The essay assignment consists of writing a judgment writing assignment from the facts scenario provided below. No independent topics or other types of assignment will be accepted in this course.
The judgment is worth 30% of the final grade. The expected length of this written assignment is roughly 12-15 pages. It is due April 1, 2004. No extensions are allowed except under exceptional circumstances. Late papers will be docked 2% per day of lateness (including weekends).
The skeleton outline for the judgment is due February 5, 2004 and is worth 10% of the final grade. No extensions are allowed except under exceptional circumstances. Late skeleton outlines will be docked 2% per day of lateness (including weekends). The skeleton outline should be a summary of what you think the content of your judgment will be, and should therefore follow the same format as the judgment. The purpose of the skeleton outline is to give the course director or teaching assistant an opportunity to comment on your analysis to date, and to give you direction.
The skeleton outline is compulsory. The final judgment paper
will not be graded unless the student has completed a skeleton outline
and takes into account the comments on the skeleton outline in preparing
for the final judgment assignment.
Skeleton Outline Assignment:
Again, the skeleton outline assignment for your judgment is due February 5, 2003 and is worth 10% of the final grade. Also note, again, it is compulsory.
Skeleton Outline – Judgment Assignment: For the judgment assignment, certain requirements exists (i.e. must be included in the outline). They include:
1) Facts: Your skeleton judgment must include a brief summary of the important facts of the case.
2) Issue(s): Your skeleton judgment must include a list outlining all of the issue(s) raised in the case.
3) Decision: Your skeleton judgment must include your judgment about who should win this case. Please note that you decision is a proxy for a thesis and therefore must be clear and concise, stating who wins this case and why.
4) Ratio: Your skeleton judgment must include a brief summary of the ratio(s) of your decision (i.e. key legal reasoning behind the decision).
5) List of Sources: Your skeleton outline must include at least
5 sources (i.e. cases, books, journal articles).
Judgment – Final Assignment:
Writing a judgment, as the name suggestions, is an exercise in writing a decision, like a judge, about a particular set of facts. The purpose of the judgment assignment is to allow the writer an opportunity to draw his/her own conclusions given a set of facts and the law. Further, it is to provide those students who wish to apply to law school with a glimpse of the type of work that will be expected of them while at law school. Writing a judgment should therefore be considered as a descriptive, analytical and interpretive assignment as well as an opportunity to gain the law school experience.
A successful judgment combines description and analysis. The facts need to be described succinctly. At the same time, the law itself must be analyzed and applied to the facts. Understanding the state of the law means having some knowledge of precedent decisions in the area under investigation. Hence, a judgment will include a brief chronicle of how the court has decided similar cases. Further, it will then apply the precedents to the facts at hand to render a decision concerning a particular issue raised by the facts.
Describing the details of the facts and the legal precedents do not exhaust the requirements of an effective judgment. Since cases now raise social and political questions, it is fair for the judge to look at these issues. In other words, a judgment should also, where appropriate, address any possible social and/or political consequences of the final decision. Hence, a successful judgment will draw on the wider social and political context to better explain why a particular decision was made.
A judgment is not unlike a conventional essay insofar as its general structure is concerned. It must begin with a concise introduction, including a thesis statement, wherein the legal issues are clearly identified. The body of the judgment must be illustrative of the thesis statement by providing factual evidence supporting the thesis, and the conclusion must be well grounded in what has come before. Because the judgment assignment deals with legal, political and social controversies, students should be prepared to take a strong position on the issues raised by the facts and be prepared to defend that position(s) using legal, social and/or political arguments. Further, students should feel free to criticize earlier precedents and even depart from them if they so desire (though any criticisms and/or departures need to be well-grounded in an argument and supported by some type of evidence). Remember, when making a judgment, there are no right or wrong answers, some are just better than others.
While there is no established set of rules as to how to write
a judgment, the following sets out some broad parameters, which may prove
useful when contemplating how to proceed.
1) Organization: The paper should be organized in a manner that is logical. Students are therefore encouraged to use subheadings in their paper to help organize their thoughts by creating a “roadmap” for the paper.
2) Types of Subheadings: While subheadings are optional, if they are going to be used, the following should be considered as the initial “streets” on the “roadmap”.
a. Introduction: The introduction sets out the context for the discussion by establishing why a specific case has been selected for commentary. It includes a thesis statement outlining what the paper is going to analyze and why said analysis is important.
b. Background of the Case: A background to the case is, as its name implies, a background of important information about the case. Included in this are:
c. Judgment: This is your actual judgment. It is always useful to commence your Judgment with a restatement of your thesis to ensure you keep on track while writing your commentary. While writing your judgment, you may want to include additional sub-headings to further break your analysis down according to the different issues raised by the fact scenario. Feel free to do so as it helps to ensure a stronger organization.
d. Conclusion: Your conclusion is important because it is your opportunity to leave a lasting impression on the reader. It should be a short and concise summary of your decision(s) regarding the different issues raised by the fact scenario.
e. Bibliography: Your paper must have a minimum of 10 sources. Please note that you only source sources you actually cite in your paper.
