Barbara Grutter, a Michigan resident, ap- plied for admission to the University of Michigan’s law school for admission for the 1997–1998 school year. Grutter is white. She was first placed on a wait list, then later learned that her application had been denied. Grutter brought suit on her own behalf as well as others from “disfavored racial groups” who were denied admission due to the law school’s stated policy of using different admissions standards in part based on race. Grutter alleged that Michigan’s policies amounted to reverse racial DISCRIMINATION because she was white and that the school violated her rights under the equal protection clause of the FOURTEENTH AMENDMENT. The stated goal of the law school’s admission policy was as follows: “to admit a group of students who individually and collectively are among the most capable students applying to American law schools in a given year.” Moreover, the policy sought the admission of “amixof students with varying backgrounds and experi- ences who will respect and learn from each other.” The law school policy committed the school to ethnic and racial diversity and made “special reference to the inclusion of students from groups which have been historically dis- criminated against, like African Americans, Hispanics and Native Americans.” A Michigan federal district court judge ruled in Grutter’s favor. Judge Bernard Friedman ruled that the “use of race as a factor in its admissions decision isunconstitutional anda violationof Title VI of the 1964 CIVIL RIGHTS Act.” He discounted the university’s rationale for its admissions process— to produce a racially diverse student population. He said that the school’s rationale did not establish a compelling STATE INTEREST. In the alternative, if the rationale did constitute a compelling state interest, the law school had failed to narrowly tailor its use of race to achieve that interest. The Sixth CIRCUIT COURT of Appeals reversed the district court’s opinion in May 2002 in a 5–4 decision. The Supreme Court agreed to review both Gratz and Grutter, and the Court handed down decisions on the cases on the same day. The Court determined that the undergraduate student policy challenged in Gratz violated the equal protection clause, but the Court ruled that the Michigan law school’s policy was constitu- tional. According to the majority opinion in Grutter, written by Justice Sandra Day O’Connor, the law school policy “bears the hallmarks of a narrowly tailored plan.” The admissions policy did not insulate certain categories of applicants from competition with other applicants. Rather, the Court found that the law school engaged in a “highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse education environment [and] affords this individualized consideration to applicants of all races.” Michigan’s law school policy succeeded where the undergraduate policy failed because, O’Connor wrote, the law school “awards no mechanical predetermined diversity ‘bonus’” based on race or ethnicity. Chief Justice WILLIAM H. REHNQUIST argued that the law school’s admission policy was unconstitutional because “[i]n practice, the program bears little or no relation to its asserted goal of achieving ‘critical mass’ of each underrepresented minority group.” FURTHER READINGS Lee, Francis Graham. 2003. Equal Protection: Rights and Liberties under the Law. Santa Barbara, Calf.: ABC-CLIO. Perry, Barbara A. 2007. The Michigan Affirmative Action Cases. Lawrence: Univ. Press of Kansas. Stohr, Greg. 2004. A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge. Princeton, N.J.: Bloomberg Press. CROSS REFERENCES Affirmative Action; Gratz v. Bollinger. GUARANTEE One to whom a guaranty is made. This word is also used, as a noun, to denote the contract of guaranty or the obligation of a guarantor, and, as a verb, to denote the action of assuming the responsibilities of a guarantor. GUARANTY As a verb, to agree to be responsible for the payment of another’s debt or the performance of another’s duty, liability, or obligation if that person does not perform as he or she is legally obligated to do; to assume the responsibility of a guarantor; to warrant. As a noun, an undertaking or promise that is collateral to the primary or principal obligation and that binds theguarantor to performance in theevent of nonperformance by the principal obligor. A guaranty is a contract that some particular thing shall be done exactly as it is agreed to be done, whether it is to be done by one person or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 168 GUARANTEE another, and whether there be a prior or principal contractor or not. GUARANTY CLAUSE A provision contained in a written document, such as a contract, deed, or mortgage, whereb y one individual undertakes to pay the obligation of another individual The stipulation contained in Article IV, Section 4, of the U.S. Constitution, in which the federal government promises a republican form of govern- ment to every state and the defense and protection of the federal government if domestic violence occurs. GUARDIAN A person lawfully invested with the power, and charged with the obligation, of taking care of and managing the property and rights of a person who, because of age, understanding, or self-control, is considered incapable of administering his or her own affairs. GUARDIAN AD LITEM A guardian appointed by the court to represent the interests of infants, the unborn, or incompetent persons in legal actions. Guardians are adults who are legally responsi- ble for protecting the well-being and interests of their ward, who is usually a minor. A guardian ad litem is a unique type of guardian in a relationship that has been created by a court order only for the duration of a legal action. Courts appoint these special representatives for infants, minors, and mentally incompetent persons, all