CNN’s Black in America: Is Marriage Really for White People?

By Syreeta L. McNeal, CPA, JD

As many of my friends forwarded to me via e-mail a reminder to watch CNN’s two-part special Black in America, I have to tell you the specials made me very depressed and I wonder is the message that CNN is showing to our community is the following: that being black in America is a plague that will never go away. From the alarming statistics as it related to AIDS being the number one killer of black women, the growing number of black men going to prison, and lack of job opportunities even for black men acting as model citizens, I think we need to re-think showing specials of being Black in America through CNN.

Some people might think this is enlightening, but how many specials do you see CNN doing talking about being “White in America,” “Hispanic or Latino in America,” or “Asian in America” and give the same coverage of relevant statistics and personal examples of negative aspects that exist in their respective communities as done for its special Black in America? For example, growing methamphetamine drug abuse and a larger percentage of whites are on welfare will less likely be highlighted if CNN ran a special called “White in America.”

But, what is really appalling is that CNN had the nerve to ask the question in an article, “Is Marriage Really for White People?” on its website recently.[1] Wow! Has 54 years of integration since the United States Supreme Court’s decision in Brown v. Board of Education in Topeka, KS where they reversed the ruling of the Doctrine of Separate but Equal as the federal law of the land in Plessy v. Ferguson in 1954 produced this type of blatant media question to have legitimacy in 2008?[2] Instead of just blaming CNN for publicizing this type of nonsensical question, I want to use this article to highlight some legal and financial advantages of marriage.

Marriage

Marriage is an institution in which interpersonal relationships (usually intimate and sexual) are acknowledged by the state or by religious authority.[3] The right to marry is a fundamental right that is protected by the constitution.[4] Marriage is an example of how the church and the state are intermingled. Individual states, and not the federal government, has jurisdiction over marriage. However, the state's power to regulate marriage is not unlimited and is subject to constitutional limitations.[5]

All 50 states and one district of the United States have statutes that allow a man and a woman to be married. If you are Christian, Muslim, Buddhist, or any other recognized religious practice, the state usually allow couples to apply for a marriage license after performing their religious ceremony for marriage. However, if you do not practice a recognized religious practice, the state government allows couples to get married through a ceremony performed by a government official as well. Usually, this type of civil marriage is performed by a justice of the peace or other recognized government official.

There are advantages to marriage. One is that it results in a civil contract creating a new status. The new status is that a husband and wife are considered one unit instead of two separate units when it comes to legal, financial and social benefits. Once an individual is married, that status terminates only upon death, dissolution or annulment. Listed below are nine categories of the benefits of being married.

Tax Benefits

Married couples can file married filing joint on their federal and state tax returns. This status has the lower taxable rate afforded to it under the Internal Revenue Code and respective state revenue codes. Another tax benefit is that married couples can create a “family partnership” under federal tax laws which allow couples to divide business income among family members.

Estate Planning Benefits

In terms of estate planning benefits, a person can inherit a share of their spouse’s estate. Another benefit is that a person can receive an exemption from both estate taxes and gift taxes for all property you give or leave to your spouse. Another benefit is that married couples can create life estate trusts like QTIP trusts, QDOT trusts and marital deduction trusts. Also, a married couple can obtain priority if a conservator (someone to make financial and/or marital decisions on your spouse’s behalf) needs to be appointed.

Government Benefits

Some of the government benefits you will receive in marriage is that a spouse can receive Social Security, Medicare and disability benefits for each other’s spouse after a certain duration of marriage. Also, a spouse can receive veterans’ and military benefits such as those for education, medical care, and special loans. Married couples can receive public assistance benefits as well.

Employee Benefits

Married couples can obtain insurance benefits through a spouse’s employer. During employment, a spouse can take family leave to care for your spouse during an illness with federal protection. Another benefit is that you can receive wages, workers’ compensation, and retirement plan benefits for a deceased spouse. Also, a person can take bereavement leave if your spouse or one of your spouse’s close relative dies.

Medical Benefits

If married, you can visit your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility. Also, you can make medical decisions for your spouse if he or she becomes incapacitated and unable to express wishes for treatment.

Death Benefits

Spouses can consent to after-death examinations and procedures. Also, a spouse can make burial or other final arrangements.

Family Benefits

A married couple can file for stepparent or joint adoption. Also, a married couple can apply for joint foster care rights. A spouse can receive equitable division of marital property if a divorce is finalized. Another benefit is a former spouse can receive spousal or child support, child custody and visitation if a divorce is finalized.

Housing Benefits

Married couples can live in neighborhood zones for “families only.” Also, a married couple can automatically renew leases signed by only one spouse.

