Gale Encyclopedia Of American Law 3Rd Edition Volume 5 P10 pdf

in which racial minorities constitute the majority of votes. Under section 4(b) of the Voting Rights Act (79 Stat. 438, as amended [42 U.S.C.A. § 1973b (b)]), some states, or specified counties in some states, may need to preclear redistricting plans with the attorney general or the U.S. district court for the DISTRICT OF COLUMBIA. The states subject to preclearance are those that have historically used constraints such as poll taxes and literacy tests in an effort to exclude minority voters. Section 4(b) of the Voting Rights Act presses the issue of redis tricting based on race. The Supreme Court has responded by ques- tioning the constitutionality of the provision. In Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816, 125 L. Ed. 2d 511 (1993), a group of white North Carolina voters challenged the creation of two North Carolina majority-minori ty districts, which had the approval of the ATTORNEY general. One of the districts at issue had the shape of a “bug splattered on a windshield” (Shaw). The other district was so thin in parts that one legislator remarked, “If you drove down the interstate with both car doors open, you’d kill most of the people in the district” (Shaw). According to the Court, the redistricting was a racial gerrymander because it could not be explained by anything other factor than race. The holding of the Court emphasized that redistricting based entirely on race, with no respect for other redistricting principles, was a violation of the Equal Protection Clause and therefore invalid. The Supreme Court reaffirmed and extended the Shaw holding in Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995). In Miller, the state of Georgia had complied with the redistricting provisions of the Voting Rights Act, but still found its redistricting scheme struck down by the U.S. Supreme Court as a racial gerrymander. As a designated state under the act, Georgia reapportioned three times before the attorney general accepted a plan. In its first two plans, Georgia drew two districts in which the majority of the voting population was African American. The scheme eventually accepted by the attorney general contained three congressional districts in which the majority of the voting population was African American. According to the Court, the redistricting was a racial gerrymander because its guiding principle was racial division, even though the new election districts were not bizarrely shaped. The controversy over the North Carolina redistricting plan considered in Shaw v. Reno continued throughout the decade, even after the Court’s decision in Miller v. Johnson. Three years after the Court ruled in Shaw, a three-judge panel in federal district court in North Carolina reviewed the state’s districting plan, but again found it to be CONSTITUTIONAL. The Supreme Court reversed the decision for a second time in SHAW V. HUNT, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996) and found that the redrawing of the district into bizarre-looking shapes violate d the Equal Protection Clause. The North Carolina legislature constructed a new districting plan with a district 71 miles long, where African Americans comprised a 47 percent majority, compared with 57 percent in the original plan. White voters again contested the plan, and the three-judge panel in the North Carolina district court found that the plan violated the Equal Protection Clause because, according to the court, the legislature used race as a motivating factor in drawing the districts. The Supreme Court, per Justice CLARENCE THOMAS , however, disagreed. In Hunt v. Cro- martie, 526 U.S. 541, 119 S. Ct. 1545, 143 L. Ed. 2d 731 (1991), the Court held that the motivation of the legislature was in dispute. The white plaintiffs were required to prove that the district was drawn “with an impermissible motive.” Moreover, the plaintiffs had to prove that race was the “predominant factor” moti- vating the legislature. The plaintiffs had the burden of showing, through direct and CIRCUM- STANTIAL EVIDENCE , this racial motivation. On REMAND, the three-judge pane l con- ducted a full HEARING to determine the intention of the legislature when it drafted the district. After the hearing the panel again ruled that the plan used race as a predominant factor, which is constitutionally impermissible. The Supreme Court reviewed the case for the fourth and final time in Easley v. Cromartie, 532 U.S. 234, 121 S. Ct. 1452, 149 L. Ed. 2d 430 (2001), this time concluding that the three-judge panel’s findings were clearly erroneous and must be reversed. The Court held that a largely black district is constitutional if it is drawn to satisfy political rather than racial motives. The issues in North Carolina and Georgia are by no means unique to those states. In 1975 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 78 GERRYMANDER Congress enacted a law (Pub. L. No. 94-171) that requires the Census Bureau to provide redistricting data to each state after each decennial census, the last of which occurred i n 2000. Between 1990 and 2000, the