Bibliographic record
Abstract
As a species of private law governed by common law principles shaped by judicial pronouncements, negligence law contemplates an innate measure of judicial creativity and legal development that defies the descriptor of "activism" as it has been employed in public law discourse. This paradox of "judicial activism" in negligence law notwithstanding, recent pronouncements---notably from the Supreme Court of Canada in cases of vicarious liability and recovery of pure economic loss---suggest that the judicial ability to fashion outcomes is, or ought to be, circumscribed. One prominent commentator has suggested that the Court has gone "too far" in privileging "policy" considerations at the expense of "legal principle." This criticism goes to the nature of the judicial role, and to negligence law's capacity to serve as a normative guide to that role. Assessing such criticism requires engaging the paradox of judicial activism in negligence law, which in turn requires justifying a conception of judicial activism that accounts for the way in which courts apply and develop legal rules and which isolates that judicial method from policy considerations. Because, however, policy considerations have become prevalent in positively expressed negligence law, the problem arises at a pragmatic level of how to do justice without acting upon an ingrained activist impulse. Resolution is achieved in an understanding of the liability inquiry as conforming to the law's linguistic scheme of rights and corresponding duties, based upon retrospective assumed values whose origins are deeply rooted in the law, not prospective conceptions of the common wealth. The distinction between legal language and policy is amplified and given positive account by considering objections---(1) Non-legal language cannot account for law; (2) Legal language cannot account for policy; and (3) Non-legal language is necessary to achieve law reform. These objections can be answered with reference to three areas of the law of negligence---vicarious liability, relational economic loss and loss of bargain---in which activist rationales have displaced non-activist justifications for the governing rules. In the result, not only are the conceptual and pragmatic weaknesses of activist jurisprudence illuminated, but the potential for non-activist reform is unseen.
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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 | 0.009 | 0.015 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.001 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.007 | 0.032 |
| Scholarly communication | 0.010 | 0.006 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.013 | 0.012 |
| 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".