Law Fish News for 05-31-2018

Ingraham v. Wright

Ingraham v. Wright, case in which the U.S. Supreme Court on April 19, 1977, ruled that corporal punishment in public schools did not violate constitutional rights. The complaint claimed that the use of corporal punishment violated both the Eighth Amendment’s ban on “Cruel and unusual punishments” and the due process clause of the Fourteenth Amendment, which requires prior notice and an opportunity to be heard. A district court dismissed the complaint, and the decision was upheld by the court of appeals. In November 1976 the case was argued before the U.S. Supreme Court. The following year the court ruled that the Eighth Amendment was not applicable to corporal punishment in public schools. In the majority opinion, Justice Lewis F. Powell, Jr., wrote that “The prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration.” As to the Fourteenth Amendment, the Supreme Court ruled that since corporal punishment was “Authorized and limited by common law,” it did not violate the due process clause. The justices noted the various states’ procedural safeguards that subjected teachers and administrators who inflicted unreasonable or excessive corporal punishment to civil or criminal liability. In reaching its decision, the court gave great weight to the historical tradition of corporal punishment in public schools in the United States, the long-standing common-law requirement that corporal punishment be reasonable but not excessive, and the impracticalities of requiring notice and a hearing each time a teacher decides to corporally punish a student. The tradition of judicial deference to the judgment of educators and school administrators regarding the education of children was also influential in the court’s opinion. The justices identified certain factors-such as the age of the child and the type of punishment-that courts consider in making determinations as to whether corporal punishment is reasonable.

Keywords: [“Court”,”punishment”,”corporal”]
Source: https://www.britannica.com/event/Ingraham-v-Wright

Ingraham v. Wright

Ingraham v. Wright, case in which the U.S. Supreme Court on April 19, 1977, ruled that corporal punishment in public schools did not violate constitutional rights. The complaint claimed that the use of corporal punishment violated both the Eighth Amendment’s ban on “Cruel and unusual punishments” and the due process clause of the Fourteenth Amendment, which requires prior notice and an opportunity to be heard. A district court dismissed the complaint, and the decision was upheld by the court of appeals. In November 1976 the case was argued before the U.S. Supreme Court. The following year the court ruled that the Eighth Amendment was not applicable to corporal punishment in public schools. In the majority opinion, Justice Lewis F. Powell, Jr., wrote that “The prisoner and the schoolchild stand in wholly different circumstances, separated by the harsh facts of criminal conviction and incarceration.” As to the Fourteenth Amendment, the Supreme Court ruled that since corporal punishment was “Authorized and limited by common law,” it did not violate the due process clause. The justices noted the various states’ procedural safeguards that subjected teachers and administrators who inflicted unreasonable or excessive corporal punishment to civil or criminal liability. In reaching its decision, the court gave great weight to the historical tradition of corporal punishment in public schools in the United States, the long-standing common-law requirement that corporal punishment be reasonable but not excessive, and the impracticalities of requiring notice and a hearing each time a teacher decides to corporally punish a student. The tradition of judicial deference to the judgment of educators and school administrators regarding the education of children was also influential in the court’s opinion. The justices identified certain factors-such as the age of the child and the type of punishment-that courts consider in making determinations as to whether corporal punishment is reasonable.

Keywords: [“Court”,”punishment”,”corporal”]
Source: https://www.britannica.com/event/Ingraham-v-Wright

Supreme court

On the other hand, in some places the court named the “Supreme Court” is not in fact the highest court; examples include the New York Supreme Court, the Supreme Courts of several Canadian provinces/territories and the former Supreme Court of Judicature of England and Wales and Supreme Court of Judicature of Northern Ireland, which are all subordinate to higher courts of appeal. Since there can be no appeal from the Supreme Court, there is an interlocutory procedure by which the Supreme Court may refer to the European Court questions of European law which arise in cases before it, and obtain a definitive ruling before the Supreme Court gives its judgment. Although Delaware has a specialized court, the Court of Chancery, to hear cases in equity, it is not a supreme court because the Delaware Supreme Court has appellate jurisdiction over it. The titles of state supreme court vary, which can cause confusion between jurisdictions because one state may use a name for its highest court that another uses for a lower court. Further, trial courts of general jurisdiction in New York are called the Supreme Court, and the intermediate appellate court is called the Supreme Court, Appellate Division. The so-called Gemeinsamer Senat der Obersten Gerichtshöfe is not a supreme court in itself, but an ad-hoc body that is convened in only when one supreme court intends to diverge from another supreme court’s legal opinion or when a certain case exceeds the authority of one court. Founded by papal bull in 1532, the Court of Session is the supreme civil court of Scotland, and the High Court of Justiciary is the supreme criminal court. In Sweden, the Supreme Court and the Supreme Administrative Court respectively function as the highest courts of the land. The Supreme Court of Appeal was created in 1994 and replaced the Appellate Division of the Supreme Court of South Africa as the highest court of appeal in non-constitutional matters. Operating separately from the Administrative Court and the Constitutional Court, the judgement of the Supreme Court is considered as final.

Keywords: [“court”,”supreme”,”law”]
Source: https://en.wikipedia.org/wiki/Supreme_Court

Law Fish News for 05-30-2018

SCOTUS Agrees to Hear Civil Rights Case; Timing ‘Unusual’

The U.S. Supreme Court Aug. 25 agreed to hear a case about attorneys’ fees that could affect whether prisoners can fully recover for rights violations they suffer while incarcerated, advocacy groups say. The statutory question presented in the case of Charles Murphy-who was beaten by correctional officers and won six-figure damages in a civil rights suit-involves calculating attorneys’ fees under the Prison Litigation Reform Act. The U.S. courts of appeal are split on whether that means the trial judge has discretion to vary the percentage of the award the prisoner must put toward fees up to 25 percent, or whether it means the prisoner pays all fees out of the award up to exactly 25 percent of it. Murphy “Has a stronger case on the literal reading” of the statute, “But the literal reading isn’t definitive” as to whether trial judges should have discretion to apportion attorneys’ fees, Lester Brickman, emeritus professor at the Benjamin N. Cardozo School of Law at Yeshiva University, New York, told Bloomberg BNA. Brickman specializes in contingency fees and their effect on the tort system. In the circuits that allow such discretion-the circuits that ruled differently from the Seventh Circuit here-making defendants pay varying percentages of attorneys’ fees can serve as a “Double punishment” on top of already having to pay damages to the prisoner, Brickman said. Murphy filed suit sued under federal civil rights law and state law. A jury awarded him damages on some of those claims and the district court awarded attorney fees under the federal law. Government defendants appealed, arguing that the PLRA requires that 25 percent of the damage award be used to pay the attorneys’ fees award. The Seventh Circuit is the only one to hold that attorneys’ fees have to be exactly 25 percent of the damage award, Murphy said in his petition. Therefore the Seventh Circuit’s ruling “Leaves prisoners whose constitutional rights have been violated with smaller net recoveries than Congress intended them to receive,” he said.

