Law

The legal and social trend in the United States in response to the growing controversy between the rights of pregnant women and the fetus has been to uphold the rights of the former. Unhealthy pregnancy such as drug use and abuse may lead to death of the fetus in the maternal womb or would adversely affect the physical and mental development of the child. In this regard, statutes are aimed at eliminating andor preventing prenatal substance dependence subjecting to criminal andor civil liabilities mothers who have showed signs of drug usedependence during the pregnancy for child abuse, manslaughter or murder, taking into account the time honored principle that life begins at the moment of conception. 

However, jurisprudence remains to favor the rights of pregnant women.  The cases filed against pregnant women charged of violations of statutes protecting rights of fetus have been decided in their favor, except in the case of Whitner vs. South Carolina decided in South Carolina Supreme Court.  In the case, the high court ratiocinated that a fetus is already a person pursuant to the states law on Criminal Child Endangerment and declared that substance abuse during pregnancy is fatal to the life, comfort or health of the fetus.  The petition for certiorari thereafter filed was denied, thus affirming the decision of the Supreme Court of South Carolina.  Aside from the mentioned case, jurisprudence has returned to its position of upholding the rights of pregnant women guaranteed under the equal protection clause and the rights guaranteed under the Fourth Amendment. In the latter case, the Supreme Court in certiorari petition declared that a pregnant woman could not be subjected to warrantless searches and examination in the absence of consent without violating the Fourth Amendment rights.  In line with this, states have offered non-criminal preventive measures such as rehabilitations and educational programs on pregnant women to fight against substance abuse.

Living and Dying with AIDS
The increasing influx of women offenders in the jail system of the United States also pressed the growing concern for their health and safety.  Women, by reason of their reproductive system are actually in need of a stricter medical and health measures to ensure safety and survival. Records reveal that there has been an increasing number of women incarcerated and of this number, the growing number of those afflicted with AIDS and HIV has become alarming.  However, female health and safety measures are generally limited to check ups and there are no infirmaries and advance medical equipment in cases of severe illnesses.  Patients are advised only to be taken to the nearest hospital which at times is not granted to sick inmates. Worst, there are incarcerated inmates who died by reason of medical malpractice and lack of equipment.  The lack of equipment is coupled with the lack of trained medical experts.  On the other hand, the demand for AIDS and HIV preventive services has been competing for the cure of Hepatitis C which is also threatening the health of incarcerated women.  Thus, those already afflicted with AIDS and HIV are becoming more prone to complicated diseases considering the weakening of their immune system to fight against viruses surrounding the prison cells. 
   
AIDS and HIV treatment has been addressed by the management.  However, it should be noted that those who are positive with the disease and require regular medication are difficult to regulate.  Thus, the demand for more medical practitioners and medical experts must likewise be addressed.  This is not to overlook the demand for a sustainable supply of medications particularly for those who require regular medications.  In addition, the government promotes continues education on AIDS prevention and minimization, implementation of health safety measures not only among inmates but also among jail management officers as well.  It has been noted however that medical measures have been noted to be different among states.

Women, AIDS and the Criminal Justice System
Women with AIDS in relation to the criminal justice system may be labeled as victims in cases of sexual assaults and rape or as offenders in cases of prostitution.  Prostitution has been prevalent among states, however, there are scientific studies confirming the link between AIDS and prostitution. 

This is because state laws do not ignore the pressing concern of safe sex education and thus impose regulatory measures on duly registered prostitution businesses.
In response to the number of women prostitute who have been convicted, the high courts of various states upheld the law requiring these women to be subjected to mandatory HIV-antibody testing.  The high court ratiocinated that the convicts right to privacy is limited to a certain extent by the public demand to protect the interest of the greater number of people from the threatening AIDS epidemic. 

On the other hand, with respect to women who have become victims of sexual assaults and rape, the law subjecting to HIV examination their offender or offenders have been upheld.  The Texas court however allows the examination for AIDS and STD subject to rules on confidentiality and protection of the rights of the convict.  On the other hand, the New York state courts allow the disclosure of results or findings ratiocinating that the disclosure does not in any way violate the right to privacy of the convicts.  The pressing concern of the victims to know the health condition of their offenders is of paramount interest as opposed to the right to privacy.  This is not to mention the paramount concern of the public to be free from AIDS and other sexually transmissible diseases.  More importantly, the federal court adopted the law enacted by the legislature in support of the fight against AIDS  the 1990 Crime Control Act.  In line with this, other states have enacted laws in support of the act. 
On the non coercive side, states have adopted the continuing campaign for AIDS education through the participation of both governmental and non-governmental organizations. 

Two of the most famous baseball players in history were embroiled in a gambling scandal in 1919. Detroits Ty Cobb and Clevelands Tris Speaker were accused of betting on baseball games and throwing the outcomes to their financial advantage. Because these were two legends in the game and the accuser was a teammate of some repute, the duo left the game peacefully and without further punishment. This report looks to uncover why this outcome was handed down

Gambling 3
Baseball is a game of grace and speed. Teams look for any edge possible to defeat their opponent. One can see Ted Williams swinging hit bat for the Boston Red Sox or Brooks Robinson of the Baltimore Orioles catching line drives from his third base position. Pittsburgh Pirates Right Fielder Roberto Clemente catching would-be runners off the base paths. Or, even Texas Rangers Pitcher Nolan Ryan firing a ball more than 100 miles an hour at helpless batters.
   
All four men are enshrined in Baseballs Hall of Fame in Cooperstown, N.Y. None of them ever encountered much in the way of bad publicity. Clemente died while on a mercy mission to aid Nicaragua in 1972. Williams relationship with the media could be labeled contentious at best. Each played the game with style or grace and was not seen in the tabloids or fought to clear their names.
   
Given the state of baseball today (steroids, inflated batting averages, the Wild Card), one can see why baseball fans yearn for yesterday. Players were revered and respected for their work on the diamond. Mickey Mantle of the New York Yankees could hit and play the field (Literally and figuratively) with the best. Jackie Robinson of the Los Angeles Dodgers not only broke the color barrier but also stole home plate against a pitcher during one game. The list continues on of the players who found success on the field.
   
Now, imagine if one of those players was involved in trying to manipulate the game We have seen Barry Bonds and Mark McGwire break home run records (McGwire broke Henry Aarons record in 1998 then Bonds exceeded McGwire three years later). After they were linked to the steroids investigation, no team wanted to do business with them. Although McGwire was recently hired by his former manager Tony LaRussa in St. Louis, Bonds has not drawn any interest from teams. Perhaps the perception that either one or both of  

Gambling 4
these players cheated tainted their achievements. It begs the question of whether there was a concerted effort by the other major league teams to phase Bonds and McGwire out of baseball.
   
Pete Rose of the Cincinnati Reds owns the record for most hits in a career, yet he is most remembered for being banned from Major League Baseball for betting on games. He is not enshrined in the Hall of Fame for his transgressions during his coaching days.
   
While Rose is far from perfect, he is not the only person who could have ended up as a baseball footnote. Two of the most revered baseball players, Ty Cobb and Tris Speaker, were close to suffering the same fate as Rose when it was learned they were trying to fix baseball games. This event came between the ending of World War I and the 1919 Black Sox Scandal, in which players from the

Chicago White Sox conspired to throw the World Series. Baseball reeled from the Black Sox Scandal for years. Cobb and Speaker were giants in the game. Speaker played with Babe Ruth on a Boston Red Sox team that won several World Series Championships during the previous decade. Cobb played for Detroit and was reviled by many opponents who faced him. Cobb and Speaker became friends because of their Southern ties.

During those days, teams were paid based on where they finished in the standings. Winning the division carried more weight than second place, etc. The battle was for third place because the fourth-place finisher received little or no pay for their performance. 

Cobb, Speaker, Joe Wood and Dutch Leonard (both teammates of Speaker in Boston) met for a meeting during the final days of the 1919 regular season. Apparently, money changed hands in order to make the outcome desirable for the group. Without mentioning the word bet, money was handed from the foursome to a liaison who would invest their earnings.

Gambling 5
The meeting was documented in letters that were written supposedly by the players themselves. Detroit players said they would make sure they would win the game against the Indians so that they would have a better chance at securing third place and a better payout.
   
Detroit won the game, but ended up in fourth place by a one-half game behind the Yankees. Both Cobb and Speaker became managers for their respective teams during the 1920 season. Leonard pitched for Cobb and Detroit until 1925, when the coach fired him. When Speaker did not pick up Leonard off waivers, Leonard said she would get his day.
   
Someone who feels they were wronged is often the person who ends up blowing the whistle on everyone else. That was Leonard in a nutshell because he felt being betrayed by Cobb and Speaker. That said nobody likes a tattler either. Lucky for Leonard, there were no ties to organized crime, or else this might have ended differently.
   