3) Read Entire Case(s): You should, where possible, read the entire case rather than the summary of the case. While case summaries will give you the basic bones of the case, they will not provide you with any meaningful analysis of the case, which you will need for your assignment.
4) Note Dissenting Opinions: It is useful to note any dissenting opinions (if written) because these opinions can give you some indication of how controversial the majority decision is, and may provide you with a line of criticism about a decision.
5) If In Doubt, Ask For Help: If you have any questions whatsoever, ask for help. It is always better to ask than to remain silent and later find out you did not include something that was vital.
Hypothetical Judgment Assignment – Changing the Definition of Marriage:
It is January 1, 2004. The federal cabinet has just sent a series of reference questions to the Supreme Court of Canada concerning the validity of Parliament’s proposed changes to the definition of marriage. As it stands now, marriage is defined as a union between a man and a woman. However, under Parliament’s new definition, marriage will be defined as a union between two individuals [regardless of sex].
Shortly after the cabinet sent the reference questions to the Supreme Court of Canada, Ralph Klien, the Premiere of Alberta, stated he would use s. 33 – the Notwithstanding Clause – of the Charter if the Supreme Court found that Parliament’s new definition of marriage was constitutional in order to avoid registering marriages within the province. In order to expedite the legal process and avoid any legal confusion, the Attorney General of Canada and the Supreme Court agreed to allow the Attorney General of Alberta to attach his or her own reference question [normally, the Attorney General would send a reference question to the Court of Appeal within the province first].
At the hearing, counsel for the Attorney General of Canada raises three arguments. First, counsel for the A.G. of Canada argues that the new definition of marriage does not violate s. 2(a) of the Charter and, in the alternative, if a violation exists, it can be justified under s. 1 of the Charter. During the portion of this argument, counsel for the A.G. of Canada assured the Court that Parliament would not force religious institutions to marry same-sex couples. Second, counsel for the A.G. of Canada argues that the definition of marriage needs to be altered in order to ensure that the definition of marriage does not violate s. 15(1) of the Charter and that if such a violation exists it cannot be justified under s. 1 of the Charter. Finally, counsel for the A.G. of Canada argues that the government of Alberta cannot use s. 33 of the Charter since it has the authority over “marriage and divorce” under s. 91(26) of the Constitution Act, 1982.
At the hearing, counsel for Alberta raise three arguments. First, they argue that the new definition of marriage proposed by Parliament violates s. 2(a) of the Charter and that the violation cannot be justified under s. 1 of the Charter. During this portion of the argument, counsel for Alberta argued that marriage is an inherently religious institution and that even if Churches would not be forced to marry same-sex couples, the changing of the definition of marriage would undermine religions across Canada. Second, counsel for Alberta argues that the traditional definition of marriage as being between a man and a woman does not violate s. 15(1) of the Charter and if it does, the violation can be justified under s.1 of the Charter. Finally, counsel for Alberta argues that should the Supreme Court find that Parliament’s proposed changes are constitutionally valid (i.e. do not offend the Charter and/or can be demonstrably justified as a reasonable infringement in a free and democratic society), it reserves the right to use s. 33 of the Charter to override Parliament’s definition of marriage in order to avoid being forced to register same-sex marriages.
A nine-judge panel of the Supreme Court of Canada released its decision in April 1, 2003.
Your assignment is as follows: Write the decision of the Supreme Court of Canada. You may write a unanimous decision or a decision with one or more dissents. You may also choose to include separate concurring decisions. However you write the decision, you must include an analysis of the following reference questions that have been raised in this case:
1) Does the new definition of marriage (being changed to a union between two individuals) violate s. 2(a) – Freedom of Religion – of the Charter? NOTE: For the purposes of this assignment, you must assume that there IS a violation of freedom of religion in the new definition.
2) If so, can the violation be justified under s. 1 – the Reasonable Limitations Clause – of the Charter?
3) Does the old definition of marriage (currently defined as a union between a man and a woman) violate s. 15(1) – Equality Rights – of the Charter?
4) If so, can the violation be justified under s. 1 – the Reasonable Limitations Clause – of the Charter?
5) Can Alberta use s. 33 – the Notwithstanding Clause – to maintain the old definition of marriage (currently defined as a union between a man and a woman)?
Also, you should remember that a strong judgment addresses both
sides of the argument.
Remember, your final paper can only be between 12-15 pages in length