Osgoode Hall Law School

First Prize - JPAID Outstanding Publication Prize - 2015

Despite the widely accepted relationship between quality
primary education and sustainable, equitable development, two of
the world’s fastest-growing democracies—India and Brazil—
continue to trail their regional and economic peers in basic learning
outcomes. Using a supply and demand framework, this article
identifies six institutional factors that we hypothesize may have
been determinative in shaping education outcomes in both
countries: actual popular demand, availability of information about
public education quality, impact of private school alternatives,
financial allocations, incentive structures for educational
personnel, and the influence of political institutions on the
responsiveness of public leaders. Our analysis reveals the
interrelationships among these six factors and their connections to
broader economic, political, social, and historical realities in each country. We conclude by identifying central elements of public
accountability mechanisms that seem to be the most appropriate
institutional venues to create and maintain the type of sustained,
focused public pressure necessary to achieve lasting improvements
to access and quality.

This paper concerns how legal mechanisms intended to address domestic violence (DV) can be better designed to adequately consider its gendered impacts and complexity. I analyze two traditional legal approaches to DV: a focus on women-only mechanisms and a gender-neutral approach.  I then analyze two jurisdictions that have adopted such approaches to DV: Brazil and the United States, respectively. While each approach has benefits, both also have significant costs. I argue that it is possible to imagine an alternative, substantially more flexible system that is neither focused on women nor is gender-neutral. This alternative, which I call the mosaic approach (MA), aims at making DV law and policy more effective, and more just, by focusing on a mosaic of vulnerabilities, which may be more or less related to gender. The MA then proposes using an empirically-based mosaic of DV policies that match and address these vulnerabilities. At the core of the MA is an insistence upon an ongoing public scrutiny of the political choices that lurk behind resource allocation and vulnerability prioritization. Because public policy and law require some degree of generality, the risk of stereotyping in policy-design is probably unavoidable. This paper argues that the best response to this concern is to bring it to the very forefront of policy-making by actively grappling with how we categorize and prioritize people.

The author identifies how the Ontario Court of Appeal's interpretation of privacy legislation in R v Gowdy, chiefly their interpretation that the law legitimated the practice of institutional disclosure of an individual's HIV status, is only possible in a context in which the identity of those with HIV is constructed through hegemonic discourse conducive to a biopolitical governmentality. After describing the case and exposing its inadequate treatment of privacy protection, the second part of this paper will address the function of the press release in constituting a 'healthy' mass public and the 'diseased' object: the hegemonic function of a biopolitical discourse. It will also address the inscription of this discourse in the legal exegesis of privacy law and the consequent re-ordering of private and public spheres. To describe the discourse serviced by the press release and the inscription of this discourse in the legal understanding of privacy, the author relies upon a theoretical perspective that departs from the language games expected in professional jurisprudence. The author instead assumes a socio-legal frame that enables him to conceptualize the circulation of a discourse within and between institutions, accounting for the absorption of the law of privacy in the formation of this governmentality. Such a system of discourse will be contrasted with that formed in relation to the administration of public health, where the protection of a seropositive individual's privacy is maintained, albeit tenuously.

Cases from the Saskatchewan Court of Queen's Bench show a distention of the "therapeutic purpose test" set out in Re Eve, ordering sterilization to address serious maladies of an increasingly socio-psychological nature. The author suggests this distention allows the therapeutic purpose test to inhere prevailing cultural evaluations of girls with intellectual disabilities. This could allow the court to order invasive procedures like the Ashley X treatment through its parens patriae jurisdiction, if an application were brought before the courts. The author identifies the medical gaze, individual autonomy, and eugenic values as informing the court's cultural evaluations that could precipitate acceptance of the Ashley X treatment. These values are derived from a biomedical-oriented lifeworld that is often given special status in Canadian society, forming the basis of ideology. In his critique of ideology at the judicial-medical interface, the author suggests that superior courts must be mindful of the social construction of disability and relational autonomy as countervailing principles to the medical gaze, individual autonomy, and eugenic culture. Lastly, given cultural evaluations are derived from a society's lifeworld, and that lifeworld constitutes society's perception at a pre-conscious level, Bart van Leeuwen's fourth principle of respect for difference offers final redress.