Calling out Cobb and Speaker only made them angry. He produced the documents from 1919 to MLB President Ban Johnson in hopes of making the pair pay. Johnson wanted to have the issue swept under the run before Commissioner Judge Landis got a hold of the details. Had that occurred, then there would have been a league-wide investigation and the probable punishment or banishment of Cobb and Speaker.
   
Having them retire as players and be terminated as coaches was Johnsons idea in order to mitigate the damage caused by both Cobb and Speaker. This would decrease suspicion of any wrongdoing by either men, so was the though. It did not take much longer before people learned of the real reason why the icons were let gogambling accusations.
   
Commissioner Landis was not happy upon learning what had transpired. He ordered an inquiry pertaining to the issues at hand. All parties were invited to the league office in Chicago to   
Gambling 6
discuss their role in the conspiracy and cover-up. Only Leonard failed to attend citing safety fears.
   
Cobb said that the reason for Leonards release was that he was no longer useful to his team. What was interesting was it occurred in 1925, one year before Leonard would have been a 10-year man, meaning Leonard could have been given his unconditional release and commanded a big contract from a National League team.   

Cobb and Speaker hired legal counsel and denied they conspired to fix the game in question. Cobb said it would not have been in his financial interests to throw a game in which he played (and collected three hitsin a game he was allegedly supposed to lose). Speaker also reached base once in the same game and won.
   
Their explanation was that the money was to be placed on horses (legal to do at the time) and not on the game. The public sided with the players figuring the event in questions happened seven years ago (1919) and should not have been brought up so many years later.    

Commissioner Landis agreed, saying there was no evidence that either player tried to fix the game in question and was cleared. It also meant their coaching days were over. Cobb continued playing for the Philadelphia Athletics (now based in Oakland) and Speaker would play for the Washington Senators before retiring. Both men would have their busts in the Hall of Fame (Cobb in 1936, earning more votes than Babe Ruth) and Speaker the following year. Ban Johnson would have to take a leave of absence before stepping down permanently from his post.
   
So, what was the problem with all of this Cobb and speaker were men of privilege, wealth and power. Cobb knew influential people from his home state of Georgia and would have 
Gambling 7 raised a fuss had Major League Baseball tried forcing him out permanently. Cobb also knew too much that would have jeopardized the game (much like the 1994 strike and the on-going steroids investigation hindered its popularity decades later). Speaker was also connected and that made for a formidable team in trying to rid itself of a problem.
   
Also, having the Black Sox Scandal a few months later in 1919 made in indelible mark on the nation. Everyone on that team involved with the scandal was expelled from the leaguea move approved by Commissioner Landis. He also had dealing with businesses that ran afoul of the law and made them pay heavy fines for their actions. Landis saw that he could not win a case that had been in cobwebs for seven years and the main accuser was already out of baseball.
   
It made little sense that one group must adhere to a certain set of rules and others can dodge them. Landis had a job to do and he looked the other way because of who was involved. Rose is still out of baseball and can not be elected to the Hall of Fame unlessor untilhe is reinstated by whomever is occupying the commissioners seat at the time.
   
Cobb is seen as one of the fiercest competitors and winners of all time. Speaker could be considered one of the elite outfielders in the game. Interestingly, when both men died, no mention was made of the scandal. They were mentioned as great baseball players and nothing else.
   
Perhaps that is the lesson leave well enough alone and if you have something to say, then say it then and not wait.

The case of Central London Property Trust Ltd v High Trees House Ltd is a pioneering case-law in the history of British contract law inasmuch as it recognized the principle that certain equitable promises made after a contract had been entered into, and which alters substantially certain provisions of the contract (in favor of the promisee) would not estop the promisor from seeking enforcement of the contractual terms in certain situations.

Briefly the facts of the case were as follows The plaintiffs had granted to the defendants a tenancy of a block of flats for a term of 99 years under a leasehold agreement, commencing from September 29, 1937 at a ground rent of 2,500 a year. However, owing to wartime conditions prevailing at that time, the defendants found it difficult to obtain tenants for the flats and subsequently, by virtue of a written arrangement on January 3, 1940, the plaintiffs and defendants agreed that the ground rent would be paid at a reduced rate of 1,250 a year. The defendants, accordingly paid rent at the reduced rate from 1941 till the beginning of 1945, by which time the war was ending and the flats were all fully let. Yet, despite this, the defendants continued to pay rent at the reduced rate prompting the plaintiffs to write to the defendants asking them to pay rent at the full rate and claimed 625 as back arrears, for the quarters ending September 29 and December 25, 1945.

The defence, quite naturally, relied on the principle of promissory estoppel pleading that the plaintiffs were debarred from asking arrears of rent for the simple reason that they had already agreed, in the form of a written arrangement to that effect, to accept rent at a reduced rate from the year 1941. To elucidate their contention, the defence furthermore brought the attention of the Honble Court to the principles laid down in Fenner v. Blake and Buttery v. Pickard wherein it was clearly stated that promises made with the intention to create legal relations and which, to the knowledge of the person making the promise, was going to be acted upon by the promisee, and who has subsequently acted on it, must be honoured by the promisor. In this regard, even though in common law parlance, it was not possible to vary the terms of a contract, (which, in this case, is the leasehold agreement) unless such variation was recognized in the form of a second written contract, Courts had given effect to equitable agreements, not embodied in the form of a written contract in some cases.  So, if one were to analyze the present case in that light, the plaintiffs were estopped from asking arrears of rent.

However, after due consideration to the facts and circumstances of the case, the Honble Denning J, distinguished this case from the aforementioned ones and while he accepted the general principle that promises made to enter into legal relations, that significantly altered the provisions of a previous contract, must be honored irrespective of whether there had been any new consideration for the new agreement, he held that in the present case the agreement to reduce rent was intended only for the period during which wartime conditions prevailed (and accordingly it had been difficult to procure tenants for the said flats) and not for the entire duration of the lease period, as contended by the defendants. In His Lordships esteemed opinion, the only manner in which the plaintiff could be said to have committed promissory estoppel is if they had done any act inconsistent with the subsequent arrangement and by no other way  accordingly His Lordship held that the plaintiff company was entitled to receive 625 as arrears of rent for the quarters ending September 29, 1945 and December 25, 1945 simply because the circumstances (which in this case, is the exigency of war) for which the second arrangement had been entered into on January 3, 1940 had expired and consequently the first agreement must again come into effect.

Despite the aforementioned reasoning, the decision rendered in this case and the ratio of the judgment by the Honble Denning J, the above principle cannot be said to constitute a general rule of contracts. In this context, it may be mentioned that even in countries following the common law tradition, (and which have consequently been influenced by the English jurisprudence on contracts) it is highly unlikely that a court would permit any party to revert back to the original written contract after a written arrangement in equity had been mutually agreed upon by the parties subsequently, simply because a court would be loath to intervene in a contract when both parties had agreed upon its terms, whether statutorily or in equity (unless of course, the contract is tainted by fraud, coercion etc.).(Indeed it is difficult to imagine any arrangement made without consideration, even being considered for construal by a court  as statutorily such an agreement would be void.)Perhaps it is only because English jurisprudence places strong emphasis on harmoniously fusing common law with equity, that the ratio in this case has been cited with approval in Ledingham v Bermejo Estancia Co Ltd (as regards waiver) and Smith v Lawson (as regards the correlation between agreements made in common law and those made in equity). And yet, if one were to go by the reasoning laid down by the Honble Asquith J in Combe v. Combe, it seems that just as a promisor cannot derogate from his obligation that he made in a latter contract, even if it is one made in equity or without consideration, in favour of the former agreement, the promisee, too, cannot bring about an action on grounds of promissory estoppel.
In a nutshell, therefore, this case embodies an exception made to the general rule of promissory estoppel in contractual law, but this discretion must always be carefully exercised when a dispute arises in a court, in this regard. At any rate, it is hard to see it being practiced as a rule.

