Legal Issues

In the previous two decades, there has been a marked increment of youth involvement in criminal activities both at home and at school. This has impelled the juvenile justice system to come up with ways in which to contain these criminal activities and also to devise means through which such activities can be deterred. This resulted into the zero tolerance policy, which sought to discourage children from engaging in prohibited activities, particularly at school. And through the graduated sanctions, the juvenile justice system also sought to strengthen the correctional process of those children already in crime and under court probation. This discourse propounds the argument that a well thought out graduated sanctions system far outweighs a blanket zero tolerance policy.

As compared to the zero tolerance policy, the graduated sanction system is arguably a more effective strategy of dealing with juvenile delinquents. This can best be elaborated by first critically delineating between the two policies and exploring the purposes that each serve.

As noted by Taxman (1999), the high rate of failure to comply with the conditions of supervised release is a problem that undercuts confidence in probation services and raises doubt about the viability of probation as a sentencing option. Often, probation does not seem to work and, probation and parole violators continually contribute from 30 to 80 percent of prison intake each given year, again demonstrating the problem of non-compliance under supervised release. As a result, the future of probation and community correctional programs is uncertain because of this inability to grapple with the compliance problem.

However, criminal justice officials have recognized the promise that probation holds and the continued need for it. Recent evaluative evidence, point to the fact that if probation programs are properly designed and implemented, they can be effective on a number of dimensions including reducing recidivism. Therefore, to improve probation services, many states have introduced graduated sanctions as both a management tool and a programmatic tool. (Taxman, 1999, p.182-205)

Graduated sanctions are structured, incremental responses to non-complaint behavior while a person is under supervision. These sanctions are designed to give the probation officer the ability to respond quickly to non-complaint acts through a series of responses, for instance one day in jail, more drugs testing, more reporting or curfew. The sanctioning process uses modest steps to infringe on the offenders liberty to deter future non-complaint acts and ensure the integrity of the court order. The specific functions depend on factors such as the nature of violation and whether or not it is the first violation. Thus, graduated sanctions provide immediate and certain consequences for defiant behavior.

On the other hand, Togut and Snow (2008), regard the zero tolerance policy as a predefined mandatory consequence that is applied to a violation of school rules without regard to the seriousness of the behavior, mitigating circumstances, or the situational context. This is an expansion of the definition by the U.S Department of Education, National Center for Education Statistic, which considers zero tolerance as a policy that mandates predestined consequences or punishments for specified offenses. The zero tolerance policies involve suspension or expulsion for violations involving drugs, alcohol, fights, sexual harassment and minor non-violent violations such as tardiness, unauthorized use of pagers, and disorderly conduct.

From this we deduce that while graduated sanction is wider in scope, targeting not only offenses juveniles commit at a particular place, the zero tolerance policy only major on the offenses juveniles commit at school. Besides, while the graduated sanctions policy works to check on the progress of the rehabilitation process of a delinquent, the zero tolerance seeks to deter any criminal or prohibited activity. This is somewhat self-defeating because the knowledge of consequence doesnt necessarily deter people from engaging in illicit activities.

History and Current Trends of Juvenile Delinquency
According to a report by the Building Blocks for Youth (n.d.) there was a marked increase in arrest of juveniles from the mid-1980s to the early 1990s, for various offenses including some that are quite grave like homicide using firearms ( HYPERLINK httpwww.buildingblocksforyouth.org httpwww.buildingblocksforyouth.org). Today, more than 2.3 million youths are arrested each year and, approximately 600, 000 of these youth are processed through juvenile detention centers and more than 100, 000 are placed in secure juvenile correctional facilities (Skowyra and Powell, 2006).

Over the course of the previous two decades, state legislatures and local educational authorities have therefore, devised several means in response to calls for the increased school safety in the wake of such highly publicized school shooting as the Columbine and Red Lake High Schools. These means have included both the graduated sanction system and to a large extent, the zero tolerance legislation. These laws predicated upon the Gun Free Schools Act of 1994, typically calling for penalties ranging from school suspension to processing in the legal system for a student threatening or perceived to be threatening an act of violence towards members of a school community. (Grubbs, n.d.)

If anything, the zero tolerance policies have grown out of federal and government law enforcement programs that were focused on illegal drugs interdiction. By 1989, school systems in California, New York and Kentucky mandated expulsions for drugs, fighting and gang-related activities and by 1993 the zero tolerance policies had been adopted across the country.

Grubbs points out that, often the demand placed upon educators to curtail student expression and silence dissenting opinions, go a long way in limiting instructional opportunities and even discriminate against students from different backgrounds who may express their thoughts and feelings through means that the school officials may regard as threatening.

The breakdown in discipline in our schools is more of a function of a closed communication channels, where particular students resort to criminal tendencies to air their grievances or settle a score. What zero tolerance does in this case is send a message to these particular students to the effect that school wont stomach any aggressive activity they might opt to use to express themselves, the lack of a proper channel to do so notwithstanding.  Graduated sanctions on the other hand, even though it comes after the aggression has been expressed, it works not to exclude the aggressor but try to fit himher back to the society and therefore amicably deter such tendencies in the person.

Assumptions on Graduated Sanction and Blanket Zero Tolerance
The graduated sanction is more of an inclusive system rather than an exclusive one.  Matese (1997) argues that the system of graduated sanction achieves a broad spectrum of interests. For one, this system provides accountability through immediate sanctions within the community for first time offenders and non-violent offenders. It also provides intermediate sanctions within the community for more serious offenders and repeat non-violent offenders. Far from that, graduated sanctions do secure care programs that provide a high level of social control and treatment services.

The graduated sanctions programs employ a continuum of disposition options for delinquency reduction. It rather implies that the penalties for delinquent activity should move from those that are limited in their scope and intrusion into the lives of youth to those that are highly restrictive, in keeping with the severity and nature of the offense committed. In other words, youths who commit serious and violent offenses should receive more restrictive sentences than youth who commit less serious and nonviolent offense. However, for graduated sanctions programs to fulfill their promise of delinquency reduction, they must ensure that the right juveniles are connected to the right program.

The types of sanctions typically include immediate sanctions, targeted towards less serious non-chronic offenders intermediate sanctions, appropriate for juvenile who continue to offend following immediate interventions youth who have committed more serious felony offenses and some violent offenders who can benefit from supervision, structure and monitoring but not necessarily incarceration. Secure care is much more appropriate for serious violent, chronic offenders. And after care, which is appropriate for offenders transitioning back into the community following secure care.

A study of existing graduated sanctions systems found them to be more effective and less costly than juvenile incarceration. According to researchers at the University of Virginia, the graduated sanctions approach has many proven benefits which includes reduced costs, increased accountability by the juvenile and the community and enhanced responsiveness to a juvenile treatment needs. Moreover, graduated sanctions are seen as a useful tool in pursuit of restorative justice, supporting the process of reconciliation that holds offenders accountable through making amends. (Lawrence, 2009)

On the other hand, the zero tolerance policy while preferred by teachers and parents, it is rather quite ineffective in deterring juvenile delinquency. The policy is based on the assumption that by not condoning any wrong doing, teenagers will desists from committing the stated mistakes. But instead of achieving this, the policy rakes in opposite rewards as demonstrated by Peterson, (2006) in her paper, A Blueprint for Juvenile Justice Reform Youth Transition Funders Group, where she argues that zero tolerance policies are one of the factors that are driving up the rates of juvenile incarceration.
Peterson (2003) claims that over the past decade, disciplinary policies that mandated severe punishments , for instance suspensions, expulsions and referral to law enforcement  have been expanded in many districts to cover a broad canvas of student behaviors, including not only possession of weapons, drugs and alcohol, but also prescription and over-the-counter medications and common objects like nail clippers as well as making threats, truancy, tardiness and vague, catch-all categories like insubordination and disrespect.

The zero tolerance policy is not balanced as it offers preferential treatment to juvenile offenders along class and racial lines. In other words, this policy indirectly promotes discrimination based on race. Peterson (2006) takes note of this when she points out that zero tolerance policies push struggling students out of schools and into juvenile justice system, dramatically increasing its racial disparities.

In the same vein, the report based on juvenile delinquency in Kentucky titled the Building Blocks for Youth, concluded that for both law violation and board violation, African-American students were suspended from school at rates that are significantly higher than white students. These data raise serious concerns that school officials have unlocked the backdoor of public schools and sent black children away.

Additionally, both the combination of broad authority by schools officials and vaguely defined violations allows non-objective and none-individual factors the preconceived notions and racial stereotyping have an impact on school disciplinary practices. A recent study by researchers at the University of Louisville and the University of Kentucky focusing on racial disparities in Kentuckys juvenile justice system provides some illustrations about how the most routine decisions can be racially biased. For instance, while colored youth comprise about 10 of the states childrens population, they account for 39 percent of the youth detained before their adjudication and 27 of those convicted and committed to residential facilities after their adjudication.

Conclusion
It is therefore arguably true that the graduated sanction system has more benefits to overall development of juvenile delinquents than the zero tolerance policies. This is because of the inclusive nature of the graduated sanction that seeks to monitor the delinquents as they slowly rehabilitate and get absorbed back to the society.

Secondly, the zero tolerance policy is a self-defeating mode of addressing juvenile delinquency. First, it severely punishes wrong-doers without considering the circumstances and gravity of their mistakes and thereby, it exacerbates rebellion amongst the young ones.

Recommendations
There has to be deterrent measures to ensure that massacres do not happen in our schools. In that line, the zero tolerance policies should not be blanket but only be limited to grave offenses that could have the capacity of bringing harm to others in the school community.  However, the graduated sanctions system is the way to go since it handles offenders in a more humane way and ensures that they can get integrated back into the society.

To Happy Toy Employees Union
From John Edwards
Date February 28, 2010

Re Employment Union Fact Sheet
There happens to be a major issue that is taking place in this case. It is clear that there is a formation of a labor union. This is a union that is meant to protect the rights of employees. Other than this union, there are some other activities that are taking place in this working environment that are not really straight. First there is the human resource manager Ms. Abboud, who happens to be a lazy woman. She conducts her activities using some unethical means as she fires people without having to make proper consultation and proper consideration. She therefore makes the working at the company difficult and at the same time makes the workers to live with fear as they do not know when they will be fired. She uses her personal means or rather satisfies her personal gratification by venting her anger and frustrations to other people.

It is clear though that she is not in very good terms with the other workers. She is also not in very good terms with the company director and owner Mr. Tong. From the discussion, it also clear that the process of decision making in the company is very poor. This is the reason why it takes the director too long to decide who should be included in sharing of bonuses. It happens that even after human resources manager suggests on the way bonuses should be shared, Mr. Tong still wants to share it among all the employees. This is a clear indication of communication breakdown and poor decision making processes that exists in the company.

Due to this poor communication that is taking place in this company, there is a formation of a labor union among the employees of the company. Under normal circumstances, this type of union is supposed to comprise of all the employees in the organization but in this case, it only contains some selected employees of the organization. In an organization that has a good communication, this is something that is not supposed to happen. The director only learns of the union formation when he is given the application that he is supposed to approve.

