding genera- tions of justices had difficulty defining a test that would reveal which rights were important enough to apply to state and local government. In 1937 the Court considered whether a right was “of the very essence of a scheme of ordered liberty” or “implicit in the concept of ordered liberty” (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288). Only those rights that were found “fundamental” or “implicit in the concept of ordered liberty” were made applica- ble to prevent STATE ACTION. In Rochin three state law enforcement officers, acting on information that Antonio Rochin was selling narcotics, illegally entered George Shiras Jr. LIBRARY OF CONGRESS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHOCK-THE-CONSCIENCE TEST 195 Rochin’s room. When the officers notic ed two capsules on a bedside table, Rochin grabbed the capsules and put them in his mouth. The three officers then wrestled with Rochin and sought to open his mouth so they could extract the pills. When this failed, the officers handcuffed Rochin and took him to a hospital, where at their direction a doctor forced an emetic solution through a tube into Rochin’sstomach.The solution induced vomiting, and in the vomited matter the deputies found two morphine cap- sules. Rochin was convicted of narcotics posses- sion. The conviction was based solely on the morphine capsules, which Rochin had sought in vain to have suppressed as evidence. Justice FELIX FRANKFURTER, writing for the Court, held that such conduct by state agents, although not specifically prohibited by explicit language in the Constitution, “shocks the conscience” in that it offends “those canons of decency and fairness which express the notions of justice of English-speaking peoples.” DUE PROCESS OF LAW requires the state to observe those principles that are “so rooted in the traditions and con- science of our people as to be ranked as funda- mental.” The Court reasoned that to permit the use of such capsules as evidence under the circu m- stances would “afford brutality the cloak of law.” The officers’ conduct “shocks the con- science,” offending even those with “hardened sensibilities. They are methods too close to the rack and screw to permit of constitutional differentiation.” Therefore, the Court reversed Rochin’s conviction because the stomach pump- ing violated the due process clause. Since Rochin, the Supreme Court has made most of the rights enumerated in the first eight amendments also applicable to state action by selectively incorporating them, one by one, into the scope of the Fourteenth Amendment’s due process clause. Justices HUGO L. BLACK and WILLIAM O. DOUGLAS, who in their concurring opinions in Rochin had argued for incorpo- ration of the FOURTH AMENDMENT, were instru- mental in diminishing the importance of the shock-the-conscience test. They believed that the test was too general and that its vagueness allowed judges to apply their subjective judg- ment as to what was shocking and what offended the due process clause. Nevertheless, Rochin remains important because it stands for the proposition that the due process clause provides a protection for persons separate from, and independent of, the Bill of Rights provisions that have now been applied to the states. Although the Supreme Court does not frequently apply the shock-the- conscience test, lower courts refer to it fre- quently. For instance, in United Artists Theatre Circuit, Inc. v. Township of Warrington, Pa. (316 F.3d 392 [3d Cir. 2003]), the owner of a chain of movie theaters brought suit against a township and township supervisors for violating the owner’s due process rights by delaying a proposed theater development so that the township could receive a fee by a competing developer. The Third Circuit Court of Appeals determined that the shock -the-conscience test remained the appropriate standard to apply to the SUBSTANTIVE DUE PROCESS claim. FURTHER READINGS Farber, Daniel A., and Suzanna Sherry. 2009. Judgment Calls: Principle and Politics in Constitutional Law. New York: Oxford University Press. Perry, Michael J. 2009. Constitutional Rights, Moral Controversy, and the Supreme Court. New York: Cam- bridge University Press. CROSS REFERENCES Constitutional Law; Due Process of Law; Substantive Due Process. SHOP-BOOK RULE A doctrine that allows the admission into evidence of books that consist of original entries made in the normal course of a business, which are introduced to the court from proper custody upon general authentication. In the law of evidence, the shop-book rule is one of several exceptions to the rule against HEARSAY. SHOP STEWARD A LABOR UNION official elected to represent mem- bers in a plant or particular department. The shop steward’s duties include collection of dues, recruit- ment of new members, and initial negotiations for settlement of grievances. CROSS REFERENCES Labor Union. SHOPLIFTING Theft of merchandise from a store or business establishment. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 196 SHOP-BOOK RULE Although the crime of shoplifting may be prosecuted under general LARCENY statutes, most jurisdictions have established a specific category for shoplifting. Statutes vary widely, but gener- ally the elements of shoplifting are (1) willfully taking possession of or concealing unpurchased goods that are offered for sale (2) with the intention of converting the merchandise to the taker’s personal use without paying the pur- chase price. Possession or concealment of goods typically encompasses actions both on and outside the premises. Concealment is generally understood in terms of common usage. Therefore, covering an object to keep it from sight constitutes concealment, as would other methods of hiding an object from a shop owner. A shopper’s actions and demeanor in the store, her lack of money to pay for merchandise, and the placement of an object out of a retailer’s direct view are all examples of CIRCUMSTANTIAL EVIDENCE that may establish intent. Shoplifting costs businesses billions of dollars every year. To enable store owners to recoup some of their losses, most states have enacted civil recovery or civil demand statutes. These laws enable retailers to seek restitution from shoplifters. Criminal prosecution is not a prerequisite to a civil demand request. Typically, a representative of or attorney for a victimized business demands a statutorily set compensation in a letter to the offender. If an offender does not respond favorably to the civil demand letter, the retailer may bring an action in SMALL CLAIMS COURT or another appropriate forum. To forestall any allegations of coercion, many companies initiate civil recovery proceed- ings only after the shoplifter has been released from the store’s custody. It is a criminal offense to threaten prosecution if a civil demand is not paid. Moreover, if a store accuses a customer of shoplifting and the individual is acquitted or if a store makes an erroneous detention, the store may face claims of FALSE IMPRISONMENT, EXTOR- TION , DEFAMATION, or intentional or negligent infliction of emotional distress. RESOURCES Christman, John H. 2006. Shoplifting: Managing the Problem. Alexandria, VA: ASIS International Sennewald, Charles A. 2000. Shoplifters vs Retailers: The Rights of Both. Chula Vista, CA: New Century Sennewald, Charles A., and John H. Christman. 1992. Shoplifting. Boston: Butterworth-Heinemann. SHORT CAUSE A legal matter that will not take up a significant amount of the time of the court and may be entered on the list of short causes upon application of one of the parties, where it will be dealt with more expediently than it would be in its regular order. The time permitted for a short cause, which is also known as a short calendar, varies from one court to another. SHORT SALE A method of gaining profit from an anticipated decline in the price of an asset. An individual who “sells short” sells either stock or SECURITIES that he or she does not own and that are not immediately ready for delivery. Generally, the seller borrows the shares needed to cover the sale from a BROKER and then delivers these shares to the buyer. The seller deposits with the broker an amount that is equal to the value of the borrowed shares. This amount stays on deposit with the broker until the stock is returned. The seller must ultimately return the same number of shares of the same stock to the broker, and the transaction is not fully executed until the stock is returned. The broker lending the stock is entitled to all the benefits he or she would have received if the stock had not been lent. When a dividend is paid, then the seller- borrower is required to pay the broker-lender an amount equal to the dividen d. Short sales made headlines in 2008 when the SECURITIES AND EXCHANGE COMMISSION (SEC)issued three orders restricting them in some instances and banning them in others. Amid the market volatility that accompanied the global economic downturn of 2008, the SEC first adopted an emergency rule to prevent short sales in the stocks of 19 financial companies, chief among them Fannie Mae and Freddie Mac. In Septem- ber 2008, the SEC took even more drastic action, prohibiting the short selling of stock for 799 publicly traded companies. Finally, in October 2008, the SEC promulgated an “interim final temporary rule” that sought to punish broker- dealers for a pattern of misconduct by precluding further short sales, in particular shares of stock. All three orders expired later in the year. SHOW CAUSE An order by a court that requires a party to appear and to provide reasons why a particular thing GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHOW CAUSE 197 . work near ships in the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION SHIPPING LAW 193 Longshoremen’s and Harbor WORKERS’ COMPEN- SATION Act of 192 7 (33 U.S.C.A. §§ 90 1 91 0). This act established. RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION SHIPPING LAW 191 The third type is the voyage charter, which is a contract of affreightment,. 2001. The Impact of the Ocean Shipping Reform Act of 199 8. Boston: Kluwer Law. Pamborides, G. P. 199 9. International Shipping Law: Legislation and Enforcement. Boston: Kluwer Law. Policy Research