Since the recent election of President Obama, and the extraordinarily contentious debate surrounding the reform of health care, political debate has taken on a particularly ferocious edge.  Many American citizens have become increasingly polarized, viewing social reforms such as health care as an inexorable slide toward socialism and communism.  These heated emotions, in turn, have led to public assemblies known as Tea Parties, threats against President Obamas life, and a reinvigoration of Americas latent militia movement. Fearing that these public sentiments might spiral out of control, a number of states have recently passed laws banning assertions that politicians advocating certain social reforms are socialists or communists. New York State passed and implemented such a law in 2008, the Proper Labeling of Political Actors Act, and made it a felony for anyone to assert verbally or in writing that a politician was a socialist or a communist.  Fourteen states have recently followed New Yorks example and politicians have hailed this legislative trend as a step in the right direction toward a more civilized type of political discourse.
    The instant case arises from a series of posters created and posted on the walls of the United Nations building in which Hilary Clinton was adorned with a Fidel Castro beard and portrayed as a communist sympathizer as a result of her support of health care reform.   The posters included such written expressions as Americas Fidel and The Communist Czar.  These posters were created and posted by a group of high school students who call themselves the Youth for the American Way.  All of the students admitted creating the posters, posting them, and they were all arrested and convicted of felonies for violating New Yorks Proper Labeling of Political Actors Act.  The issue presented is whether New Yorks Proper Labeling of Political Actors Act withstands constitutional scrutiny pursuant to the First Amendments guarantee of free speech.  We conclude that the posters are protected speech and reverse the lower courts.
Controlling Law and Legal Standard
    The instant case must be decided with reference to the First Amendment to the United States Constitution and controlling legal precedent.  The Free Speech Clause of the First Amendment creates an individual right to express opinions and ideas that generally cannot be restricted or eliminated by governmental restrictions.  The relevant constitutional text, for purposes of this case, provides that Congress shall make no law  abridging the freedom of speech further, it has long been this Courts position that The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.  The guiding policy has long been that a free society depends on free expression of ideas even if those ides are thought to be offensive to other people.  There certain limited types of speech that can be restricted, such as fighting words, obscenity, and defamation.  This, however, is not one of those limited types of situations.  This case is further complicated by the fact that although First Amendment violations have been found for a government regulation that imposes special prohibitions on those speakers who express views on the disfavored subjects of race, color, creed, religion or gender  this government law addresses political characterizations.  The question is whether this Court should treat these political labeling laws as constitutionally impermissible content-based restrictions 


Analysis and Holding
    We begin our analysis by noting that the members of this Court have too frequently reached consistent Free Speech Clause decisions using different legal theories and rationales.  In R.A.V. v. City of St. Paul, 1992, 505 U.S. 377, for instance, this Court issued a unanimous decision striking down a Minnesota hate crime statute as a violation of the Free Speech Clause.  In that case, a city ordinance made it a hate crime to display a symbol which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.  This unanimous decision however was misleading because the majority opinion was divided by three different legal theories.  The holding was unanimous, but the legal rational was sharply divided.  The majority found that the hate crime law was impermissible because it was content-based whereas the other two factions found it unconstitutional because it was overbroad or because it did not rise to the level of fighting words.  This Court, in order to eliminate future confusion, creates a new standard in which all content-based restrictions of whatever nature will hereafter constitute a violation of the Free Speech Clause of the First Amendment.  Because New Yorks Proper Labeling of Political Actors Act restricted certain types of accusations but not others it constituted an impermissible content-based restriction.   George W. Bush could, for example, be labeled a Fascist without violating the law whereas labeling Hilary Clinton constituted a felony.  Such distinctions in terms of restrictions of speech and expression are violations of the American constitution.  This Court is aware that political extremism is a danger to be guarded against on the other hand, laws that restrict certain types of political expressions while allowing others are an egregious infringement of Free Speech.  For these reasons the lower court decisions are reversed.
Free Exercise of Religion  Julius Caesar Romanesque House of Shared Worship
Background Facts
    The instant case arises from a municipal law passed by the City of San Jose seeking to restrict the religious practices of a local church.  The small church of roughly three hundred members practices an ancient religious tradition known as the Julius Caesar Romanesque House of Shared Worship.  Shared child-rearing and an aversion the formalities of the marital institution are fundamental tenets of the religious faith.  To this end, all of the church members live in a large commune and the children are raised by all of the adults rather than by biological parents as such.  The children, by all accounts, are well-cared for and attend public schools when they reach the appropriate age.  The facts present no reports of abuse or neglect quite the contrary, the children would seem to be thriving both intellectually and emotionally despite the novel child-rearing arrangements. 
    Despite these seemingly ideal circumstances, the City of San Jose received numerous complaints from concerned residents and neighbors.  The main line of criticism was that the child-rearing practices of the Julius Caesar Romanesque House of Shared Worship constituted a threat to the marital institution, community values, and public morals.  As a result of these complaints, the San Jose City Council passed a municipal law stating that all children must be specifically assigned to one or two parents and that shared child-rearing would thereafter constitute a felony case of child abuse.  The adult members of the church were notified of the new law and refused to relinquish their fundamental religious practices.  The San Jose Police soon thereafter carried out a night time raid in which all of the adults were arrested, convicted of felony child abuse, and have brought this appeal on the grounds that the aforementioned municipal law criminalizing their religious practices violates their constitutional right to freely exercise their religion.  We agree and reverse the lower courts.

Controlling Law and Legal Standard
    The Free Exercise Clause, derived from the First Amendment of the United States Constitution, provides that the government may not interfere through laws or restrictions with an individuals practice of a preferred religion and that the government cannot prescribe acceptable and unacceptable religious beliefs in ways that prevent the free exercise of those religious beliefs.  This freedom to exercise ones religious beliefs, however, is not an absolute right indeed, this Court has consistently noted that Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability.  This type of government restriction was recently upheld despite a constitutional challenge when unemployment compensation benefits were denied for Native Americans who were fired from their jobs because they used an illegal substance (peyote) as a part of the exercise of their religious beliefs.  Employment Division, Department of Human Resources of Oregon v. Smith.  The state law banning the use of peyote, deemed an illegal substance pursuant to the states law, applied generally and was of a neutral character so far as religion was concerned.  A government law may be constitutionally permissible pursuant to the Free Exercise Clause, therefore, is the law is generally applied and neutral.  The government law may even withstand constitutional scrutiny when it fails this general applicability and neutrality threshold if the government can establish a compelling interest on behalf of the public good. Because our review of the facts of this case demonstrate that San Joses municipal law satisfies neither of these exceptions to the Free Exercise Clause, we reverse the lower courts.


Analysis and Holding
    There is no dispute regarding the fact that San Joses municipal law criminalizing shared child-rearing, by characterizing this practice as felony child abuse, was directed specifically at the religious practices of the Julius Caesar Romanesque House of Shared Worship.  This negates any argument to the effect that the law was generally applicable or that it was neutral.  Indeed, members of the church have submitted ample evidence of foster home programs funded and administered by the City of San Jose in which as many as eight foster children have been assigned to a single household.  Members of the church have further argued that San Jose city officials involved in this foster home program are technically guilty of the same felonies with which the church members have been charged and convicted.  We agree and find any arguments by the City of San Jose to be disingenuous.  The municipal law at issue is neither applicable to the general population nor is it neutral quite the contrary, it was designed to prohibit a particular religions exercise of a fundamental religious practice.  Second, the San Jose has offered no compelling interest in behalf of the public good the notion that the marital institution and public morals demand such a prohibition is neither supported by the evidence nor by common sense.  For these reasons, the lower courts are reversed.
Medical Record Privacy  Health Insurance Portability and Accountability Act (HIPAA)
Background Facts
Pursuant to Congressional authorization, the Secretary of the United States Department of Health and Human Services is authorized to adopt uniform national standards for the secure electronic exchange of health information.  262, 110 Stat. at 2021-26. This particular authorization, allowing the Secretary to issue rules and regulations regarding the use and disclosure of health information, is part of a larger legislative framework known as the Health Insurance Portability and Accountability Act (HIPAA).  Health insurance participants in Phoenix, Arizona, individually and representing health consumers more generally, allege that this rule violates federal statutory law, American constitutional law, and that in the alternative the Secretary has exceeded the scope of his authority.  They argue, in short, that the use and the disclosure of private health information through an electronic clearinghouse without the consent of patients are illegal on several grounds and that the rule should be declared invalid.  They content that this rule allows for the dissemination of personal health information in violation of a constitutional right to privacy and that it also violates certain federal statutes
Controlling Law and Legal Standard
We begin by noting that this federal legislative framework was designed and subsequently voted into law by Congress in 1996 in an effort to create a balance between two competing objectives of HIPAAimproving the efficiency and effectiveness of the national health care system and preserving individual privacy in personal health information.  How this balance is achieved, between efficiency and privacy, has been a main source of contention and litigation.  This case derives from this type of balancing debate.
In the instant case, the Secretary supported and implemented a rule under the administrative simplification portions of HIPAA.  The relevant portion of this rule, and the subject matter of this legal dispute, provides that
Standard Permitted uses and disclosures. Except with respect to uses or disclosures that require an authorization under  164.508(a)(2) relating to psychotherapy notes and (3) relating to marketing, a covered entity may use or disclose protected health information for treatment, payment, or health care operations . . .provided that such use or disclosure is consistent with other applicable requirements of this subpart.