of whom generally need help protecting their rights in court. Such court-appointed guardians figure in Guaranty FOR GOOD CONSIDERATION, and as an inducement for ________________________________________________________ (Creditor), to extend credit to ________________________________________________________________________ (Customer), it is hereby agreed that the undersigned does hereby guaranty to Creditor the prompt, punctual and full payment of all monies now or hereinafter due Creditor from Customer. Until termination, this guaranty is unlimited as to amount or duration and shall remain in full force and effect notwithstanding any extension, compromise, adjustment, forbearance, waiver, release or discharge of any party obligor or guarantor, or release in whole or in part of any security granted for said indebtedness or compromise or adjustment thereto, and the undersigned waives all notices thereto. The obligations of the undersigned shall be at the election of Creditor, shall be primary and not necessarily secondary and Creditor shall not be required to exhaust its remedies as against Customer prior to enforcing its rights under this guaranty against the undersigned. The guaranty hereunder shall be unconditional and absolute and the undersigned waive all rights of subrogation and set-off until all sums under this guaranty are fully paid. The undersigned further waives all suretyship defenses or defenses in the nature thereof, generally. In the event payments due under this guaranty are not punctually paid upon demand, then the undersigned shall pay all reasonable costs and attorney's fees necessary for collection, and enforcement of ths guaranty. If there are two or more guarantors to this guaranty, the obligations shall be joint and several and binding upon and inure to the benefit of the parties, their successors, assigns and personal representatives. The guaranty may be terminated by any guarantor upon fifteen (15) days written notice of terminination, mailed certified mail, return receipt requested to the Creditor. Such termination shall extend only to credit extended beyond said fifteen (15) day period and not to prior extended credit, or goods in transit received by Customer beyond said date, or for special orders placed prior to said date notwithstanding date of delivery. Termination of this guaranty by any guarantor shall not impair the continuing guaranty of any remaining guarantors of said termination. Each of the undersigned warrants and represents it has full authority to enter into this guaranty. This guaranty shall be binding upon and inure to the benefit of the parties, their successors, assigns and personal representatives. This guaranty shall be construed and enforced under the laws of the State of ______________________________________________. Signed this _____________ day of _____________________________________ , 20______. In the presence of: ___________________________________________________ ___________________________________________________ Witness Guarantor ___________________________________________________ ___________________________________________________ Witness Guarantor A sample guaranty. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION GUARDIANADLITEM 169 divorces, child neglect and abuse cases, PATERNITY suits, contested inheritances, and so forth, and are usually attorneys. The concept of guardian AD LITEM grew out of developments in U.S. law in the late nineteenth century. Until then, the COMMON LAW had severely restricted who could bring lawsuits in federal courts; it was easiest to sue in states through equity courts. Changes in the 1870s relaxed these standards by bringing federal codes in line with state codes, and in 1938, the Federal Rules of CIVIL PROCEDURE removed the old barriers by establishing one system for civil actions. Rule 17(c) addresses the rights of children and incompetent persons in three ways. First, it permits legal guardians to sue or defend on the behalf of minors or incompetent individuals. Second, it allows persons who do not have such a representative to name a “next friend,” or guardian ad litem, to sue for them. And third, it states that federal courts “shall appoint a guardian ad litem for an infant or incompetent person not otherwise repres ented in an action or shall make such other order as it deems prope r for [his or her] protection.” In practice, the courts have interpreted this last provision broadly: The term infants is taken to mean unborn children and all minors. In addition, courts can exercise discretion; they are not required to appoint a guardian ad litem. In the 1970s and 1980s the importance of the guardian ad litem grew in response to increased concern about children’s welfare. Two social developments brought about this growth: arisein DIVORCE cases, and greater recognition of the gravity of CHILD ABUSE and neglect. Because states had generally modeled their civil court processes on the Federal Rules of Civil Procedure, the role of guardian ad litem was well established. But now, states began moving toward stronger legislation of their own. By the 1990s many states had enacted l aws specifying the guardians’ qualifications, duties, and au- thority. Equally important, these laws spel led out requirements for the appointment of guardians ad litem in abuse cases. As a leader in the area, Florida enacted legislation in 1990 providing funding for the training of guardians ad litem (State of Florida Guardian Ad Litem Program Guidelines for FAMILY LAW Case Appointment, Fla. Stat. § 61.104). In 1993, after hearing an appeal in a particularly horrifying abuse case, the Supreme Court of West Virginia set forth guidelines for guardians ad litem in its decis ion (In Re Jeffrey R. L., 190 W. Va. 24, 435 S.E.2d 162 [1993]). Guardians ad litem have extensive power and responsibility. Their