Having Fun with Public Law

1. Having Fun with Public Law

2. Importance of 1L Exams

3. Importance of 1L Exams • First year marks are the most important marks for jobs • DO NOT FREAK OUT

4. Importance of 1L Exams • Not about being smarter – it is about learning the skill of writing law exams • Spend time understanding the material and making outlines that work for you

5. Keys to Success

6. Keys to Success • 1) Structure • 2) Old Exams

7. Problems on Law Exams

8. Problems on Law Exams 2 Main Issues

9. Problems on Practice Exams 1) Prioritization and Time Management • It is a fact for ALL law exams: there are more issues than there is time • Learning how to identify key issues is the point of law school exams • This is the key to getting an A • If strapped for time, identify smaller issues and move on • Knowing what NOT to write is part of what you are being tested on

10. Problems on Practice Exams OUTLINE OUTLINE OUTLINE

11. Problems on Practice Exams 2) Proper Reasoning • Students often are too blunt • Weigh and debate the options • Apply the principles TO THE FACTS GIVEN TO YOU • Engage with the facts and USE THE STATUTORY PROVISIONS PROVIDED • Do not lose sight of your role given to you on the exam THIS IS WHERE YOU GET YOUR MARKS!!!!

12. How to Structure a Public Law Exam

13. How to Structure a Public Law Exam Introduction • Do not waste time “setting the mood” • At most, recap what you will do

14. Example Introduction This situation raises many complicated legal issues. As an articling student at the DOJ I would be pleased to have this file. When assessing this situation I must look at several important juristic principles blah, blah, blah. History of the common law....Marbury v. Madison...blah, blah, blah.

15. Example Introduction Paul has sought my legal advice regarding the removal of his pitbull, Prudence, by the “Pits are the Pits” Tribunal.

16. Example Introduction Paul can challenge this decision in three ways. First, the tribunal breached the duty of fairness owed by not providing Paul a hearing (i.e. procedural judicial review). Second, the tribunal erred in deciding that it had the jurisdiction to decide what a “Pitbull” is (i.e. substantive procedural review). Third, the tribunal erred in deciding that Sunshine was a “Pitbull” as defined in the relevant statute (i.e. substantive judicial review).

17. How to Structure a Public Law Exam Headings and Subheadings • THIS IS KEY FOR CORBETT • Make it easy for your professor to give you marks and follow your logic • Makes it easier for you to adjust your answer as you go Short sentences and paragraphs • Patronize your professor’s intelligence • Spell out what you want to say

18. Identifying Issues

19. How to identify issues • The point of law school! • When studying, ask: • How could this issue come up in a fact pattern? • How would I use this test on an exam? • Make sure you can explain each step!

20. Non-Issues • Don’t obsess over non-issues • Knowing what NOT to write is part of what you are being tested on

21. The Tests

22. The Tests • Determine the right test • Cite the case that the test came from • Go through the test pulling the relevant facts from the fact pattern • Do NOT just write out the test straight from your outline • DEMONSTRATE that you understand how the test works • Follow the test through all of its steps, no matter what conclusions you reach

23. Applying the Tests & Doctrines

24. Judicial Review • Procedural • Determine standard (correctness) • 3 Baker questions • Substantive • Determine standard (sufficient for this class) • Review substantive law pertaining to the decision to see if it is reasonable/correct

25. Procedural Review THREE BAKER QUESTIONS: • Was there a duty owed? • What was the content of the duty? • Was the duty breached?

26. 1) Was there a duty owed? • Only get what the statute gives you [Ocean Port] • Common law duty fills the gaps [Cooper] • If statute is silent, then get common law duty • I.e. notice, hearing, reasons

27. 2) What was the content of the duty? Apply the Baker 5 factors to the FACTS to determine the scope and content of fairness • Nature of Decision • Role of Decision in Statutory Scheme • Importance of Decision to Individual • Legitimate Expectations • Procedural Choice of the Body

28. 3) Was the duty breached? • Audi Alteram • Duty to hear the other side • Notice, hearing, reasons (or whatever statute specifies) • NemoJudex • Direct bias • Reasonable apprehension of bias