This rule must therefore be judged against this statutory framework and the constitutional jurisprudence as it relates to privacy.
Analysis and Holding
First, with respect to plaintiffs Fifth Amendment claim, this Court begins its analysis by stating that the government is barred by the principles of substantive due process from depriving an individual of life, liberty, or property without due process however, we also note  that this principle does not impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.  This is the pivotal distinction because the language in the privacy rule is permissive rather than compulsory.  This means, in our view, that the privacy rule cannot be characterized as unconstitutional if it does not create an unconstitutional deprivation or infringement on its own.  The permissive nature of the rule allows for patient consent to be sought and secured any abuse will be the result of actions beyond the scope of the rule itself. 
Additionally, although it is undisputed that a violation of a citizens right to medical privacy rises to the level of a constitutional claim only when that violation can properly be ascribed to the government a violation in the instant case simply cannot be directly linked to the government.  There is no governmental compulsion or command to use or disclose the patient information in ways which violate constitutional guarantees this Court therefore rejects the Fifth Amendment claim.  We find that individual privacy rights cannot me violated absent mere mechanisms rather than affirmative forms of government compulsion.
For these reasons, we find no violation of the medical right to privacy.

International arbitration is an established method for resolving disputes between parties involved in international commercial agreements as well as in situations where States are parties to the dispute proceedings. n.
In 1985, the Kingdom of Saudi Arabia (KSA) enacted implementing rules inorder  that commercial disputes could be resolved through the use of a third party arbitration instead of court litigation(Rawach and El-Rayez, 2006). The KSA has  likewise accepted international public treaties such as the Energy Charter Treaty, among others, and has become a member  in several international  organizations such as World Intellectual Property Organization (WIPO), among others.
However, despite the introduction of the arbitration in Saudi Arabia, restrictions in the mode of practice still limit the scope of solving disputes. This is contrary to other countries such as Singapore, China and United States of America, among others.. In these countries private institutional arbitration bodies that deal with international commercial disputes have been formed. The adoption of alternative dispute resolution in the aforementioned countries has been successful. It shows that the rule of law exists. As such, this encourages trade and investment (Harrowell, 2008).
There are several differences in the procedures and rules of arbitration of Islamic and Non-Islamic countries because of the influence of culture and religion. The analysis of arbitration practices is significant especially that KSA is a member of international organizations and a signatory to several international treaties. KSA is also a member in several bi-lateral and multilateral agreements on investments  which include the exploration of oil and gas and communications.  In these agreements, arbitration has been incorporated  as a means of dispute resolution. Hence, it is necessary to analyze whether KSAs  legal framework is  capable of accommodating  public as well as private international arbitrations.
The hypothesis of this thesis is that the practice of arbitration in KSA is not as successful or effective as compared to other countries which has adopted arbitration proceedings due to the formers restrictions on religion and culture. .
KSA declared that it shall restrict the application of the New York Abitration Convention to the recognition and enforcement of arbitral awards made on the territory of the contracting State, on the basis of reciprocity (Chapman, 2005). In this declaration, it can be deduced that notwithstanding that KSA is a signatory to the said convention, it has nevertheless imposed restriction to its enforcement.

Background of study                                                                      
   
KSA adopted the use of arbitration in 1985. It has been recognized by the four sources of Sharia the Koran, Sunna, Idima and Oiyas. It is likewise unquestioned by the main four Islamic Schools Maliki, Hanbali, Hanafi and Shafi.  However, a debate ensued between the classical Muslim jurists over the concept of arbitration.  One view says that arbitration is a form of conciliation between parties which is not binding unless accepted by the parties. The other view holds that decisions in arbitrations are binding between parties for the reason that when the parties authorized an arbitrator to hear their case, the authorized arbitrators decision should bind them. As a result of these differences, some writers think that arbitration in the Sharia either results to a binding or a non-binding decisions (Alqurashi, 2004).  
    The need to thoroughly understand the application of laws governing arbitration in KSA is highly critical. A detailed evaluation of the facts surrounding arbitration legislations in KSA as compared to the selected countries such as Singapore, China, America, Switzerland and Hong Kong will be performed. Likewise, it would be essential to analyze KSA in comparison with other Islamic countries in order to analyze the extent to which religion influences the law.
Sharia influences the legal code in most Islamic countries including Saudi Arabia. The Quran is the main and the first source of Islamic law or Sharia. For Muslims, the Quran has laid down rules which cover the whole way of life. These rules are either of binding and obligatory nature or recommended or advisable or forbidden and disapproved.     The second source of Sharia is the Hadith which is a collection of the sayings and deeds as reported from the Prophet Mohammed. Thus, Islamic law or Sharia is the body of rules and jurisprudence derived mainly from the Quran and the Hadith. The Islamic Sharia and jurisprudence have developed out of the interpretation, elaboration and study of Quran and Hadith.
There is no single uniform Middle East or Arab law, nor is there one uniform legal system for all Arab countries, though most of the Arab countries have adopted the codified civil law system, based on the Egyptian Civil Code, as opposed to the English common law system.
    All Arab countries except KSA and Oman have modern Civil Codes based fully or partly on the Egyptian Civil Code. Thus, one of the common features between the laws of the Arab countries is the similarity or even uniformity of the provisions of the Civil Codes. Another major common feature is the application of Islamic law in all Arab countries whether directly or indirectly.
    There is no single rule as when and where Sharia applies. Sharia may apply either directly as a common law of the country, where there is no fully developed codified legal system, or indirectly through the application of statute law based fully or partly on Islamic law, or as a source of law to fill legislative gaps when a particular statute lacks the necessary provisions.
    In Saudi Arabia, where there is no Civil Code, Sharia operates and applies directly as a common law of the country, both in commercial courts as well as in courts of personal matters. No other law is applicable if contrary to Sharia. In KSA, the Basic Law of 1992 confirmed that Quran and Hadith are the sole sources of law and that all laws and regulations must conform to Sharia, which is the common law of the country. It follows that neither a foreign judgment nor any contractual provision contrary to Islamic principles may be enforced in KSA.
Significance of the study

This study seeks to analyze the laws in KSA, in order to decide whether it can be a suitable choice for international arbitration. The appropriateness of Saudi Arabia as an international Arbitration seat is more important because of the strategic position held by the country in international trade. KSA is considered to be one among the most powerful oil countries in the world. It is considered by the Organization of the Petroleum Exporting Countries (OPEC) to be the number one crude oil producer, proven to be the OPECs number one country with crude oil reserve and the number one crude oil exporter (Workman, 2006). Due to this, it is a centre for many international commercial agreements. Energy imports and exports in Saudi Arabia take an important position in the international business of KSA (Salem, 2007). For this reason, business relationships between KSA firms and international firms are quite prevalent. Due to the volatile nature of business activities, disagreements are bound to occur. As such, this require businesses to seek alternative dispute resolution in order to settle cases (Born, 2001). 
The way in which a country handles international commercial arbitration influences the choice of the country for business to a large extent. The findings of this study will therefore prove useful for existing as well as potential traders in understanding the arbitration laws and procedures in KSA . Using the findings of this study, investors as well as potential investors can make assessments whether alternative dispute resolution is advisable in their commercial dealings in KSA. Moreover, they can also use the findings of this study in order to promote alternative dispute resolution in KSA.
    . In an effort to diversify its sources of income, Saudi Arabia has developed six economic cities and capitalized on foreign direct investment (Laden, 2005 Salem, 2007). International trade has therefore increased and the number of external investors in Saudi Arabia is continuously increasing. These investors and traders deserve to know the rules on arbitration in the country in order to know about their rights and the procedures involved whenever they need to solve disputes using arbitration. This study will reveal the processes and rules of arbitration involved in Saudi Arabia as compared to other countries.    
Saudi Arabia became a member of the World Trade Organization (WTO) after its approval in 2005 (WTO, 2005). There are two implications of its membership the first one is the increase in trade, while the second is its possible effects on national laws in order to meet the WTO specifications. It must be noted that accession into the World Trade Organization exemplifies that a country must follow trade rules set by the organization.
The study of KSAs laws will reveal whether its accession in the WTO has affected the arbitration laws in country in any way. If so, the implications of this effect will be studied to show how it could influence the eligibility of KSA  as a seat for international commercial arbitration. The increase in free trade is expected to increase the number of international firms in KSA  as well as the import-export business. The findings of this study will act as a guide for investors wishing to expand their businesses into KSA to make informed choices with reference to the nature of international arbitration procedures in the country.
    Saudi Arabia is also a member of the Energy Charter Treaty (Energy Charter, 2009). This treaty is considered to be an excellent link to international arbitration. It is a means in helping businesses to solve disputes with other parties within the provisions of the treaty. Among the major mechanisms used in settling disputes are UNCITRAL, International Centre for the Settlement of Investment Disputes (ICSD)  and Arbitration Institute of the Stockholm Chamber of Commerce (Energy Charter, 2009).
Therefore, this is a basis for the study of international arbitration in Saudi Arabia so as to establish whether its membership in the treaty has any profound effect on the countrys laws on international arbitration and the perception of law makers on modernizing or expanding the existing legislative framework. Findings on whether the Energy Charter Treaty has an effect on KSA  laws on arbitration will aid investors in establishing whether Saudi Arabia is a suitable arbitration seat.
    Most of the Gulf States are producers of oil and practice the Islamic religion such that their characteristics are somewhat similar (Salem, 2007). A comparison of these countries will determine the differences in the arbitration laws and will contribute towards determining whether KSA  is ready to hear and decide international disputes.  The use of Gulf States for comparison will play an important role in establishing the impact of religion on a countrys laws.
Aim and context of study
This thesis is aimed at providing an understanding of the current situation of international arbitration in KSA . It shall provide a proper layout and discussion of the procedures in comparison to other countries.  It shall analyze the success of KSA in resolving international disputes through arbitration. This study aims to help in understanding the KSA laws vis--vis the public and private international law. 
This study also seeks to compare Saudi Arabia with other Islamic as well as Non-Islamic countries. Islamic countries include United Arab Emirates, Iraq, Iran, Egypt, Indonesia and various other Gulf countries. Non-Islamic countries include Singapore, United States and China, among others. Arbitration proceedings were successful in the latter.  As such, this demonstrates that the rule of law exists in these countries and thereby encouraging trade and investment. Moreover, it is easier for a foreign party in these countries to secure enforcement of judgment based on arbitration award than to enforce a judgment obtained in litigation where there maybe endless delays (Harrowell, 2008).