Keywords: [“fee”,”Circuit”,”Attorney”]
Source: https://www.bna.com/scotus-agrees-hear-n73014464044

Police pursue charges against teens who recorded drowning man in unique legal case

When video surfaced earlier this week that showed a group of Florida teens laughing and heckling a disabled man drowning in a pond, there was nationwide outrage, but legal experts warned that they were unlikely to face any legal repercussions. According to the Associated Press, Florida, like most states, does not require bystanders to offer assistance to dying people in emergencies. While the five teenagers in Cocoa, Florida were almost universally criticized for their actions, the state attorney general’s office said Friday “The incident depicted on the recording does not give rise to sufficient evidence to support criminal prosecution under Florida statutes,” according to the Washington Post. Cocoa police reversed course later in the day, according to NBC News. After speaking with the attorney general’s office, the police announced they will be recommending criminal charges using a legal strategy that has never been tested in the state before, according to CNN. Under Florida law, a person who is aware of a death is legally required to report it to a medical examiner. Cocoa Police Chief Michael Cantaloupe hopes to charge the teens under the statute as well, which he said would be a “Test case.” “As far as we know, the statute has never been used in this way,” Cantaloupe told reporters. If convicted, violators of the statute are guilty of a first-degree misdemeanor and eligible for a $1,000 fine. The dead man’s fiancee, Rondanielle Williams, also told NBC News that she believes such a law should exist, as did Cocoa’s mayor, Henry Parrish III. Just because the police have recommended charges against the teens, who have not been identified because the case is ongoing, does not mean the state’s attorney general will press those charges. “Unfortunately, there is currently no statute in Florida law that compels an individual to render, request or seek aid for a person in distress. We are continuing to research whether any other statute may apply to the facts of this case,” the office said in a statement to CNN..

Keywords: [“Florida”,”statute”,”new”]
Source: http://www.miamiherald.com/news/nation-world/national/article163137708.html

Police pursue charges against teens who recorded drowning man in unique legal case

When video surfaced earlier this week that showed a group of Florida teens laughing and heckling a disabled man drowning in a pond, there was nationwide outrage, but legal experts warned that they were unlikely to face any legal repercussions. According to the Associated Press, Florida, like most states, does not require bystanders to offer assistance to dying people in emergencies. While the five teenagers in Cocoa, Florida were almost universally criticized for their actions, the state attorney general’s office said Friday “The incident depicted on the recording does not give rise to sufficient evidence to support criminal prosecution under Florida statutes,” according to the Washington Post. Cocoa police reversed course later in the day, according to NBC News. After speaking with the attorney general’s office, the police announced they will be recommending criminal charges using a legal strategy that has never been tested in the state before, according to CNN. Under Florida law, a person who is aware of a death is legally required to report it to a medical examiner. Cocoa Police Chief Michael Cantaloupe hopes to charge the teens under the statute as well, which he said would be a “Test case.” “As far as we know, the statute has never been used in this way,” Cantaloupe told reporters. If convicted, violators of the statute are guilty of a first-degree misdemeanor and eligible for a $1,000 fine. The dead man’s fiancee, Rondanielle Williams, also told NBC News that she believes such a law should exist, as did Cocoa’s mayor, Henry Parrish III. Just because the police have recommended charges against the teens, who have not been identified because the case is ongoing, does not mean the state’s attorney general will press those charges. “Unfortunately, there is currently no statute in Florida law that compels an individual to render, request or seek aid for a person in distress. We are continuing to research whether any other statute may apply to the facts of this case,” the office said in a statement to CNN..

Keywords: [“Florida”,”statute”,”new”]
Source: http://www.miamiherald.com/news/nation-world/national/article163137708.html

Law Fish News for 05-29-2018

European Human Rights System

For the first time in history, the European Convention on Human Rights has established a supranational institutional system whose avowed aim is the protection and promotion of human rights. The European Convention on Human Rights is limited to civil and political rights and freedoms. The right to life, freedom from torture, and inhuman or degrading treatment or punishment, freedom from slavery or servitude, the right to liberty and security of persons the right to respect for family and private life freedom of thought, conscience, and religion, freedom of expression the right to education to every person freedom from imprisonment for debt the abolition of capital punishment in times of peace due process rights for aliens being expelled the equality of the rights and responsibilities of spouses. This is a useful starting point for any researcher of the European human rights system because it portrays the system within the current international and regional context both at the governmental and non-governmental level. Part of the 10th chapter on regional human rights arrangements is dedicated to the European Convention system. Structured in three parts, this gives an insightful view of the European human rights system through the prism of the European Commission of Human Rights, the European Court of Human Rights and the national legal system of the Council of Europe member countries. Article 19 of the Convention set up the European Commission of Human Rights alongside the European Court of Human Rights. This six-volume digest contains abstracts of published and unpublished decisions and reports of the Commission of Human Rights and judgments of the Court of Human Rights, with cross-references to similar or identical decisions, reports, or judgments. Currently, the ECHR is the only judicial institution in the European human rights system. P3 B445 1991 – in addition to the table of cases and the subject matter index, lays out the cases in six chapters: freedom of movement, procedural rights, property rights, and rights to privacy, freedom of speech, and freedom of association.

Keywords: [“right”,”human”,”European”]
Source: http://library.law.columbia.edu/guides/European_Human_Rights_System

European Human Rights System

For the first time in history, the European Convention on Human Rights has established a supranational institutional system whose avowed aim is the protection and promotion of human rights. The European Convention on Human Rights is limited to civil and political rights and freedoms. The right to life, freedom from torture, and inhuman or degrading treatment or punishment, freedom from slavery or servitude, the right to liberty and security of persons the right to respect for family and private life freedom of thought, conscience, and religion, freedom of expression the right to education to every person freedom from imprisonment for debt the abolition of capital punishment in times of peace due process rights for aliens being expelled the equality of the rights and responsibilities of spouses. This is a useful starting point for any researcher of the European human rights system because it portrays the system within the current international and regional context both at the governmental and non-governmental level. Part of the 10th chapter on regional human rights arrangements is dedicated to the European Convention system. Structured in three parts, this gives an insightful view of the European human rights system through the prism of the European Commission of Human Rights, the European Court of Human Rights and the national legal system of the Council of Europe member countries. Article 19 of the Convention set up the European Commission of Human Rights alongside the European Court of Human Rights. This six-volume digest contains abstracts of published and unpublished decisions and reports of the Commission of Human Rights and judgments of the Court of Human Rights, with cross-references to similar or identical decisions, reports, or judgments. Currently, the ECHR is the only judicial institution in the European human rights system. P3 B445 1991 – in addition to the table of cases and the subject matter index, lays out the cases in six chapters: freedom of movement, procedural rights, property rights, and rights to privacy, freedom of speech, and freedom of association.