The Province of Manitoba's The Public Schools Amendment Act (Safe and Inclusive Schools), also known as Bill 18, obligates all Manitoban school boards to create anti-bullying policies that incorporate principles of human rights. This includes, most contentiously, the support of Gay-Straight Alliances (GSAs), which are shown to improve the well-being of lesbian, gay, and bisexual (LGB) children. The language used in the Act suggests the obligation extends to private schools, including denominational schools that are run privately in the province. Despite the defensible objective of curtailing bullying of LGB children, if the means chosen come at a cost to religious freedom, it might be that Bill 18 is unconstitutional. It becomes imperative to inquire into the justification of Bill 18 and to determine whether it strikes the right balance in the context of the competing rights. The resulting analysis must be cognizant of the context and the fact that when rights collide often one or both rights must be limited to allow for their coexistence. The author suggests the relevant factors are: (1) a legal framework that encourages plural values; (2) group right to collective self-determination; and (3) the opposing rights and interests of LGB children. This contextual analysis may assist us as we balance rights under s. 1 of the Canadian Charter of Rights and Freedoms.

The relative magnitude (or intensity) of an event can have direct implications on timing estimation. Previous studies have found that greater magnitude stimuli are often reported as longer in duration than lesser magnitudes, including Arabic digits (Xuan, Zhang, He, & Chen, 2007). One explanation for these findings is that different quantitative dimensions (size, intensity, number) are processed and represented according to a common analog magnitude system (Walsh, 2003). In the current study, we examined whether there were commonalities in how people judge the intervals of time occurring between discrete stimuli of different magnitudes across a variety of quantitative dimensions, which included number, size, and color saturation. It was found that duration judgments increased systematically as the overall magnitude difference between sequentially presented stimuli increased. This finding was robust against manipulations to the direction of the sequence, or whether the sequence followed ordered (continuous) or nonordered (discontinuous) pattern trajectories.

The definition of death is often referred to as a fiction since brain death was conceived in the mid-twentieth century. These observations are generally paired with concern that the fiction depresses the quality of a patient’s consent to post-mortem tissue donation. However, such accounts are theoretically bereft. The author argues that a systems-theoretic account can better explain how fiction contributes to donative practices. He understands fiction as a legal speech act that misrepresents the intentions behind its expressed message. The misrepresentation may induce social behaviour (e.g., consent) consistent with its unstated intentions. In the context of death, these intentions emerge from a system of biopolitics disproportionately concerned with preserving the life of the populace. Determining death early on the continuum of dying may avail more viable tissue and free therapeutic resources to those in need. The operation of fiction will be explored and critiqued from within this socio-legal frame.

The New Turkish Commercial Code has became effective on 1 July 2012. The new Code covers bareboat charterparty, time charterparty, voyage charterparty and contracts of carriage by sea which is defined in general terms. On the other hand, Turkey is the one of the conracting State of Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958) as well as European Convention on International Commercial Arbitration, 1961. In this study, we will examine the effects of the charter party arbitration clauses under the new Turkish Commercial Code and discuss the characteristics of the clauses to be valid under Turkish Law.

ÖZET Gemi işletme müteahhidinin (bareboat charterer) tesciline ilişkin Comite Maritime International (CMI) tarafından yapılan çalışma, 2004 Haziran ayında Vancover'da toplanan 38. Konferansa katılan delegelerin görüşlerine sunulmuştur. Yapılan bu çalışmanın uluslararası alanda ülke uygulamaları ile Türk Deniz Hukuku açısından değerlendirilmesi incelememizin konusunu oluşturmaktadır.