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Record W4253002096 · doi:10.32920/ryerson.14638116

Unmixing the mixed questions: a framework for distinguishing between questions of fact and questions of law in contractual interpretation

2021· preprint· en· W4253002096 on OpenAlexaffabout
Daniele Bertolini

Bibliographic record

Venuenot available
Typepreprint
Languageen
FieldEconomics, Econometrics and Finance
TopicLaw, Economics, and Judicial Systems
Canadian institutionsUniversity of British Columbia
Fundersnot available
KeywordsDeferenceSupreme courtLawInterpretation (philosophy)AppealPolitical scienceCommon lawJudicial deferenceCriticismLaw and economicsSociologyComputer science

Abstract

fetched live from OpenAlex

In Sattva Capital Corp v Creston Moly Corp, the Supreme Court of Canada established that contractual interpretation generally involves questions of mixed fact and law subject to a standard of palpable and overriding error, unless an extricable error of law is identified. The Court confirmed and specified this holding in a number of subsequent decisions. The new approach to appellate deference has sparked criticism from various parties in the legal community. A tension has emerged between the Supreme Court shifting away from the historical common law approach to deference and the appellate courts’ attempts to restore it. This article examines the theoretical foundations of this new case law development and proposes a methodological framework for distinguishing between questions of law and question of fact in contractual interpretation. The ultimate goal is to provide guidance on the choice of the appropriate standard of appellate review in this area. First, it is argued that the recent case law development introduced by the Supreme Court lacks rigorous analytical foundations and fails to provide adequate guidance on choosing the appropriate degree of deference on appeal. Second, it is contended that a useful methodological approach for distinguishing between questions of fact and questions of law is 1) to identify the cognitive task performed by the judge when adjudicating the contended issue, and 2) to assess the relative advantage of adjudicating actors in performing that cognitive task. Cognitive task refers to the type of judicial reasoning, or inferential activity, the judge performs when deciding an issue.

Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.

How this classification was reachedexpand

Full frame machine prediction

Teacher imitation

Not 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.

metaresearch head score (Codex)0.103
metaresearch head score (Gemma)0.081
Version: metacan-v3-hybrid-931329e0061cValidation status: machine_predicted_unvalidated
Candidate categoriesnone
Consensus categoriesnone
DomainCandidate signal: none · Consensus signal: none
Study designCandidate signal: Theoretical or conceptual · Consensus signal: Theoretical or conceptual
GenreCandidate signal: Methods · Consensus signal: Methods
Teacher disagreement score0.103
Threshold uncertainty score0.544

Distilled classifier scores by category (both heads)

CategoryCodexGemma
Metaresearch0.1030.081
Meta-epidemiology (narrow)0.0020.002
Meta-epidemiology (broad)0.0020.003
Bibliometrics0.0180.009
Science and technology studies0.0130.113
Scholarly communication0.0250.056
Open science0.0080.016
Research integrity0.0130.012
Insufficient payload (model declined to judge)0.0040.001

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.

Opus teacher head0.048
GPT teacher head0.285
Teacher spread0.237 · how far apart the two teachers sit on this one work
Validation statusscore_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from it

Classification

machine, unvalidated

Machine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.

The models applied no category: nothing in the taxonomy fit this work.
Study designTheoretical or conceptual
Domainnot available
GenreMethods

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".

Quick stats

Citations0
Published2021
Admission routes2
Has abstractyes

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Same topicLaw, Economics, and Judicial SystemsFrench-language works237,207