Keywords: [“right”,”human”,”European”]
Source: http://library.law.columbia.edu/guides/European_Human_Rights_System

SCOTUS Agrees to Hear Civil Rights Case; Timing ‘Unusual’

The U.S. Supreme Court Aug. 25 agreed to hear a case about attorneys’ fees that could affect whether prisoners can fully recover for rights violations they suffer while incarcerated, advocacy groups say. The statutory question presented in the case of Charles Murphy-who was beaten by correctional officers and won six-figure damages in a civil rights suit-involves calculating attorneys’ fees under the Prison Litigation Reform Act. The U.S. courts of appeal are split on whether that means the trial judge has discretion to vary the percentage of the award the prisoner must put toward fees up to 25 percent, or whether it means the prisoner pays all fees out of the award up to exactly 25 percent of it. Murphy “Has a stronger case on the literal reading” of the statute, “But the literal reading isn’t definitive” as to whether trial judges should have discretion to apportion attorneys’ fees, Lester Brickman, emeritus professor at the Benjamin N. Cardozo School of Law at Yeshiva University, New York, told Bloomberg BNA. Brickman specializes in contingency fees and their effect on the tort system. In the circuits that allow such discretion-the circuits that ruled differently from the Seventh Circuit here-making defendants pay varying percentages of attorneys’ fees can serve as a “Double punishment” on top of already having to pay damages to the prisoner, Brickman said. Murphy filed suit sued under federal civil rights law and state law. A jury awarded him damages on some of those claims and the district court awarded attorney fees under the federal law. Government defendants appealed, arguing that the PLRA requires that 25 percent of the damage award be used to pay the attorneys’ fees award. The Seventh Circuit is the only one to hold that attorneys’ fees have to be exactly 25 percent of the damage award, Murphy said in his petition. Therefore the Seventh Circuit’s ruling “Leaves prisoners whose constitutional rights have been violated with smaller net recoveries than Congress intended them to receive,” he said.

Keywords: [“fee”,”Circuit”,”Attorney”]
Source: https://www.bna.com/scotus-agrees-hear-n73014464044

Law Fish News for 05-28-2018

Recent Cases of White Collar Crime

White collar crime is defined by the Federal Bureau of Investigation as “Illegal acts characterized by deceit, concealment or violation of trust, which are not dependent upon the application or threat of physical force or violence.” The FBI goes on to state that in cases of white collar crime, “Individuals and organizations commit these acts to obtain money, property or services; to avoid the payment or loss of money or services; or to secure personal or business advantage.” Cases of white collar crime involve a number of different criminal activities, including, but not limited to, embezzlement, fraud, money laundering, forgery and counterfeiting. The majority of cases of White collar crime involve fraud of some kind. The most high profile case of White collar crime of late involves domestic queen Martha Stewart, who was recently convicted of four counts of conspiracy, obstruction of justice and lying to the government about her sale of more 3,900 shares of ImClone stock, worth $250,000, in December 2001. Stewart’s guilt stems from a tip she received from friend and ex-broker Peter Bacanovic, who also received similar white collar crime convictions. These convictions come on the heels of a number of other recent cases of white collar crime that have shaken the corporate world. In two other recent cases of white collar crime, John Rigas, founder of Adelphia Communications, his two sons and a former executive are on trial for stealing from the company and hiding $2 billion in debt. High profile as these defendants may be, these recent cases of white collar crime do not come without punishment. Although judges often lessen the sentences for cases of white collar crime, they certainly are not above handing down the maximum sentence. In the 2001 case of Kansas City pharmacist Robert R. Courtney, for example, conviction for diluting chemotherapy drugs, resulted in a sentence of between 17 and 30 years in prison, the forfeiting of all of his property and full disclosure of his white crime activities and the criminal activities of all of his associates.

Keywords: [“crime”,”White”,”case”]
Source: http://www.onlinelawyersource.com/white-collar/recent-cases

Divorce Source: Cases of Interest: Pennsylvania

274.In this case, the court decided whether the proceeds from the sale of a marital asset awarded in the divorce constitutes “Income” for purposes of child support. Where a stock option is granted to a spouse during the marriage as compensation for services also rendered during the marriage, such an option constitutes marital property even if the right to exercise the option does not mature until after separation. 659 A.2d 606.A judgment creditor’s claim against marital property had priority over a later equitable distribution judgment in favor of the former wife. 693 A.2d 1368.The professional goodwill in a solo practice must be valued and excluded from the marital estate, but the going-concern value of the business and its enterprise goodwill may be included as marital property. 599, 629 A.2d 1031.Improvements that husband and wife made to marital home titled in name of husband’s parents did not create a marital interest in the home. PENNSYLVANIA: Meyer v. Meyer, 749 A.2d 917.An increase in retirement benefits occurring after the couple’s separation is not considered marital property. 626 A.2d 1186.Where husband withdrew from a partnership after separation and established a sole proprietorship, the distribution he received from the partnership was marital property, but no part of his new practice was marital property even though he took a substantial inventory of contingent fee cases with him when he left the partnership and started his solo practice. Husband did not transmute separate funds into marital property by depositing the separate funds after separation into accounts which contained marital funds. 170, 171.Wife appealed the trial court’s finding that unvested stock options do not constitute marital property and are not subject to distribution in a divorce proceeding. The wife’s survivor benefits under the husband’s pension plan were properly classified as marital property, valued, and awarded to her in the parties’ property distribution.

