The sound of a breaking string: critical environmental law and ontological vulnerability

This is a thought-provoking contribution on the space of ontological vulnerability as the awareness of being existentially exposed. This space, conceptualised as a space of ‘the middle’ (as opposed, emphatically, to ‘the centre’) offers an opportunity to think away from the sterile debate on eco/anthropocentricity and from such limiting hierarchies as animal/human, human/environmental, natural/artificial. This new, vulnerable position of the middle allows the reconfiguration of ecological processes, and more specifically the position of environmental law in relation to them. Environmental law now finds itself amidst a new, moving, ‘open ecology’ of social, biological and ecological processes. This is a new, radical conceptualisation of what the author has called ‘critical environmental law,’ based upon an epistemology of observation and an ontology of being part of this open ecology. Environmental law, in this light, is simultaneously reformulated as an invitation to disciplinary and ontological openness and yet a call to remain immanent within existing legal structures. This finds expression in four critical environmental positions that set the stage for the further elaboration of a critical environmental law.

Giving guilt: the aneconomy of law and justice

The concept of guilt is seen here as debt beyond repayment. Following Derrida, the gesture of giving is placed in the economy of gift, an aneconomical gift that is not part of the exchange cycle. At the same time, guilt is linked to desire, the desire to give and to be free from guilt. Desire is described as the urge to cross over, to apprehend the non-identical and to give oneself away. In this reinforced crossing, where the improbability of giving conditions the improbability of reaching out, guilt and its impetus are found locked up in claustrophobic self-reference. For this reason, the author consults Kierkegaard and Luhmann whose contributions show that the gesture of giving acquires its relevance not so much on account of its recipient, but precisely because of the absence of such a recipient. The combination of an absent recipient and an absented giver fills the gift with an emptiness that can only be channelled back upon itself, in the autopoietics of guilt. This is exactly the fate of the law, which can deal with the guilty but never with guilt (in the above sense). In its attempt to give away guilt, the law attempts to become other than itself: justice. The improbability of crossing over becomes more obvious than ever.

EU Criminal Law and Enlargement

Since creation of the European Communities the number of Member States has gradually increased from the original six to current twenty-eight. Enlargement has become an EU’s flagship external policy, demonstrating the EU’s ability to shape its neighbourhood and to serve as a catalyst of deep and multilayered reforms. The consecutive seven enlargement rounds went in parallel with widespread internal developments, culminating with the creation of the European Union and, most recently, entry into force of the Treaty of Lisbon. As this volume demonstrates, EU criminal law has evolved considerably from its early days under the legal framework laid down by the Treaty of Maastricht to its current post-Lisbon shape. On 1 December 2014, that is with expiry of a five year transitional regime for the jurisdiction of the Court of Justice, Police and Judicial Co-operation in Criminal Matters became a fully fledged EU policy, governed largely by the same modus operandi as other areas of EU competence and with compulsory jurisdiction of the Court of Justice. As EU criminal law developed internally, so did its external dimension, including the role it plays in the enlargement policy. In case of the latter the expiry of the same transitional period has brought to an end a rather anomalous situation whereby the European Union had more enforcement tools before and after accession vis-à-vis its future/new Member States than it could employ against the old ones. This bifurcation, quite rightly, triggered a lot of discussions about double standards used by the European Union in its pre-accession policy. This is exacerbated by the fact that some of those standards are neither defined in EU law, nor pursued vis-à-vis the existing EU’s Member States. The aim of this chapter is to demonstrate that evolution with particular emphasis on the role of EU Criminal Law in the policy currently employed by the European Union vis-à-vis candidate and potential candidate countries of the Western Balkans and to Turkey. Arguably, together with political conditionality, it has become one of the pillars of the enlargement process and, as the examples of accession negotiations with Montenegro and Serbia prove, its role is likely to increase as rapprochement of other candidates and potential candidates progresses to the next stages.

Power law and entropy analysis of catastrophic phenomena

Catastrophic events, such as wars and terrorist attacks, tornadoes and hurricanes, earthquakes, tsunamis, floods and landslides, are always accompanied by a large number of casualties. The size distribution of these casualties has separately been shown to follow approximate power law (PL) distributions. In this paper, we analyze the statistical distributions of the number of victims of catastrophic phenomena, in particular, terrorism, and find double PL behavior. This means that the data sets are better approximated by two PLs instead of a single one. We plot the PL parameters, corresponding to several events, and observe an interesting pattern in the charts, where the lines that connect each pair of points defining the double PLs are almost parallel to each other. A complementary data analysis is performed by means of the computation of the entropy. The results reveal relationships hidden in the data that may trigger a future comprehensive explanation of this type of phenomena.