duties are greatest in cases involving children, where they investigate, attend to the child’s emotional and legal needs, monitor the child’s family, and seek to shield the child from the often bruising experience of a lawsuit. Their function as OFFICERS OF THE COURT is also extensive: in addition to compiling relevant facts, interview- ing WITNESSES, giving testimony, and making recommendations to the court on issues of custody and visitation, they ensure that all parties comply with court orders. Given the rigors of the task, which is often voluntary or low paid, it is not surprising that courts have traditionally had difficulty finding adequate numbers of qualified individuals to serve as guardians ad litem. In the mid-1990s the roleof guardian ad litem provoked new concerns. Whereas many attor- neys perceived a need for guardians ad litem to be appointed in all CHILD CUSTODY proceedings, others expressed caution about the risk of lawsuits. Particularly for attorneys serving as guardians ad litem in divorce cases, this risk was high: parents upset with the result of a custody ruling might sue the guardian, just as a number of parties had in the 1980s brought action against government agencies involved in child welfare cases. Lawyers worried that the guardian ad litem system had become potentially dangerous for those whose rights it had been designed to protect, some of society’s weakest members. FURTHER READINGS Callahan, Cindy, and Vince Wills. 2003. “Searching for Answers about the Role of the Guardian ad Litem.” The Maryland Bar Journal 36 (May-June). Goldenberg, Renee, and Nancy Palmer. 1995. “Guardian ad Litem Programs: Where They Have Gone and Where They Are Going.” Florida Bar Journal 69 (December). Kearns, Bridget. 2002. “A Warm Heart But a Cool Head: Why a Dual Guardian ad Litem System Best Protects Families Involved in Abused and Neglected Proceed- ings.” Wisconsin Law Review 2002 (May-June). Lorenson, Rick. 1994. “Court Defines Role of Guardian ad Litem in Abuse and Neglect Cases.” West Virginia Lawyer (November). Prescott, Dana. 1995. “Family Law Guardian ad Litem: Defenses to Tort Claims.” Fairshare (January). Wright, Charles Alan, and Arthur R. Miller. 2004. Federal Practice and Procedure: Federal Rules of Civil Procedure. Eagan, MN: West. CROSS REFERENCE Civil Procedure. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 170 GUARDIAN AD LITEM GUARDIAN AND WARD The legal relationship that exists between a person (the guardian) appointed by a court to take care of and manage the property of a person (the ward) who does not possess the legal capacity to do so, by reason of age, comprehension, or self-control. The term guardian refers to a person appointed by a court to manage the affairs of another person who is unable to conduct those affairs on his or her own behalf. The term is most often applied to a person who is responsi- ble for the care and management of an infant, which in legal terms is a person below the AGE OF MAJORITY . Thus, children who have not reached adulthood (usually age 18 or 21) must, with some exceptions, have a legal guardian. Courts also appoint guardians to supervise the property and personal well-being of adults who cannot manage their affairs. Person s incapacitated because of mental or physical illness, drug or alcohol abuse, or other disability may require the appointment of a guardian to ensure the conservation of their PERSONAL PROPERTY and to oversee their day-to-day personal care. The term conservator is often used for a person designated to manage the property of an adult who is unable to do so. The law of guardianship is based on the COMMON LAW and has been the provi nce of state government. This law has been modified by state statutes. For example, Section V of the UNIFORM PROBATE CODE, a model set of procedures governing the administration of trusts and estates, contains rules that guide courts in managing guardianships. The Uniform Probate Code (1969), adopted by virtually every state, has done much to streamline probate law. In 1982, provisions of the code were updated via the Uniform Guardianship and Protective Proceedings Act (UGPPA). As legislation chan- ged, and issues arose concerning the protection of wards, the UGPPA underwent scrutiny. The act was revised over the course of several years and, in 1997, it was officially approved by the National Conference of Commissioners on Uniform State Laws. The act updated proce- dures for appointing guardians and conserva- tors and provided due process protection for adults who are incapacitated. There are two basic types of guardians: of the person and of the property. A guardian of the person has custody of the ward and responsibility for the ward’s daily care. A guardian of the property has the right and the duty to hold and manage all property belonging to the ward. A ward usually has a general guardian, who supervises both the person and the property, but in some circumstances it is necessary and convenient to divide responsibilities. Persons for Whom a Guardian Is Appointed A guardian cannot be appointed for a person unless that person is in need of supervision by a representative of the court. The natural guardian of a child is the child’s parent. A parent can lose this status by neglect or ABANDONMENT.In addition, when both parents die, leaving a minor child, the court will often appoint a guardian. Guardians can also be appointed in medical emergencies. If a parent refuses to permit necessary treatment for a child, such as a blood transfusion or vaccination, the court can name a temporary guardian to consent to such treat- ment. An adult has the right to refuse medical treatment, even if his or her life is in immediate danger. However, if there is evidence that the adult is not thinking clearly or is not making the decision voluntarily, a guardian can be appointed