    The study will also make an analysis of the political, cultural and religious aspects in Saudi Arabia which affect the arbitration procedures. The Sharia Law which is a prevalent source of influence on the countrys laws will be analyzed inorder to establish whether it makes international arbitration different from other countries (Laden, 2005). Further, the paper will discuss how these laws impact Saudi Arabia as a suitable seat for international   arbitration. Similarly, the laws which are put forth by the Quran and which may affect arbitration procedures will also be studied in detail.

Contribution to knowledge

There have been a lot of debates concerning the compatibility of Islamic states with the concept of private and public international law.  Islamic nations or states were always subscribers to the Islamic Commercial Law. Though the latter adheres to the sanctity of human life, rights and dignity similar to public and private international law, they differ with regard to the concept of the liberalization of the justice (Herbert 2006). Further, there is a disparity between the Muslim jurists. One party considers that a decision reached in arbitration is final and executory whereas another party considers it only as a means to an amicable settlement, such that the decision shall be binding only if the parties to the arbitration accept the decision (Aqurashi, 2004).
The study then of KSAs laws as well as arbitration proceedings would be of great help not only to researchers but likewise to the business world. The study of its laws will be significant particularly to investors, contractors and even governments who would be dealing with KSA. It should be noted that KSA is the top crude producer in the world such that it could not be avoided that investors, contractors and even governments will be dealing with it. As such, commercial contracts will be entered into between them. Potential breach of contract is possible in every transaction. Therefore, the study of KSAs laws plays a very important role in the business world. It may not only help investors but it might save them from jeopardy due to ignorance of the law.
 Therefore, any information obtained in this study will be of great assistance to future readers who can use it to perform future studies. Likewise, it would be very useful guide to potential investors as well as governments who might think of entering into agreement with the KSA. Through this research, readers will be more informed about the KSAs arbitration laws in comparison with the public and private international law.

Approach and Methodology
This study will essentially be comparative. International commercial arbitration cases from the past will be used to illustrate how officials and the disputing parties undertake proceedings. International commercial arbitration proceedings from other countries will be looked into as this will help see the best practices of arbitration. This way, laws of different countries will be analyzed and compared.
To ensure that the concept of bias is completely eliminated, the strengths and shortcomings of each countrys arbitration procedures and provisions will be established in a comparative study. Research for this study shall be through the use of iTools. The use of iTools has become very famous so that information available in the internet will be used.   Search engines under the iTools such as Google and online encyclopedias will be used in the collection of valuable information as regards the study of this paper. Through the use of iTools, research for information for this paper shall be expedited. It will save time such that information from overseas can be gathered through its use. Further, the use of iTools proved to be successful such that recent information can be gathered through it as compared to regular textbook wherein the same is published on specific years and updated when the author would have the means to do so. Whereas, information with the use of iTools are being updated from time to time. 
This study will be undertaken through extensive research by using previous researches about KSA which are available from the libraries. Law journals and Constitutions of the aforementioned countries will also be used.  This study will also make use of comparative law to scrutinize KSA laws and compare it with the laws of other Islamic countries as well as Non-Islamic countries. Comparative law is a method for comparing different legal systems. Comparative investigations of the nature of law of different countries are involved in order to distinguish their different characteristics. Comparative law has proved valuable for legal comparative studies. The notion of transplants is especially common which depicts a narrow scope in the use of comparative law.
After the collection of information through the above-mentioned sources, the same shall be quantified and implications shall be made. The WEFT QDA software, which provides an effective data analysis tool for qualitative analysis, will be used. With the use of WEFT QDA, it is possible to analyze textual data such as written texts, field notes and interview transcripts, among others. This tool makes use of high levels of technology to import documents for comparison purposes.
After the result of the comparison of the information gathered, the same shall be analyzed and explained. The result shall then be thoroughly studied. It shall be determined why the other countries arbitration is more successful than the others. It shall be determined which factors contribute to such success. Subsequently, a summary and explanation shall be made. A conclusion shall then be drawn from the facts gathered.
 The use of all of the above methods and techniques will make this study a valuable asset for future references.

Jettison, in order to collect monies owed under this fact pattern, should have the receivables owed to Big Ben assigned to Jettison.  Below is an assignment that Jettison should present to Big Ben to preserve its rights.

ASSIGNMENT OF CONTRACT RECEIVABLES
FOR VALUE RECEIVED, the undersigned Assignor hereby assigns, transfers
and sets over to (Assignee) all rights, title and interest held by the
Assignor in and to the following described contract

The Assignor warrants and represents that said contract is in full
force and effect and is fully assignable.

The Assignee hereby assumes and agrees to perform all the remaining
and executory obligations of the Assignor under the contract and
agrees to indemnify and hold the Assignor harmless from any claim or
demand resulting from non-performance by the Assignee.

The Assignee shall be entitled to all money remaining to be paid
under the contract, up to 4000.00 which rights are also assigned hereunder.

The Assignor warrants that the contract is without modification, and
remains on the terms contained.

The Assignor further warrants that it has full right and authority to
transfer said contract and that the contract rights herein transferred
are free of lien, encumbrance or adverse claim.

This assignment shall be binding upon and inure to the benefit of the parties, their successors and assigns.

Signed this day day of month, year.
____________________________        ____________________________
     Assignor  Big Ben Inc                 Assignee - Jettison

     Jettison cannot terminate a commercial lease (a lease for a storage facility is a commercial lease)  before the lease term is over without facing liability unless there is a provision in the lease which allows for early termination. Commercial leases are usually leases for duration of years, such as 5 years, called a fixed term lease. Here, the fixed term was for two years. A tenant, such as Jettison who agrees to a fixed term lease must meet all of the obligations under the lease until the lease ends.  This is so, even if the business fails or the premises are vacated. The fact that there was a side deal with respect to snowmobiles is irrelevant because it was not in writing (Of course, at a legal proceeding, it is always worth raising the issue so that damages may be reduced). The only way to break this lease without incurring damages is if there is a break lease clause within the lease the parties have agreed to modify the terms of the lease with respect to the term of the lease the lease is assigned (in which case someone else takes over the lease or if there has been a breach of the lease by either party.  
Additionally, in a commercial lease, because damages can be difficult to assess, there is usually a liquidated damages clause which specifically details the remedies available to the person who is damaged as a result of the termination of the lease. Usually the liquidated damages is a set sum of money.  Here, the lease is not specific as to the liquidated damages and as such Jettison may be forced to pay the balance of the lease. A commercial lease also usually specifies what venue the dispute will be resolved in and also provides for attorneys to be paid by the breaching party.  Finally, commercial leases often provide for acceleration of any other obligations that the breaching party may have.  The breaching party may well be forced to perform the other duties under the lease at the time of the breach.
Sara Student should ask for a letter of intent, which will stop the prospective employer from hiring other people during seven days that she is considering the offer.  Further, she should ask for an employment contract which will not only cover her duties but also cover her rights as well. If she does not get a contract, then she runs the risk of becoming an at will employee and as the term implies, she may be fired at the whim of the employer.  Furthermore, she would also be obligated to sign a covenant not to compete clause which is typical in an employment contract because it insures that Sara will not share trade secrets with a competitor.  Accordingly, below is the type of employee contract that she would be presented with.

