Time for a pluralist approach? Judicial review of non-state decision makers in Canada
Bibliographic record
Abstract
The doctrinal project of delineating the supervisory jurisdiction of the common law courts and the scholarly project of elucidating the public law–private law divide have had a long and close relationship. The Supreme Court of Canada strengthened this relationship in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, establishing a bright-line test for the availability of judicial review that takes a presumed state/non-state dichotomy as its organizing principle. In this article, I build on existing critiques of the decision, describing how Wall’s categorical paradigm has reduced the judicial oversight of powerful decision makers that have historically been subject to standards of fairness and rationality. However, I also use Wall to raise a more fundamental question, which is whether the public law–private law divide continues to provide the best vocabulary and framework for determining judicial review’s boundaries. I explore legal pluralism, a project that has developed in parallel with the public law–private law scholarship and consider whether it might provide a superior framework for understanding the challenges to practices of normative decision making that lie at the heart of cases like Wall. I argue that legal pluralism is more phenomenologically correspondent than the public law–private law divide with cases involving norm-generating communities and more coherent with the values that the common law supervisory jurisdiction should be seeking to promote.
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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 | 0.024 | 0.077 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.000 |
| Bibliometrics | 0.003 | 0.004 |
| Science and technology studies | 0.029 | 0.016 |
| Scholarly communication | 0.021 | 0.005 |
| Open science | 0.004 | 0.006 |
| Research integrity | 0.006 | 0.007 |
| 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".