percentage of white Americans in creased at a lower level than any other race or ethnicity, including African American, Hispanic American, Asian, American Indian, and Native Hawaiian. After the census figures were released, each state underwent a lengthy and costly proces s of redist ricting, and many of these plans were contested in court. Redistricting raises not only racial and ethnic concerns, but also concerns over the political motivation of these plans. Some claim that the system has become one in which politicians, through redistricting, now choose their voters before the voters choose their politicians. Partisanship is often at the core of these controversies. For exampl e, due in large part to Republican-drafted districts in Texas, the Texas House of Representatives in 2002 came under control of Republicans for the first time in more than a century. Texas courts and those in many other states saw numerous lawsuits filed contesting these districting plans, and these contests were not expected to end for quite some time. FURTHER READINGS Clarkowski, Andrew J. 1995. “Shaw v. Reno and Formal Districting Criteria: A Short History of a Jurisprudence That Failed in Wisconsin.” Wisconsin Law Review. Fuentes-Rohwer, Luis. 2003. Doing Our Politics in Court: Gerrymandering, “Fair Representation,’ and an Exege- sis into the Judicial Role.” Notre Dame Law Review 78 (January). Hamilton, Jeffrey G. 1994. “Deeper into the Political Thicket: Racial and Political Gerrymandering and the Supreme Court.” Emory Law Journal 43 (fall). Harvard Law Review Association. 1995. “Voting Rights and Race-based Districting.” Harvard Law Review 109. Lewis, Terrence M. 1996. “Standard of Review under the Fifth Amendment Equal Protection Component: Adar- and Expands the Application of Strict Scrutiny.” Duquesne Law Review 34. Stockman, Eric J. 1993. “Constitutional Gerrymandering: Fonfara v. Reapportionment Commission.” Connecticut Law Review 25. CROSS REFERENCES Equal Protection; Voting. GI BILL The GI BILL created a comprehensive package of benefits, including financial assistance for higher education, for veterans of U.S. military service. The benefits of the GI Bill are intended to help veterans readjust to civilian life follow- ing service to their country and to encourage bright, motivated men and w omen to volunteer for military duty. This legislation came in two parts: the Servicemen’s Readjustment Act of 1944 and the Montgomery GI Bill. Servicemen’s Readjustment Act of 1944 The first GI Bill was proposed and drafted by the AMERICAN LEGION, led by former Illinois governor John Stelle, during WORLD WAR II. The public remembered a post-World War I reces- sion, when millions of veterans returned to face unemployment and homelessness. Twice as many veterans would return from World War II, and widespread economic hardship was a real concern. A healthy postwar economy, it seemed, would depend on providing soldiers with a means to support themselves once they were back home. Newspaper tycoon William Randolph Hearst became the bill ’s most ardent and vocal supporter. Hearst and his nationwide string of newspapers lobbied the public and members of Congress to support those who served their country, and his effort was a success. The bill unanimously passed both chambers of Congress in the spring of 1944. President FRANKLIN D. ROOSEVELT signed the bill into law on June 22, 1944, just days after the D-Day invasion of Normandy (Servicemen’s Readjustment Act of 1944, ch. 268, 58 Stat. 284). The original GI Bill offered veterans up to $500 per year for college tuition and other educational costs—ample funding at the time. An unmarried veteran also received a $50-per- month allowance for each month spent in uniform; a married veteran received slightly more. Other benefits included mortgage subsi- dies, enabling veterans to purchase homes with relative ease. Despite initial misgivings over its success, the GI Bill proved to be enormously effective. Prior to its passage, detractors feared that paying the education expenses of veterans would lead to overcrowding at colleges, which before World War II were accessible predomi- nantly to members of society’s upper class. Critics were concerned that veterans would wreak havoc on educational standards and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GI BILL 79 overburden campuses with their lack of prepa- ration for the rigors of higher learning. College campuses did become grossly over- crowded in the postwar years: Approximately 7.8 million World War II veterans received benefits under the original GI Bill, and 2.2 million of those used the program for higher education. By 1947 half of all college students were veterans. Prefabricated buildings and Quonset huts were used as classrooms, and military barracks were often converted into dormitories. However, having spent a large part of their youth engaged in battle, World War II veterans were highly motivated. GIs in their late twenties and early thirties returned to the United States in droves, anxious to catch up with their nonmilitary peers, marry, settle down, and support a