The company has a mixed up form of duty execution and this is the reason why there are a lot of difficulties in determining who should be included in the union. The human resources manager does not do her duties well as she asks some of her juniors to type some confidential information for her. This means that there is no way that these workers will be included in the labor union. The reason is that they know too much and they may use this confidential information and hit on the company.

The company also does not employ or rather put the employment At Will Act into practice. This is because Ms Abboud who is the human resources manager fires Mr. Henders even without a warning. Even though according to her, he was fired because of his poor performance, the company should be given him a warning or even put him under probation for improvement before firing him.

Employment at Will Act states that an organization should never just wake up one morning and decide to terminate the employment contract of the employee without following the right procedure which is clearly stipulated in the Act.

In addition, Ms. Abboud who has no good track record in the company did not make any consultation to anyone before firing Mr. Henders. Even though she may say that she fired him because of his poor performance, it is more likely that she fired him because he was the one who was leading the group which was forming the union. This can be termed as unlawful as all the employees has a right to good and proper working conditions in any place that they may be in. They therefore have a right to fight for their rights and no one should be victimized for joining such a union. This is an act of unreasonable employment practice according to the Labor Relations Act section 8.

Irrespective of whether there is a union or not, all the employees are entitled to bonuses that the company wants to give them. It can therefore be termed as unlawful and at the same time unethical for the management at the company to withdraw all the bonuses that it was supposed to give to the workers simply because they had formed a union. They should still be given the bonuses as they still deserve them. The union is supposed to present their rights in the organization and at the same time protect them from any form of exploitation that may be taking place.

There is a need for the union in the company so that it can protect the workers especially from the harassment that seems to come from the human resources office. However, this union should have the appropriate members as this is the only way that it will not oppress the company and at the same time clearly present the interests of the members. One of the main reasons why there is a problem in this organization is because the management has a problem in the way it conduct its activities. It is clear that there are some people in company who have access to very confidential information for on the company which they should not have access to.

Such type of people should not be presented or rather should not be members of the union. This is because, they have some confidential information and therefore there is a chance of having a conflict of interest with these people between the company and the union. Such people are the secretaries who are often used by the human resources manager. Alternatively, there should be one personal secretary to the human resources manager. He or she should not be a member of the union as she has access to very private and confidential information of the company. If this happens, then the rest should be members of the union.

The best bargaining unit for this union is that the members of the union should be all the employees in the company apart from all those who have access to private and confidential information of the company. This can be interpreted as all the workers in the company apart from all those workers who are above the rank of sales, clerical, lead hand and office staff. The reason is that these people know a lot of information concerning the company and therefore they can use it for their own benefits as union members. Any other person outside this bracket can become a member of the union.

Section 8 of the Ontario Labor laws clearly stipulate that every union and every person that is acting on behalf of the union who discriminates, coerce or intimidate in regard to employment, a condition or a term of employment or membership in union against or even imposes a pecuniary or any other penalty on a person who has already participated or is about to participate in any proceedings under the Ontario Labor Relations Acts or any other Act of Parliament or Legislature unless he or she satisfies to the board that he did not coerce or intimidate in regard to employment, the person has committed an unfair labor practice. This is an act that is supposed to protect the workers.

Using this act, the board is likely to rule in favor of all the members in the company. The act is known to protect all the members of the company who may be blocked from joining the union. This act is known to prevent such discrimination from taking place. Using the section therefore, there is a chance that the board may rule that all the workers or the employees who are working in the company should join the union irrespective of their position in the company.

However, there should be a limit of the type and the position of the workers that should be presented in the union. All those high ranking officials contain a lot of confidential information and therefore, if they are included in the union, it will be unethical for them to still work in the company. Alternatively, the company may allow them to join the union and then filter their duties which will be the same as demoting them. Very few of the workers would agree on this and therefore they would opt to stay without the union. After all they are getting all the incentives that they should get and they do not risk losing their jobs. This way, the board does not risk the union members taking the company to court claiming that there was a breach of contract and that they are going against the Ontario Labor Relations Acts.

There is a chance that the union brings an application to company with the aim of having it registered in the company. The reason is that the Ontario Labor Relations Act allows all the employees of a company to form a union. Therefore, these employees understand very well that they have a right to have the union within the organization. They also understand that through section 8 of the Ontario Labor Relation Act, they are protected against any discrimination that may be raised by the employee. Any other article that is not presented in the Ontario Labor Laws is clearly presented by the Canadian Labor Laws.

The employees are likely to make an application to the top management of the organization for the registration of the union. This registration should include all the employees who may wish to join. This application should be very formal and therefore the company may not be able to reject it. In addition, on the basis of the same Act, the company may not be able to fire Mr. Henders as it maybe argued that the termination of his employment contract is based on discrimination or intimidation because be showed his interest of joining the union.

There is a need to convince the Labor Board to rule in favor of the union. In the recent past, and to be specific since Ms. Abboud came into the company as the human resources manager, there has been a lot of case of termination of employment that has been taking place. Some of these terminations have no base and therefore, there is a need for these employees to be protected. It is clear that the owner of the company is very good but the employees need to protect themselves from the effects of the human resources manager.

The labor union should therefore rule in favor of the union arguing that the main reason why the union is needed is to protect the employees from losing their job through this new and lazy human resources manager. The union is not for fighting for benefits from the organization as they already have them and they have good compensation but the union is for protecting the workers and helping them fight the discrimination that is being practiced by the human resources office. This is the argument that should be raised to the labor board.

It is clear that there is a problem with the way employees are fired in this company. There is therefore a need for some solution that would help the employees in this organization. As the main problem is the human resources manger, there are a number of possible solutions that exists in this company. First is that the employees has no problem with the compensation as the owner of the company is an employee friendly person and he compensates the employees well. A possible solution would be firing Ms. Abboud as she is not even efficient in her duties. A dedicated human resources officer should be hired to replace her. This way, employees will no longer want to have the union as they will be free from illegal and unfair termination.

On the other hand, the Labor Board may consider a number of factors before arriving at their conclusion. First they may look at the reason why the employees want to form a union. The main reason is their illegal termination and not compensation. Due to this, it would have no harm if most of the officials are included in the union. However, it is likely to set the terms under which some of the employees should be members of the union. The board would require that the top officials who have access to private and confidential information not to share the information or even use it in the union meetings or activities. If they use it, they should be considered to have breached the company policy and their employment contract can be terminated. Under these conditions, the board is likely to order the company to allow the employees to have the union.

Cc
Director,
Organizing Committee

The paper would discuss three cases and would elaborate on their nature that whether those three cases are acts of crime or not. And if they are, then why they are so and what type of crimes they are.

As far as the first case is concerned, where Kino sees a DVD player on the porch of Lulus house, takes the player to his home, and tells everyone he owns it. This is a crime but it is of lower level because it doesnt involve any threat, harm, or violence. This sort of crime is usually done by children or by those who dont possess enough understanding and knowledge about the act that they are doing. This type of crime is known as Larceny. Obviously, it is a crime because Kino doesnt really owns the DVD player that he stole from Lulus place, but this sort of crime doesnt really force people to put the criminal in the jail or execute him or her. In other words, there is a misrepresentation being done by Kino which is an unlawful act.

Moving on the second scenario where, Maya, holding a knife, forces Nick to give her his boom box, and runs away with it. This is also a crime because it is done on the basis of coercion or compelling the other person. In this case, Maya has used the coercion with the help of knife to compel or force Nick to give her the boom box. The boom box is owned by Nick, and not Maya therefore, it is illegal or unlawful act to take it from him on the basis of coercion by putting knife over Nick and asking him to give her the boom box.

This type of crime is called Robbery or to be more precise, this specific crime is called Armed Robbery, where the offender takes other peoples property with the help of deadly weapons such as, knife, gun, etc. Maya has done armed robbery where she used knife as a weapon to forcefully take the belonging of Nick. As far as the penalties are concerned, this armed robbery is usually considered as greater than other simpler robberies therefore, it can lead to some serious or heavy penalties.

Finally, talking about the third case where, Ollie breaks into Pams apartment, takes a computer, and leaves. This is also a crime and this crime is called Burglary. Burglary is a type of crime that involves house breaking or intrusion. In this case, Ollie has entered or broke into Pams apartment in order to take a computer. After Ollie took the computer, she left the place therefore, what she did was unlawful and illegal. As far as the penalties are concerned, Ollie would be facing harsh penalties such as, imprisonment for a certain period of time along with the payment of high amount of money or fine.

Talking about the differences of these three cases, the first one is called Larceny which is the stealing and misrepresentation of the ownership of ones property. Second case is the serious one where an individual illegally or forcefully  usually with the help of any weapon  takes the thing from other person that he himself doesnt own. And finally, the third case is called Burglary, which involves the intrusion or trespassing into ones house, stealing the things or harming someone, and run away from there.

The debate about the right to life has gained momentum for many years without an optimum consensus of the parties concerned. For this reason, many organizations have come up in an endeavor to save the life of young girls from the risk of death as a result of unsafe abortion. Many would ask, what is the core issue of life especially when abortion is concerned The rate at which abortion is carried out is alarming According to a research conducted by Kulczycki (1999), an average of 20-22 million illegal abortions were being conducted annually by then and he predicted an increment in future. Abortion is usually common in urban areas although it is now showing an upward trend in rural areas.

Adolescents are considered to be minor contributors in decision making and their contributions or opinions are in most cases considered least especially when it comes to crucial decision making such as whether to carry out an abortion or not. In many cases minors abortion has a negative effect to her and to the community either directly or indirectly. Her health may be endangered or she may even end up dying (Lee 2003). For example if a girl carries out an abortion and it results to her death as it happens in most cases, her working father or mother will request for a leave from his or her working place. This negatively affects the output of that company or organization. Besides the community suffering the loss of her (the dead girl), it further looses in funeral preparation and other contributions.

Poverty has for years affected many, forcing them to do what they could not even think about if they were well-off. As many males opt to steal due to extreme poverty for example, their female counterparts involve themselves in prostitution. This direct correlation between poverty and abortion is an issue that if not well addressed and as soon as possible it will have a negative impact to the country. For many years, poverty has been subjecting many to abortion at different angles.  This was clearly and thoroughly discussed by Garca (2002) who also expressed concern to address the issue of poverty as a way of curbing abortion.

Religion views abortion as an immoral act that is completely against Gods will and commandments which condemns abortion by considering it as a murder. Despite being religious, the bodily temptations and peer pressure does not guarantee most of the youth of remaining chaste till their marriage. Some girls even become pregnant after falling in relationship with their fellow youth in the same church. Religion has been condemning abortion for years and those who become pregnant out of wedlock choose to abort so as not to be expelled from the church or ostracized by the society. This is because the churchs attitude against abortion is very strong (Nachmias  Guerrero 2006)

Annotated Bibliography
Lee, E. (2003).  Abortion, motherhood, and mental health medicalizing reproduction in the
United States of Great Britain New York, Aldine De Gruyter Press.
The author has shown that there are many psychological problems associated with abortion. Most of these problems occur usually when abortion is done in an insecure way as it happens to most of the minors and may even result to their death. Minors who survive after an abortion may end up having post-abortion health complications. Some women may develop healthy problem, problematic subsequent child bearing, psychological harm and others even suffer emotional shock. Attempts to legalize abortion especially in cases where the mothers life is in danger have been made though most of the religious leaders and their followers are opposed to these efforts.  Biologically, adolescence is characterized by physical, spiritual, mental and even hormonal change.  It is a transitional stage where one changes from childhood to adulthood. Girls at this age are considered as minors and lack enough courage to express themselves especially when it comes to issues that they do consider as against their parents or guardians will. Parents or guardians at this stage are required to have a regular, positive and effective interaction with their minors for this will encourage them to confidently and without fear express themselves. In this way, the parent will be able to assist his or her minor in making appropriate decision regarding crucial matters she may be going through.