to make the decision. Selection of a Guardian Courts of GENERAL JURISDICTION in most states have the authority to appoint guardians. Typically, probate courts and juvenile courts hear cases involving guardianship. Probate courts, which oversee the administration of the estates of decedents, are the most common forum for the appointment of guardians. Juvenile courts decide on the appointment of guardians when a child has been removed from the home because of abuse or neglect, or has been declared a ward of the court. Generally, a court can appoint a guardian for a minor wherever the child lives. If a child lives in one state and has title to real estate in another state, a guardian can be appointed where the property is, in order to manage it. A parent can appoint a guardian, usually by naming the guardian in a will. Some state laws allow a child to choose his or her own guardian if the child is over a certain age, usually 14. A court must approve the choice if the proposed guardian is suitable, even if the court believes someone else would be a better choice. Before approving the child’s choice, however, the court must satisfy itself that the child understands the effect of the nomination and that the choice is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GUARDIAN AND WARD 171 not detrimental to the child’s interests or contrary to law. Guardianship statutes specify which persons have the right to ask a court to appoint a guardian for a certain child. Most of these laws list people who would be expected to have an interest in the child’s welfare, usually relatives. Some statutes are more general, permitting applications to be filed by “any person.” Acourt must examine a PETITION to determine whether the person applying for appointment as guardian really has the child’s interest at heart. Factors in Choosing a Guardian The choice of a guardian for a child is guided by the needs of the ward. The ward’s age, affections for certain people, education, and morals are all important considerations. Courts prefer to allow a child to remain with a competent person who has been caring for the child rather than disrupt a stable home. Courts also examine the financial condition, health, judgment, morals, and char- acter of the person who seeks guardianship of the ward. Although age alone is not a determining factor, it may be material to the individual’s ability to fulfill the duties of guardian for the entire period of guardianship. Affluence is not a prerequisite for a guardian, although a guardian must be reasonably secure financially. As a rule, courts attempt to entrust the care of a child to someone with the same religious background as the child’s. A divorced parent is not disqualified from appointment as guardian of a child’sproperty simply because the DIVORCE decree has awarded the other parent custody. The court almost always favors a parent over other relatives or someone not related to the child unless there is reason to believe the parent is not a fit guardian. A close family member is not disqualified from caring for a child whose property he or she is eligible to inherit, unless it appears that he or she is unkind to the child or concerned only with the wealth to be gained from the child’sproperty. Sometimes the responsibilities of guardian- ship are divided between two people. In one case, a mother continued to have custody of her children after her husband’s death, but the court refused her request to be appointed guardian of the children’s estates because she dissipated the family allowance. A parent can also be disqualified under different statutes for “notoriously bad conduct,” by “willfully and knowingly abandoning the child,” or for “failing to maintain the child” when he or she has the financial ability to contribute to the child’s support. Manner and Length of Appointment Once a guardian is selected, he or she can be required to take an oath of office before performing the duties of guardian. Statutes generally require a guardian to post a bond, that is, pay the court a sum of money out of which a ward can be reimbursed if the guardian fails to perform the duties faithfully. These laws also permit the court to waive this requirement if the ward’s property is of relatively little value or if the guardian managing the property is a financial corporation, such as a bank or a TRUST COMPANY. The formal appointment of a guardian is completed when the court issues the guardian a certificate called letters of guardianship. The naming of a guardian in a parent’s will is only a nomination. The court must issue the letters of guardianship before a guardian has the legal authority to act. Generally, a guardian’s authority continues as long as the ward is below the LEGAL AGE of majority. If the ward marries before reaching the age of majority, guardianship of the person ends. Under the law of some states, guardian- ship of the property continues until he or she reaches the age of majority. For an adult ward, guardianship ends when a court determines the ward no longer needs supervision. A guardian can be divested of authority whenever a court is convinced that he or she has neglected the duties of guardian or mismanaged property. In some cases, courts have ordered partial removal. For example, a father who has squandered money that should have remained in his children’s bank accounts can continue to have personal guardianship of them, while someone else acts as guardian of their property. Duties and Responsibilities of a Guardian Generally, a guardian acts as guardian of both the person and the property of the ward, but in some ci rcumstances these duties are split. When acting as guardian of the person, a guardian is entitled to custody and control of the ward. Some statutes make a specific exception when a child has a living parent who is suitable to provide daily