Consumer Benefits

Married couples receive family rates for health, homeowners’, auto and other types of insurance. These rates are lower than those for single persons. Also, married couples receive tuition discount and permission to use school facilities. Married couples can participate in other consumer discounts and incentives offered only to married couples or families.

Conclusion

Listed above are nine examples of the benefits of being married. There are more and if interested, please feel free to consult a lawyer, accountant and/or spiritual counselor before you decide to venture into marriage. Also, I want to make it very clear that being married should not be a determination based on race or ethnicity. Never did you hear the Jewish community even pose this question, “Is marriage really for Germans?” while they suffered through the holocaust. They continued to get married because they knew through their faith and their continued existence that it was an ideal thing to partake in even in the midst of turmoil and adversity. Like our Jewish brothers and sisters, we should not allow CNN or our own perceived failings to cloud our judgment into thinking that we are not able to share in things like marriage that are considered to be part of the American dream.

I am 26+ years old and still look forward to marrying a brother in the future. I had an opportunity to walk down the aisle when in college, but I refused to act like a feudal serf being run by a feudal lord when my father treated me exactly like one of the scenes in Eddie Murphy’s comedic hit, Coming to America. I could become bitter and give up hope like many displayed in the CNN special. But, if we continue to view the glass as half empty, we will continue to allow others to dictate our destiny. I for one want to take the opportunity to view the glass as half full and find ways and solutions to statistically make our situation better and even our own personal life more fruitful even in the midst of adversity. If giving our community information regarding the benefits of marriage will help in that effort, then I am willing to serve as that conduit.

Source: http://www.nolo.com/article.cfm/pg/1/objectId/E0366844-7992-4018-B581C6AE9BF8B045/catId/F896EE61-B80C-4FE1-B1687AC0F07903BA/118/304/ART/

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] http://www.cnn.com/2008/LIVING/wayoflife/07/22/single.black.women/index.html
[2] Brown v. Board of Education in Topeka, 347 U.S. 483 (1954).
[3] http://en.wikipedia.org/wiki/Marriage
[4] Zablocki v. Redhail, 434 U.S. 374 (1978).
[5] Salisbury v. List, 501 F. Supp. 105 (D. Nev. 1980).

Law School Admissions and Race

By: Leland C. Abraham, Esq.

For the past decade, law schools have become increasingly interested in raising their national rankings. The primary way to accomplish this is demanding higher Law School Admissions Test (LSAT) scores. This is a trend that researchers are seeing across the country. However, these law schools are seeing a significant decrease in terms of racial diversity as fewer black applicants are accepted.

The number of first-year black enrollment peaked in 1994 at 3,432. Recently, that number has dropped 13% to 2,975 according to the data from the Law School Admission Council (LSAC), which is the same organization that administers the LSAT. In direct contrast, Asian and Hispanic enrollments have increased: Asians by 44% to 3,759 and Hispanics by 26% to 2,610.

Black applicants are increasingly getting denied at the gate. The main reason for this decline is because law schools are concerned more with the LSAT scores. The average law student’s LSAT score has increased from 154.3 in 2001 to 157.3 in 2005. As a group, black applicants have consistently scored around 10 points lower than the national average. Because there is an increased focus on this one particular area of the application process, black applicants are receiving a big portion of the rejection letters.

There are inherent failures with law schools focusing heavily on the LSAT as a predictor of law school entrance. One thing the statistics do not state is that the LSAT is not an indication of how well an attorney that individual will become. In fact, the LSAT is not a good indicator of how well a law student the individual will become. The LSAT score fails to consider factors such as life experience and how hard an individual is willing to work. A major portion of a student’s success in law school hinges on how hard a student is willing to work.

This trend is detrimental to the law profession and to society as a whole. Blacks make up roughly 13% of the US population, but they are just 6.8% of the 135,000 law students. While the US population is becoming more diverse, the profession that led the effort in breaking through racial barriers (via landmark cases) is becoming increasingly underrepresented by blacks.

Some have indicated that the decrease in the numbers of black law students is due to the fact the blacks are not pursuing law. This could not be further from the truth as the number of black applicants to law school has increased from 8,648 to 10,674 between 2001 and 2004. The number of applicants from all ethnic groups has increased in recent years, yielding record numbers of applicants to law school. This has forced the law schools to be more selective in the students who are admitted. Unchecked, the law school admissions process is mainly focusing on the LSAT as that measure.

Previously, the checks and balances system that law schools employed was to use “race” as one of many predominant factors in the admissions process. However, in 2003, the US Supreme Court held in two landmark cases, Grutter v. Bollinger and Gratz v. Bollinger that the use of race in admissions must be limited to prevent racial quotas in admissions.[1] If any law schools’ admissions program appears to use racial quotas for admissions of minorities, the current US Supreme Court will likely prevent its use.