family. The benefits provided by the GI Bill facili tated these goals. Veterans were not the only beneficiaries of the GI Bill. Colleges, with increased enrollments, received years of financial security following its enactment. Veterans demanded more practical college course work, and this need led to a changed concept of higher education, with more emphasis on DEGREE programs such as business and engineering. The lines of race, class, and RELIGION blurred as higher education became attainable for all veterans. No longer was a college degree—and the higher paying jobs that normally follow it— limited to members of the upper class. FEDERAL income increased as the average income of taxpayers in the United States increased, and as the veterans graduated from colleges, women and members of minorities enrolled to fill the gaps they left. The GI Bill’s mortgage subsidies led to an escalated demand for housing and the development of suburbs. One-fifth of all single- family homes built in the 20 years following World War II were financed with help from the GI Bill’s loan guarantee program, symbolizing the emergence of a new middle class. A group of military veterans line up to purchase books under the GI Bill, which originally provided up to $500 per year for tuition, books, and supplies to veterans attending college after service in WWII. BETTMANN/CORBIS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 80 GI BILL Montgomery GI Bill Following the United States involvement in the VIETNAM WAR and the end of the military DRAFT in 1973, the number of qualified young adults willing to voluntarily serve in the military declined. In 1984 Representative G. V. (“Sonny”) Montgomery (D-MS), chairman of the House Veterans Affairs Committee, proposed a new GI Bill to encourage military service, even in times of peace. That year President RONALD REAGAN signed into law the Montgomery GI Bill (38 U.S.C.A. § 1401), which as of the early 2000s continues to provide optional benefits for qualified U.S. veterans. The Montgomery GI Bill is a voluntary plan that requires a contribution from the soldier who chooses to take part. Upon ENTRY into the ARMED SERVICES , including the NATIONAL GUARD and military reserves, participants may elect to have their military pay reduced by $100 each month of the first 12 months of service. This sacrifice makes them eligible to receive up to $400 a month for 36 months toward tuition and other educational expenses. To receive these benefits, soldiers must receive an honorable DISCHARGE, earn a high school diploma or its equivalent, and serve in active duty for the length of their enlistment. The federal government supplies funding but does not set standards or administer the plan; the Veterans Administration deter- mines whether a veteran is eligible, and the COLLEGES AND UNIVERSITIES (including religious and vocational schools) make admissions policies and keep track of expenditures. Effects of the GI Bill The GI Bill, in both its versions, is widely regarded as a success. Military recruiters routi- nely promote its benefits as a way to attract and enlist the best and brightest young adults: In 1996, 95 percent of new armed services recruits were high school graduates and 94.8 percent of eligible recruits chose to enroll in the education program. (Three-fourths of all women and men who have enlisted since the program began have enrolled.) In 2000 President BILL CLINTON signed an amendment to the Montgomery GI Bill that allows for a “Top-Up” benefit. This benefit, which equals the difference between the total cost of a particular course and the amount of tuition assistance paid by the military, effectively allows enrollees to receive 100 percent tuition assistance. In 2001 President GEORGE W. BUSH signed two additional bills. The Veterans’ Opportunities Act of 2001 (Pub. L. 107-14) became law on June 5, 2001 and the 21st Century GI Enhancement Act (Pub. L. 107-103) became law on December 27, 2001. Both bills amended Title 38 to provide greater benefits to service men and women. Beneficiaries of the GI Bill include Pre- sidents GEORGE H. W. BUSH and GERALD R. FORD; VICE PRESIDENT ALBERT GORE Jr.; Chief Justice WILLIAM H. REHNQUIST and Justice JOHN PAUL STEVENS , both of the U.S. Supreme Court; SECRETARY OF STATE Warren M. Christopher; journalists David Brinkley and Joh n Chancellor; actors Clint Eastwood, Paul Newman, and Jason Robards Jr.; and forme r Dallas Cowboys football coach Tom Landry. FURTHER READINGS Asch, Beth J., C. Christine Fair, and M. Rebecca Kilburn. 