Kulczycki, A. (1999). The abortion debate in the world arena. New York Routledge press.
According to Kulczycki, the rate of illegal abortions is alarming.  There is a need to notify or ask the minors parent to consent to minors abortion especially as an option if the minor is unwilling to inform parent. This is because a parent or a legal guardian of an individual naturally bears the right to make decision concerning crucial issues about her and sometimes even without a compromise. Besides, it gives room for professional counselors to counsel the minor accordingly. If the matter is not addressed, then the world may end up having a declining female population as a result of minors death. Rural population is considered less affected by this problem compared to its counterpart in urban areas. This is due to the fact that urban population is more exposed to western culture than rural population. It is also important to note that the act has been witnessed a lot in rural areas in recent years than in the past. The reason behind this upward trend in rural minors abortion is due to the influence from their urban counterparts. Most of the urban minors come from rural areas and when they go upcountry to visit their parents or relatives, they interact with their peers and influence them to involve in the act. This is because the activeness of the body at this age tempts many to try anything sometimes out of curiosity and pressure. Teenage pregnancy is one of the outcomes witnessed. Lack of self confidence and fear of the consequences subject many victims to opt for pregnancy termination hence the need to address the issue seriously.

Garcia, B. (2002). Women, poverty, and demographic change United States, Oxford
University Press.
Garcia expressed concern towards poverty as one of the contributors many illegal abortions. It is also important to note that many teenage marriage (which are mainly out of poverty pressure) where one or both of the partners is below eighteen years of age is considered as an illegal by the law. This is because anybody below eighteen years is considered unable to make a right decision of what is right or wrong to him or her hence the intervention of the law. Large proportion of prostitutions in urban areas comprises of females less than eighteen years. Females at this age are not well informed about the effective contraceptive methods and thus they end up conceiving. Since they feel impossible to carry pregnancy to term, they choose to abort it mainly through cheapest ways possible and away from legal authority. Most of these means of abortion are not safe and they usually end up with many side effects. The choice of whether to carry out an abortion is very crucial owing to the fact that it has effect to the victim, relatives and the society in general. It also has a legal impact when it comes to the issue of the law. The closest person to the minors who become pregnant mostly out of their will are Parents (guardians) and not neighbors, leaders or even teachers. Many of these next of kin opt to subject the pregnant girl to abortion without even giving her an opportunity to express her stand. They mostly do this to evade the shame.

Nachmias, C., F.  Guerrero, A., L. (2006). Social statistics for a diverse society (4th Ed.).
United Kingdom Pine Forge Press.
In their book, the authors clearly showed that, the religious attitude and abortion does not correlate. This is because religions consider abortion as a murder. Religions have been campaigning to condemn the legalization of abortion regardless of whether the mothers life is in danger or not. Religions stands have made many victims to conduct abortions illegally and in hiding as they try to defend their dignity. It happens that most of the minors who become pregnant opt to abort as they consult their fellow minors who usually have little knowledge about it hence ending up endangering their lives.  If abortion was legal and religiously accepted then it could not be a great deal for minors to consult their parents and conduct it in a safe and healthy way. Thus there is a need for parents to consent their minors in abortion. The choice of whether to carry out an abortion or not should be left to the individual after appropriate counseling. This does not mean that parents and of course the next of kin consent on this matter of abortion be overlooked. Their decision is crucial and affects everyone concerned. The awareness of the need for parents to consent their minors abortion should be conducted.

Introduction

Q6. The equal protection clause, which is part of the fourteenth amendment, provides that all states shall ensure that every person within its jurisdiction is accorded equal protection under the existing laws. In applying this clause, courts have developed three scrutiny tests namely

i) Strict scrutiny test  any law enacted by a state that categorizes people based on ethnicity or race is unconstitutional unless that law was crafted to serve a compelling need of government. The test shall investigate whether there was another option that could serve the same purpose as the legislation in question.

ii) Intermediate scrutiny any law that categorizes people based on sex is unconstitutional unless the law is tailored to serve an important function of state.

iii) Rational basis test courts will consider a law that categorizes people on any basis (other than sex, race or ethnicity) constitutional, provided the law is proximately related to a genuine government interest.

A law prohibiting white males over 25 from serving in the military would be subject to the strict scrutiny test because it seeks to discriminate on the basis on ethnicity and race. The courts will determine whether the laws were crafted to give a particular race undue advantage over the other races. The law would be unconstitutional because it does not give other races equal protection under the law. If the word white were removed, the law would fall under rational basis test and would be constitutional.

Q7. Proximate cause refers to events that have a direct bearing on the cause of an injury. Causation in fact is established by applying the but for test in determining what led to the injury a sequence of events leading to a particular conclusion. To establish a case of negligence, the plaintiff must prove that a particular action or event was directly related to the injury suffered. Someone watching television must prove that a video clip of a tire falling off a car and running over a child was directly responsible for his or her trauma.

Q8.   The Privileges and Immunities Act prohibits states from passing legislation that discriminates against citizens from other states. It accords all citizens the same rights and privileges as those that belong to that state. The Equal Protection Clause seeks to ensure all persons within the jurisdiction of a state are accorded equal treatment before the law.

Q9. In cases where a firm has exchanged hands and the successor firm inherited the debts and obligations of the former business, the stockholders are liable to pay for the debts and obligations of the corporation.  In instances where fraudulent practices were employed when transferring a business to new owners, the stockholder becomes liable for any liabilities.

Q10.  A limited partner is liable for debts and obligations of a limited partnership to the extent of their investment in the business. Thus if one had invested 50,000, their liability will be limited to their share capital of the same amount. Any other debts and obligations that the business has will be recovered from the unlimited partners share of the business and personal assets.  

Q11. Since corporations are artificial persons, laws protecting citizens do not cover them.  Examples of such laws include the Privileges and Immunities Act that exclusively applies to citizens. Persons encompasses natural citizens, illegal and legal aliens, as well as artificial persons. Any constitutional clause relating to persons will cover illegal immigrants despite their immigration status.

Q13. Assignment of rights occurs when a party to a contract assigns a third party the right to exercise all the rights they had under the contract. Delegation of duties refers to a situation when a party to a contract delegates to a third party their contractual duties under the contract.

Q16. A principal is liable to the agent for any monies spent in the course of the agents employment provided such monies were spent promoting the principals business. This liability holds irrespective of whether the principal authorized the expenditure provided proof exists to show such expenses were beneficial to the business. Agents are liable to the principal in instances where their actions were ultra vies and resulted in injuries to third parties. The principal will be held liable by the third parties for the agents actions but the agent is liable to indemnify the principal for any loss.

Q17. A trade secret is anything that a business applies in its operations to give it undue advantage over the competition. This includes formulas for various products, unique processes, market strategies or investment policies. Trade secrets are protected by limiting the number of people with access to them or by signing contracts with employees committing them not to disclose the knowledge they come across in the course of their duties (non-disclosure agreements). In other cases, employees sign over their rights to any work done during their employment.  Unlike patents, trade secrets protection does not expire. Employees expose such secrets through either industrial espionage or breach of contract.

Q18. Slander refers to spoken defamation of a person or entity while libel is written or published defamation of people or entities.

Q23. Rawls developed the veil of ignorance to establish the morality of an action by hypothetically reconstructing society and abolishing roles. Participants were then required to judge whether a particular action was just depending on if, they were the persons subjected to that role. On the ethical question of slavery, one would decide if the practice was moral based on if they were a slave. For most people the constant beatings, harsh lifestyles and constant want that characterized slave life informed them that the practice was immoral. The gun control debate could be resolved using this approach by exposing those on both sides of the divide to the veil of ignorance. At the end of the exercise, a consensus will emerge concerning state control of guns in private hands.

Question24. I would suggest that all employees under my section agree to a pay cut staggered with regard to ones take home pay. That is the most highly paid workers will face a higher percentage cut than those with the least pay will. If this meets strong resistance, I will call a meeting and ask the employees to suggest which benefits should be reduced to fulfill the 10 cost cutting measure. As a last resort, I will lay off workers on a last in first out basis.

Q25. Common law refers to that branch of law established by judicial rulings as opposed to those legislated upon by national or state assemblies. It involves case law and precedents in determining rulings for various cases.

Q26. The initial charge facing Martha Stewart faced was for insider trading. When the state realized that its case was weak, they decided to pursue other angles they were confident would snare her. This action by the government is what the constitution tried to prevent by passing the Bills of Rights protecting the citizenry from an invasive and vindictive government. In my opinion, this action was unethical.

Q28. The Preemption Doctrine holds that federal laws take precedence over state laws whenever there is a potential conflict between the two. Thus, most states are adopting Supreme Court decisions in deciding their rulings.

Q32. The Due Process Clauses of the fifth and 14th   amendments prohibit the enactment of laws that are very broad and vague.

Q33. An independent contractor hires out services to an employer or client on mutually agreed terms. Supervision of the contracted work is by the contractor who accomplishes the work in a fixed period. An employee is hired by an employer to do certain tasks on a daily basis based on a job description and fixed working hours.  Supervision of the work is by the employer or their agent.

Q34. Substantive due process refers to the reasoning behind the deprivation of personal liberties or property while procedural due process outlines the procedures that take place before the deprivation of personal liberties and property occurs.

Q35. A felony is an act considered inherently evil and punishable by prison terms in excess of one year. A misdemeanor is an act considered socially wrong. Most custodial sentences range from 1 month to a year at most.

Assignment 10-4

In Dorothy J. Kowalski and Louis Kowalski, Jr. v. Goodyear Tire  Rubber Company, 841 F. Supp. 104 (1994), the plaintiffs are using common law theories to claim damages. The plaintiffs are asserting negligence and strict liability claims to recover damages. The plaintiffs argued that Goodyear is liable for strict liability based on Restatement (Second) of Torts 519. Plaintiffs stated that Goodyear is liable under a negligence claim because the company owed a duty of care to Dorothy. The plaintiffs allege that Goodyear violated their duty to Dorothy and as a result, she suffered an injury that was foreseeable.

CERCLA is important to this case in order to counter Goodyears defense that the lawsuit is barred by the states statute of limitations. Under CERCLA 9658, a states statute of limitations can be preempted. Preemption of the statute of limitations under CERLA is only applicable when there is a release of a hazardous substance into the environment. The Court agreed with the ruling in State of Vermont v. Staco, Inc., 684 F. Supp. 822 (D. Vt. 1988), which stated that bringing hazardous substances into the home via clothing is considered a release of a hazardous substance into the environment. Under CERCLA 9658, the clock for statute of limitations would have started running when Dorothy knew or reasonably should have known that her cancer was caused by the release of ortho-toluidine. The three year limitation period imposed by N.Y.C.P.L.R. 214-c had not expired yet when Dorothy filed the lawsuit.

