Law's Expression: The Promise and Perils of Judicial Opinion Writing in Canadian Constitutional Law
Bibliographic record
Abstract
This article argues that there is a link between ones theory of constitutional law and ones judgments about style in judicial opinion writing It identifies several special functions of the constitutional opinion including the democratic function of responding to the countermajoritarian difficulty through an act of public justification and the intergenerational function of provoking a temporally extended dialogue about constitutional values Drawing on these functions it argues for an opinion writing style dubbed opentextured minimalism which seeks to resolve cases narrowly articulate fundamental values and principles and spark longterm debates about the underlying values supporting each decision The article then applies these lessons to the Canadian Supreme Courts rulings on freedom of expression arguing that the Courts rulings on this subject in the first two decades of the Canadian Charter of Rights and Freedom suffered from their length and technicality and that the Court should have taken a more opentextured minimalist approach Although the article addresses Canadian law specifically its attempt to draw connections between constitutional theory and opinion style and its advocacy of an opentextured minimalist approach should be of interest to readers in the United States and elsewhere particularly lawyers in countries whose constitutional jurisprudence is still relatively young
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.013 | 0.049 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.003 | 0.004 |
| Science and technology studies | 0.030 | 0.046 |
| Scholarly communication | 0.024 | 0.008 |
| Open science | 0.003 | 0.005 |
| Research integrity | 0.004 | 0.009 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".