To address this growing crisis, the chapters of the National Black Law School Associations (NBLSA) are inviting high school students to campus to discuss the possibility of obtaining the law degree. This is a measure that will get potential students interested in law early in the process. Perhaps by employing this measure, students will begin to seek LSAT prep courses early enough in the process to be competitive with their white counterparts. Jessica Green is a former Black Law Student Association President at the University of Kentucky. Her association invited high school students to the campus. When asked why she decided to employ such a measure, she replied, “Something has got to be done to increase these numbers. If you have a race and criminal justice course and there are no black students in there, I’m concerned about how telling the discussion can be.”

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] See Grutter v. Bollinger, 539 U.S. 306 (2003). See also Gratz v. Bollinger, 539 U.S. 244 (2003).

N-Word: Can We Regulate Public and/or Private Use of It?

By Syreeta L. McNeal, CPA, JD

Recently, Rev. Jesse Jackson, Sr., held what he believed to be a private conversation with another black analyst that was surreptitiously taped on an open microphone with Fox News when he referred to possibly castrating Senator Obama for talking down to N’s (or the N-Word) when he believed Senator Obama was grandstanding for support from white voters in supporting President Bush’s faith based initiatives in staged media events. I know most people in the black community and in mainstream America were appalled by the pervasive racial slur used by Rev. Jackson especially after he was one of the main forces leading the effort to bury the use of the N-word in public.

Well, Rev. Jackson is not alone in his use of the N-Word or being caught using the N-Word in precarious situations. Take for instance, Detroit Mayor Kwame Kilpatrick and his reference to using the N-Word to describe efforts to remove him from office during a public speech even though he appeared previously at the NAACP Annual Convention to participate in formally burying the N-Word. Better yet and one of my favorite examples is when Rev. Jeremiah Wright used the racial slur during one of his taped sermons at Trinity United Church of Christ to infer that being called an N-Word makes Senator Obama better qualified to be president over Senator Clinton. Comedian Whoopi Goldberg on “The View” used the N-Word to make a point of its private use in the black community or by rappers. Let’s not forget rappers like NAS, Jay-Z, David Banner, 50 Cent, Ludacris, and others who use the N-Word in their rap lyrics.

Well, Jesus states “he (or she) who has no sin, let them cast the first stone.” How many of you can honestly say, that in a whisper, private or public setting, you have not used a racial epithet to describe a situation? I know if my walls could talk, I would probably have a brick house built outside on the patio from all the times I have used any of the infamous racial slurs in a sentence. Unfortunately, on “The View,” Elisabeth Hasselback had trouble understanding the distinct difference between the use of the N-Word in a public or private conversation and the audience it is used before. Either she is gullible or expects that people should live their lives in an ideal world and not have any slip ups in stating racial slurs to one another. Well, just like my momma told me, she did not raise a fool. Unlike Hasselback’s emotional plea to have the world free from using racial slurs publicly or privately, we live in the real world. Racial slurs will always exist and people will always use them.

Recently, the media is only discussing the N-Word as the most controversial racial epithet. But, fair is fair and there are many other racial epithets that exist and our spoken either privately or publicly. Kike is an offensive racial slur about Jews. Spic is an offensive racial slur for Spanish Americans. Wetback is an offensive racial slur for Mexicans who enter the United States illegally. Chink is an offensive racial slur for Chinese. Dago is an offensive racial slur for a person of Italian or Spanish birth or descent. Besides the N-Word, other offensive racial slurs for those of African descent are coon, tom, savage, pickaninny, mammy, buck, samba, jigaboo, nappy headed ho and buckwheat.

But, this article is intended to understand the law as it relates to the use of racial epithets. The First Amendment of the United States Constitution states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[1] In 1942, the United States Supreme Court held that there are inherent limitations to free speech that do not raise constitutional problems in Chaplinsky v. New Hampshire.[2] By incorporation of the Fourteenth Amendment, freedom of speech, press, assembly, and worship are among the fundamental personal rights and liberties protected from invasion by state action.[3]

Free speech is not an absolute right.[4] The United States Supreme Court held that there are certain well-defined and narrowly limited classes of speech the punishment of which has never raised any Constitutional problem.[5] Examples of this limitation are words that are lewd, obscene, profane, libelous, and insulting or considered "fighting" words (those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace).[6] Also, the Court noted that resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.[7]

Since 1942, many things have changed to impact what is accepted or allowed to be stated in public as it relates to profanity and racial epithets. Even Willie Lynch used the N-Word in his speech in 1712 on the bank of the James River in the colony of Virginia. Now, the N-Word has evolved into a term of endearment and spelled with an ‘a’ instead of ending with an ‘er’ when people of similar backgrounds say it in private or public. For example, the N-Word has evolved into an acceptable public conversation even with people of different races in the hip hop community and in black comedy. What better display of this trend than the movie, Gridiron Gang which is based on a true story of California teenagers at a juvenile detention center gaining self-esteem by playing football. In the movie, both versions of the N-Word were in full effect and at some points during the movie, I could not even tell the difference of whether the N-Word was used as a term of endearment or as an insult. Like the movies, cable television shows like I Love New York and Flavor of Love feature many people saying all types of curse words and racial epithets like the N-Word on a regular basis.