The most important factor with respect to the negligence claim is proving that Goodyear owed a duty of care to Dorothy.  Plaintiffs must show that Goodyear owed a duty of care to Dorothy, and as a result of violating that duty, Dorothy suffered an injury that was reasonably foreseeable. Since Dorothys husband was exposed to ortho-toluidine at work and proper precautions were not in place to prevent him from bringing the ortho-toluidine home. Plaintiffs provided evidence showing the Goodyear understood there was a danger of third party exposure to ortho-toluidine from clothes and warned employees against bringing home work clothes. Plaintiffs claim that Dorothy was a foreseeable plaintiff because she was within the zone of danger. As a result, Goodyear had a duty to minimize her risk of harm.

According to Restatement (Second) of Torts 519, strict liability is applicable when a party causes harm to people as a result of engaging in an abnormally dangerous activity, even if that party exercised the utmost care. The weakness of the strict liability claim is that plaintiffs failed to show Goodyear is liable under the six factor test implemented in New York to determine if an activity is abnormally dangerous. The six factors are (1) a high degree of risk of harm to people (2) likelihood the harm will be great (3) inability to eliminate the risk by exercising reasonable care (4) extent to which the activity is not common (5) inappropriateness of activity based on location where activity is being carried out (6) extent to which its value to the community is outweighed by its dangerous attributes. According to the Court, the plaintiffs have only shown that great harm can result from the release of ortho-toluidine. It is not apparent if Goodyear could have eliminated the risk by exercising reasonable care. The Court also noted that when ortho-toluidine is released into the air, sewer system, or other sites, there was no evidence of any risk associated with those activities. The Court did not have enough evidence to determine if the benefits of engaging in the activity outweighed the danger. The Court also could not determine if the activity was a common usage or an appropriate activity for that particular location.

I agree with the court that ortho-toluidine spilled on clothes constitutes a release into the environment. According to 42 U.S.C. 9601(22), release is spilling, leaking, emitting, discharging or the escaping of a hazardous substance into the environment. Mr. Kowalskis clothes, skin and hair were contaminated with the ortho-toluidine at the Goodyear facility. Once Mr. Kowalski left the facility, his home environment was exposed to the hazardous substance. The ortho-toluidine was released into the environment on Mr. Kowalskis clothes and this exposure caused harm to Dorothy.

In Metropolitan Water Reclamation Dist. Of Greater Chicago v. North American Galvanizing  Coatings, Inc., 473 F.3d 824 (7th Cir. 2007), Metropolitan was not entitled to contribution from North American under 42 U.S.C. 9613 because a PRP can only recover the cost of cleanup when the PRP is compelled to clean up due to civil action. As stated under 113(f), a claim for recovery of costs may be brought during or following any civil action under section 9606 or under section 9607(a) of this title. If the PRP commences clean up voluntarily, 113(f) cannot be used to recoup the costs of clean up from another party.

This case did not explicitly address what would happen if the landlord had been at fault to some extent, but the facts cited in Key Tronic Corp. v. U.S, 511 U.S. 809 (1994), addressed that issue somewhat. In Key Tronic, several parties were responsible for contaminating a landfill. Key Tronic sued the other liable parties under 113(f), after a settlement was reached with the EPA. Key Tronic also sued the other responsible parties under 107(a), for the cost of cleanup incurred prior to the lawsuit. For a hypothetical situation, where a landlord is partially responsible for hazardous waste contamination, the landlord could be held responsible for the cost of cleanup. If the tenant was subjected to civil action and paid for the cleanup, the tenant could recoup some of the cleanup expenses from the landlord under 113(f). If the tenant voluntarily cleaned up the hazardous waste, the tenant could possibly recoup the expenses through 107(a). In Cooper Industries, Inc. v. Availl Services, Inc., 543 U.S. 157 (2004), the Supreme Court implied that 107(a) could be used as an alternative remedy when 113(f) was not available. Based on the Metropolitan courts interpretation of the language used in 107(a), the tenant could use that section to recoup costs from the landlord.

The courts decision does not take away some of the EPAs leverage in obtaining settlements. Metropolitan decided to voluntary commence the clean up and fully absorbed the costs. In this case, the EPA did not have to get involved or reach a settlement since Metropolitan timely commenced cleanup. The EPA would need to be concerned about using leverage against a company if the company did not want to commence cleanup or if the company wanted to dispute any claims brought against it by the EPA. Those circumstances are not applicable to this situation.

Assignment 11-1
According to 40 C.F.R. 261.4(a)(1)(i), domestic sewage is not solid waste. Under 40 C.F.R. 261.4(a)(2), point source discharges subject to the CWA, are also not considered solid waste.

According to 40 C.F.R. 260.31(a), a variance from classification as a solid waste might be available to a party that is accumulating material speculatively without sufficient amounts being recycled to fit within the exemption, if the party demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year.

40 C.F.R. 261.3 states that a listed hazardous waste combined or treated with another substance would still be categorized as hazardous, even if it is no longer hazardous as a result of the mixture with other substances.

The definitions of scrap metal and by product under 40 C.F.R. 261.1 are important to understanding the sections in Exhibit 11-1 because the definitions will help you figure out if the by product or scrap metal constitute solid waste based on how they are used.

The first category listed in the F List in the C.F.R. is spent halogenated solvents used in degreasing.
The P List and U List are located in 40 C.F.R. 261.33.
40 C.F.R. 239 deals with determining the adequacy of a state permit program.
40 C.F.R. 258 sets the criteria for municipal solid waste landfills.
MSWLFs that are operated as dry tombs minimize the level of liquid in the landfill to slow biodegradation and reduce production of gas. A bioreactor is when the MSWLF uses liquid to increase biodegradation.

The political agenda behind the lawsuit in Grassroots Recycling Network, Inc. v. U.S. E.P.A., 429 F.3d 1109 (D.C. Cir. 2005), is that people are worried their property values will decrease if the states have authority to waive certain national criteria for sanitary landfills.

The standing requirement serves a beneficial purpose. The parties filing a lawsuit must have standing in order for the case to proceed. It prevents the courts from giving advisory opinions. It also helps maintain some sort of efficiency within the legal system, by making sure the courts spend time on cases where an actual or imminent injury has occurred to the party that initiated the lawsuit.

Assignment 12-1
The major assurance Candidate Conservation Agreements (CAA) provide to non-Federal property owners is that their conservation efforts will not result in future regulatory obligations in excess of those they agree to at the time they enter into the agreement.

Metcalfe County does not have any critical habitats for listed species.
The Karner blue butterfly is not listed as endangered or threatened in Kentucky.
Section 230.3 states an aquatic ecosystem means waters of the United States, including wetlands, that serve as a habitat for interrelated and interacting communities.

In Contoski v. Scarlett, 2006 U.S. Dist. LEXIS 56345, the presence of the eagle was a problem for the landowner because Contoski wants to possibly create a residential subdivision. Contoski cannot begin construction within 330 feet radius of the bald eagles nest. Contoski will remain in limbo with regards to his project until a final determination is made about delisting the eagle.
The ruling may not have been as favorable for the plaintiff if he challenged the listing of the eagle. The listing of the eagle is within the authority of the FWS. It is also up to the FWS to propose if a species should be considered for delisting. If Contoski tried to interfere in the FWS s authority regarding the listing, the court probably would have deferred to the decision of the agency. In this case, Contoski is merely requesting the FWS make a decision regarding a proposal the FSW initiated.

The United States Supreme Court in the recent case Flores-Figueroa v. United States was presented with a rather common type of legal disagreement in a novel technological context.  Specifically, in a case involving the proper legal interpretation and application of a federal law providing for a more severe type of criminal sentence in certain cases involving an identity theft, the Supreme Court was asked to interpret the language of that federal law in order to determine the prosecutions burden of proof regarding the crimes underlying elements as well as the extant to which the prosecution was statutorily required to prove a knowing violation of these underlying elements of the crime.  The federal law at issue, 18 U.S.C section 1028A(a)(1), provided in relevant part that an enhanced or aggravated type of identity theft occurs when in addition to certain underlying or predicate types of crimes an offender also knowingly . . . uses, without lawful authority, a means of identification of another person.   This case, although nominally a standard criminal law case, significantly affects and negatively impacts businesses in their role as employers because of the employer-employee nature of the alleged crimes in the instant case.

The criminal case arose out a non-citizen employee-applicant who submitted documentation in the form of social security cards and alien registration documentation that, at different times, included false names and included the social security information of other people. The applicant-employee was subsequently charged with two immigration violations, two of the aforementioned predicate types of crimes required by the statute, and then also charged with the aggravated type of identity theft as a result of using the identity information belonging to other people.  Defendant conceded the propriety of the immigration offenses, but challenged the aggravated identity theft charge on the grounds that the government did not prove that he had knowingly used the identity information of another person as required by the statute the government, on the other hand, argued that the federal law did not impose a knowledge requirement.  The issue presented was whether the knowledge requirement applied to every element of the aggravated type of identitification theft, the Supreme Court held that the statute did require the government to prove knowledge for every element, and the majority therefore ruled in favor of Flores-Figueroa.

People frequently view identity theft too narrowly more particularly, there exists a broader range of victims than only the person who has had an identity stolen.  Businesses, especially in an employer-employee context, are also victims when they make hiring or employment-related decisions based upon false premises.  In the instant case, for example, Flores-Figueroa was hired, trained, and compensated based on false premises.  He was a non-citizen and through the presentation of false and misleading documentation he was able to trick the business into believing that he possessed a different type of status and that he was a legal hire.  The problem is not a new one, though technological developments make it much more difficult to detect and to address, and the Supreme Court decision in the instant case renders businesses more vulnerable to this type of identity theft and identity fraud by providing an effective ignorance defense for disingenuous employees and applicants.  It has been noted in the academic literature, with respect to the increasingly sophisticated use of technology to mask true identities in ways that allow the commission of criminal acts, that A person seeking to harm a business in this day and age does not aim his attacks at the companys physical assets instead, he takes aim at its computers HYPERLINK httpwww.questia.comPM.qstaod5015323599(Yang and Hoffstadt 202).

Taking aim at the computers, meaning the manipulation of information and data, is increasingly accomplished through the perpetration of such crimes as identity theft.  Businesses rely on the veracity of this identity data when hiring, when promoting, when granting access to secret business information, and when granting physical access to different parts of the premises physical facilities.  Identity theft therefore poses severe risks to businesses, in addition to the individuals whose identities have been stolen, and it is within the broader context of victims that this Supreme Court decision must be viewed.  The means through which this particular identity theft was accomplished, the use of inaccurate social security information, is also troubling from a business perspective.  Specifically relevant to employee identification fraud is the troubling fact that  The general consensus on the acquisition of SSNs seems to be to not ask for it until absolutely necessary HYPERLINK httpwww.questia.comPM.qstaod5035128283(Calvasina, Calvasina, and Calvasina 74) and also that The number of people potentially subject to identity theft and fraud in recent years has become mind-boggling HYPERLINK httpwww.questia.comPM.qstaod5035128283(Calvasina, Calvasina, and Calvasina 70).