care. The guardian then manages GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 172 GUARDIAN AND WARD the child’s property, and the parent retains custody. The righ ts and responsibilities associ- ated with the child’s daily care belong to the parent, but the guardian makes major decisions affecting long-term planning for the minor. A guardian of the person of a child can prevent certain people from seeing the ward, but a court will not allow unreasonable restrictions. A guardian also has the right to move to a different state with the child, but can be required to appear in court prior to relocation and give assur ances regarding the child’s care. A guardian has the duty to provide for the child’s support, education, and religious training. Courts permit a guardian to use income and interest earned by the child’s assets to pay for the child’s needs, but they are reluctant to permit the guardian to spend the principal. A parent is primarily responsible for the support of a child, so when a parent is living, his or her money must be used before the child’s resources are spent. The child has a right to receive all of his or her property upon reaching the age of majority, unless restrictions are imposed by a will or a trust instrument. A general guardian or a guardian of the property is considered a fiduciary—a person who occupies a position of trust and is legally obligated to protect the interests of the ward in the same manner as his or her own interests. A guardian cannot invest the ward’s money in speculative ventures, agree not to sue someone who owe s the ward money, or neglect LEGAL PROCEEDINGS , tax bills, or the maintenance of land, crops, or buildings that are part of the ward’s estate. In addition, a guardian cannot allow someone else to maintain a business that the ward inherited or permit someone else to hold on to property belonging to the ward, without supervising such transactions. A guard- ian must earn income from the ward’s property by making secure investments. A guardian must take invento ry and collect all the assets of the ward. Where permitted by law, title is taken in the ward’s name. Otherwise, the guardian owns the property “as guardian” for the ward, which indicates that the guardian has the LEGAL RIGHT to hold or sell the property but must not use it for his or her personal benefit. The guardian must determine the value of the property and file a list of assets and their estimated value with the court. The guardian must collect the assets promptly, and is liable to the ward’s estate for any loss incurred owing to a failure to act promptly. In general, a guardian does not have the authority to make contracts for the ward without specific permission from the court. If the child is party to a lawsuit, a guardian cannot assent to a settlement without first submitting the terms to the court for approval. A guardian must deposit any money held for the ward into an interest- bearing bank account separate from the guar- dian’sownmoney.Aguardianisalsoprohibited from making gifts from the ward’s estate. Generally, a guardian cannot tie up the ward’s money by purchasing real estate, but can lend the money to someone else buying real estate if the property is sufficient security for the loan. A guardian cannot borrow money for personal use from the ward’s estate. A guardian can lease property owned by the ward, but ordinarily the lease cannot extend beyond the time the ward reaches the age of majority. A guardian cannot mortgage real property or permit a LIEN on personal property of the ward. A guardian can sell items of the ward’s personal property, but must receive the permission of the court to sell the ward’s real estate. At the end of the guardianship period, a guardian must account for all transactions involving the ward’s estate. The guardian is usually required to file interim reports periodi- cally with the court, but a final report must be filed and all property turned over to the ward when the ward has reached the age of majority. If the guardian has not managed the property in an ethical manner, the ward, upon reaching adulthood, may sue for waste, conversion, or embezzlement. If the management of the ward’s assets was not illegal but resulted in losses, the guardian must reimburse the ward. If the guardian has managed the assets correctly, the guardian is entitled to be paid out of the ward’s estate for his or her services. Finally, whenever a guardian participates in a lawsuit for the ward, he or she sues or is sued only “as guardian,” and not personally. For example, if the ward sues a physician for MALPRACTICE and recovers damages, the money does not belong to the guardian even though he or she initiated the lawsuit for the ward. In the same way, if someone obtains a judgment for damages against the ward, the money must come from the ward’s property, not from the guardian. If both the guardian and the ward are parties in GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GUARDIAN AND WARD 173 one lawsuit, the guardian participates in the action as both a guardian and an individual. FURTHER READINGS Barnes, Alison McChrystal. 2003. “The Liberty and Property of Elders: Guardianship and Will Contests as the Same Claim.” The Elder Law Journal 11 (spring). ———. 