Racial Epithets is considered offensive language. So, regardless of how rappers or comedians perceive the use of the N-Word as a term of endearment, it is still an offensive racial slur like any other racial epithet. Now, can the federal and state government regulate public use of the N-Word? Yes, they can. If you use the word in private among friends or in associations with peers that allow use of the racial epithet, it will be less likely that a court of law would intervene to stop individual’s private use among friends, colleagues and associations.

Public use of racial epithets is a whole different story. Federally, the Federal Communication Commission (FCC) regulates public use of profanity and racial epithets. State governments regulate commercial businesses through their various agencies as well. Many of you are familiar with the Parental Advisory sticker on commercial products that use profanity or racial epithets. Also, movie ratings such as Rated R or PG-13 are used for movies that use profanity and racial epithets. The FCC and state government agencies try to incorporate a delicate balance in its regulation of content for mature or adult audiences and content suitable for children. Adult pornography is a protected constitutional privilege for adults. Within adult pornography, sexual imagery, profanity and sometimes racial epithets can be used because adults are able to discern better what these actions mean than children can.

When profanity or racial epithets have the potential to be heard by children, then the federal and state governments have a right to intervene to protect the health, safety and welfare of children. This is the main reason for the hoopla over the N-Word. Adults are worried about the potential impact that these negative images can have on children who are not fully developed or exposed to what these racial epithets mean in our society. I understand members of the hip hop community who embrace using the N-Word as a right to free speech and think it is a term of endearment. However, adults are concerned about the dark ugly side of the N-Word and the consequences that can come of it if it is allowed to run rampant as previously done in our history.

Do you think children know the ugly side of racial epithets like the N-Word as was used when Emmitt Till was brutally murdered by white racist southern men and called the N-Word in Money, Mississippi on August 28, 1955 all because they alleged that Emmitt Till whistled at a white woman? When white mobs held lynching parties throughout the United States using blacks and calling them the N-Word in the presence of family members and children, is this a term of endearment? The answer is no to both of these questions.

This is the truth about the dark ugly side of the N-Word that adults in civil rights organizations like the NAACP and The National Action Network are concerned about. They were awakened about the horrors of the word and impact to young black girls as Don Imus called the Rutgers’ women basketball team ‘nappy headed hoes.’ Michael Richards’ rant calling audience members the N-Word at the Los Angeles’ Laugh Factory awakened those fears. As the federal and state governments seek to protect the health, safety and welfare of children (and even adults) from profanity and racial epithets, let us continue to work to dialogue in a civil manner about issues on both sides so that we can come to a compromise that protects both adults and children.

As we seek to inform our children about the many facets of the N-Word, habits are hard to break. Many people, like Rev. Jackson, Sr., have used racial epithets, like the N-Word, in private dialogue. I know I have. But, let us continue to work to be mindful of how harmful racial epithets, like the N-Word, are and minimize the impact it can have on our children through creating new habits in lessening its use in public and in private and if necessary, seeking federal and state regulation as well.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] U.S. Const. amend. I
[2] See Chaplinsky v. New Hampshire, 315 US 568 (1942).
[3] Id. at 571.
[4] Id.
[5] Id. at 572.
[6] Id.
[7] Id.

Time Magazine: Fast-Tracking Law School

By Kristina Dell

Society might not need any more lawyers, but a growing number of law schools are trying to turn out new ones faster than ever. Northwestern University announced this summer that starting in May 2009, its law school will offer an accelerated J.D. program to be completed in two years instead of the traditional three. The Chicago school, which will continue to offer a three-year program as well, is not the first to let some students fast-track their legal education. The University of Dayton School of Law and Southwestern Law School, in Los Angeles, already have two-year express tracks. But as the first top-tier law school — ranked ninth in the country by U.S. News & World Report — to offer the program, Northwestern could be especially influential in getting other schools to embrace the idea.

"This is a major change, not a minor thing," says Daniel Polsby, dean of George Mason University School of Law, in Arlington, Va. After teaching at Northwestern Law for 23 years, Polsby has asked his faculty to take a look at offering a similarly accelerated program and thinks other schools may follow suit. "The idea is generally a good one and there is going to be demand for it, but how much I don't know," he says.