2000. An Assessment of Recent Proposals to Improve the Montgomery GI Bill. Santa Monica, CA: Rand. Available online at http://www.rand.org/pubs/documented_brief- ings/DB301/; website home page: http://www.rand.org (accessed July 26, 2009). Bennett, Michael J. 1999. When Dreams Come True: The GI Bill and the Making of Modern America. Washington, D.C.: Potomac. Evans, Philip G., II. 1989. “The New GI Bill: The Trojan Horse of the 1980s?” The Army Lawyer 17 (October). Hyman, Harold M. 1986. American Singularity: The 1787 Ordinance, the 1862 Homestead and Morrill Acts, and the 1944 GI Bill. Athens: Univ. of Georgia Press. United States Department of Veterans Affairs. GI Bill. Available online at http://www.gibill.va.gov (accessed July 26, 2009). CROSS REFERENCES Armed Services; Veterans Affairs Department. GIBBONS V. OGDEN Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23, was a LANDMARK decision of the Supreme Court that defined the scope of power given to Congress PURSUANT to the COMMERCE CLAUSE of the Constitution. Ogden brought an action to enjoin Gibbons from continuing to run his steamships, which were licensed in the coastal trade under a 1793 act of Congress. The state courts granted Ogden the INJUNCTION, and the case was brought on APPEAL to the Supreme Court. In 1800 the state of New York enacted a statute that gave ROBERT LIVINGSTON and Robert Fulton a monopoly—an exclusive right — to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GIBBONS V. OGDEN 81 have their steamboats operate on the state waterways. Aaron Ogden owned a steamboat company and had received a license from Livingston and Fulton to conduct a business between ports in New York City and New Jersey. Ogden had formerly been in business with Thomas Gibbons, who started his own steamship company that operated between New York and New Jersey, in direct competition with Ogden. DANIEL WEBSTER,theATTORNEY for Gibbons, argued that the issuance of the injunction was wrongful because the laws that authorized the monopoly were enacted in violation of the COMMERCE Clause of the Constitution. This clause gave Congress, not the states, the power to regulate commerce among the states. The term commerce included not only buying and selling but also navigation necessary to bring about such transactions. In the majority opinion drafted by Chief Justice JOHN MARSHALL, the Court agreed with this definition of commerce and then reasoned that because Congress was vested with the power to regulate commerce, the re could be no INFRINGEMENT of this power o ther than that specified in the Constitution. States cannot act in this area without express permission of Congress. The actions of New York State were an unauthorized INTERFERENCE with the power of Congress to regulate commerce, and there- fore, the Court reversed the DECREE of the state court and dismissed the injunc tion against Gibbons. GIDEON V. WAINWRIGHT Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, is a 1963 U.S. Supreme Court decision that established an indigent criminal defendant’s right, under the SIXTH AMENDMENT of the U.S. Constitution, to COUNSEL in state criminal trials. In 1961 Clarence Earl Gideon was charged in a Florida state court with breaking into and entering a poolroom with INTENT to commit a misdemeanor, a combination of offenses that constituted a FELONY under Florida law. He could not afford a lawyer, and he requested to have one appointed by the court. Nearly 20 years earlier, the U.S. Supreme Court had held in Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942), that an ordinary person could do an adequate job of defending himself or herself. A court-appointed lawyer was required only if the DEFENDANT had mental or physical deficiencies, the case was unusually complicat- ed, or the case involved “special circumstances.” None of these exceptions applied to Gideon, the Florida trial court ruled, and thus his request for counsel was denied. Gideon conducted his own DEFENSE and was found GUILTY of the charges. He then filed a handwritten petition with the Supreme Court of Florida, seeking to overturn his CONVICTION on the ground that the trial court’s refusal to appoint an ATTORNEY for him denied him the rights “guaranteed by the Constitution and the BILL OF RIGHTS by the United States Govern- ment.” The state supreme court denied Gideon’s petition. While in prison, Gideon, using law books available to him, drafted a petition for writ of CERTIORARI to the U.S. Supreme Court. (The petition is the legal DOCUMENT in which a person requests the Supreme Court to hear an APPEAL. The Court has the discretion to accept or decline the appeal.) According to Anthony Lewis’s acclaimed book on the case, Gideon’s Trumpet (1964), in the handwritten petition Gideon stated that it “just was not fair” that he had no lawyer at his trial. The petition was granted, and ABE FORTAS, who would later serve as an ASSOCIATE JUSTICE on the Court, was appointed to argue Gideon’s case. In a unanimous decision, the Supreme Court overruled Betts, holding the guarantee of counsel to be a FUNDAMENTAL RIGHT under the U.S. Constitution. The Court ruled that the Due Process Clause of the FOURTEENTH AMENDMENT required that the Sixth Amendment, which guarantees indigent defendants the RIGHT TO COUNSEL in FEDERAL criminal proceedings, be interpreted to include indigent defendants in state criminal trials. In his majority opinion, Justice Hugo L. Black wrote, “[R]eason and reflection require us to recognize that in our system of criminal justice, any person hailed into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided.” Black further pointed out that the government hires attorneys to prosecute defendants, and individuals charged with crimes who are finan- cially unable to hire attorneys to defend themselves, both “strong indications th at lawyers in criminal courts are necessities, not luxuries.