2003. “Ward and Guardian.” Elder’s Advisor (winter). Frolik, Lawrence A. 2001. “Promoting Judicial Acceptance and Use of Limited Guardianship.” Stetson Law Review 31 (spring). McConnell, Joyce E. 1998. “Securing the Care of Children in Diverse Families: Building on Trends in Guardianship Reform.” Yale Journal of Law and Feminism 10 no. 1 (summer). Morgan, Rebecca C. 2007. “The Uniform Guardianship and Protective Proceedings Act of 1997—Ten Years of Developments.” Stetson Law Review 37, no. 1. Zimmy, George H., and George T. Grossberg, eds. 1998. Guardianship of the Elderly: Psychiatric and Judicial Aspects. New York: Springer. GUEST STATUTES Widely adopted in the 1920s and 1930s, guest statutes were state laws that strictly limited LIABILITY in car accid ents. These laws curtailed the legal rights of “ guests”—nonpaying passen- gers such as friends or neighbors—w ho brought lawsuits again st drivers after being hurt. Gener- ally speaking, they prevented guests from suing car drivers or owners except in cases of a very high degree of NEGLIGENCE. Mere ordinar y carelessness was an insufficient ground for a suit: If a guest was injured when a driver momentarily failed to pay attention and crashed the car, most states would reject a lawsuit. The net effect of guest statutes was to protect drivers and insurance companies while leaving injured passengers, for the most part, out of luck. Constitutional challenges to the laws frequently appeared in state and federal courts throughout the middle of the twentieth century, but courts waited until the 1970s and 1980s to begin narrowing and ultimately striking down the statutes in wholesale numbers. The first guest statutes appeared in 1927, in Connecticut and Iowa (1927 Conn. Pub. Acts 4404, ch. 308, § 1 [repealed 1937]; Iowa Code Ann. § 321.494 [Supp. 1983]). Coinciding with a burst in manufacturing that increased the number of automobiles produced, the laws arose to meet the growing number of suits resulting from car accidents. By 1939, the last year in which a guest statute was enacted, 33 states had such laws or court precedents of comparable effect. The rationale behind the statutes was that a driver’s liability should be limited: Mere carelessness was seen as so commonplace that drivers in all accidents would be held liable for hurting their passengers were that the standard. For an injured passenger to surmount the barriers of a guest statute, greater evidence would have to be shown. A lawsuit would have to prove that the driver’s actions were much more than careless—that they were grossly or willfully negligent. Other states went further, setting the standard as willful or wanton misconduct. In ess ence, little short of an utter disregard for safety or a desire to run someone off the road would hold up in court in a civil suit. Thus, in one typical 1943 case, the Iowa guest statute prevented a passenger from recovering for injury. On May 30, 1942, a four-door Plymouth carrying five teenagers along a narrow, twisty gravel road went out of control, hit a bridge, and turned over. Driving was 17-year-old Fabian Gehl. Seconds before the accident, Gehl had leaned over to pick up a cigarette from the floor of the car. John Neyens, an 18-year-old passen- ger who was injured in the accident, sued Gehl. Under the guest statute, Neyens had to convince ajurythatGehl’s behavior was reckless. At trial, thejuryruledinfavorofthe DEFENDANT, finding that reaching down for a cigarette, smashing the car into a bridge, and rolling it over was something short of reckless. On appeal, Neyens lost again (Neyens v. Gehl et al., 235 Iowa 115, 15 N.W.2d 888 [1944]). Over the years, guest statutes caused consid- erable controversy. When they were defended at all, it was to argue that they were needed to prevent drivers and passengers from colluding to bring FRAUDULENT claims against insurers. Critics took a different tack: they argued that guest statutes unfairly protected drivers and insurance companies, while leaving injured passengers and the survivors of dead passengers with no compensation for their losses. The distinction between paying and nonpaying passengers seemed arbitrary: Why should friends given a ride in a car be unable to recover damages when, for example, commuters riding in a bus were able to do so? In many states, even cattle being transported to market enjoyed greater legal protection than a guest in a car. But such arguments fell on deaf ears for many years. As early as 1929, the U.S. Supreme Court rejected a constitutional challenge to a guest statute on due GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 174 GUEST STATUTES process grounds (Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57, 74 L. Ed. 221), and as late as 1977, it refused to hear another challenge because it did not pose a substantial FEDERAL QUESTION (Hill v. Garner, 434 U.S. 989, 98 S. Ct. 623, 54 L. Ed. 2d 486 [mem.]). Nonetheless, the death knell for guest statutes began in the 1970s. As the concept of liability evolved, state legislatures began provid- ing other means for passengers to seek com- pensation, and a few repealed their guest laws. Reacting to these changes, courts began to carve out exceptions in existing guest statutes, and ultimately to overturn the laws on constitutional grounds. Thus, the Supreme Court of Utah said, when striking down Utah’s guest statute in 1984, “The original scope of the guest statute has been substantially narrowed, and its application to any particular guest is both problematic and irrational” (Malan v. Lewis, 693 P.2d 661). By 1996 only Alabama still had a guest statute (Ala. Code § 32-1-2). FURTHER READINGS Edwards, Linda L., J. Stanley Edwards, and Patricia Kirtley Wells. 2008. Tort Law for Legal Assistants. Farmington Hills, MI: Cengage Learning. Emanuel, Steven. 