 THIS AGREEMENT, made as of the ____ day of ____ , 2009.
Between Big Bucks., a company incorporated pursuant to the laws of the state of_______________
(hereinafter referred to as the Employer) OF THE FIRST PART-- and -- Sara Student, of the City of __________ in the state of _____
(hereinafter referred to as the Employee) OF THE SECOND PART

 WHEREAS the Employee and the Employer wish to enter into an employment agreement governing the terms and conditions of employment
THIS AGREEMENT WITNESSETH that in consideration of the premises and mutual covenants and agreements hereinafter contained, and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged by the parties hereto), it is agreed by and between the parties hereto as follows
1. Term of Employment
The employment of the Employee shall commence the date hereof and continue for an indefinite term until terminated in accordance with the provisions of this agreement.
2. Probation
The parties hereto agree that the initial six (6) month period of this agreement is probationary in the following respects
a. the Employer shall have an opportunity to assess the performance, attitude, skills and other employment-related attributes and characteristics of the Employee
b. the Employee shall have an opportunity to learn about both the Employer and the position of employment
c. either party may terminate the employment relationship at any time during the initial six month period without advance notice or justifiable reason, in which case there will be no continuing obligations of the parties to each other, financial or otherwise.
3. Compensation and Benefits
In consideration of the services to be provided by him hereunder, the Employee, during the term of his employment, shall be paid a base salary in equal semi-monthly installments, in arrears, less applicable statutory deductions. In addition, the Employee is entitled to receive benefits in accordance with the Employers standard benefit package, as amended from time to time.


4. Duties and Responsibilities
The Employee shall be employed in the capacity, the current duties and responsibilities of which are set out in Schedule A annexed hereto and forming part of this agreement. These duties and responsibilities may be amended from time to time in the sole discretion of the Employer, subject to formal notification of same being provided to the Employee.
5. Termination of Employment
Subsequent to completion of the probationary term of employment referred to in paragraph 2 herein, the Employer may terminate the employment of the Employee at any time
a. for just cause at common law, in which case the Employee is not entitled to any advance notice of termination or compensation in lieu of notice
b. without just cause, in which case the Employer shall provide the Employee with advance notice of termination or compensation in lieu of notice equal to
 1 month plus 2 weeks per year of completed service with the Employer, to a maximum of fifteen (15) months.
The Employee may terminate his employment at any time by providing the Employer with at least eight (8) weeks advance notice of his intention to resign.
6. Restrictive Covenant
Following the termination of the employment of the Employee by the Employer, with or without cause, or the voluntary withdrawal by the Employee from the Employer, the Employee shall, for a period of one year following the said termination or voluntary withdrawal, within the Province of Ontario refrain from either directly or indirectly soliciting or attempting to solicit the business of any client or customer of the Employer for his own benefit or that of any third person or organization, and shall refrain from either directly or indirectly attempting to obtain the withdrawal from the employment by the Employer of any other Employee of the Employer having regard to the same geographic and temporal restrictions. The Employee shall not directly or indirectly divulge any financial information relating to the Employer or any of its affiliates or clients to any person whatsoever.
7. Confidentiality
The Employee acknowledges that, in the course of performing and fulfilling his duties hereunder, he may have access to and be entrusted with confidential information concerning the present and contemplated financial status and activities of the Employer, the disclosure of any of which confidential information to competitors of the Employer would be highly detrimental to the interests of the Employer. The Employee further acknowledges and agrees that the right to maintain the confidentiality of such information constitutes a proprietary right which the Employer is entitled to protect. Accordingly, the Employee covenants and agrees with the Employer that he will not, during the continuance of this agreement, disclose any of such confidential information to any person, firm or corporation, nor shall he use same, except as required in the normal course of his engagement hereunder, and thereafter he shall not disclose or make use of the same.
8. Assignment
This agreement shall be assigned by the Employer to any successor employer and be binding upon the successor employer. The Employer shall ensure that the successor employer shall continue the provisions of this agreement as if it were the original party of the first part. This agreement may not be assigned by the Employee.
9. Severability
Each paragraph of this agreement shall be and remain separate from and independent of and severable from all and any other paragraphs herein except where otherwise indicated by the context of the agreement. The decision or declaration that one or more of the paragraphs are null and void shall have no effect on the remaining paragraphs of this agreement.
10. Notice
Any notice required to be given hereunder shall be deemed to have been properly given if delivered personally or sent by pre-paid registered mail as follows
a. to the Employee address
b. to the Employer address
and if sent by registered mail shall be deemed to have been received on the 4th business day of uninterrupted postal service following the date of mailing. Either party may change its address for notice at any time, by giving notice to the other party pursuant to the provisions of this agreement.
11. Interpretation of Agreement
The validity, interpretation, construction and performance of this agreement shall be governed by the Laws of the Province of Ontario. This agreement shall be interpreted with all necessary changes in gender and in number as the context may require and shall enure to the benefit of and be binding upon the respective successors and assigns of the parties hereto.
IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed as of the 1st day of January 1992.

Multiple civil lawsuits in recent years have brought massive academic and legal research on the issue of product liability in relation to tobacco companies. These lawsuits often attempt to hold tobacco companies responsible for wrongful death, medical expenses and injury related to tobacco smoking and other tobacco use.  In recent years, multiple suits have been brought on behalf of individual smokers, class of smokers and other entities who shoulder the burden of health care expenditures in relation to tobacco related expenditures. Plaintiffs often argue that tobacco products are unsafe and often directly cause harm to individuals, 
Product Liability
Product liability was initiated based on the argument that individuals injured by defective products often deserved protection and compensation from products manufacturers, suppliers and sellers Product liability lawsuits against tobacco companies began in the 1950s following increased scientific evidence that cigarette smoking was a cause of lung cancer.  However, the first wave of tobacco lawsuits occurred between March 1954 and September, 1978 a period in which over 125 reimbursement cases were filed although in all cases, although the plaintiffs were defeated, this nonetheless led to an increase in litigation towards tobacco companies,
Tobacco Companies
Product liability cases related to tobacco companies often attract massive interest based on the stakes and the parties involved. It is often observed that a single successful lawsuit could spur a tidal wave of litigation hence the industry have an enormous amount of stake in defending any pending lawsuit. Similar to other product liability cases, charges are often brought about by individuals who claims has sustained bodily injury and is often defended by the tobacco companies,  . Plaintiffs often include smokers who often use the products, their family members and bystanders who claim to have been affected as secondary smokers. Most state statutes also states that a person can institute sits based upon negligence or strict liability law for a product that leads to the death of a person hence in most cases, individuals who die from cigarette addiction are often represented by family members. In most cases, tobacco companies often argued against any direct link between tobacco and specific ailments such as cancer,.
Plaintiffs often bring their charges against tobacco companies on the argument of negligence whether they note that tobacco companies often are negligent on the manufacturing process, design and adequately issuing warnings against their products. Plaintiffs often try to prove the connection between tobacco companies negligent act and the harm and the companies legal obligation to have foreseen plaintiffs harm. A number of cases presented on the foundation of the theory of negligence have been successfully defended by the tobacco companies. For example in Cipollone v. Liggett Group, the Liggett group affirmed that they had placed adequate warnings on cigarette packages hence they could not be responsible for any charges of negligence, affirms that most tobacco related litigation presented on the argument of negligence were often defeated since the companies refuted that smoking induced disease. 
The case of Browenerv. R. J Reynolds, filed in 1981 was filed on the theoretical foundation of strict liability. R. J Reynolds defense affirmed that the scientific community had not established with certainty the connection between smoking and human disease. They also affirmed that they were not liable for any cases of strict liability since the plaintiff had assumed any risk by choosing to smoke. Expansion of product liability led to an increase in claims with individuals arguing that smoking was dangerous based on the direct statistically proven link between smoking and disease hence smoking was a hazard to health. Increased product liability litigation against tobacco companies is also a sure way to tobacco related complications since the dangers of smoking are clear-cut.