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 82 GIDEON V. WAINWRIGHT Gideon was later retried with a court- appointed lawyer representing him and was found not guilty. Following Gideon, it was unclear whether the decision applied only to indigent defendants facing felony convictions and not to individuals charged with lesser crimes. Nine years later, that issue was clarified in Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). In Argersinger, the Supreme Court expanded its holding in Gideon, RULING that the Sixth Amendment right to appointed counsel extend- ed to misdemeanor cases in which the person charged may face IMPRISONMENT, unless the defendant makes a “knowing and intelligent waiver” of his or her right to counsel. The Court concluded that an ACCUSED in a misdemeanor trial likewise has a strong need for representa- tion and that Gideon should apply “to any criminal trial, where an accused is deprived of his liberty.” Argersinger was limited a few years later by Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979). In Scott, the Supreme Court held that the Sixth Amendment right to counsel extends only to cases where “actual imprisonment” is imposed, and not to cases where the “mere threat of imprisonment” exists (where the crime charge d authorizes a possible JAIL sentence). FURTHER READINGS Lentine, John A. 2003. “Gideon v. Wainwright at Forty— Fulfilling the Promise?” American Journal of Trial Advocacy 26 (spring). Meares, Tracey L. 2003. “What’s Wrong with Gideon?” Univ. of Chicago Law Review 70 (winter). The Oyez Project Web site. Gideon v. Wainwright, 372 U.S. 335 (1963). Available online at http://www.oyez.org/ cases/1960-1969/1962/1962_155/; website home page: http://www.oyez.org (accessed September 4, 2009). CROSS REFERENCES Criminal Procedure; Due Process of Law; Public Defender. GIFT A voluntary transfer of property or of a property interest from one individual to another, made gratuitously to the recipient. The individual who makes the gift is known as the donor, and the individual to whom the gift is made is called the donee. If a GRATUITOUS transfer of property is to be effective at some future date, it constitutes a mere promise to make a gift that is unenforceable due to lack of consideration. A present gift of a FUTURE INTEREST is, however, valid. Rules of Gift-Giving Three elements are essential in determining whether or not a gift has been made: delivery, DONATIVE INTENT, and acceptance by the DONEE. Even when such elements are present, however, courts will set aside an otherwise valid gift if the circumstances suggest that the DONOR was, in actuality, defrauded by the donee, coerced to make the gift, or strongly influenced in an unfair manner. In general, however, the law favors enforcing gifts because every individual Clarence Earl Gideon’s handwritten petition for a writ of certiorari filed with the U.S. Supreme Court in 1961. COLLECTION OF THE SUPREME COURT OF THE UNITED STATES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION GIFT 83 has the right to dispose of personal property as he or she chooses. Delivery Delivery of a gift is complete when it is made directly to the donee, or to a THIRD PARTY on the donee’s be half. In the event that the third person is the donor’s agent, BAILEE, or trustee, delivery is complete only when such person actually hands the property over to the donee. A delivery may be actual, IMPLIED,or symbolic, provided some affirmative act takes place. If, for example, a man wishes to give his grandson a horse, an actual delivery might take place when the donor hires someone to bring the horse to the grandson’s farm. Similarly, the SYMBOLIC DELIVERY of a car as a gift can take place when the donor hands the keys over to the donee. Delivery can only occur when the donor surrenders control of the property. For exam- ple, an individual who expresses the desire to make a gift of a car to another but continues to drive the car whenever he or she wishes has not surrendered control of the car. A majority of states are practical about the requirement of a delivery. Where the donor and the donee reside in the same house, it ordinarily is not required that the gift be removed from the house to establish a delivery. If the donee has possession of the property at the time that the donor also gives the person ownership, there is no need to pass the property back and forth in order to make a legal delivery. Proof that the donor relinquished all claim to the gift and recognized the donee’s right to exer cise control over it is generally adequate to indicate that a gift was made. In instances where delivery cannot be made to the donee, as when the person is out of the country at the time, delivery can be made to someone else who agrees to accept the property for the donee. If the individual accepting delivery is employed by the donor, however, the court will make the ASSUMPTION that the donor has not rendered