2008. Emanuel Law Outlines: Torts. Frederick, MD: Aspen. “Letter from Friedrich K. Juenger, Professor of Law, Univ. of California at Davis, to Harry C. Sigman, Esq., September 16, 1994.” Reprinted in Vanderbilt Journal of Transnational Law 28 (May 1995). GUILTY Blameworthy; culpable; having committed a tort or crime; devoid of innocence. An individual is guilty if he or she is responsible for a delinquency or a criminal or civil offense. When an accused is willing to accept legal responsibility for a criminal act, he or she pleads guilty. Similarly, a jury returns a verdict of guilty upon finding that a DEFENDANT has committed a crime. In the event that a jury is not convinced that a defendant has commit- ted a crime, jurors can return a verdict of not guilty, which does not mean that the individual is innocent or that the jurors are so convinced, but rather that they do not believe sufficient evidence has been presented to prove that the defendant is guilty. In civil lawsuits, the term guilty does not imply criminal responsibility but refers to misconduct. GUN CONTROL Government regulation of the manufacture, sale, and possession of firearms. The SECOND AMENDMENT to the U.S. Consti- tution is at the heart of the issue of gun control. The Second Amendment declares that “A well regulated MILITIA, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For decades, a debate raged over the meaning of these words. To many, the language of the amendment appeared to grant to the people the absolute right to bear arms. Others, however, believed it only protected the right of states to form a state militia. The U.S. Supreme Court had never fully addressed the issue head-on. It did issue a ruling in 1939 (United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 [1939]) that endorsed the state militia viewpoint, but it never explicitly addressed the limits of gun control until 2008. In District of Columbia v. Heller, No. 07-290, __U.S.__, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Court struck down a Washington, D.C. ordinance that banned the possession of handguns in the district and declared that people have an individual right to possess firearms that the state cannot take away. The decision put in doubt thousands of gun control laws in the United States, though reasonable regulation of firearms remains viable. Outright bans on firearms, however, appear to be in question. Congress, state legislatures, and local gov- erning bodies have passed laws restricting the right to bear arms since the early days of the republic. Kentucky passed the first state legisla- tion prohibiting the carrying of concealed WEAPONS, in 1813. By the end of the 1990s, firearms were regulated by approximately 23,000 federal, state, and local laws. State and local firearms laws have varied widely. Thirteen states prohibit only the carry- ing of concealed handguns. At the other end of the spectrum, three Chicago suburbs—Morton Grove, Oak Park, and Evanston—ban handgun ownership outright. Generally, firearms regula- tions are more restrictive in large metropolitan areas. State and local firearms laws and ordinances include outright bans of certain firearms, prohibitions on the alteration of certain fire- arms, and restrictions on the advertising of guns. State gun-control laws also address the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GUN CONTROL 175 THEFT of handguns, the inheritance of firearms, the use of firearms as collateral for loans, the possession of firearms by ALIENS, the discharge of firearms in public areas, and the alteration of serial numbers or other identifying marks on firearms. States generally base their power to control firearms on the police-power provisions of their constitutions, which grant to the states the right to enact laws for public safety. Congress derives its power to regulate firearms in the COMMERCE CLAUSE, in Article I, Section 8, Clause 3, of the U.S. Constitution. Under the Commerce Clause, Congress may regulate commercial activity between the states and commerce with foreign countries. In reviewing federal legislation enacted pursuant to the Commerce Clause, the U.S. Supreme Court has given Congress tremendous leeway. Congress may enact criminal statutes regarding firearms if the activity at issue relates to interstate transactions, affects interstate com- merce, or is such that control is necessary and proper to carry out the intent of the Commerce Clause. In 1927 Congress passed the Mailing of Firearms Act, 18 U.S.C.A. § 1715, which banned the shipping of concealable handguns through the mail. Congress followed this with the NATIONAL FIREARMS ACT OF 1934 (ch. 757, 48 Stat. 1236–1240 [26 U.S.C.A. § 1132 et seq.]), which placed heavy taxes on the manufacture and distribution of firearms. One year later, Con- gress prohibited unlicensed man ufacturers and dealers from shipping firearms across state borders, with the Federal Firearms Act of 1938 (ch. 850, § 2(f), 52 Stat. 1250, 1251). In 1968, after the assassinations of President JOHN F. KENNEDY, CIVIL RIGHTS activists Malcolm X and MARTIN LUTHER KING Jr., and Senator ROBERT F . KENNEDY, Congress responded to the public outcry by passing the Gun Control Act of 1968 (GCA) (Pub. L. No. 90-615, § 102, 82 Stat. 1214 [codified at 18 U.S.C.A. §§ 921–928]). This act repealed the Federal Firearms Act and replaced it with increase d federal control over firearms. Title I of the Act requires the federal licensing of anyone manufacturing or selling guns or ammunition. Title I also prohibits the interstate mail-order sale of guns and ammunition, the sale of guns to minors or perso ns with criminal records, and the importation of certain fire- arms. Title II of the Act imposes the same restrictions on other destructive devices, such as bombs, grenades, and other explosive materials. Between 1979 and 1987, a total of 693,000 people in the United States were assaulted by criminals armed with handguns. Statistics such as this, as well as high-profile shootings, such as that of Presid ent RONALD REAGAN and his aide, James Brady, in 1981, led to pressure for further gun-control measures. The congressional enactment in 1993 of the Brady Handgun Violence Prevention Act, Pub. L. No. 103-159, 107 Stat. 1536, marked the first significant federal gun-control legislation since the GCA in 1968. The Act was named for James Brady, the Whi te House press secretary who was critically and permanently injured in 1981 during an ASSASSINATION attempt on President Ronald