The research paper is on the law of tort as per British University standards. The law of tort is one category of law that deals with civil wrongs. It has been applied in many legal systems of particular countries that have helped maintain the wronged person at his or her original position. When individuals interact, they must be governed by some laws that control their behavior. It is one way of making individuals understand the importance of the others especially when it comes to understanding civil wrong. The paper discusses definition of tort, types of tort and conclusion. The author of the paper is governed by British University standards as it concerns the law of tort.
Definition of a tort
    The word tort is derived from Latin word torquere meaning a wrong. A tort is a civil wrong that is recognized by law.  It is a body of obligations, remedies and rights that is applied by legal systems such as courts when dealing with cases of civil nature that is, between two individuals. Common law practices does not recognize separate actions that are legal in tort but the British legal system has recognized two areas that redress the law of tort that is, trespass and defamation.
Trespass comes in two forms, direct injuries and indirect injuries. Defamation includes slander. Most colonies in America have adopted English common law which has helped to regulate many sectors in the United Sates and other parts of the world. Application of the law of tort aims at providing relief to persons who have been injured by acts of other people that are wrongful. The wrong committed on other individual results to physical or emotional injuries and harm to the affected person that act as a basis for claim.
The law of tort has two parties. One party is the injured legally known as plaintiff and the other party is the person who causes injuries and bears the burden of liability known as defendant or tortfeasor. The two individuals distinguish this form of law from the other form of law known as criminal law. Tort to some extend is a crime punishable through imprisonment but the primary role for applying the law of tort is to return the plaintiff to the original state he or she was at before the injury was inflicted on him or her. This is done inform of refund that is known as damages and the government through legal system acts on behalf of the aggrieved party.
 Damages come in monetary form or in form of injunction which aims at preventing further happening of the tortuous act. The wrong doer is forced to pay the plaintiff any medical expense incurred, pain or suffering and loss of earning capacity within a specified time period. It also aims at terrorizing other people who had the same intention from doing such acts. The injured or plaintiff is given the priority of suing the defendant in the court of law.
    There are three elements that a plaintiff must proof to show that the act was a civil wrong. First, the wronged person must show beyond reasonable doubt that the defendant was under legal obligation to act in a particular fashion. Secondly, the plaintiff must show that the acts of the defendant were breach of legal duty of care and he or she could not contain his or her behavior. Thirdly he or she must demonstrate that the acts of the defendant caused injury or any other form of loss. These elements are the ones that show there is a common difference between the law of contract or criminal law. There are various types of torts that include assault, trespass, negligence, battery, inflicting if emotional distress intentionally and products liability. Combination of common law principles and legislation practices results to law of tort.
In tort actions there is no agreement between the parties to a law suit and private citizens are concerned with initiation of prosecutions. The application of tort law in England and other parts of the world has helped in the development of different sectors such as economic, social and business promotion. In the social aspect, tort law has helped to maintain high degree of discipline in work place. This happens through protection of employees from effects of emotional distress caused by negligent from members in the work place. In business or economic aspect, law of tort helps to protect businesses from the effects of competition. In addition, law of tort has been applied by many countries to protect environment and other natural resources.
 Its application in this aspect provides remedies against individuals and businesses from polluting land, water and air. The remedies against law of tort concerning protection of environment are referred as nuisance. In another area, the law of tort can be used as a way of protecting partners who are intimate. For instance, when a loved individual dies as a result of a civil wrong, the surviving family members can come up with a wrongful death action that makes them recover pecuniary loss. Also when two partners are intimate and one party knowingly transmits sexual disease to the other partner the one who has contaminated the other is liable for a civil wrong punishable by the law of tort.
    The law of tort has basically four objectives which include, first, the law of tort aims at compensating the plaintiff injuries that have been inflicted on him or her by the defendant. Second, the defendant that is, the person who has caused injuries is forced to carry the burden of causing injury to the plaintiff. Thirdly, it aims at restricting individuals who may have such behaviors of causing injury or any other careless mistake in future. Fourth, it aims at vindicating individual rights that have been compromised with by the defendants. Such objectives are recognized when an individual does acts that are hazardous or are out of negligence.
     Torts are classified under three categories such as
Intentional torts for example intentional hitting of a person.
Negligent torts for example when a driver causes an accident because he or she has failed to observe traffic rules.
Strict liability torts for example when an industry produces and sells defective items to consumers.
Other categories of torts include defamation, nuisance, economic torts and invasion of privacy. These torts are handled in courts that recognize law of tort as a state law which has been created by common law judges and statutory law legislations. Tort law has been influenced by restatement of torts that is used by judges and many states as a way of giving rules on civil wrongs. American law Institute has prepared the second restatement of torts that aims at presenting a statement that is orderly in the application of general law in U.S.
Types of torts
International torts
    Intentional tort involves any act that is done to hurt another person and the act is deliberate. It involves deliberately doing away with the legal recognized rules that protect the life of an individual such as rights of body integrity, damage of property, freedom from deception and deliberate hitting of a person by another. Some examples of acts that lead to intentional torts include battery, false imprisonment, trespass, assault, conversion, misrepresentation and fraud and privacy invasion.
These acts happen as a way of harming the intended party. When injury caused on the plaintiff results from reckless behavior then this may not amount to intentional tort. However, there are some situations when the law allows individuals to act intentionally resulting to infliction of injuries to another person. The harm or injury caused by such actions is a way of overcoming some inevitable circumstances such as self preservation. For example, in case of self defense, an individual has the right of applying force even if it results to injuries or harm. Trespass as a form of intentional tort include, trespass to land, conversion or trespass to chattels. Trespass to land is allowable by law when the trespass itself aims at solving some problem like creating road to pass some important goods. Trespass to chattels is also another common tort in many communities.
It occurs when a person uses other persons goods without the consent of that other person. It also happens when an individual maliciously damages goods of another person or an entity. In law, trespass to chattels is agreed in some circumstances. A good example is when a person leaves his or her perishable good under the custody of another person and the owner takes long time to take them, the custodian of the goods can use them as a way of reducing the chances of going bad. It is applicable in the real life situations and the law has the capacity of allowing the trespasser not to pay for damages.
Negligence
    The harm or injury that is inflicted on the plaintiff is as a result of human negligence about law and human rights. Legally negligence can be defined as behavior that results to harm or injury to a person or property. A normal person can change his or her behavior from the normal expected way of living to cause harm to another person or cause damage or loss of property. The law requires that every individual should use common sense when dealing with other individuals. This will encourage individuals to protect the lives of others and protect property from damage.
However the law gives an allowance of some activities that results to injury even a person is very careful. For example an accident can be prevented from happening even if an individual takes a lot of care. These unavoidable accidents are called acts of God and there is no civil liability on the defendant. The defendant can use these acts as a way of defending him or herself when brought in a court of law. Another defense is assumption of risk which aims at preventing the plaintiff from benefiting for any injuries or harm. When the plaintiff does an action with knowledge of its outcome, tort law does not allow such person to benefit for example in gambling it is either you win or you lose if the latter happens the plaintiff has no capacity of reclaiming for damages.
Strict liability
    The law of tort sometimes imposes liability on the defendant without looking whether the person is guilty or did the act out of negligence. Also known as liability without faulty, it is a type of tort that regulates useful activities which results to abnormal life in the society. Examples of these activities include keeping dangerous wild animals in captivity, blasting, transportation of materials that are hazardous or storage of substances that may cause harm or injury to the lives of individuals.
 Strict liability happens in two forms that is, legal and moral fault. Moral fault occurs when an individual causes injury to another person out of deliberate will while legal fault is an artificial conduct that has been set by the government to protect the society. In business individuals must engage themselves in activities that do not harm the other person in the society like raising the prices of basic commodities. The manufacturing industries will be held liable when they produce goods that will harm the health of consumers.