Keywords: [“marital”,”property”,”husband”]
Source: http://www.divorcesource.com/research/edj/states/pennsylvania.shtml

Divorce Source: Cases of Interest: Pennsylvania

274.In this case, the court decided whether the proceeds from the sale of a marital asset awarded in the divorce constitutes “Income” for purposes of child support. Where a stock option is granted to a spouse during the marriage as compensation for services also rendered during the marriage, such an option constitutes marital property even if the right to exercise the option does not mature until after separation. 659 A.2d 606.A judgment creditor’s claim against marital property had priority over a later equitable distribution judgment in favor of the former wife. 693 A.2d 1368.The professional goodwill in a solo practice must be valued and excluded from the marital estate, but the going-concern value of the business and its enterprise goodwill may be included as marital property. 599, 629 A.2d 1031.Improvements that husband and wife made to marital home titled in name of husband’s parents did not create a marital interest in the home. PENNSYLVANIA: Meyer v. Meyer, 749 A.2d 917.An increase in retirement benefits occurring after the couple’s separation is not considered marital property. 626 A.2d 1186.Where husband withdrew from a partnership after separation and established a sole proprietorship, the distribution he received from the partnership was marital property, but no part of his new practice was marital property even though he took a substantial inventory of contingent fee cases with him when he left the partnership and started his solo practice. Husband did not transmute separate funds into marital property by depositing the separate funds after separation into accounts which contained marital funds. 170, 171.Wife appealed the trial court’s finding that unvested stock options do not constitute marital property and are not subject to distribution in a divorce proceeding. The wife’s survivor benefits under the husband’s pension plan were properly classified as marital property, valued, and awarded to her in the parties’ property distribution.

Keywords: [“marital”,”property”,”husband”]
Source: http://www.divorcesource.com/research/edj/states/pennsylvania.shtml

Law Fish News for 05-27-2018

Articles, Cases and Resources about Special Education Due Process Hearings

These rules include mediation, due process hearings, and appeals to state or federal court. Special education cases are similar to medical malpractice cases, with battles of expert witnesses, and the emotions of bitterly contested divorce cases with child custody and equitable distribution issues. Before you request a due process hearing, you should be familiar with the federal statute and regulations and your state special education statute and regulations. What happens in a special education case? Read about the case of a young child with autism, from the original due process hearing through decisions from federal court and the U.S. Court of Appeals; this article includes links to pleadings and decisions. Attorney Manual: Representing the Special Ed Child – For attorneys, advocates, and parents who are preparing for a due process hearing. Due process hearings are very time consuming and stressful. Reverse due process hearings are a defensive legal strategy used by school districts motivated by the school’s fear that the parents will prevail on a claim that the school’s IEP did not provide FAPE. Answers to Questions about Special Education Litigation & Attorney’s Fees by Pete Wright, Esq. Out of every ten parents who consult with me, only one needs an attorney. How to Put on a Special Education Case – Minnesota lawyer Sonja Kerr provides advice about tactics and strategy to the lawyer who is handling his or her first special education case. Has the child made progress? Has the child fallen further behind? In special education cases, evidence includes standard scores, percentile ranks, subtest scores, and age and grade equivalent scores. CaselawPorter v. Bd of Trustees of Manhattan Beach USD. Parents of child for whom special education program was ordered by special education hearing officer under Individuals with Disabilities Education Act were not required to seek new hearing before hearing officer or to comply with state’s complaint resolution procedure before suing for alleged failure to fully implement the program.

Keywords: [“hearing”,”education”,”case”]
Source: http://www.wrightslaw.com/info/dp.index.htm

Articles, Cases and Resources about Special Education Due Process Hearings

These rules include mediation, due process hearings, and appeals to state or federal court. Special education cases are similar to medical malpractice cases, with battles of expert witnesses, and the emotions of bitterly contested divorce cases with child custody and equitable distribution issues. Before you request a due process hearing, you should be familiar with the federal statute and regulations and your state special education statute and regulations. What happens in a special education case? Read about the case of a young child with autism, from the original due process hearing through decisions from federal court and the U.S. Court of Appeals; this article includes links to pleadings and decisions. Attorney Manual: Representing the Special Ed Child – For attorneys, advocates, and parents who are preparing for a due process hearing. Due process hearings are very time consuming and stressful. Reverse due process hearings are a defensive legal strategy used by school districts motivated by the school’s fear that the parents will prevail on a claim that the school’s IEP did not provide FAPE. Answers to Questions about Special Education Litigation & Attorney’s Fees by Pete Wright, Esq. Out of every ten parents who consult with me, only one needs an attorney. How to Put on a Special Education Case – Minnesota lawyer Sonja Kerr provides advice about tactics and strategy to the lawyer who is handling his or her first special education case. Has the child made progress? Has the child fallen further behind? In special education cases, evidence includes standard scores, percentile ranks, subtest scores, and age and grade equivalent scores. CaselawPorter v. Bd of Trustees of Manhattan Beach USD. Parents of child for whom special education program was ordered by special education hearing officer under Individuals with Disabilities Education Act were not required to seek new hearing before hearing officer or to comply with state’s complaint resolution procedure before suing for alleged failure to fully implement the program.

Keywords: [“hearing”,”education”,”case”]
Source: http://www.wrightslaw.com/info/dp.index.htm

Recent Cases of White Collar Crime

White collar crime is defined by the Federal Bureau of Investigation as “Illegal acts characterized by deceit, concealment or violation of trust, which are not dependent upon the application or threat of physical force or violence.” The FBI goes on to state that in cases of white collar crime, “Individuals and organizations commit these acts to obtain money, property or services; to avoid the payment or loss of money or services; or to secure personal or business advantage.” Cases of white collar crime involve a number of different criminal activities, including, but not limited to, embezzlement, fraud, money laundering, forgery and counterfeiting. The majority of cases of White collar crime involve fraud of some kind. The most high profile case of White collar crime of late involves domestic queen Martha Stewart, who was recently convicted of four counts of conspiracy, obstruction of justice and lying to the government about her sale of more 3,900 shares of ImClone stock, worth $250,000, in December 2001. Stewart’s guilt stems from a tip she received from friend and ex-broker Peter Bacanovic, who also received similar white collar crime convictions. These convictions come on the heels of a number of other recent cases of white collar crime that have shaken the corporate world. In two other recent cases of white collar crime, John Rigas, founder of Adelphia Communications, his two sons and a former executive are on trial for stealing from the company and hiding $2 billion in debt. High profile as these defendants may be, these recent cases of white collar crime do not come without punishment. Although judges often lessen the sentences for cases of white collar crime, they certainly are not above handing down the maximum sentence. In the 2001 case of Kansas City pharmacist Robert R. Courtney, for example, conviction for diluting chemotherapy drugs, resulted in a sentence of between 17 and 30 years in prison, the forfeiting of all of his property and full disclosure of his white crime activities and the criminal activities of all of his associates.