An impact evaluation of the Ontario ban on smoking in schools and on school property : does the ban on smoking influence high school students' intentions to smoke cigarettes?

The Ontario Tobacco Control Act of 1994 imposed a total ban on smoking in schools, and on school property for every school in the province. The imposition of this policy created problems for school administrators. For instance, students who were smoking on walkways and properties adjacent to school boundaries, clashed with neighbouring property owners who were angry about the resulting damage and disruption. The enforcement of this policy consumes valuable resources at each school; therefore, knowledge about the impact of the policy is important. If effective, this policy has the potential to improve the health of students over their lifetime, by preventing or delaying smoking behaviour. Alternatively, an ineffective policy will continue to create administrative problems for the school and serve no legitimate purpose. Therefore, knowledge about the impact of the smoking ban policy on students' smoking intentions assists policy makers and school administrators in their understanding of the policy's impact within the schools. This research provided an impact evaluation of the ban on smoking in schools and on school property in Ontario. A total of 2069 students, from five high schools, in the Niagara Region, provided complete responses to a survey, designed to test whether smoking intentions were affected by the imposition of the policy. The study used Ajzen's theory of planned behaviour (Ajzen, 1991), specifically, the perceived behavioural control measure, to gain some understanding of students' perceptions of control over smoking imposed by the ban. The findings indicate the policy has the potential to influence students' overall smoking intentions. The ban on smoking policy was found to be a significant predictor of the smoking intentions of high school students. As well, attitude, social norms, and perceptions of control were significant predictors of smoking intentions. Exploratory findings also indicated differences between the control beliefs of students from different high schools, indicating potential differences in the enforcement of the smoking ban between schools. The findings also support the utility of the theory of planned behaviour as a methodology for evaluating the influence of punitive policies. This research study should be continued by utilizing the full theory of planned behaviour, including two phases of data collection and the measurement of actual smoking behaviour.

Multinational drug corporations, intellectual property rights and the Canadian state : a historical and critical analysis

This study critically analyzes the historical role and influence of multinational drug cotpOrations and multinational corporations in general; the u.s. government and the Canadian state in negotiating the global recognition ofIntellectual Property Rights (IPR) under GATT/NAFTA. This process began in 1969 when the Liberal government, in response to high prices for brand-name drugs amended the Patent Act to introduce compulsory licensing by reducing monopoly protection from 20 to seven years. Although the financial position ofthe multinational drug industry was not affected, it campaigned vigorously to change the 1969 legislation. In 1987, the Patent Act was amended to extend protection to 10 years as a condition for free trade talks with the u.s. Nonetheless, the drug industry was not satisfied and accused Canada of providing a bad example to other nations. Therefore, it continued to campaign for global recognition ofIPR laws under GATT. Following the conclusion of the GATTI Trade-Related aspects of Intellectual Property Rights agreement (TRIPS) in 1991, the multinational drug industry and the American government, to the surprise of many, were still not satisfied and sought to implement harsher conditions under NAFTA. The Progressive Conservative government readily agreed without any objections or consideration for the social consequences. As a result, Bill C-91 was introduced. It abandoned compulsory licenses and was made retroactive from December 21, 1991. It is the contention of this thesis that the economic survival of multinational corporations on a global scale depends on the role and functions of the modem state. Similarly, the existence of the state depends on the ideological-political and socioeconomic assistance it gives to multinational corporations on a national and international scale. This dialectical relation of the state and multinational corporations is explored in our theoretical and historical analysis of their role in public policy.

The Ontario Municipal Freedom of Information and Protection of Individual Privacy Act: an analysis of its application to school boards

