A Reply to Professor Pothier's Review of Power Without Law: The\nSupreme Court of Canada, the Marshall Decisions and the\nFailure of Judicial Activism
Bibliographic record
Abstract
The Spring 2010 edition of the Dalhousie Law Journal contains an article by Professor Dianne Pothier, discussing my book, Power Without Law: The Supreme Court of Canada, The Marshall Decisions and the Failure of JudicialActivism. In the review, Professor Pothier strongly disagrees with the book's critique of the Supreme Court of Canada's majority decision in R. v. Marshall. In particular, she disagrees with the argument that the alleged treaty right of aboriginals to hunt, fish, gather and trade for necessaries, described in Justice Binnie's majority decision, is constitutionally flawed. Professor Pothier also suggests that the argument is the central thesis of the book. This is not so. The book enumerates numerous factual and interpretative mistakes found in the decisions of both the trial Court and the Supreme Court of Canada. All of them are problematic. For example, the book describes findings of fact made by the Supreme Court of Canada in the face of contrary evidence and the findings of the trial judge. It also describes the inability of the Crown's expert to discuss a document that the Supreme Court of Canada considered vital. It comments on the fact that the argument adopted by the majority of the Supreme Court of Canada was first advanced in that Court, and was never tested in the lower courts. The constitutional flaw in the majority analysis of the treaty right is simply one among many other serious deficiencies in the two judgments. But it is the one Professor Pothier chooses to dispute.
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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 | 0.010 | 0.045 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.002 | 0.002 |
| Bibliometrics | 0.003 | 0.005 |
| Science and technology studies | 0.008 | 0.013 |
| Scholarly communication | 0.012 | 0.017 |
| Open science | 0.005 | 0.005 |
| Research integrity | 0.040 | 0.045 |
| Insufficient payload (model declined to judge) | 0.007 | 0.002 |
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".