Keywords: [“crime”,”White”,”case”]
Source: http://www.onlinelawyersource.com/white-collar/recent-cases

Law Fish News for 05-26-2018

Overview of Trademark Law

What prerequisites must a mark satisfy in order to serve as a trademark? In order to serve as a trademark, a mark must be distinctive – that is, it must be capable of identifying the source of a particular good. Because the marks in each of these categories vary with respect to their distinctiveness, the requirements for, and degree of, legal protection afforded a particular trademark will depend upon which category it falls within. Generic marks are entitled to no protection under trademark law. Assuming that a trademark qualifies for protection, rights to a trademark can be acquired in one of two ways: by being the first to use the mark in commerce; or by being the first to register the mark with the U.S. Patent and Trademark Office. As noted above, rejection of the mark does not necessarily mean that it is not entitled to trademark protection; it means only that the mark is not entitled to the additional benefits listed above. The basic idea is that trademark law only protects marks that are being used, and parties are not entitled to warehouse potentially useful marks. In deciding whether a term is generic, courts will often look to dictionary definitions, the use of the term in newspapers and magazines, and any evidence of attempts by the trademark owner to police its mark. Under federal law, a dilution claim can be brought only if the mark is “Famous.” In deciding whether a mark is famous, the courts will look to the following factors: the degree of inherent or acquired distinctiveness; the duration and extent of use; the amount of advertising and publicity; the geographic extent of the market; the channels of trade; the degree of recognition in trading areas; any use of similar marks by third parties; whether the mark is registered. The court held that the use of the trademark “New Kids on the Block” was a privileged nominative use because: the group was not readily identifiable without using the mark; USA Today used only so much of the mark as reasonably necessary to identify it; and there was no suggestion of endorsement or sponsorship by the group.

Keywords: [“mark”,”trademark”,”product”]
Source: https://cyber.harvard.edu/metaschool/fisher/domain/tm.htm

Cruel and Unusual Punishment under the Eighth Amendment

Introduction What exactly is a “Cruel and unusual punishment” within the meaning of the Eighth Amendment? Did the framers intend only to ban punishments- such as “Drawing and quartering” a prisoner, or having him boiled in oil or burned at the stake-that were recognized as cruel at the time of the amendment’s adoption? Or did they expect that the list of prohibited punishments would change over time as society’s “Sense of decency” evolved? One clue to the expectations of the framers comes from the debates of the First Congress that proposed the Eighth Amendment. By a 5 to 4 vote the Court found that the punishment was not a violation of the Eighth Amendment because, it said, the framers were concerned solely with punishments in the criminal justice context and would not have intended the amendment’s provisions to apply to discipline in the public schools. Does the Eighth Amendment contain a requirement that punishments be somewhat proportional to crimes? Would it be unconstitutional to give a life sentence for double-parking? What about a life sentence for possession of cocaine? That letter question was the issue presented in Harmelin v Michigan. Two justices argued that the Eighth Amendment did not address the proportionality of punishments at all. A key concurring opinion signed by three justices argued that grossly disproportionate punishments did violate the Eighth Amendment, but offered a test that would only rarely allow courts to reach such conclusions. Voting 7 to 2, the Court found a violation of the cruel and unusual punishment clause even though the inmate suffered no permanent injuries or injuries that required hospitalization. The Court considered whether it was cruel and unusual punishment to execute a prisoner for a crime he committed when he was a minor. The Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The majority in Ingraham effectively inserts the word “Criminal” before the word “Punishment” in the Eighth Amendment. The Court said his beating constituted cruel and unusual punishment.

Keywords: [“punishment”,”Amendment”,”Court”]
Source: http://law2.umkc.edu/faculty/PROJECTS/FTRIALS/conlaw/cruelunusual.html

Cruel and Unusual Punishment under the Eighth Amendment

Introduction What exactly is a “Cruel and unusual punishment” within the meaning of the Eighth Amendment? Did the framers intend only to ban punishments- such as “Drawing and quartering” a prisoner, or having him boiled in oil or burned at the stake-that were recognized as cruel at the time of the amendment’s adoption? Or did they expect that the list of prohibited punishments would change over time as society’s “Sense of decency” evolved? One clue to the expectations of the framers comes from the debates of the First Congress that proposed the Eighth Amendment. By a 5 to 4 vote the Court found that the punishment was not a violation of the Eighth Amendment because, it said, the framers were concerned solely with punishments in the criminal justice context and would not have intended the amendment’s provisions to apply to discipline in the public schools. Does the Eighth Amendment contain a requirement that punishments be somewhat proportional to crimes? Would it be unconstitutional to give a life sentence for double-parking? What about a life sentence for possession of cocaine? That letter question was the issue presented in Harmelin v Michigan. Two justices argued that the Eighth Amendment did not address the proportionality of punishments at all. A key concurring opinion signed by three justices argued that grossly disproportionate punishments did violate the Eighth Amendment, but offered a test that would only rarely allow courts to reach such conclusions. Voting 7 to 2, the Court found a violation of the cruel and unusual punishment clause even though the inmate suffered no permanent injuries or injuries that required hospitalization. The Court considered whether it was cruel and unusual punishment to execute a prisoner for a crime he committed when he was a minor. The Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The majority in Ingraham effectively inserts the word “Criminal” before the word “Punishment” in the Eighth Amendment. The Court said his beating constituted cruel and unusual punishment.

Keywords: [“punishment”,”Amendment”,”Court”]
Source: http://law2.umkc.edu/faculty/PROJECTS/FTRIALS/conlaw/cruelunusual.html

Law Fish News for 05-25-2018

www.lawinfochina.com

On October 1, 1949 a grand ceremony was witnessed by 300,000 people in Beijing’s Tiananmen Square, and Mao Zedong, chairman of the Central People’s Government, solemnly proclaimed the founding of the People’s Republic of China. The National People’s Congress and local people’s congresses at all levels, formed through democratic elections, represent the people in exercising state power. The legislative powers of the NPC include electing the President of China, supervising the enforcement of the Constitution, amending the Constitution, enacting basic laws, deciding on the choice of the Premier of the State Council upon nomination by the President, electing the Chairman of the Central Military Commission and, upon nomination by the Chairman, deciding on the choice of all other members of the Central Military Commission, and electing the President of the Supreme People’s Court. The judicial system of the PRC is established in Articles 123-135,and consists of the peoples courts, the Supreme Peoples Court, the peoples procuratorates, the Supreme Peoples Procuratorate, military procuratorates and other special peoples procuratorates. There is a hierarchy within the court structure from the top down: The Supreme Peoples Courts, the Higher Peoples Courts, the Intermediate Peoples Courts, and the Basic Peoples Courts. The Basic Peoples Courts are comprised of more than 3,000 courts at county level, which are further subdivided into about 20,000 smaller units referred to as peoples tribunals located in towns and villages. There are 376 Intermediate Peoples Courts and 31 Higher Peoples Courts located in the provinces. The armed forces of the PRC consist of the Chinese People’s Liberation Army, the Chinese People’s Armed Police Force and the Militia. First, the Standing Committee of the National People’s Congress unanimously adopted the Amendment to the Constitution of the People’s Republic of China that was then approved in March 2004 by the National People’s Congress. In practice lower peoples courts judges often attempt to follow the interpretations of the laws decided by the Supreme Peoples Courts.