The implication is that businesses are not doing enough to prevent security breaches as a result of identity misrepresentations, that this lack of an effective defense may place business reputations and secrets at risk, and that this may lead to a variety of different forms of litigation on the grounds of malfeasance or negligence in monitoring and ensuring the accuracy of employee identities.  Finally, the Supreme Courts decision in Flores-Figueroa v. United States complicates this for businesses because the legal holding essentially provides that an employee or an applicant can plead ignorance and evade the application of the aggravated identity theft statute.  The only risk for a dishonest employee in similar circumstances are immigration charges and it may be very difficult for government prosecutors to prove beyond a reasonable doubt that there was a knowing violation of all of the identity thefts criminal elements.  This, in certain ways, shifts responsibility from dishonest or criminally-inclined applicants and employees to businesses in terms of detecting identity theft in its initial or subsequent stages.  This, of course, will impose more costs on business and negatively impact the business environment.

In the final analysis, identity theft or identity fraud that occurs in a business setting negatively impacts businesses as well as the persons whose identities have been stolen.  The Supreme Courts interpretation of the aggravated identification theft statute makes it easier for dishonest applicants and more difficult for business employers perhaps the best solution, is for Congress to review its grammatical constructions in order to determine whether it ought to amend the statute in order to eliminate or modify the knowingly features of the statute in order to remove the type of ignorance defense effectively recognized by the Supreme Court in the instant case.  This type of identity fraud and theft is likely to continue if ignorance can be pleaded so easily and individuals and businesses will suffer.  

The undersigned _(name of debtor)_,   (legal age)_,  (legal status) ,   (citizenship)   , and a resident of  (current address)_,   hereinafter Affiant, does solemnly swear, declare and state as follows

That Affiant is competent to state the matters set forth herein

2.   That Affiant has knowledge of the facts stated herein

3.   That all the facts herein are true, correct and complete, admissible as evidence and if called upon as a witness, Affiant will testify to their veracity

4.   That there is no evidence that there are any violations of the New York UCC Law Section 3-501 of the New York Code with regards to the conditions pertaining to Presentment, Notice of Dishonor, and Protest and no violations are contained within the loan documents of and relating to the Loan Agreement, Document Number __________, corded on or about ___(date)___ in the official records in the office of __(name of Company and its address), hereinafter referred to as the LOAN AGREEMENT, and Affiant believes that no such evidence exists

5.   That there is no evidence that there are no violations under the Right of Rescission in accordance with the 3-day rescission period which commences on the day the loan contract is signed by the parties as provided under The Truth and Lending Act and contained within the loan documents of and relating to the LOAN AGREEMENT and Affiant believes that no such evidence exists

6. That there is no evidence that the Creditor committed fraud and that the terms of the said Loan Agreement are null and void and Affiant believes that no such evidence exists.

IN WITNESS WHEREOF, I hereunto set my hand and seal on this ____ day of _________, ____ and hereby certify that all the statements made above are true, correct and complete.

Date __________________ Signed _______________________________


JURAT
State of California ) ) ss
County of ___________ )

Subscribed and sworn to (or affirmed) before me on this ________ day of ___________, ________, by ____________________________, proved to me on the basis of satisfactory evidence to be the person who appeared before me.

___________________________________
(seal) Signature

I have had great pleasure of having XYZ (Add your name here) as my student since the past 2 years. With my vast experience in this field, I have come across a number of students but only a few of them standout in class. Amongst them is XYZ, whose interest and passion for Modern History is immense.

XYZ expressed an interest in History at the beginning of the semester. She did an incredible job throughout the semester with special initiatives and secured an A grade in the course and graduated with an Honour Degree. This also shows the extent to which she is comfortable with the subject.

In the one year that XYZ has been in my class, I have found her to be a focused student with a lot of potential to excel in her field. Her creativity adds vigor to the class discussions and her contributions are usually very valuable. Her work ethics are also reflected whenever she has to work in a group.

She has gone out of her way to take initiatives and overcome the problems that she might face at time. This ensures the high quality in her performance and shows that she is someone who understands the situation well, identifies the problems and works on the solutions instantly.

I also got the pleasure of being the Headmaster for her Diploma Project and I enjoyed every bit of the project she put together. She put in a lot of hard work while working on this project and I can safely say that she did justice to her reputation as one of the best students in my place and the topic as well.
There are some students that participate in class but their participation does not contribute much to the discussion. However, when this student of mine participates, she is not only on the right track but becomes a source of learning for others, including me.

She is always bubbling with ideas and loves sharing them with people around her. This can be observed the first time one interacts with her. In addition to all this, she has shown strong leadership skills in the number of group related tasks that have been assigned to her and has reflected her ability to manage multiple tasks through such research reports as well.

She is a fun loving girl by nature but that does not in any way adversely affect her academics because she has a very strong understanding of organizing and prioritizing her life. She will not hesitate from having fun when the time is right, but will ensure that this element does not mix or overshadow the seriousness of any other situation.

She is also inquisitive which is reflected in her act of questioning wherever she feels there is some confusion. This quality will help her explore a new culture and studying atmosphere if she gets selected. She is the kind of person who can gel in with different people very easily again, this will help her adjust with new people.

After graduating with a Honour Degree in Modern History, XYZ has realized that she must specialize in Law which is another field that has kept her interested. She believes in doing the best in whatever she takes up and after 2 years of knowing her, I have no doubt that she would do any less as a Law student.

Towards the end, I would like to say that it has been a pleasure having her in my class and I anticipate a bright future for her. I highly recommend XYZ for this program as I am sure it will be highly beneficial for her in her future career.

With the current growth in the technology world, it means that all the persons and all the places in the world will need to grow with this technology and therefore achieve the set goals and objectives faster.  The adoption of this new system of electronic contracting in businesses has a number of advantages to a country. The first one is that the process of registration and record keeping will be made easier.

This means that the nation will be able to work or rather deal with more persons at a time. Record keeping using machines is also simpler and more convenient that the use of hard copies. With the development that is currently there in the world, there is the internet and this means that the country will be able to register people who are interested in doing business there wherever they may be in the world. This is an advantage to the company as it will be able to increase its income through revenue collection.

However, just like any other form of activity, there are some few pitfalls that may befall this new system of electronic recording. The first one is that with this new development in the technology world, there are also some people who are working day and night to form some systems that would defraud this system. Therefore, there may be increased theft through the use of these systems as it may sometimes be difficult to differentiate between a genuine contract and a fraudulent one.

In conclusion however, even though this may be a serious pitfall for the new advancement, it is still necessary and there can always be a solution to prevent this form of fraud. With the current development, it is necessary to develop with the technology as this is the only way that dreams will come true.

Elements of a valid contract
There are 4 main elements of a valid contract namely
Offer
Acceptance
Consideration
Intention to create legal relations.

The objective theory of contracts
The objective theory of contacts is to the effect that parties to a contract may be bound by terms which are not expressly spelt out by the contract. This is contrasted to the subjective theory of contract which holds that parties are to be limited to the terms expressed as agreed between them. The objective theory allows Courts of law and other persons to judge whether there exists a contract and the terms of such a contract by looking at the external acts of the parties rather than their express words. In other words the concern of the Court would not be on what the parties actually agreed on but rather what they apparently agreed on. Hughes the court emphasized that the important thing is not a partys real intentions but the intention as it appears to a reasonable person. Proponent of this theory argue that the existence or otherwise of a contract is a matter of common sense hence the need to apply the objective test of the proverbial reasonable man.


Application of objective theory of contracts to the facts of this case
The proposed auction of Bigtown by its mayor is clearly fanciful and a joke to the reasonable man. However, the express words of the intended advertisement are meant to present the auction as real. It would be absurd to suggest that parties to the contract i.e. the mayor and the potential bidders should be held responsible for, and confined to, their expressed intention. The objective theory will glide in to decipher the terms of the   contract from a reasonable mans point of view inevitably leading to the conclusion that there is no contractual intention in this case and therefore no contract existed.

Why the Court held there was no valid Agreement in this case
The Court applied the objective theory of contracts to hold that no reasonable man would consider the proposed contract valid. The Court may also have considered the advertisement by the mayor of Bigtown as an invitation to treat as opposed to an offer which would mean any purported acceptance by members of the public will not be sufficient to found a contact.

Are advertisements generally considered offers
Advertisements are generally not considered offers. Instead they are regarded as invitations to treat. The rationale behind this reasoning is that the advertisers intention is not to enter into contract at that juncture but rather to invite offers with a view to striking a bargain. It is only after an offer is placed on the table by the person who learns of the advertisement that the advertiser is able to accept.

Distinguishing this case from a reward situation
In a reward scheme such as an advertisement promising to pay a reward to any user of a carbolic smoke ball who caught influenza is an offer not an invitation to treat. The reasoning as alluded above is that in a reward scheme the intention of the advertiser is clearly to make an offer as no further bargaining is expected. The criterion therefore is clearly based on the intention of the advertiser as judged by a reasonable man. In this case a reasonable man could clearly see there was no way the mayor of Bigtown would suggest to auction the city in the manner suggested.

Date As a fraud analyst the responsibilities include collecting and analyzing the facts of the case for evidence of fraudulent behavior. Experience in case investigation is necessary to accomplish this. The analyst must possess skillsets in veracity research and bin analysis to isolate correlations in the data or sample of claims. The analyst can then begin to formulate hypothesis based on the data that can either be proved or disproved. The investigator has to examine the scenarios given and determine the root cause for the appearance of fraud in the claim or claims.  The framework of the investigation needs to have a controlled environment to process the information in order to detect any possible instance of fraud as discussed by the National Criminal Intelligence Resource Center.

Skills required include familiarity with internal auditing of employees, business processes, and company policy. It is important to be able to interview and communicate with multiple levels within an organization from administrative, and agents to managers, supervisors, and other investigators. A background in accounting and financial actuary skills is also necessary to find any unusual activity in the financial records of the company or client claims. It is necessary to study many financial records and reports therefore it is a requirement to understand all types of financials from the annual report to individual monthly forecasts and day to day accounting data. Another requirement is to understand risks analysis and how to advise of risks associated with certain types of claims such as hard versus soft fraud cases (IFBCoakley, 2010). Direct experience includes underwriter responsibilities at several mortgage companies. Job experience in incorporating interviews of participants and processing multiple loans daily in the underwriting capacity.

Some benefits that can be provided by services include checking all valuations to insure they are in conformance with policy. Extensive travel expertise in the field to conduct research, investigates claims, and communicates with upper levels of management on the status of caseloads. Logging data is an aptitude to locate discrepancies in the records or communicate and trace inaccuracies on the part of client or legal precedent.

Background education includes a Bachelor Degree from UCLA with emphasis in Accounting and Managerial Finance, also received an education in Fraud Analysis from the IELEIA or International Association of Law Enforcement Intelligence (2010).