control of the property and that delivery has not actually been made. The individual accepting delivery must be holding the property for the donee and not for the donor. In situations where the donee does not have legal capacity to accept delivery, such delivery can be made to an indiv idual who will hold it for him or her. This might, for example, occur in the case of an infant. Donative Intent Donative intent to make a gift is essentially determined by the donor ’s words, but the courts also consider the surrounding circumstances, the relationship of the parties, the size of the gift in relation to the amount of the donor’s property as a whole, and the behavior of the donor toward the property subsequent to the purported gift. The donor must have the legal capacity to make a gift. For example, infants or individuals judged to be unable to attend to their own affairs have a legal DISABILITY to make a gift. In addition, an intent to make a gift must actually exist. For example, a LANDLORD who rents a house to a tenant does not have the intent to give such premises to the tenant, even though the tenant takes possession for an extended period of time. Similarly, a gift to the wrong person will not take effect. If an individual mistakenly gives gold jewelry to an imposter who is believed to be a niece, the gift is invalid because there was no intention to benefit anyone but the niece. The intent must be present at the time the gift is made. For example, if one person promises to give a house to an artist “someday,” the promise is unenforceable because there is no intent to make an effective gift at the time the promise is made. The mere expectation that something will someday be given is not legally adequate to create a gift. Acceptance The final requirement for a valid gift is acceptance, which means that the donee unconditionally agrees to take the gift. It is necessary for the donee to agree at the same time the delivery is made. The gift can, however, be revoked at any time prior to acceptance. A court ordinarily makes the assumpti on that a gift has been accepted if the gift is beneficial, or unless some event has occurred to indicate that it is not. Types of Gifts The two principal categories of gifts are INTER VIVOS gifts and CAUSA MORTIS gifts. Inter viv os g ifts Inter vivos is Latin for “between the living” or “from one living person to another.” A gift inter vivos is one that is perfected and takes effect during the lifetime of the donor and donee and that is IRREVOCABLE when made. It is a voluntary transfer of property, at no cost to the donee, during the normal course of the donor’slife. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 84 GIFT A gift inter vivos differs from a sale, a loan, or BARTER since something is given in exchange for the benefit in each of such transfers. Whether the value given is a money price, a percentage interest or an equivalent item of property, or a promise to repay, the element of exchange makes such transfers something other than a gift. There are a number of special types of inter vivos gifts. Forgiveness of a debt is a gift of the amount of money owed, and delivery can be accomplished by destroying the promissory note signed by the debtor and handing it over to him or her. A share of stock in a corporation may ordinarily be given to someone else by having ownership transferred to the person on the books of the corporation or by having a new stock certificate issued in the person’s name. A life INSURANCE policy can generally be given to someone by delivering the policy, but it is more expedient to express in writing that all interest in the policy is assigned, or transferred, to the donee and to notify the insurance co mpany to that effect. Certain states require these formali- ties because insurance is strictly regulated by state law. Gifts of land can only be made by written transfer. A donor can limit an inter vivos gift in certain ways. For example, he or she might give someone a LIFE ESTATE in his or her property. When the donee dies, the property reverts to the donor. A donor cannot place other restrictions on a gift if the restrictions would operate to make the gift invalid. If, for example, the donor reserves the power to revoke a gift, there is no gift at all. Causa Mortis Gifts Agiftcausa mortis (Latin for “in contemplation of approaching death”)is one that is made in anticipation of IMMINENT death. This type of gift takes effect upon the death of the donor from the expected disease or illness. In the event that the donor recovers from the peril, the gift is automatically revoked. Gifts causa mortis only apply to personal property. A donor who is approaching death might make a gift by putting his or her intention in writing. This procedure is likely to be followed, when, for example, the donee is in another state, and personal delivery is thereby impracti- cal. The delivery requirement is frequently relaxed when a causa mortis gift is involved, since a donor is less likely to be able to make an actual delivery as his or her death approaches. A symbolic delivery is frequently sufficient