Keywords: [“people”,”China”,”State”]
Source: http://www.lawinfochina.com/Legal/index.shtm

www.lawinfochina.com

On October 1, 1949 a grand ceremony was witnessed by 300,000 people in Beijing’s Tiananmen Square, and Mao Zedong, chairman of the Central People’s Government, solemnly proclaimed the founding of the People’s Republic of China. The National People’s Congress and local people’s congresses at all levels, formed through democratic elections, represent the people in exercising state power. The legislative powers of the NPC include electing the President of China, supervising the enforcement of the Constitution, amending the Constitution, enacting basic laws, deciding on the choice of the Premier of the State Council upon nomination by the President, electing the Chairman of the Central Military Commission and, upon nomination by the Chairman, deciding on the choice of all other members of the Central Military Commission, and electing the President of the Supreme People’s Court. The judicial system of the PRC is established in Articles 123-135,and consists of the peoples courts, the Supreme Peoples Court, the peoples procuratorates, the Supreme Peoples Procuratorate, military procuratorates and other special peoples procuratorates. There is a hierarchy within the court structure from the top down: The Supreme Peoples Courts, the Higher Peoples Courts, the Intermediate Peoples Courts, and the Basic Peoples Courts. The Basic Peoples Courts are comprised of more than 3,000 courts at county level, which are further subdivided into about 20,000 smaller units referred to as peoples tribunals located in towns and villages. There are 376 Intermediate Peoples Courts and 31 Higher Peoples Courts located in the provinces. The armed forces of the PRC consist of the Chinese People’s Liberation Army, the Chinese People’s Armed Police Force and the Militia. First, the Standing Committee of the National People’s Congress unanimously adopted the Amendment to the Constitution of the People’s Republic of China that was then approved in March 2004 by the National People’s Congress. In practice lower peoples courts judges often attempt to follow the interpretations of the laws decided by the Supreme Peoples Courts.

Keywords: [“people”,”China”,”State”]
Source: http://www.lawinfochina.com/Legal/index.shtm

Overview of Trademark Law

What prerequisites must a mark satisfy in order to serve as a trademark? In order to serve as a trademark, a mark must be distinctive – that is, it must be capable of identifying the source of a particular good. Because the marks in each of these categories vary with respect to their distinctiveness, the requirements for, and degree of, legal protection afforded a particular trademark will depend upon which category it falls within. Generic marks are entitled to no protection under trademark law. Assuming that a trademark qualifies for protection, rights to a trademark can be acquired in one of two ways: by being the first to use the mark in commerce; or by being the first to register the mark with the U.S. Patent and Trademark Office. As noted above, rejection of the mark does not necessarily mean that it is not entitled to trademark protection; it means only that the mark is not entitled to the additional benefits listed above. The basic idea is that trademark law only protects marks that are being used, and parties are not entitled to warehouse potentially useful marks. In deciding whether a term is generic, courts will often look to dictionary definitions, the use of the term in newspapers and magazines, and any evidence of attempts by the trademark owner to police its mark. Under federal law, a dilution claim can be brought only if the mark is “Famous.” In deciding whether a mark is famous, the courts will look to the following factors: the degree of inherent or acquired distinctiveness; the duration and extent of use; the amount of advertising and publicity; the geographic extent of the market; the channels of trade; the degree of recognition in trading areas; any use of similar marks by third parties; whether the mark is registered. The court held that the use of the trademark “New Kids on the Block” was a privileged nominative use because: the group was not readily identifiable without using the mark; USA Today used only so much of the mark as reasonably necessary to identify it; and there was no suggestion of endorsement or sponsorship by the group.

Keywords: [“mark”,”trademark”,”product”]
Source: https://cyber.harvard.edu/metaschool/fisher/domain/tm.htm

Law Fish News for 05-24-2018

Cruel and Unusual Punishment

Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the common law, or any fine, penalty, confinement, or treatment that is so disproportionate to the offense as to shock the moral sense of the community. The Eighth Amendment to the U.S. Constitution prohibits the federal government from imposing cruel and unusual punishment for federal crimes. The amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution bars the states from inflicting such punishment for state crimes, and most state constitutions also prohibit the infliction of cruel and unusual punishment. In attempting to define cruel and unusual punishment, federal and state courts have generally analyzed two aspects of punishment: the method and the amount. In Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156, the U.S. Supreme Court held that the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even if the prisoner does not suffer serious injury. A defendant need not suffer actual physical injury or pain before a punishment will be declared cruel and unusual. The Court has also ruled that execution of mentally retarded criminals violates the Eighth Amendment’s guarantee against cruel and unusual punishment. With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The Ninth Circuit ruled that the defendants’ sentences constituted cruel and unusual punishment, for the trial court was effectively imposing life sentences for what was the legislature classified as a misdemeanor under any other circumstances. Even one day in prison would be a cruel and unusual punishment for the “Crime” of having a common cold.

Keywords: [“punishment”,”Court”,”U.S.”]
Source: http://lawbrain.com/wiki/Cruel_and_Unusual_Punishment

When Patient-Physician Confidentiality Conflicts with the Law, Feb 09 … Virtual Mentor

Principle IV of the American Medical Association’s Code of Medical Ethics states, [a] physician shall safeguard patient confidences and privacy within the constraints of the law. The second part of Principle IV, within the constraints of the law, often justifies a physician’s disclosure of confidential information. Physicians are required by most state laws to disclose evidence of child abuse obtained through a physical examination or conversation with a minor child. The law may demand a physician to disclose information that indicates that a crime has occurred or may occur. The code advises that when, by law, patient confidentiality must be breached, the physician should notify the patient and disclose to law-enforcement authorities the minimal amount of information required. The state mandates that a physician, osteopathic physician, or surgeon report to the chief of police a knife or gunshot wound; injury that would seriously maim, produce death, or render the person unconscious; injury caused by the use of violence or sustained in a suspicious or unusual manner; or motor-vehicle collision involving serious injury or death. The question is, where does a physician draw the line when balancing such laws and the ethical duty to maintain confidentiality? When does public safety or preventing violence justify the erosion of the patient-physician relationship by the abandonment of the otherwise-sacred principle of confidentiality? Certainly the interest of public safety is overriding when a gunshot victim arrives at the emergency room. Justification of a breach of patient-physician confidentiality in the interest of public safety is particularly thorny in some of the cases covered by Hawaii law. What is it about injuries sustained in a suspicious or unusual manner that justifies forcing a doctor to breach confidentiality? Perhaps suspicious or unusual is easily distinguishable from the ordinary in the eyes of a physician. Physicians delicately walk the line between ethics and law, particularly in the face of statutory obligations to breach the sacred duty of confidentialityall to prevent violence.