In Canada freedom of information must be viewed in the context of governing -- how do you deal with an abundance of information while balancing a diversity of competing interests? How can you ensure people are informed enough to participate in crucial decision-making, yet willing enough to let some administrative matters be dealt with in camera without their involvement in every detail. In an age when taxpayers' coalition groups are on the rise, and the government is encouraging the establishment of Parent Council groups for schools, the issues and challenges presented by access to information and protection of privacy legislation are real ones. The province of Ontario's decision to extend freedom of information legislation to local governments does not ensure, or equate to, full public disclosure of all facts or necessarily guarantee complete public comprehension of an issue. The mere fact that local governments, like school boards, decide to collect, assemble or record some information and not to collect other information implies that a prior decision was made by "someone" on what was important to record or keep. That in itself means that not all the facts are going to be disclosed, regardless of the presence of legislation. The resulting lack of information can lead to public mistrust and lack of confidence in those who govern. This is completely contrary to the spirit of the legislation which was to provide interested members of the community with facts so that values like political accountability and trust could be ensured and meaningful criticism and input obtained on matters affecting the whole community. This thesis first reviews the historical reasons for adopting freedom of information legislation, reasons which are rooted in our parliamentary system of government. However, the same reasoning for enacting such legislation cannot be applied carte blanche to the municipal level of government in Ontario, or - ii - more specifially to the programs, policies or operations of a school board. The purpose of this thesis is to examine whether the Municipal Freedom of Information and Protection of Privacy Act, 1989 (MFIPPA) was a neccessary step to ensure greater openness from school boards. Based on a review of the Orders made by the Office of the Information and Privacy Commissioner/Ontario, it also assesses how successfully freedom of information legislation has been implemented at the municipal level of government. The Orders provide an opportunity to review what problems school boards have encountered, and what guidance the Commissioner has offered. Reference is made to a value framework as an administrative tool in critically analyzing the suitability of MFIPPA to school boards. The conclusion is drawn that MFIPPA appears to have inhibited rather than facilitated openness in local government. This may be attributed to several factors inclusive of the general uncertainty, confusion and discretion in interpreting various provisions and exemptions in the Act. Some of the uncertainty is due to the fact that an insufficient number of school board staff are familiar with the Act. The complexity of the Act and its legalistic procedures have over-formalized the processes of exchanging information. In addition there appears to be a concern among municipal officials that granting any access to information may be violating personal privacy rights of others. These concerns translate into indecision and extreme caution in responding to inquiries. The result is delay in responding to information requests and lack of uniformity in the responses given. However, the mandatory review of the legislation does afford an opportunity to address some of these problems and to make this complex Act more suitable for application to school boards. In order for the Act to function more efficiently and effectively legislative changes must be made to MFIPPA. It is important that the recommendations for improving the Act be adopted before the government extends this legislation to any other public entities.

A case study of the Ottawa Valley whitewater rafting industry : standards and risks

This qualitative case study identifies and discusses the standards and risk management practices of the Ottawa Valley whitewater rafting industry and the impacts of the government enforced Special-purpose Vessels Regulations are discussed. Data collection occurred using a single case study design, which included interviews and document analysis. This study found that internal, industry, and actual standards are influenced through a variety of sources. These standards were found to affect the risk management practices of commercial whitewater rafting providers. In general, these standards promoted a high level of risk management within the Ottawa Valley rafting industry. The Special-purpose Vessels Regulations were found to be non-influential in raising the risk management standards of the Ottawa Valley whitewater rafting industry.

Fitness to stand trial : how discourses of rationality, reasonableness and culpability inform the law and psychiatry to create standards of normal

The objective of this thesis is to demonstrate the importance of the concepts of rationality, reasonableness, culpability and autonomy that inform and support our conception of both the person and the punishable subject. A critical discourse analysis tracing these concepts through both the law and psychological tools used to evaluate the fitness of a person reveals that these concepts and their implied values are inconsistently applied to the mentally disordered who come into conflict with the law. I argue that the result of this inconsistency compromises a person's autonomy which is a contradiction to this concept as a foundational principle of the law. Ultimately, this thesis does not provide a solution to be employed in policy making, but its analysis leaves open possibilities for further exploration into the ways legal and social justice can be reconciled.

The law and economics of good faith in the civil law of contract

Good faith plays a central role in most legal systems, yet appears to be an intractable concept. This article proposes to analyse it economically as the absence of opportunism in circumstances which lend themselves to it. One of the objectives underlying the law of contract on an economic view is to curtail opportunism. In spelling out what this means, the paper proposes a three-step test: bad faith is present where a substantial informational or other asymmetry exists between the parties, which one of them turns into an undue advantage, considered against the gains both parties could normally expect to realise through the contract, and where loss to the disadvantaged party is so serious as to provoke recourse to expensive self-protection, which significantly raises transactions costs in the market. The three-step test is then used to analyse a set of recent decisions in international commercial transactions and three concepts derived from good faith: fraud, warranty for latent defects and lesion.

The Law and Economics of the Civil Law of Mandate

Présentation à la Annual Law & Economics Conference 2007, Université de Bologne.