to show that a gift was made, provided at least some effort to make a delivery is exercised. The OVERT ACT aids a court in its DETERMINATION as to whether a delivery has been made. The difference between a gift causa mortis and a testamentary gift made by will is that a will transfers ownership subse quent to the death of the donor, but a gift causa mortis takes effect immediately. In most states, the donee becomes legal owner of the gift as soon as it is given, subject only to the condition that the gift must be returned if the donor does not actually die. The requirements of a causa mortis gift are essentially the same as a gift inter vivo s. In addition, such a gift must be made with a view toward the donor’s d eath, the donor must die of the ailment, and there must be a delivery of the gift. Gifts causa mortis are usually made in a very informal manner and are frequently made because dying people want to be certain that their dearest possessions go to someone they choose. A donor who is approaching death might make a gift by putting his or her intention in writing. This procedure is likely to be followed, when, for example, the donee is in another state, and personal delivery is thereby impractical. The courts only permit the donee to keep the gift if the donor clearly intended the gift to take effect at the time it was made. If the gift is made in writing in a will and is intended to become effective only after the donor dies, the gift is a testamentary one. The law in each JURISDICTION is very strict about the features that make a will valid. One requirement, for example, is that the will must be signed by witnesses. If the donor writes down that he or she is making a gift, but the writing is neither an immediate gift nor a witnessed will, the donee cannot keep the gift. The delivery requirement is frequently re- laxed when a causa mortis gift is involved, because a donor is less likely to be able to make an actual delivery as his or her death approaches. A symbolic delivery is frequently sufficient to show that a gift was made, provided at least some effort to make a delivery is exercised. The overt act aids a court in its determination as to whether a delivery has been made. A gift causa mortis is only effective if the donor actually dies. It is not nece ssary that the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GIFT 85 donor die immediately, but the person must die of a condition or danger that existed when the gift was made and without an intervening recovery. The donee becomes legal owner of the property in most states from the time the gift is made. The person must, however, later return the gift if the donor does not actually die. If the donor cha nges his or her mind and revokes the gift, or recovers from the particular illness or physical INJURY, the gift is invalid. A donor also has the right to require that debts or funeral expenses be paid out of the value of the gift. FURTHER READINGS Bove, Alexander A. 2005. The Complete Book of Wills, Estates, and Trusts. New York: Henry Holt. Hyland, Richard. 2009. Gifts A Study in Comparative Law. New York: Oxford Univ. Press. Internal Revenue Service. 2008. Publication 950, Introduc- tion to Estate and Gift Taxes. Available online at http:// www.irs.gov/publications/p950/index.html; website home page: http://www.irs.gov (accessed September 4, 2009). “Landlord’s Estate May Include Tenant’s Improvements to Lease Property.” 2002. Tax Return Preparer’s Letter (July). GIFT TAX See ESTATE AND GIFT TAXES. GIFTS TO MINORS ACT The GIFTS TO MINORS ACT has been enacted in every state (with only minor variations) that facilitates the management of money given to infants. Initially, in 1955 and 1956, thirteen states enacted a law called an Act Concerning Gifts of SECURITIES to Minors. The New York Stock Exchange and the Association of Stock Exchange Firms sponsored the development of the law, to make it possible to donate shares of stock to children without the creation of a formal trust. The scope of the law was subsequently expanded to encompass all gifts to minors. The law allows the individual giving the property to choose an adult in whom he or she has confidence to serve as custodian of the property for the infant . The custodian has authority to collect, hold, manage, invest, and reinvest the property. The custodian may pay out some of the money for the child’s support, if necessary, and must manage the funds reasonably. The custodian must maintain accurate records of transactions and pay over the property whe n the child reaches majority. A custodian is not permitted to use any of the money pe rsonally or for anyone else except the child, nor can the person commingle the property with his or her own. A professional custodian, such as a trust company or an ATTORNEY serving as GUARDIAN of the property for the minor, can be remunerated out of the child’s property. Such a custodian is, however, held to a higher standard of care in management of the property. Other business people who deal with the custodian in manage- ment of the property are not responsible for ascertaining that the custodian