Intelligence Process and Plan of Operation
The intelligence process can be used in studying this CityPlus case. The process includes collecting, analyzing, processing and disseminating information for sole purpose of detecting fraudulent activity. In the CityPlus case, reviewing any commonalities among the attorneys, clients, or claim history would be the first part of collecting data (New York Criminal Justice, 2009).

A great deal of detail can be pulled from the claim history and public information already available for investigation. This type of open source intelligence, allows common themes to be reviewed including the make and models of the vehicles and vins involved, for example (SGAIM, 2010). Other facts that can be studied related to witnesses, car registration, and even doctors statements, car repairs or locations of the incident reports. Though this is a data gathering phase, all Intel is gathered for the purpose of evaluation and verification. It is at that point that the next phase of the process begins called analysis.

Analysis includes studying and assessing the claimants statement for discrepancies and clarification. It requires intense scrutiny of threats in the documentation presented by claimants. During this study, opportunities for disproving the claims are researched and documented. Process allows the careful deliberation of the details of the documented claim. Areas of vulnerability where there is a lack of support or evidence are carefully acknowledged and tested. Inaccuracies can often be highlighted through the analysis intelligence process.

Dissemination of information allows the sharing of facts to the defendant of the insurance company in order to bring to light issues with the claims. It is a time of exposing inaccuracies in the claims and providing the necessary evidence to disprove the validity of the claims either to the insurance company or legal entities.

Step One of the plan would be clearly stating the problem. What is the claimants position and how does CityPlus respond. From this point a team can be put together to gather data and open source intelligence to support CityPlus position.

Step Two would require an analysis of the data gathered to locate common areas between the various claims and how they are related.

Step Three is study and assessment of the documented results of the analysis.
Step Four would be presenting this information to CityPlus authorities and getting their feedback and input on next steps.

The judicial system consists of several different types of courts.  Depending on the geographical locality, the court system can consist of a Magistrate Court, Family Court, Drug Court, General District Court, Circuit Court, State Court of Appeals, and a State Supreme Court.  Federal courts have districts, appeals, and the United States Supreme Court.  Courtroom drama has proven to be very entertaining to the average American.  Movies, books, and reality television are producing more programs based on either true stories or stories that are a collection of cases.  One question that remains, amidst these courtroom dramatic productions, is in reference to the accuracy of the courtrooms portrayal.  The courtroom may provide the media and Hollywood with good ideas and topics for entertainment purposes, and the general public may rush to the theatres to watch the courtroom drama, but in reality a courtroom is often avoided out of fear and intimidation.

In Reality
The real-life court system consists of the civil court, criminal court, and family court.  The process by which legal decisions are made in these courts varies.  In all court systems, a defendant has certain rights that cannot be violated.  A defendant is to remain innocent until proven guilty in a court of law, be appointed an attorney, have the right to remain silent, be guaranteed due process, have the right to review all evidence, face the accusers, call witnesses on their behalf, and take the witness stand.  A civil court requires that  guilt be determined by a preponderance of the evidence submitted the likelihood of the respondents guilt is more likely than not as judged by a reasonable person.  Civil cases are presented by a Plaintiff and defended by a Respondent.  These cases are often small claims maters and tort law.  Judicial verdicts, or decisions, are decided based on the choice made by the Respondent as to whether they prefer a jury trial or a bench trial.  A jury is a group of court-chosen peers from within the community picked to hear a case and render a decision based on the facts and evidence submitted by the Plaintiff and the Respondent.  A bench trial is a trial whereby the verdict is made solely by the presiding judge overseeing the case.

In a criminal court, a defendants guilt is determined not only by the evidence, but it is also based on the belief that the defendant is guilty beyond a reasonable doubt.  Criminal cases are presented to the court by the Prosecutor. A Prosecutor is an attorney who represents the state after deciding that criminal charges are necessitated against a defendant.  The person accused of committing a crime against the state is called a defendant.  Verdicts and decisions are rendered either via a jury or a judge, and the defendant must choose between a bench trial or jury trial.  A defendant is also given the opportunity to proceed without legal counsel, hire their own attorney, or request to be represented by a court appointed attorney, also known as a public defender. The trial is where evidence is submitted by both the Prosecutor and the Defense for examination and deliberation.  Plea bargains are used by the Prosecutor as a means of avoiding a long trial or in cases where the evidence is not very strong (Garner, 2001).  A plea bargain is an offer made by the Prosecutor in exchange for a guilty plea.  The plea bargain usually convicts the defendant of a lesser charge or a reduced or suspended sentence.
 
There are a few other pertinent positions and phases of the criminal court.  A Grand Jury is used when a defendant has been charged with a felony.  The Grand Jury hears the evidence and then decides if there is enough evidence against a defendant to issue an indictment (Garner, 2001).  An arraignment is a pre-trial where the defendant appears in open court before the judge, is read the formal charges, and is asked to enter a plea of guilty or not guilty. The Bail Hearing is included in the arraignment hearing, and the judge decides if the defendant should be afforded bail.  In serious cases, the bail amount is either set very high or denied.
     
In a family court, issues are often based on the best interest of a child, if a child is involved otherwise, the decision is at the sole discretion of the presiding judge.  Family courts use Plaintiffs and Respondents.  If a social worker is involved, then the state will have a Prosecutor there to enforce the statutes and laws alleged to be violated in the case.  A Guardian et Litem is the attorney appointed to protect the best interest of the child (Garner, 2001).  Family courts provide representation by a public defender to the Respondent but only in cases involving possible incarceration or termination of parental rights.

In Fiction
Motion pictures made portraying a courtroom and its processes lead the public to believe that prosecutors and defense attorneys are all gifted with the ability to give elaborate speeches and drop questions without hesitation or delay.  Court trials are short and every legal wrong is made right within a two-hour period (Morris, 2009).  This is simply not true.  In order to get a better understanding of how Hollywood downplays the legal system, it is important to look at an example.  In this instance, the example is the motion picture, American Violet, produced by Bill Haney .
   
This motion picture is based on a true story that occurred in Hearne, Texas in Robertson County back in December 2000 (Morris, 2009).  In the movie, the town was called Melody, Texas and the county was Harman.  Dee Roberts, 23, , whose real name is Regina Kelley, was arrested during a Drug Task Force (DTF) sweep while she was at work.  Roberts has four daughters.  Her criminal record was one minor theft charge.  She spent all night in jail without knowing what she was arrested or charged with.  Roberts believed her charges were due to unpaid parking tickets (Haney  Disney, 2008).
   
The following morning, Roberts appeared in court for arraignment.  She was then informed that she was being charged with Distributing Narcotics in a school zone, a felony.  Roberts plead not guilty and bail was set at 70,000. She was appointed a public defender named David Higgins.  Higgins came to visit her in the company of Calvin Beckett, whose real name is John Paschall, the District Attorney (Morris, 2009).  Beckett offered a plea bargain stating Roberts plead guilty and receive probation.  Roberts refused because by pleading guilty, she would have a felony record, lose public aid, and be evicted from her subsidized apartment. Higgins urged her to take the plea and cited that if she fought and lost, then she would be facing 16-25 years in prison (Haney  Disney, 2008).  During Roberts second meeting with Higgins. Higgins urged again for her to accept the plea.  He also played a tape of her making the drug deal.  Texas allowed for the word of one informant to be sufficient evidence to secure an indictment against a defendant (Haney  Disney, 2008).
   
After 21 days in jail, Roberts was released.  Her pastor took it upon himself to address the legal problems and arranged for several friends to speak at a church meeting.  Joe Fisher, David Cohen, and Byron Hill spoke at the meeting.  Cohen and Hill were attorneys for the American Civil Liberties Union (ACLU).  Cohen and Hill stated that DTF agencies were working in conjunction with District Attorneys offices to make numerous racially profiled arrests.  They further stated that defendants were being forced into plea bargain agreements (Morris, 2009).  Cohen and Hill informed Roberts that she had a civil case against the DTF, the police department, Beckett, and Robertson County.  She agreed to allow them to represent her in the civil matter.  Sam Conroy, a local attorney, was brought in on the case.  Roberts lost her job because her boss feared retaliation from Beckett.  Shortly after the civil lawsuit was filed, she was hired to work at another restaurant.  Beckett came into her place of work, spoke a few words to her boss, and after Beckett left, Roberts was fired.
   
During the preparation phase before the criminal and civil trials, Roberts was arrested again. Roberts had sole custody of the children, and her ex-husband came to her mothers home and took the children.  Roberts went to her exs home and demanded her children. Her civil case attorneys arranged a meeting with Higgins.  They asked to listen to the tape and view the arrest warrant for Roberts, but Higgins said he lost them.  Conroy informed Higgins that what he was doing was obstruction of justice.
   
In February 2001, the criminal charges against Roberts were dismissed. The civil case was running into problems.  The judge refused to grant a change of venue. When Roberts appeared in family court, her ex-husband attempted to regain custody of her children.  Beckett was the presiding hearings officer over the matter.  He ruled in Roberts favor, but in reality, he should have recused himself from the case. Depositions in the civil matter commenced during this time.  The police informant was subpoenaed as well as Roberts, other DTF officers, and Beckett.  Becket lost his temper during the deposition and verbally abused the African-American attorney from the ACLU.  It had been discovered that Beckett commonly used racial epithets when referring to defendants and other people of color.  In April 2002, the Federal District Court ruled in Roberts favor, and she won the civil case.
   
The courtroom movie and the courtroom in reality are the same in that they use the same positions such as judge, defendant, prosecutor, and other positions.  The two courtrooms are different in that people in real life do not speak as elaborately, the trials last longer, and courtrooms are far more informal.  This motion picture was interesting and entertaining, but it glossed over many legal perspectives with relevance to the courtroom.  The movie portrayed the court system in Texas to function with a good-ole-boy mentality.  Fortunately, the courtroom portrayal was very accurate and to the point.  The case was exciting and educated the viewer on various aspects of the law with regard to discrimination and racial profiling. There are similarities in the real-life courtroom when compared to the courtroom in the movie, but there are so many differences.  Courtroom dramas are entertaining, but they should not be relied upon for actual facts pertaining to the law.

Intellectual property (IP) is aimed at giving recognition and safeguarding original ideas of mind such as new inventions, creative and literary works, and emblems, designs, images and names used in business. In its form, intellectual property is divided into two groups of copyright and industrial property. Copyright covers all forms of artistic and literary works. Literal works such as plays, novels, plays, films, music, poems and artistic works such as paintings, drawings, sculptures, architectural designs and photographs. In the other hand, industrial property covers the issues relating to trademarks, industrial designs geographical indications of source and patents of inventions. All these are aimed at giving protection to an individual and the property associated to him in creation against interference from eternal parties for an undue gain. However, this field is ever widening with consideration of new inclusions that give recognition to individual rights. In the field of industrial property, the issue of registration of trademarks and patenting of invention has gained focus for its relevance in safeguarding the interests of business operations from inception and later survival in the market. Under this, the breach of confidence and passing off has been classified as one of similar measures of protecting intellectual property in this field.