Northwestern decided to offer the accelerated program after conducting a nationwide two-year study in which focus-group participants were asked how its law school could be made more competitive with other top schools. The suggestions resulted in new required courses (on such subjects as accounting and leadership skills) as well as the launch of the two-year program. "Part of our thinking was to be competitive and open up a whole new market of applicants," says David Van Zandt, dean of Northwestern Law, which is vying for students with its prestigious neighbor, the University of Chicago School of Law.

Northwestern's compressed program requires the same amount of credits as a traditional three-year program. But it squeezes them into five semesters instead of the usual six — the first one taking place during the summer before the start of the first law-school year. Applicants must have at least two years' post-undergraduate work experience, which is meant to attract older candidates who administrators believe will be better prepared to handle the grueling schedule. In addition to the heavier course load, the students get only one summer off — between their first and second years — in which to work and hopefully line up a post-graduation job.

Less time on campus most likely won't mean a break on tuition. While Northwestern has not yet set the costs for its two-year program, administrators have hinted that fast-track students will be paying somewhere around the $128,016 that students shell out over the course of three years to get a J.D. "We generally charge by the degree rather than the time served," says Van Zandt. "The real savings will be the extra year of salary students make by getting out into the marketplace faster." That's around $150,000 and up for most Northwestern Law grads working as first-year associates at top law firms.

The idea of a two-year law program is a response to critics who say the third year of law school is often pointless, since by that stage most law students already have jobs lined up and care more about socializing than getting good grades. Some schools have responded by offering more externships, study-abroad programs and legal clinics to give real-world experience during that third year.

But even proponents of accelerated programs note that there are drawbacks. With only one summer to work, students don't have a lot of time to experiment or figure out the kind of legal career they want to pursue. And those who fall behind in classes don't have much time to catch up. "This is not for everybody," says Lisa Kloppenberg, dean of the University of Dayton School of Law, who has overseen the school's two-year program. "It's very intense."

Critics question whether an expedited education will be a more efficient use of time and money for cash-strapped students or if it will churn out unprepared, inferior litigators with fewer job opportunities. "You want that other year because you will be a better lawyer for the next 50 years with that investment," says Geoffrey Stone, law professor at the University of Chicago. Indeed, the one clear winner in the accelerated approach may turn out to be the school. With its new two-year program, notes Stone, "Northwestern gets more tuition with less teaching."

Source: http://www.time.com/time/nation/article/0,8599,1825863,00.html?xid=site-cnn-partner

How Damaging is a Lie to the Feds?

By Leland C. Abraham, Esq.

To most people, a simple lie is a means to an end. Generally, that end is to get out of trouble. In most respects, lying to investigators is not that big of a deal. If an officer were to pull you over and ask you routine questions, the accuracy of your answers will probably not matter that much if your case were to go to a trial. However, the story changes when the investigator is a federal agent. This scenario has played out recently with a few high profile celebrities.

The first celebrity of noteworthy attention is Martha Stewart. While most people believe that she went to prison for insider trading on the stock market, few know that she actually went to prison on a perjury charge. Perjury occurs whenever a witness is found to be telling a lie while under oath. While a charge of perjury mainly comes once someone is on the witness stand, there is an exception to this general rule when the potential witness is speaking to a federal investigator. Few people know that speaking to a federal investigator, of any kind, is considered testimony “under oath.” This is across the board with federal investigators, whether they are FBI agents or IRS agents. When federal authorities investigated Martha Stewart for insider trading, she made several false statements to federal investigators. As a result of these false statements, she was charged with committing perjury and sentenced to a term in a federal penitentiary.

Another celebrity case is that of Marion Jones. Amidst the steroid controversy, Marion Jones admitted that she used performance enhancing drugs during her 2000 Olympic campaign. During a previous federal investigation, she told federal investigators that she did not use performance enhancing drugs and she did not know of any source in which athletes may obtain such drugs. Federal investigators were able to prove that her previous statement was untrue. As a result, Marion Jones was sentenced to a term of six (6) months in a federal prison.

Two more celebrities who are being impacted by lying to federal authorities is Barry Bonds and Roger Clemens. Barry Bonds is charged with perjury as it relates to his use and statements of use of performance enhancing drugs . What about Roger Clemens? Is the issue of race more prevalent in determining when celebrities like Roger Clemens will or will not be charged with perjury? The federal government has made it clear that when an athlete is caught making false statements to a federal investigator, that athlete will be sentenced to a term in federal prison (see Marion Jones). To be consistent in its application of the perjury charge, the pressure should be on the federal government to bring Roger Clemens on perjury charges as well.