Keywords: [“physician”,”law”,”injury”]
Source: http://journalofethics.ama-assn.org/2009/02/hlaw1-0902.html

When Patient-Physician Confidentiality Conflicts with the Law, Feb 09 … Virtual Mentor

Principle IV of the American Medical Association’s Code of Medical Ethics states, [a] physician shall safeguard patient confidences and privacy within the constraints of the law. The second part of Principle IV, within the constraints of the law, often justifies a physician’s disclosure of confidential information. Physicians are required by most state laws to disclose evidence of child abuse obtained through a physical examination or conversation with a minor child. The law may demand a physician to disclose information that indicates that a crime has occurred or may occur. The code advises that when, by law, patient confidentiality must be breached, the physician should notify the patient and disclose to law-enforcement authorities the minimal amount of information required. The state mandates that a physician, osteopathic physician, or surgeon report to the chief of police a knife or gunshot wound; injury that would seriously maim, produce death, or render the person unconscious; injury caused by the use of violence or sustained in a suspicious or unusual manner; or motor-vehicle collision involving serious injury or death. The question is, where does a physician draw the line when balancing such laws and the ethical duty to maintain confidentiality? When does public safety or preventing violence justify the erosion of the patient-physician relationship by the abandonment of the otherwise-sacred principle of confidentiality? Certainly the interest of public safety is overriding when a gunshot victim arrives at the emergency room. Justification of a breach of patient-physician confidentiality in the interest of public safety is particularly thorny in some of the cases covered by Hawaii law. What is it about injuries sustained in a suspicious or unusual manner that justifies forcing a doctor to breach confidentiality? Perhaps suspicious or unusual is easily distinguishable from the ordinary in the eyes of a physician. Physicians delicately walk the line between ethics and law, particularly in the face of statutory obligations to breach the sacred duty of confidentialityall to prevent violence.

Keywords: [“physician”,”law”,”injury”]
Source: http://journalofethics.ama-assn.org/2009/02/hlaw1-0902.html

Law Fish News for 05-23-2018

Unusual New York Divorce & Pending No-Fault Law

April 24, 2007 – A Nassau, NY, divorce judge recently made some waves when he refused to rule on a pending New York divorce until state legislators act on a proposed no-fault divorce law. In the process of his unusual decision, Ross took current New York State divorce laws to task and indicated in his disgust how the state needs to adopt a no-fault divorce law. So how can a couple get a divorce in New York? Divorce law in New York requires one party to blame the other by using one of several “Fault grounds.” In this specific case, Jeffrey Molinari had filed for New York divorce based on the grounds of “Constructive abandonment.” In other words, Jeffrey Molinari had claimed that his wife Paula refused to have sex with him for at least one year. If one party does not file for divorce based on one of several “Fault grounds,” New York divorce law requires both parties to agree to a complicated separation agreement and thus live apart for at least one full year. With Jeffrey Molinari’s divorce claim on grounds of “Constructive abandonment” in mind, Ross said that this New York divorce case truly reveals the problems with the state’s current fault-based statute. Ken Koopersmith, Jeffrey’s Molinari’s New York divorce lawyer, called the marriage “Dead” in the story and alleged that his client’s wife was using other grounds for a divorce in New York as a means to get more money from her husband. The proposed New York no-fault divorce law is currently pending before the judiciary committee. In his decision, Ross reserved the right to rule on this New York divorce if the state legislature fails to act on this proposed no-fault divorce law. While describing Ross’ decision to delay ruling on this New York divorce case as being “Unprecedented” in the story, Schepard noted how other divorce judges have written in their decisions about the need for a no-fault divorce law in the state. The Newsday.com story reported that calls were made to Assemblywoman Helene Weinsetin, who sponsored this year’s proposed New York no-fault divorce law, and Dominic Barbara, who is Paula Molinari’s New York divorce lawyer.

Keywords: [“divorce”,”York”,”New”]
Source: http://www.totaldivorce.com/news/articles/unusual/new-york-no-fault-law.aspx

Unusual New York Divorce & Pending No-Fault Law

April 24, 2007 – A Nassau, NY, divorce judge recently made some waves when he refused to rule on a pending New York divorce until state legislators act on a proposed no-fault divorce law. In the process of his unusual decision, Ross took current New York State divorce laws to task and indicated in his disgust how the state needs to adopt a no-fault divorce law. So how can a couple get a divorce in New York? Divorce law in New York requires one party to blame the other by using one of several “Fault grounds.” In this specific case, Jeffrey Molinari had filed for New York divorce based on the grounds of “Constructive abandonment.” In other words, Jeffrey Molinari had claimed that his wife Paula refused to have sex with him for at least one year. If one party does not file for divorce based on one of several “Fault grounds,” New York divorce law requires both parties to agree to a complicated separation agreement and thus live apart for at least one full year. With Jeffrey Molinari’s divorce claim on grounds of “Constructive abandonment” in mind, Ross said that this New York divorce case truly reveals the problems with the state’s current fault-based statute. Ken Koopersmith, Jeffrey’s Molinari’s New York divorce lawyer, called the marriage “Dead” in the story and alleged that his client’s wife was using other grounds for a divorce in New York as a means to get more money from her husband. The proposed New York no-fault divorce law is currently pending before the judiciary committee. In his decision, Ross reserved the right to rule on this New York divorce if the state legislature fails to act on this proposed no-fault divorce law. While describing Ross’ decision to delay ruling on this New York divorce case as being “Unprecedented” in the story, Schepard noted how other divorce judges have written in their decisions about the need for a no-fault divorce law in the state. The Newsday.com story reported that calls were made to Assemblywoman Helene Weinsetin, who sponsored this year’s proposed New York no-fault divorce law, and Dominic Barbara, who is Paula Molinari’s New York divorce lawyer.