Their relationship lays on their potential to protect an already established business or organization from undue competition from people who use its own bait in form of copying either its production processes or appearance of its products in the market. Even though they are not contained in legislation, they are based on precedence of cases that have been brought before similar courts and actions taken against offenders have been adopted in the common law. Their success in solving trade related disputes has made them to gain preference as an alternative to solving patented and unpatented disputed between different producers and suppliers dealing with similar products or manufacturing processes. However, these two laws are not founded in the statutes of legislature but have been legally accepted and adopted from the judicial precedences involving similar cases.

Breach of confidence
The law of breach of confidence is aimed at protecting all eligible confidences in the governmental, private and commercial fields in forms of secrets and all information that is valuable to a given organization. The act of breach of confidence protects confidential information by a way of preventing persons to whom such information has been passed in confidence from using the same information to acquire undue advantage for their personal gain. A person or an organization may institute a breach of confidence with an aim of restricting the possessors of such valuable information from distributing it out.

In the field of industrial property, the law of confidence acquires relevance in the areas of patented and registered designs that are easily recognizable and are applied by a given producer to make his products or services. Since most of the inventions are always flexible and can be replicated at another place, the registration of patents gives security from such actions. The most important part in the production of a product is the process involved. The information and the know-how about the production process are only known to a few people involved in the production process. This are the people restricted under the breach of confidence from divulging this information to other potential competitors. This law imposes a contractual obligation of confidentiality on any person that is involved in the production process. However, this protection lasts until such a moment when the invention may be invented by another person or for a period of twenty years since the day of the patenting.

To sustain a trial in breach of confidence, the plaintiff has a duty of proving the originality of the idea to his patent. In some complex cases, a plaintiff may not sustain a trial if it is found that the evidence produced before the court amounts to copying of ones own aides. In one of the recent case, Burrows v Smith and Circle Studios and Crush, the high court in United Kingdom ruled against a developer of computer games. The developer had sued his former employer over breach of confidence on his original idea of a computer game. The plaintiff, Mr. Burrows had sued his former employer Smith of Circle Studios and a third party Crush. He had came up with an original idea of developing a computer game and named it Traktrix while he was a freelance developer working with Circle Studios. The studio later gave him a full employment where he helped to create a number of concepts for computer games.

At this moment, he gave the studio an improved version of Traktrix without informing the employer that he had developed the idea some years before joining him. The circle further developed this concept to come and later renamed the concept Traintrax. After some time, Circle sold the concept to Crush an act that made Burrows go to court in search of legal action against Circle Studios. In the view of the judge, the fact that Burrows had disclosed his concept to the Circle Studios at a time when he was under employment, he was doing what he was being paid to do as an employee. In addition, Mr. Burrows had failed from first instant to inform his employer that he had developed the concept some time before he joined his employment. By this, there was no any circumstance that could have held Circle studios from sharing the information they had about Traintrax with their new client Crush. Burrows had failed to put clear into the minds of his employer about the confidentiality of his concept when he was passing the concept to them. In any case, he seemed to have copied the idea from himself. In addition, he had failed to protect his innovation by not patenting it at first instance

In this case, Burrows never used such chances but he unknowingly passed those rights to the Circle when he shared with them his ideas as an employee. Such cases bring pout the complications associated in substantiating evidence that can sustain a full trail for breach of confidence. Any similar developer who would be faced by an equivalent situation should be very watchful and hold back their works and protect it before making any contractual agreements. Failure to do this would lead to one in the same predicament as Mr. Burrows. This is because there is a limited level of protection to concepts and ideas which are not registered through intellectual property. If a person intends to receive any payments from any of his or her original ideas, he or she must make sure that the passage of such information is limited by law through legal registration. If such information is passed down to third parties, the legislation restrains in making use of the information for their own advantage. The law of confidence therefore controls the flow and use of secretive information which has been passed to third parties for their advantage. In this case, if Mr. Burrows had registered his idea in the first place he would have managed to receive royalties when the information was passed to the third party Crush.

Some information may be considered confidential in its natural form due to the content of its subject is one that does not qualify to be disclosed in public. There has been a great notion that, confidential information is always composed of information that is complex, valuable and very technical in its form. However any information can be confidential provided that its dissemination may lead to some negative impacts to the owner.  There are three categories of confidential information among them the trade secrets, government secrets and private or personal information. Trade secrets have a very high relevance in the perspective of intellectual property law. Trade secrets are very valuable commercial assets which do not necessarily have to contain new information or ideas. Trade secrets can encompass a collection of everyday information about customers, delivery orders and letters of enquiries of a company. One of the most guarded trade secrets includes the recipes for particular beverages, foodstuffs, such as Galayva liquors, Coca-Cola, Tunnocks Caramel Wafers, Baxters soups and sauces, for their enormous commercial value. Such secrets are always secretly sought by the would-be and present day competitors.

For any information to be regarded as confidential, it must meet the following requirements. One, the said information being safeguarded by the breach of confidence must be of such a quality that the owner of the information believes the release of the information may cause injury to him or his business by putting the competitors at an advantageous position. Such a belief must be based on a reasonable ground. Two, the owner of the information must show the ground in which the said information is confidential and should be maintained so. In this, the information should not have already gotten to the public arena. Three, the applicability of trade practices and usage must be taken to account in helping the information to receive the equivalent quality of confidence. These are the similar considerations that are taken into account by the court when passing restraining orders.

Outside the business field, the issue of government secrets draws a lot of attention over all other public matters in relation to other types of confidential information. This is in regard to the need of preservation of secrets concerning national security in the view of foreign relation policies. The secret also considers the application of freedom of speech and open distribution of current day to day issues. The breach of confidence in government also limits the ex-service members of military and security organs of government from disseminating information regarding to national security. In the field of private and personal information, the law of confidence protects passage of information about a person that is not generally known to public. In the case of Argyll v Argyll 1967 Ch. 302, the Duke of Argyll was restricted from publishing information regarding to the private affairs and personal habits of his wife by the law of confidence. This restriction was based on confidentiality of relationship that is founded on a marriage between two couples. Under breach of confidence, there are some requirements necessary to warrant a legal protection.

The law of confidence is very flexible and does not require information seeking to be protected to be absolutely secretive before it can be classified as confidential. Any information can be protected legally given that it has some limited extent of accessibility. In accordance with the law of intellectual property, information about new processes, inventions and designs are protected by the law of confidence. The law is mostly applied in a field where the one who is the forefront in technological know how requires protection to help him obtain maximum benefits from a registered patent as a way of survival in a competitive business field.

There are few requirements necessary for information to warrant treatment as confidential information. The information must maintain a quality of confidence, obligation of confidence and unauthorized use of information. In the regard to quality of confidence, the confidential information and associated secrets must not be divulged in the bigger society in any other means which might negate the need of maintaining the information as confidential. Contrary to this, there can be no any legal obligation of holding the information as confidential. This lies in line with the primary requirement of information to be inaccessible to be regarded as confidential. Any information being protected need from other parties need to have a certain level of inaccessibility to the parties it is being kept from. For information to be considered to have a quality of confidentiality, it must have to be restricted in availability even before application of its protection. For example, a person applying for patent over a production process or a certain skill must ensure that, the information about the patent has not seeped into public before the legal date of his application otherwise the effectiveness of the application would not achieve its desired effects.

In most cases, it is possible to come across documents labelled as Private and Confidential which means that the contents in them are limited to certain people. However, the mere act of wording is not sufficient to warrant security of passage to other parties. In actual fact the court cannot hold anyone possessing information contained in such documents responsible for breach of confidence. The law requires necessary actions to be taken to safeguard such information from being passed on through patenting or any other legal registration. One of such case was presented before the court was that of Dalrymples Application 1957 RPC 449. The Dalrymples had issued over one thousand bulletins that contained details of a manufacturing process employed by the company to the members of a trade association during one of its annual general meetings.

These bulletins were labelled as Confidential with notices that informed members that the contents in the bulleting should not be disclosed to non members in the public. However, after information had leaked-out and the company went to court to enforce the restraining orders, the court declined to do so.  This was based on the view of the fact that, the trade association had not taken any adequate steps at the first place that would have ensured the security of information and consequently prevent it from being passed to the public. In another case Mustad  Sons v Dosen 1963 3 ER 416, the court maintained that, the details of an invention which were termed to be secretive had ceased to be confidential immediately the information got published during patent application process. Being a public document, the Patent register used by registrar officers would have been accessed by people in the public arena. The protection was however limited to the use of the information accessed for the benefit of a third party. Concisely, the law of confidence protects passage of confidential information and subsequent use to the disadvantage of the owner of the information.

Considerations
In order to stand a consideration in breech of confidence, confidential information is required to possess an obligation of confidence. In most of the commercial scenarios, commitment to confidence is always obligated on persons that are involved with using or handling the confidential information. This is mainly done through forms of contractual commitments which are done in writings of know-how agreements, confidentiality commitments and signing of non-disclosure agreements. Without such clauses, any person can only be held responsible in maintaining confidentiality under the assumption of indirect duty of confidence that prevents one from giving unauthorised disclosure of such information. However, the courts have the potential of transmitting a duty of confidence even in circumstances where the receiver of the confidential information fails to accept that he or she is obliged not to disclose the information. When passing such a judgement on whether or not a holder of confidential information is restricted by a duty of confidence one major consideration is made. The consideration can be equated to what was established in the case of Coco v A N Clark (Engineers) Ltd 1969 RPC 41.

In this case it was established that, any reasonable person in a position of receiving confidential information would have become conscious that upon reasonable grounds that the information was being passed to him in confidence. This would be a sufficient ground to compel him or her to maintain a reasonable requirement of confidence. From this case it becomes clear that, employees are considered to owe a duty of confidence to their employers even in cases where there is no clause that stipulates a requirement for confidentiality that appears in their employment contract. However, the law dos not prevent an employee from making plans for a future employment while still working under one employer unless he or she has plans of using the confidential information of that company in future. In the case of  Faccenda Chicken Ltd v Fowler 1986 1 AII ER 617, where the petitioner had sued a former employee for using the trade secrets he had learnt when he was working under him for the benefit of his new company. The plaintiff had ventured into selling of frozen chickens to retail shops and other retail outlets involved in catering business.

After leaving employment, Mr. Fowler opened a similar business and started competing with his previous employer. As a result, his previous employer sued him on the ground of breach of confidence. The defendant argued that, Mr. Fowler was using confidential information he acquired when he was working under them concerning consumers lists, and sales techniques he acquired from them for his own advantage. Such information acquired and used by this employee during the time of his employment can be translated into three forms. To begin with, the information which is insignificant in its form and this could have been readily available from public to warrant regard as confidential information such as routes used by vehicles during delivery. In addition, information regarding sales and price lists. This information need to be treated as confidential in nature. Mr. Fowler knew this and maintained adequate level of confidentiality by not disclosing the information to an outsider when he was under employment. However, it became part of his skill and know-how once he left the employment. Mr. Fowler could also have learnt about the trade secrets of the company but this information had a very high level of confidentiality. This could have limited anyone outside the business to it no matter how much he learns about it. In this case, he was using information which lied under the first two categories which and was by no means divulging it to any third party. He therefore could not have been held liable for breach of confidence.