Like Barry Bonds, Roger Clemens is an acclaimed baseball pitcher who is accused of using performance enhancing drugs during one of his MVP seasons. During Congressional hearings, Clemens categorically denied using performance enhancing drugs. In fact, Clemens scolded certain members of the press for not giving him the benefit of the doubt in this matter. Clemens also filed a defamation suit against the man who accused him of using steroids. Since the congressional hearings, there has been evidence that suggests that Clemens indeed did use steroids. If this is the case, Clemens would have lied to federal investigators on several occasions, including to congressional members at the congressional hearings. If Clemens did lie to Congress and federal investigators, then he deserves to be brought up on perjury charges and receive a punishment no less than six months in a federal prison as Marion Jones received. However, this is where the issue of race might come into play. Like the disparity in prison sentence to those who distribute and sell cocaine versus crack cocaine, you can only imagine that the punishment, if any, Roger Clemens will receive will be far less than what Barry Bonds will receive and Marion Jones received if convicted of perjury. But, keep your eyes open to see if justice is fair even in the case of lying to federal authorities.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

A BANKRUPT AMERICA

By: Leland C. Abraham, Esq.

While many politicians and talk show hosts debate whether America is in a “recession,” one thing is for certain, more people are filing for bankruptcy now than ever. The growing hysteria generated from the subprime mortgage crisis where companies like Bear Stearns, IndyMac, Freddie Mac and Fannie Mae are being bailed out or regulated by the federal government is of daily discussion by news media.

Growing unemployment and increased gas prices have taken a toll on individuals and corporations as well. However, individuals and corporations do have legal options to deal with their worsening financial situation related to their inability to pay their mortgage payment or looming credit card debt. Bankruptcy is a method that allows individuals or corporations to satisfy debts when they do not have the financial resources to cure claims with creditors. This article is intended to give you an overview of Bankruptcy as well as the pros and cons of it if you choose to pursue this legal option.

Bankruptcy is a legal process through which people and businesses can obtain a fresh financial start when they are in such financial difficulty that they can not repay their debts as agreed. Bankruptcy is created by federal statute; hence, jurisdiction for bankruptcy is under the federal courts.

There are four (4) different forms of bankruptcy applicable to consumers or individuals. Chapter 11 bankruptcy is a form of bankruptcy given to corporate entities for restructuring their business. When businesses become insolvent, corporations will file Chapter 11 bankruptcy to satisfy debts with creditors while still continuing to exist as a corporate entity after the filing of bankruptcy. For example, Michael Vick and his associated legitimate business ventures filed for Chapter 11 bankruptcy protection recently.

Chapter 12 bankruptcy is used for agricultural purposes. This form of bankruptcy is used for farmers and fishermen. If there is a supply quota that the farmer or fisherman must meet and circumstances arise where he or she is not able to meet the quota for a specified amount of periods, he or she may file for Chapter 12 bankruptcy protection to satisfy those creditors whom they are not able to provide supply for.

Chapter 13 bankruptcy allows individual consumers to make monthly payments to save possession and ownership of real or personal property. Like Chapter 11 bankruptcy, Chapter 13 bankruptcy is a form of debt reorganization. People file for Chapter 13 bankruptcy when they either have a single asset with a lot of equity or a number of small assets that yield a high net value. Usually, individuals will file for Chapter 13 bankruptcy if they would like to save their home from foreclosure. The person would use Chapter 13 bankruptcy to reorganize their debts and the person would make a monthly payment plan to pay off the debt of the bankruptcy estate in three (3) to five (5) years. For example, if an individual had $50,000 worth of debt and an average interest rate of 50%, the bankruptcy would reorganize that person’s debt to where the person may owe $44,000 and have an interest rate of 40%. That person would be expected to pay off the new balance of the debt through a monthly plan payment for either a three (3) or five (5) year period.

Chapter 7 bankruptcy is the most common bankruptcy for individuals or corporations. This form of bankruptcy is for individuals or corporations who have accumulated so much debt that debt counseling or debt management is really not an option for them. The Chapter 7 bankruptcy serves as a debt liquidation in which all of the applicant’s debts are discharged and the applicant is given a “fresh start.” If a corporation files for Chapter 7 bankruptcy, they will no longer exist as an entity.

There are several qualifications for the Chapter 7 bankruptcy. One such qualification is the median income qualifications. All individuals who wish to file for Chapter 7 bankruptcy have to fall within an income range. This income range will vary by state, but it usually is around $37,000 for a household of one. There are incremental increases to this income qualification the more people are in the household.

