Presentation Transcript

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 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. Short Guide To Essays
19. Short Guide To Essays First Paragraph: Thesis Statement Take a stand Middle Paragraphs: Three(ish) main points that support my thesis A Paragraph Near the End: Criticism of my thesis AND rebuttal to that criticism Final Paragraph: In sum, my thesis is right Use Case Law!
20. Identifying Issues
21. 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!
22. Non-Issues Don’t obsess over non-issues Knowing what NOT to write is part of what you are being tested on
23. The Tests
24. 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
25. Applying the Tests & Doctrines
26. Applying the Test & Doctrines 1) Procedural Review 2) Substantive Review 3) Residential Tenancies Test 4) Validity: Pith & Substance, Double Aspect Doctrine, Necessarily Incidental Doctrine and Ancillary Doctrine 5) Applicability: Interjurisdictional Immunity 6) Operability: Federal Paramountcy, Double Aspect Doctrine (again), 7) POGG: National Concern & Emergency 8) General Regulation of Trade (really Pith & Substance) 9) Criminal Law (again Pith & Substance)
27. Procedural Review THREE BAKER QUESTIONS: Was there a duty owed? What was the content of the duty? Was the duty breached?
28. 1) Procedural Review 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
29. 2) Substantive Review Step 1: Use Dunsmuir4 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 analysing the power given to a decision-maker or administrative body under what was assumed to be valid legislation Now you are assessing whether the legislation itself is valid under the constitutional division of powers
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. General Exam Tips Time management Sketch your answer Answer = All Possible Answers However, if I am wrong... Point First Writing
42. Questions???