Keywords: [“divorce”,”York”,”New”]
Source: http://www.totaldivorce.com/news/articles/unusual/new-york-no-fault-law.aspx

Cruel and Unusual Punishment

Such punishment as would amount to torture or barbarity, any cruel and degrading punishment not known to the common law, or any fine, penalty, confinement, or treatment that is so disproportionate to the offense as to shock the moral sense of the community. The Eighth Amendment to the U.S. Constitution prohibits the federal government from imposing cruel and unusual punishment for federal crimes. The amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution bars the states from inflicting such punishment for state crimes, and most state constitutions also prohibit the infliction of cruel and unusual punishment. In attempting to define cruel and unusual punishment, federal and state courts have generally analyzed two aspects of punishment: the method and the amount. In Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156, the U.S. Supreme Court held that the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even if the prisoner does not suffer serious injury. A defendant need not suffer actual physical injury or pain before a punishment will be declared cruel and unusual. The Court has also ruled that execution of mentally retarded criminals violates the Eighth Amendment’s guarantee against cruel and unusual punishment. With regard to the amount of punishment that may be inflicted, the prohibition against cruel and unusual punishment also bars punishment that is clearly out of proportion to the offense committed. The Ninth Circuit ruled that the defendants’ sentences constituted cruel and unusual punishment, for the trial court was effectively imposing life sentences for what was the legislature classified as a misdemeanor under any other circumstances. Even one day in prison would be a cruel and unusual punishment for the “Crime” of having a common cold.

Keywords: [“punishment”,”Court”,”U.S.”]
Source: http://lawbrain.com/wiki/Cruel_and_Unusual_Punishment

Law Fish News for 05-22-2018

Cases that could save your home

The trial court sustained a motion to strike on the basis of res judicata and the Court of Appeal affirmed. The District Court dismissed the Complaint with prejudice on the grounds that the action was precluded by the demurrer in state court, and Plaintiff appealed to the Ninth Circuit. After a hearing on November 7, 2012, the Ninth Circuit Court of Appeal affirmed the District Court’s order of dismissal. “The court does not accept the argument that because MERS may be involved with 50 percent of all residential mortgages in the country, that is reason enough for this court to turn a blind eye to the fact that this process does not comply with the law.” The issue considered by the California Supreme Court in Yvanova: In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void? The Court limited its scope to post-foreclosure cases. “The Yvanova Court concluded,”We conclude a home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legitimate authority to order a trustee’s sale. The Supreme Court then sent Keshtgar and Mendoza back to the courts of appeal for further consideration. In a petition for review to the California Supreme Court, the Mabrys noted that more than 100 federal district court opinions have considered §2923.5 and an overwhelming majority have rejected a private right of action under the statute. The Court of Appeal affirmed the trial court’s demurrer, and wrote, “Gillies points out that the notice of default misspells his first name Dougles, instead of the correct Douglas. But no reasonable person would be confused by such a minor error. Gillies last name is spelled correctly and the notice contains the street address of the property as well as the assessor’s parcel number.”

Keywords: [“court”,”Notice”,”Plaintiff”]
Source: http://www.chasechase.org/cases.html

Professional Judgment

Financial aid administrators have the authority, through Section 480(d)(7) of the Higher Education Act, to change a student’s status from dependent to independent in cases involving unusual circumstances. Nationwide, approximately 2% of undergraduate students become independent through such dependency overrides. An analysis of the 2007-08 National Postsecondary Student Aid Study suggests that only 0.5% of undergraduate students are independent because of a dependency override. Parents refuse to contribute to the student’s education; Parents are unwilling to provide information on the application or for verification; Parents do not claim the student as a dependent for income tax purposes; Student demonstrates total self-sufficiency. A student cannot become independent just because the parents are unwilling to help pay for the student’s college education. An abusive family environment abandonment by parents incarceration or institutionalization of both parents parents lacking the physical or mental capacity to raise the child parents whereabouts unknown or parents cannot be located parents hospitalized for an extended period an unsuitable household married student’s spouse dies or student gets divorced. Although the student’s self sufficiency is insufficient grounds for a dependency override, the financial aid administrator may be able to make a case for a dependency override on the grounds of abandonment. A student who is 24 years old or married still counts as independent even if he lives at home with his parents. A student is not required to be self-supporting for the financial aid administrator to perform a dependency override. Cash support from people other than the student’s parents should be reported as untaxed income on Worksheet B. Financial aid administrators may use professional judgment to include financial support received from the student’s parents and in-kind support from the parents and other people as untaxed income on Worksheets A and B. A student acting as a legal guardian or foster parent to a child is not independent, since the student is not considered the child’s parent.

Keywords: [“Student”,”parent”,”dependency”]
Source: http://www.finaid.org/educators/pj/dependencyoverrides.phtml

Professional Judgment

Financial aid administrators have the authority, through Section 480(d)(7) of the Higher Education Act, to change a student’s status from dependent to independent in cases involving unusual circumstances. Nationwide, approximately 2% of undergraduate students become independent through such dependency overrides. An analysis of the 2007-08 National Postsecondary Student Aid Study suggests that only 0.5% of undergraduate students are independent because of a dependency override. Parents refuse to contribute to the student’s education; Parents are unwilling to provide information on the application or for verification; Parents do not claim the student as a dependent for income tax purposes; Student demonstrates total self-sufficiency. A student cannot become independent just because the parents are unwilling to help pay for the student’s college education. An abusive family environment abandonment by parents incarceration or institutionalization of both parents parents lacking the physical or mental capacity to raise the child parents whereabouts unknown or parents cannot be located parents hospitalized for an extended period an unsuitable household married student’s spouse dies or student gets divorced. Although the student’s self sufficiency is insufficient grounds for a dependency override, the financial aid administrator may be able to make a case for a dependency override on the grounds of abandonment. A student who is 24 years old or married still counts as independent even if he lives at home with his parents. A student is not required to be self-supporting for the financial aid administrator to perform a dependency override. Cash support from people other than the student’s parents should be reported as untaxed income on Worksheet B. Financial aid administrators may use professional judgment to include financial support received from the student’s parents and in-kind support from the parents and other people as untaxed income on Worksheets A and B. A student acting as a legal guardian or foster parent to a child is not independent, since the student is not considered the child’s parent.

Keywords: [“Student”,”parent”,”dependency”]
Source: http://www.finaid.org/educators/pj/dependencyoverrides.phtml