When a good or service is purchased, property moves from one party to another.  This property denotes ownership of the good or service.  In order for there to be passage of property as regards to a good or service, specific requirement have to be fulfilled and met.  These ensure that the contract is both valid and enforceable in law.  With the Sale of Goods Act of 1893 as the basis, changes were made to bring the law into to the 20th century via the Sale of Goods Act of 1979.  This made the law to be responsive to emerging needs and requirements ensuring it kept its relevance.
This paper will look to interrogate the law with a view to finding out whether it has in deed reached the 21st century.  It is the contention of this paper that this has not been achieved.  This paper will endeavour to present areas that the law could be improved in order to address the dynamics of the present times.
Discussion
For a long time the concept of transfer of property had proven to be a point of contention between buyers and sellers.  The gist of the controversy was centred on the point at which property (ownership) passed from one party (seller) to another (buyer).  The law has over time attempted to address this issue but unfortunately in some cases the dynamics of the present society have tended more often than not to overtake the changes.
When the Sale of Goods Act of 1872 was enacted, the general nature of trade entailed the exchange of goods and services for a consideration.  Trade mostly and always involved finished products that were tangible and consideration involved money. This took a variety of different forms over time from salt, through to precious stones to coins and notes and presently to e-currency.  This made it easy for both buyers and sellers, with property changing at the point of exchange of the good for the consideration.  Form the arising challenges, as a result of transfer of property for goods that were being shipped overseas, there thus arose the need to define the point at which property passed.
Since at this time guarantee was not an integral aspect of goods production, this was not captured in the act.  Over time and with increasing consumer awareness about their rights, coupled with increased competition and the desire by companies to cultivate loyal customers, guarantee of goods was introduced.  Manufactures saw the need to ensure quality and specificity of their goods to the consumer. 
This brought in a new dimension for consideration when factoring the passage of property.  Other short falls included the inability to capture the continued lapse of time between dispatch of goods to the buyer, the delivery, dispatch of payment to the seller and the arrival of the payment.  It became increasingly difficult and challenging allocating proprietorship of goods in transit, for goods acquired on consignment and those acquired in credit.
At around this time, there was found to be ambiguity in the description of goods when drawing contracts.  More often than not, disagreements arose as a result of one party felling the other party had misrepresented facts concerning the nature of goods.  This was mostly the case where the opportunity to ascertain the goods had not been available. 
The Act therefore came to ensure that property passed only when the goods were ascertained in the cases of contracts where they had not been done so in advance.  This gave the buyer the right to accept or reject goods if they did not feel they were precisely what they were paying for.
Another challenge arose in cases where the goods were specific and clearly ascertained by both parties and there was contract in place.  There were increasing disagreements as pertaining to the point at which ownership passed from the seller to the buyer.  The law was thus enacted with the express purpose of addressing this issue. 
It thus addressed specifically and put in place guidelines as to parameters that needed to be fulfilled in order to ascertain to whom the ownership accrued.  It was thus legally laid down that the property was to pass when it was intended to pass and in order to ascertain this intention, the conduct of the parties and the circumstances of each case were to be investigated where a conflict or disagreement arose.
In order to circumvent ambiguities in ascertaining the intention of both parties, some ground rules were laid down in the law in order to protect the integrity of contracts.  It was determined that in cases where the contract was specific as to the description of the goods and the state at which they were to be delivered and there not being any condition attached to the contract, the property passed at the point of making the contract.  This was not affected by delay in payment nor delivery nor both factors combined.
In some cases contracts were entered to for the goods to be delivered, but the seller had to perform additional functions.  The seller wanted to the property to pass to the buyer yet the goods were not in a usable way.  The law was therefore made to ensure only after the seller had performed the specific function required to make the goods deliverable did the property pass to the buyer.  The seller could not perform this function without informing the buyer and expect the ownership to pass, the seller needed to inform the buyer of the completion of the functions, and they needed to buyer to acknowledge the completion of the said function.  With the fulfilment if this requirement then the property could pass.
Similarly where the buyer is expected to confirm specific aspects of the goods like their weight, size or nature with a view to establish the price of the goods, and where a contract for the sale of specific goods in a deliverable state exists, the property would only pass with the fulfilment of the obligation.  The buyer must have notice of the fulfilment of the obligation for the ownership to pass legally.
There were instances when goods were to be delivered to a buyer whom on inspection and satisfaction would inform the seller whether they were up to standard and thus pay.  There arose cases where the buyer took their time in communication to the seller on status of the transaction thereof resulting from the delivery of the goods and by extension passage of property. 
The Act was thus drafted giving specific parameters which on fulfilment would signify the passage of property from the seller to the buyer.  The Act expressly stated that where the goods were delivered and the buyer did not make haste to inform the seller of the state of the transaction, with the passage of a reasonable time, and on not returning the goods or signifying intention to return, then the transaction was deemed to have been fulfilled by the seller thus the property of the goods passing to the buyer.
In the case of trading companies which did not produce their own goods but rather purchased goods for onward sale or on behalf of clients, they were constantly caught with goods they could not dispose as a result of clients changing requirements.  This was especially prevalent as the goods on some instances took a long time in being delivered.  It also applied to instances where a buyer wanted a good that was unique in design and function.  This would imply that the good could only by used by the buyer and the seller could not find another buyer where the original buyer refused to buy on delivery. 
The Act was drafted to remove this ambiguity.  It stated that where a seller undertook certain specific actions in fulfilment of a contractual obligation with a buyer through the purchase of items to be used in the achievement of the final product, the buyer assumed ownership.
These initial provisions captured transactions as they happened in the late 19th century.  At this time most transactions involved the transfer of goods for a consideration usually cash.  However with time business transformed and diverse aspects were to come into play.
With the enactment of the Sale of Goods Act of 1979, most of this ground rules were retained.  It tried to capture the modern day dynamics of business transactions.  By the time of enacting this new act the internet had not grown to its present size and state.  Where as the act captured cases where a buyer pays the consideration agreed upon with the seller and walks off with the goods, in online purchases, payment is made via a credit card and goods are shipped only to arrive days after they were paid for. 
This thus raised issues of delivery of the purchased goods and the passage of property.  Also in present day economics, goods are not necessarily purchased outright they could be leased, hired for a short time, hired with a view to purchase on completion of instalment payment or on leasing, or have the option of purchase at the end of the lease period.
Depending on the method of supply, the rights of the consumer and the passage of property will differ from situation to situation.  Where as some aspects of these transactions may not differ over time, namely quality of goods supplied and remedies available in instances of breach of terms whether implied or expressed.
The Sale of Goods Act of 1979 at it best, describes transaction where the paper trail can be followed.  This is not the case with online transactions.  Especially in instances where services are offered online and money consideration transferred within the same medium, there can be no paper trail for which to follow in case of enforcement of a partys rights on breach of terms.
This makes the Sale of Goods Act 1979, not comprehensively covering all aspects of transactions affecting the present day businesses. It especially leaves buyers and sellers dealing with goods that have warranties and after sales service vulnerable.  The buyer and the seller do not clearly know when property passes. 
This is because even with the payment of the total monetary consideration to the seller by the buyer, there are still issues the seller needs to address on an ongoing basis in order to maintain the deliverability of the good.  This will most of the time be at no additional cost to the buyer.
The Sale of Goods Act also falls short in addressing issues goods that are not tangible.  In this class of goods will be found software and computer programmes. These do not have the characteristics of common tangible goods.  It becomes tricky when seeking to identify the point at which property passes given the long-term relationship between the buyer and the seller because of the product.  The trick is in identifying the implied aspect of these contracts in order to clearly get the point of passage of property.
It is in the implied realm that the Sale of Goods Act really falls short.  Given that in todays world the implied is as important as the explicit, it is increasingly critical to cover all areas of implied obligations that accrue to any contract.  This should make the enforcement in case of breach by any party easier and compensation clearer.
In later times there has been an effort to attempt and capture the different aspects and matters arising as a result of present day business transactions.  This has lead to a myriad of laws spread all over making it very challenging to get a clear picture regarding to matters arising.  Unlike the Sale of Goods Act of 1893 which had all aspects of business transactions, rights and obligations in one act, presently this is not the case.  There is the need thus to have a comprehensive Act that will all encompassing in coverage.
The Act also needs to be widened in order to cover goods that have a service component in them.  These types of contracts give rise to several possible different analyses.  This area is so mucky that in some instances the courts have been stuck in this quagmire.  In Jones V Gallagher (2005) 1 Lloyds Rep. 377 the appeal court (accurately) dealt with a contract for the installation of kitchen units under the Sale of Goods Act, but consequently (inaccurately) considered the rules on acceptance.
With the increasing separation on commercial sale contracts from consumer sale contract, the underlying factors though similar, the effects and repercussions are very different.  This has resulted in an act that is deficient.  In fact when looking critically at the act, another point of weakness is in the area of consumer remedy. 
This issue brought to the fore the predicament the United Kingdom finds it self in.  Buyers and sellers can choose to use either the local domestic law or go to Brussels and enforce European laws.  This makes the other party be at a loss since both laws apply to a transaction entered to in United Kingdom.
Another shortfall of the Act is in apportioning risk inherent to a transaction.  Where as, the Act ties up risk to the passing of property, increasingly in the present day, risk is linked to delivery.  This is especially so for goods hat have a service component to them  which is the increasing portfolio of goods. 
This particular aspect is of special benefit to customers taking part in online transactions.  For this particular type of business, the property only passes with the delivery of the good to the consumer.  Loss or damage in the post or while in transit is chargeable to the seller.
Under the Sale of Goods Act the goods as enacted does not provide to protection of the seller from a buyer looking to blame natural wear and tear of a good on structural and initial defects present at the point of sale. This has resulted in manufactures preparing warranty cards.  This helps the seller not to be liable for faults he could not do anything about. 
In trying to cover oneself from unforeseen liability especially in business to business transactions, both sides use documents with conditions attached.  There thus arises when there is a dispute, disagreement at to which set of documents to use in order to enforce compensation on breach.
Conclusion
It is clear that the Sale of Goods Act of 1979, though an improvement on the one of 1893 still lacks fundamentally in addressing matters arising.   The Act of 1893 was so well drafted that it could and indeed served its purpose for such a long time.  Unfortunately, in the present age, business dynamics are very fluid. 
Business change and as a result, aspects that held true some times back find they are greatly challenged. The Act finds itself extended to the point of breaking.  New aspects on doing business have also arisen.  Where as when the act was drafted, the internet and the World Wide Web were only concepts in a few peoples minds, they have now collectively and combined become the centre of global business. 
This has given rise to new transactions both in the goods transacted and the mode of payment.  The rights of buyers and sellers have also expanded with each presenting additional requirements to the other.  This in turn has resulted in some cases the blurring of the point at which property passes.  These been a very crucial aspect in determining and allocating and assisting in arbitrating in cases of perceived and proven breach. 
The need to revise and incorporate new business realities in to an improved Sale of Good Act is therefore very integral to facilitating transactions in the new age.  There is need to consolidate all aspects of sale of both goods and services into one act to assist in ease of identification of rights and obligations accruing to each party.  The domestic law relating to the passage of property needs to be moved from to the 20th century where it currently is, to the 21st century where it is needed. 
This has to be done as a matter of priority in order to ensure the continued smooth running of business and eradication of ambiguities.  This should help clear the way for the consolidation on all aspects of sale of goods and services into one act since they are presently so intertwined that they cannot operate independently.