Another qualification to the Chapter 7 bankruptcy is the residency requirement. Generally, an applicant for Chapter 7 bankruptcy must live in the state in which he or she files for at least six (6) months. Although this is the residency requirement to file for Chapter 7 bankruptcy, there is a separate residency requirement in order to qualify for the state’s exemption laws. An exemption allows a debtor to protect an asset from being included in the bankruptcy estate to be distributed by the Chapter 7 trustee to creditors.

Advantages and Disadvantages

There are advantages to filing for bankruptcy. First, debtors can obtain a financial fresh start after they receive a discharge. For example, a debtor who files a Chapter 7 bankruptcy will be able to be discharged from paying most credit card debts. Second, creditor’s collection efforts will stop as soon as an individual or corporate debtor files for bankruptcy protection under a Chapter 7 or Chapter 13. This is known as the automatic stay. If a creditor continues to try to collect on a debt after receiving notice of a bankruptcy filing by a debtor, the creditor may be cited for contempt of court and/or ordered to pay damages. Also, you cannot be fired from your job solely because you filed for bankruptcy. Furthermore, you can freeze your FICO credit score by filing for bankruptcy.

However, there are disadvantages to filing for bankruptcy. Bankruptcy filing will remain on your credit record for up to ten (10) years. This record may affect future finance opportunities. So, it would behoove any potential applicant to not obtain any new credit cards or high interest loans after filing for bankruptcy for some time. But, research has given mixed results to the time when people or corporations can obtain new finance opportunities even after filing for bankruptcy.

Alternatives to Bankruptcy Filing

Another option that an individual or corporation might pursue is to directly contact the creditor and see if they are wiling to allow a lower monthly payment or extend the time to remit payment to lower the payments. Also, you can consolidate your debts by taking out a big loan to pay off all smaller amounts of debts that you owe.

If interested in filing for bankruptcy, please consult your local bankruptcy attorney in your area. We have provided a link to the National Association of Consumer Bankruptcy Attorneys for you to consult on this webpage as well.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

Foreign Intelligence Surveillance Act (FISA): Unconstitutional? Highly Unlikely But, Should It Be?

By Syreeta L. McNeal, CPA, JD

On July 9, 2008, a majority of the other United States Senators, including Senator Obama, voted 69 votes for and a minority of United States Senators, including Senator Clinton, voted 28 votes against approval for the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008. Left wing liberals and proponents of preserving the Fourth Amendment of the United States Constitution are furious by Congress’s approval of FISA. However, history is showing that the tension surrounding FISA and application of the “national security exception” to the warrant requirement of the Fourth Amendment is repeating itself.

Since the administration of President Franklin Delano Roosevelt in the 1930’s, presidents have claimed the right to conduct warrantless electronic surveillance in matters involving the defense of the nation, with each successive administration continuing to broaden this amorphous "national security exception" to the warrant requirement of the Fourth Amendment.[1] During the 1970’s, the Nixon administration used claims of national security to justify warrantless wiretapping of dissident groups that had no foreign nexus; included in this class of dissident groups was the Democratic Party.[2] During the Watergate tragedy, gross abuses of the Executive's presumed authority to conduct warrantless electronic surveillance in the name of national security came to light.[3] The public concern about Executive wiretaps in 1978 ultimately led to the enactment of the Foreign Intelligence Surveillance Act, 50 U.S.C.A. §§ 1801 et seq., (hereinafter FISA).[4]

Originally, FISA established standards for obtaining a court order authorizing foreign intelligence electronic surveillance.[5] To obtain a surveillance order, a federal officer, having first obtained the Attorney General's approval, must submit an application to one of the FISA court judges.[6] The application detailed the following: (1) the identity of the target; (2) the information relied on by the government to demonstrate that the target is a "foreign power" or an "agent of a foreign power"; (3) evidence that the place where the surveillance will occur is being used, or is about to be used, by the foreign power or its agent; (4) the type of surveillance to be used; (5) the minimization procedures to be employed; and (6) certification that the information sought is "foreign intelligence information."[7] Before issuing the order, the FISA judge would make specific findings, including that there is probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and, in the case of a United States person, that the target of the surveillance is not being considered an agent of a foreign power solely on the basis of activities protected by the First Amendment to the Constitution of the United States.[8]

After the tragic events of September 11, 2001, Congress amended the Foreign Intelligence Surveillance Act (FISA) to better enable federal agencies to cooperate in intelligence gathering for the prevention of terrorism.[9] In response to the terrorist attacks of September 11, 2001, Congress enacted the USA Patriot Act, in order to give federal officials greater power to conduct surveillance within the United States on foreign intelligence agents, and prevent terrorism.[10] To better understand the impact FISA is having, it is important to understand how the Fourth Amendment has evolved.