Reagan. The Brady Act amended the GCA, requiring the U.S. attorney general to establish a national instant background-check system and immediately put into place certain interim provisions until the federal system became operational. Under these interim provi- sions, a firearms dealer who sought to transfer a handgun was required to obtain from the proposed purchaser a statement, known as a Brady Form, that contained the name, address, and date of birth of the purchaser along with a sworn statement that the purchaser was not among those classes of persons prohibited ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Gun Control MURDER, TYPES OF WEAPONS USED, IN 2007 a a Due to rounding, numbers may not add to 100. b Refers to hands, fists, feet, etc. SOURCE: FBI, Crime in the United States, 2007. Firearms 68.0% Unknown or other dangerous weapons 14.1% Knives or cutting instruments 12.1% Personal weapons b 5.7% GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 176 GUN CONTROL from purchasing a handgun. The dealer was then required to verify the purchaser’s identity and to provide the “chief law enforcement officer” (CLEO) within the jurisdiction with a copy of the Brady Form. With some exceptions, the dealer was required to wait five business days before completing the sale, unless the CLEO notified the dealer that there was no apparent reason to belie ve that the transfer would be illegal. A numb er of CLEOs objected to these interim provisions. Jay Printz of Montana and Richard Mack of Arizona, both CLEOs, filed actions in federal court challenging the consti- tutionality of the parts of the Brady Act requiring CLEOs to accept Brady Forms. In both cases, the district courts held that the provision requiring CLEOs to conduct back- ground checks were unconstitutional. However, the U.S. Court of Appeals for the Ninth Circuit consolidated the two cases and reversed these decisions, finding none of the Brady Act’s interim provisions unconstitutional. The U.S. Supreme Court, in Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997), reversed the Ninth Circuit, ruling that the interim provisions were uncon- stitutional. The Court, per Justice ANTONIN SCALIA , believed that the interim provisions disturbed the separation and equilibrium of powers among the three branches of the federal government. Under the Constitution, the presi- dent is to administer the laws enacted by Congress. The Brady Act “effectively transfers this responsibility to thousands of CLEOs in the 50 states,” leaving the president with no meaningful way of controlling the administra- tion of the law. Accordingly, CLEOs could not be required to accept Brady Forms from firearms dealers. Other provisions of the Brady Act have also come under attack in the courts on constitu- tional grounds. For example, in Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), a former police officer challenged the act’s prohibition of persons convicted of DOMESTIC VIOLENCE offenses from possessing a firearm in or affecting interstate commerce. Gerald Gillespie, the PLAINTIFF in the suit, was convicted of domestic violence and, as a result, lost his job as a police officer. Although the U.S. Court of Appeals for the Seventh Circuit found that Gillespie had standing to bring the suit challenging the Brady Act, it noted that the Second Amendment was intended to ensure protection by a militia for the people as a whole. Because it could not find a reasonable relation- ship between ownership of a particular gun and the preservation and efficiency of a state militia, Gillespie’s claim failed. Other lower federal courts have similarly held that the Second Amendment does not prohibit the federal government from imposing some restrictions on private gun ownership. In August 1994, Congress passed legislation banning so-called ASSAULT weapons under Title XI of the Public Safety and Recreational Fire- arms Use Protection Act (Pub. L. No. 103-322, 108 Stat. 1796 [codified as amended in scattered sections of 42 U.S.C.A.]). This act bans the manufacture, sale, and use of 19 types of semiautomatic weapons and facsimiles, as well as certain high-capacity ammunition magazines. In 1995, the U.S. Supreme Court set additional limits on gun control with its landmark decision in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626. In Lopez, the Court ruled that Congress had exceeded its authority under the Commerce Clause in passing a law that criminalized the possession of a firearm within 1,000 feet of a school (Gun-Free School Zones Act of 1990 [18 U.S.C.A. § 922(1)(1)(A)]). The Court held that because such gun possession was not an economic activity that significantly affected interstate commerce, it was beyond Congress’s power to regulate. The debate over gun control entered a new phase when, beginning in 1998, major U.S. cities brought lawsuits against the gun industry. Frustrated by decades of meager progress in gun control, as well as mounting costs in law In its first substantial pronouncement on gun control, the Supreme Court ruled in 2008 that in-home gun possession for the purpose of self-defense is an American constitutional right. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION GUN CONTROL 177 . address the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GUN CONTROL 1 75 THEFT of handguns, the inheritance of firearms, the use of firearms as collateral for loans, the possession of firearms. understands the effect of the nomination and that the choice is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION GUARDIAN AND WARD 171 not detrimental to the child’s interests or contrary to law. Guardianship. challenge to a guest statute on due GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 174 GUEST STATUTES process grounds (Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57 , 74 L. Ed. 221), and as late as