has authority to act. When a custodian resigns, dies, or is removed from the position by court order, another custodian can be appointed as a successor. Before dying, a custodian can desig- nate who his or her successor will be, or a court may appoint one. A petition to appoint a new custodian can be filed in court by the individual who initially made the gift, by an adult member of the child’s family, by a guardian, or generally by the child if the child is over fourteen years of age. The AGE OF MAJORITY varies from one state to another. Within some states, the age of majority is not the same for all purposes, so it is necessary to check the Gifts to Minors Act in the state in which the child resides. v GIGNOUX, EDWARD THAXTER During his 30-year career in the federal courts, EDWARD THAXTER GIGNOUX developed a reputa- tion as an articulate, compassionate, and competent trial judge. He was also a leader in the fields of judicial ethics, court administra- tion, and trial practice and technique. He showcased his skills in a number of high- profile cases—including the CONTEMPT trial of Abbie Hoffman and other defendants known as the CHICAGO EIGHT (In re Dellinger, 370 F. Supp. 1304, N.D. Ill., E.D. [1973]). Gignoux was born in Portland, Maine, on June 28, 1916. He graduated cum l aude from Harvard College in 1937 and went on to Harvard Law School, where he was editor of the Harvard Law Review. He graduated magna cum laude from the law school in 1940 and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 86 GIFT TAX began his legal career with the firm of Slee, O’Brian, Hellings, and Ulsh, in Buffalo. After a year in Buffalo, he joined the Washington, D.C., firm of Covington, Burling, Rublee, Acheson, and Shorb. WORLD WAR II interrupted Gignoux’s Washing- ton, D.C., career after just a few months. In 1942, Gignoux joine d the U.S. Army. During his three-year tour of duty with the First Cavalry Division in the Southwest Pacific, he rose to the rank of major and was awarded the Legion of Merit and the Bronze Star. After the war, Gignoux returned to Coving- ton, Burling, in Washington, D.C., to resume the PRACTICE OF LAW, but a bout with malaria, contracted during his years in service, forced a return to his native Maine for convalescence. As his health returned, Gignoux joined the Portland, Maine, firm of Verrill, Dana, Walker, Philbrick, and Whitehouse, and he married Hildegard Schuyler. Gignoux and his wife h ad two children as they settled into life in Portland. In addition to practicing law, Gignoux was named assistant corporation counsel for the city of Portland, and he was twice elected to a three-year term on the Portland City Council, serving from 1949 to 1955. By 1957 Gignoux was well-known and respected in Maine legal and political circles, and he was a logical choice to fill a vacancy on the FEDERAL bench. He was appointed U.S. district judge for the District of Maine in August 1957 by President DWIGHT D. EISENHOWER, and he served as Maine’s only federal court judge for the next 20 years. One of the first cases he heard as a federal judge was an antitrust action brought by the federal government against the Maine Lobstermen’s Association—an important group in a very visible industry (Un ited States v. Maine Lobstermen’sAss’n, 160 F. Supp. 115 [D. Me. 1957]). A jury found the lobstermen GUILTY, but Gignoux, showing both wisdom and compas- sion early on, managed to satisfy both parties when he imposed only a small fine on the defendants. Gignoux was also a central figure in Indian settle ment claims in his native state, and he was instrumental in establishing that several tribes in Maine were “federal” rather than “colonial” Indians, thus making them eligible for millions of dollars each year in federal housing, education, and health care benefits ▼▼ ▼▼ Edward Thaxter Gignoux 1916–1988 19001900 19501950 19751975 20002000 19251925 ❖ 1916 Born, Portland, Me. 1914–18 World War I ◆◆ 1940 Graduated from Harvard Law School, editor of Harvard Law Review 1939–45 World War II 1942–45 Served in U.S. Army 1950–53 Korean War 1949–55 Served on Portland City Council 1961–73 Vietnam War 1957–83 Served as U.S. district judge for the District of Maine ◆ 1973 Presided over contempt trial of the Chicago Eight ◆ 1983 Took senior status as judge; presided over trial of U.S. district judge Alcee Hastings ❖ 1988 Died, Portland, Me. 1968–87 Served on the U.S. Judicial Conference Edward T. Gignoux. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GIGNOUX, EDWARD THAXTER 87 . went on to Harvard Law School, where he was editor of the Harvard Law Review. He graduated magna cum laude from the law school in 1940 and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 86 GIFT. from Harvard Law School, editor of Harvard Law Review 1939– 45 World War II 1942– 45 Served in U.S. Army 1 950 53 Korean War 1949 55 Served on Portland City Council 1961–73 Vietnam War 1 957 –83 Served. th at lawyers in criminal courts are necessities, not luxuries.” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 82 GIDEON V. WAINWRIGHT Gideon was later retried with a court- appointed lawyer