From this case we can also find out that, the unauthorised use of information is of lower extent in damages than disclosing the confidential information to others. The requirements of confidence demand the recipient of the information to make use of the information explicitly for the purposes that are in line with the applications of the owner of the information. Such an act limits the recipient of confidential information such as trade secrets from using it for his self gain or disclosing it to others. Any breach of confidence does not necessarily need to be a deliberate action. If a person falls short in taking a reasonable care to recognise and take care of confidential information passed to them. He may be liable for being negligent and committing a breach of confidence. In the case of Seager V Copydex Ltd (No.1) 1979 RPC 349, the applicant had came up with a new design for a stair carpet grip which he disclosed to his client Copydex during the contract negotiations.

However, their negotiations failed before they could complete the deal. At this moment the defendant embarked on a process of manufacturing a new stair carpet grip which had a lot of similarities to the design of the plaintiff. The defendant claimed they did not employ the design of the plaintiff in the planning of their stair grip. They went ahead to claim that they had forgotten any information they had discussed with the plaintiff. However, the court ruled in the favour of plaintiff and awarded him damages on the ground that, the defendants had acknowledged their prior discussion about the design with the plaintiff. Not withstanding their forgetfulness, they were assumed to have copied the original design from the plaintiff by using the information passed to them during the initial stages of confidential discussion. On top of proving the existence of an unauthorised use, a defendant has to put across a clear proof of loss emanating from unauthorised disclosure or use of the confidential information associated to him or her. In the case of Attorney General v Guardian Newspapers Ltd (No 2) 1990 1 AC 109, we find that the act of illegal divulgence of confidential information in itself can lead to a proof of a damage to the plaintiff without necessarily going further to prove actual financial loss. In cases relating to breach of confidence of personal and private information, damages may be in form of mental and emotional suffering. Any proof of additional damage will act as an additional strength for the claim of plaintiff.

Remedies for breach of confidence
There are major remedies involved in settlements of breach of confidence. In the situations where the actual breach has not occurred but the confidential information is at risk of being divulged, the owner of information may apply through a court of law for an indictment in order to control and consequently limit the disclosure of confidential information. The court is however under no obligation to offer an interdiction as it can opt for other forms of remedies which it may perceive as more appropriate. Where the breach of confidence has already taken place, the court may offer damages after assessment of the value of information divulged and the loss incurred as a result of the same by the defendant. The court can also order for delivery of or destruction of the damaging materials in the possession of the other party. In cases where trade secrets have been used to manufacture goods, the resultant products made through use of confidential information can be destroyed through a court order.

In other cases, the court may compel though at a lower extent the user of confidential information to declare and thereafter take possession of the profits accrued from the use of confidential information. However, a person cannot be compensated for both the damages and the loss in profits at the same time. The defender can only avoid any action against him if ha can prove that he had the consent of the defendant to use the information during the time the claim is laid. The defendant can also be saved if he can convince the court that the act of divulgence of information was actually meant for the good of the public.

Passing off
Passing off is an illegal act in business field where one company tries to place its products in the market by disguising them as goods from another company by use of a mark, packaging designs and product appearance of another company. Unlike breach of confidence, passing off occurs in relation to finished products and services already in the market. The common terms of unfair competition in most countries, palming off in the USA refers to a similar tort known as passing off in most of commonwealth countries. This is mainly done in a form of intended misrepresentation by a businessman in course of his business by hoodwinking his potential customers by presenting his goods in the same design and appearance of another business man. This is done with an aim of injuring the goodwill of the other business by causing actual damage to the revenue base of the competitor. In such a case, a trader may make a number of false misrepresentations to the community or third party such as customers by attempting to make them believe that the goods or services he is presenting to them originated from the other producer.

The most common cases of counterfeiting by imitation of trademarks, names, modes of wrapping, use of similar labels, packaging, vehicles, badges and modes of clothing of the employees. For an act of passing off to have occurred, the resemblance must be of a substantial magnitude that can mislead the unsuspecting customers who are very likely to mistake one product or service for another due to lack of clarity. For a registered trademark, it is easier to take a legal action against the offender under the provisions of the intellectual property rights. For unregistered trademarks, it is very difficult to prove the association of the disputed trademark with a company, the contribution in making a reputation for the trademark and how the use of the name by a second person will harm a given business and benefit the other. However, the common law of tort of passing off provides an alternative remedy to infringement of unregistered trademarks. It protects marks that cannot be protected legally such as unregistered trademarks.

Under the Section 5(4) (a) of Trade Marks Act 1994, the law protects the registration of trademarks by the virtue of passing off. Under this law, the company lodging the dispute must prove through provision of factual evidence that it has established the mark and has made a significant contribution in helping the mark to acquire the existing reputation in the minds of the public or customers. Alternatively, the complainant can prove that, the offending trademark has potential to or has led to confusion with an established trademark. In addition, it is the duty of the complainant to furnish the court of law with ways in which his business establishment is likely to be, or has been damaged by the use of the trademark by the second party. In most cases, such damages would be in form of loss of business, interference with its reputation or goodwill in a get-up or trademark. It becomes even harder for a business to protect its mark if the marks used to distinguish its products are very descriptive.

Considerations
Cases relating to passing off are always handled under the Chancery Division of the High Court of Justice. The tough scrutiny of such claims leads to most of them being dismissed at the application stage or the offending party is given an interim injunction to correct mistakes in its branding and packaging outlooks. The basic reason is that, if a party loses it has no other way out but to change its packaging or leave the market. Under Trade Descriptions Act of 1968, any actionable misrepresentation can lead to an offence. Consequential prosecutions are carried out by the trading standard officers responsible for looking after such actions in the respective local authority. It is of great importance to note that, brand names are one of the most important possessions of a given business.

In this respect, the act of passing off becomes necessary to ensure the protection of brand names for two major reasons. To begin with not all forms of branding passes the qualification for registration as a trade mark. Most companies are ever changing their appearance of their products to suit the demands and tastes of their consumers. It therefore becomes unnecessary to always keep on registering such modifications every time ha been implemented. In addition, no legal action may be brought against a name prior to the registration of such a brand name. However, in case a misrepresentation, goodwill, and any consequent damage can be proved before a court of law, the action against the defendant will lie regardless of whether the act was anticipated or not.

A classical example of a case involving passing off is the case of Antec International Ltd v South Western Chicks (Warren) Ltd 1997 FSR 278. In this case, the complainant was involved in selling of disinfectants for farm use in the name of Antec Farm Fluid through its forty main distribution channels to over seven hundred retail outlets all over the country. The product had made a significant name for itself by being the only disinfectant using the term farm fluid for over 30 years. Most of its customers had even known it as just farm fluid. The defendant introduced a product which and named it SWC Super Farm Fluid. Two points can be drawn from this case. One, the more descriptive a mark is, the more is its association to its service than its origin. Two, such descriptions may lead to monopolization of the market by its manufacturers to a disadvantage of other manufacturers who might be willing to use such descriptions without any dishonest intention. In this case, the exclusive use of the term farm fluid by the plaintiff had no stand in making the mark legally distinctive to be associated to its products to warrant any legal protection.

The main aspect differentiating breach of confidence from passing off is that, breach of confidence is intended at safeguarding the vital information about the manufacturing process of service delivery from those who has access to it. On the other hand, passing off is aimed at protecting an existing product or service from imitation by other competitors who may disguise their inferior products as other genuine ones. As stated earlier, the law of passing off is not founded on an act of parliament but it is based on set of cases brought before different courts of law. The most prominent statement that gives the passing off a firm ground for protection is that of Lord Halsbury during the case involving Reddaway and Frank Reddaway  Co Ltd v Banham and George Banham  Co (1986) where he asserted that, no person is allowed to present his goods in the market in the pretext of they are goods of another person.  Most of passing off cases involves the cases where the defendant has copied the appearance of the goods of the plaintiff in appearance as seen by the consumer. This claim is always used as an additional remedy to infringement of trademark.

One of the most famous cases of passing off is that of Reckitt  Coleman Products Ltd V Borden Inc and Others (1990). In this case, the plaintiff (Reckitt Ltd) was selling its lemon juice product packed in a unique plastic lemon container. After some time, the defendant, (Coleman Ltd) started selling its products in a similar container hence creating a similarity of the two products in the market. The plaintiff succeeded in getting a restraining order which went ahead in preventing the defendant from selling his products in the infringing packaging. In simpler terms, the law of passing off can be summed up as a protection against passing of goods as those of another person. When presenting such a case before a law court is always not a simple task. The petitioner must prove three necessary actions in court to maintain a successful action.

To begin with, he must establish beyond any reasonable doubt the existence of a considerable level of reputation or goodwill in relation to the goods and services he is associated with in the mindset of his consumers and overall public. The physical outlook of a product and service plays a big role in recognition of a product which consists of a brand name, labelling and packaging features which help the public in recognizing and associating it to a certain company. The petitioner must therefore show the identification marks and prove the existence of association of given product to him through its physical attributes. The plaintiff must also drive clarity by showing the misinterpretation that has been brought about in the eyes of the public that may make the public confuse his goods and those offered by the defendant. At this point, the identification of the manufacturer or a supplier of a product or service by the consumer is not necessarily important as long as the public has the knowledge and has become used to a given product and service. The plaintiff must also show that he stands to suffer by the fact tat the public has been made to believe the source of the two products is the same which in the real sense is not.

The defendant in a passing off case can succeed in preventing any action being taken against him if he can prove that, his application of the disputed mark was not intended for commercial gain. In addition he can also prove that, the plaintiff has not succeeded in creating substantial goodwill or reputation for the brand name or if he proves there is no any damage or any other loss incurred by the plaintiff by use of the mark. Alternatively he can show the existence of differentiation that is ignored by the plaintiff and the confusion only exists in the eyes of the plaintiff.

Remedies for passing off
Among the major remedies for passing off include issuance of a court injunction that restrains the defendant from continuing to use the name and the packaging forms that can create confusion in the eyes of the public. A court can also award the plaintiff with damages for the loss incurred by the act of passing off from the infringing party. A court can also establish the account of profit which the defendant has realized from his operations which would be awarded to the plaintiff. The court can also give an order to the defendant to repackage. In other cases, the court may order for delivery up or destruction of the offending products or declare the right of ownership of the brand name and any associated packaging style to one party and consequently the other party will be obliged to comply with the order.

In summary, the two acts of breach of confidence and passing off draw their close association from their use in intellectual property in relation to the protection of the products in their innovation stages such as production processes and creativity in branding. The terms are known to achieve a common goal of preventing unfair competition by taking advantage of one creativity and innovation to win over their market. However, there exists a clear cut distinction between the two. First, we have seen very clearly that, law of breach of confidence is used to protect illegal divulgence of trade secrets involved in manufacturing processes and other marketing strategies. These are the innovative ideas and processes that a manufacturer has invested too much in to help him in production of their competitive products. On the other hand, the law of passing off is applied to protect the brands that are already in the market from imitation or counterfeiting by other competing businesses. It protects the creativity aspect of a business in branding their products that makes them distinctive from other products. The two should be treated as two separate entities in their focus of different situations. This is because there is no such a time that one can use one case to refer to the other. Their distinctive nature should be a basis of drawing a line of separation.