29. Substantive Review • Step 1: Use Dunsmuir 4 factors to determine what standard of review applies • If no or little deference  Correctness Standard • If more deference  Reasonableness • Step 2: Using appropriate standard, determine whether decision correct or unreasonable

30. Notice the Shift • First half of this course is about assessing whether the legislation itself is valid under the constitutional division of powers • But the judicial review analysis is the power given to a decision-maker or administrative body under what was assumed to be valid legislation

31. Validity: Pith & Substance Is the legislation itself valid? • 1) Characterization: Purpose & Effect of the Act (Morgentaler) • Colourability Doctrine • 2) Delineate Scope of Power (Reference re Employment Insurance Act) • 3) Classification: Head of Power

32. Validity: Double Aspect • Some matters can be competently dealt with under both federal powers (s.91) and provincial powers (s.92) • Multiple Access

33. Ancillary vs. Necessarily Incidental Ancillary Doctrine • Apply when a single provision which is part of a larger scheme of legislation is found invalid • If whole validity of legislation is challenged then THIS DOES NOT APPLY Necessarily Incidental Doctrine • This applies when a valid Act or provision incidentally impedes or encroaches on the other jurisdiction

34. Validity: Ancillary Doctrine • 1) a) Does this provision intrude into the other head of power? b) To what extent? • 2) Is the Act valid? • Note: Act can be valid in pith & substance but incidentally affect the other jurisdiction, this is necessarily incidental doctrine!) • 3) Nature of connection between provision and legislation • If encroachment serious  must be more rationally connected • If encroachment is marginal  rational and functional connection test

35. Applicability: Interjurisdictional Immunity Must the valid provincial legislation or provision be “read down” to protect a recognized core area of federal jurisdiction? • Note: The statute itself will stand but its incidental affects will be limited so they do not encroach on federal matters • Note: There does not have to be existing federal law on the matter for this to apply

36. Applicability: Interjurisdictional Immunity • 1) Does the provincial law trench upon a core part of the exclusive federal jurisdiction? • It can only apply to areas already acknowledged as federal undertakings or areas of exclusive, unassailable jurisdiction • 2) Is it seriously sufficient in its effect to invoke the doctrine? • Does it impair the federal exercise of its core competence

37. Operability: Federal Paramountcy If there are two overlapping laws then: • 1) Is each law valid? • Determine via Pith & Substance for each law • 2) Are they conflicting? • Can you comply with both? • If not  provincial power yields to federal • 3) If you can comply with both, does complying with the provincial law frustrate Parliament’s legislative power?

38. POGG • 2 branches: 1) Emergency Branch • Scope of Legislation • Temporary/Permanent • Preamble of Act • Extrinsic Evidence • Federal Jurisdiction

39. POGG • 2 branches: 2) National Concern Branch • Singularity • Newness • Growth • Provincial Inability

40. Recap: Resolving Conflict Potential conflict between an intra-vires federal law and an intra-vires provincial law • If intrusion • Interjurisdictional immunity • Intrusion is necessary incidental • If conflict • Pure operational conflict • Resolution to conflict is paramountcy OR concurrent legislation (double aspect) • No conflict (remember, this is a possibility) • Double aspect

41. How Corbett Marks

42. What he says: “Based on issue recognition and depth of discussion”

43. Issue recognition • A = picking up all the issues he had in mind • Get marks if you mention it, even if you do not discuss it • Put ALL issues in introductory paragraph

44. Depth of discussion • A = with each issue, using the facts in the problem • Does NOT mean who has the longest answer • Balance between hitting all important points under each issue AND covering all the issues

45. Mentioning Cases • Not obsessed with this • However, need to mention the big ones • Procedural fairness without Baker is wrong • Substantive review without Dunsmuir is wrong

46. Form • Corbett more concerned about form than other professors • Spelling and grammar • “There shouldn’t be moments where I don’t know what is going on”

47. General Exam Tips • Time management • Sketch your answer • Answer = All Possible Answers • However, if I am wrong... • Point First Writing

48. Questions???