In 1791, our founding fathers adopted the Bill of Rights. These are the first ten amendments to the United States Constitution. The purpose of these ten amendments was to preserve individual’s rights that the federal government shall not infringe upon. For example, the Fourth Amendment prohibited the federal government from conducting unreasonable searches and seizures. The text of the amendment is as follows:

Fourth Amendment of the United States Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[11]

The Fourth Amendment represents the general rule as it applies to the federal government. Like any other general rule, there are exceptions. What the FISA Amendments Act of 2008 is doing is expanding the “national security exception” to the Fourth Amendment warrant requirement.

Making the FISA Amendments Act of 2008 unconstitutional will probably not occur in this current climate after the terrorist attacks in 2001. The courts have held that FISA represents a reasonable balance between the needs of the government in gathering national intelligence information and the rights of individuals under the Fourth Amendment.[12] Since the governmental interest in gathering intelligence information is different from that of a criminal investigation, it has been held that the standard of probable cause needed for a FISA order passes constitutional muster, although it does not meet the standard of probable cause needed for a criminal investigation wiretap.[13] Also, it has been held that FISA establishes sufficiently definite standards to enable the statute to meet the particularity requirement of the Fourth Amendment.[14]

However, with CIA Leaks and abuses of prisoners at Guantanamo Bay under President Bush’s tenure, most people feel that President Bush is the reincarnation of President Nixon and Congress should do its part to reign in the abuses of the Executive branch. Unfortunately, Congress did not do its part on July 9, 2008. Now, people are looking to see if the Courts can intervene. So the question is should the FISA Amendments Act of 2008 be unconstitutional and struck down by the Courts?

The main provisions of the FISA Amendments of 2008 that were passed by Congress on July 9, 2008 are as follows:

• The bill provides immunity for AT&T, Verizon Communications and other U.S. telecommunications companies against 40 lawsuits alleging that they violated customers' privacy rights by helping the government's NSA electronic surveillance program conduct a warrantless spying program after the September 11th attacks.[15]
• Requires FISA court permission to wiretap Americans who are overseas[16]
• Prohibits targeting a foreigner to secretly eavesdrop on an American's calls or e-mails without court approval.[17]
• Allows the FISA court 30 days to review existing but expiring surveillance orders before renewing them.[18]
• Allows eavesdropping in emergencies without court approval, provided the government files required papers within a week.[19]
• Prohibits the government from invoking war powers or other authorities to supersede surveillance rules in the future.[20]
  

The provision that many are outraged over is the fact that government agencies can eavesdrop without court approval as long as they provide papers within a week. This seven (7) day period of warrantless search and seizure on citizens’ privacy is an issue. Did the founding fathers think that the federal government should have a seven (7) day grace period to do what they want without Court approval? Doesn't this unchecked power allow the Executive Branch to abuse and misuse its powers as was done by President Nixon in Watergate? I don’t know the answer to that question, but it is one that the Courts will probably litigate over if a case is brought before them dealing with this direct issue.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] John J. Dvorske, J.D., Validity, Construction, and Application of Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.A. §§ 1801 et seq.) Authorizing Electronic Surveillance of Foreign Powers and Their Agents, 190 A.L.R. Fed. 385 (2003).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] U.S. Const. amend. IV.
[12] John J. Dvorske, J.D., Validity, Construction, and Application of Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.A. §§ 1801 et seq.) Authorizing Electronic Surveillance of Foreign Powers and Their Agents, 190 A.L.R. Fed. 385 (2003).
[13] Id.
[14] Id.
[15] http://en.wikipedia.org/wiki/FISA_Amendments_Act_of_2008
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.

Judge Orders Google to give User Viewership Data Over to Viacom

 

SAN FRANCISCO (AFP) — A US judge has ordered Google to expose to Viacom the video-viewing habits of everyone who has ever used YouTube in a decision condemned by the Internet giant and privacy advocates.

 

US District Court Judge Louis Stanton backed Viacom's request for data on which YouTube users watch which videos on the website in order to support its case in a billion-dollar copyright lawsuit against Google.

 

Viacom charges Google, which bought YouTube in 2006, acts as a willing accomplice to Internet users who put clips of Viacom's copyrighted television programs on the popular video-sharing website.

 

"We are disappointed the court granted Viacom's overreaching demand for viewing history," Google senior litigation counsel Catherine Lacavera told AFP in an email Thursday.

 

Stanton brushed aside privacy concerns on Tuesday while ordering Google to give Viacom log-in names of YouTube users and Internet protocol (IP) addresses identifying which computers they used for viewing videos.

 

Stanton contends that Viacom needs more than pseudonyms and IP numbers that are tantamount to addresses on the Internet to identify individual YouTube users.

 

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