Key elements of a case comment: a brief explanation of the case
subject to comment.
It is useful to set the context of the case comment by summarising the essential
elements of the relevant judgment(s). Further explanation of additional facts and
material from the judgment or dissenting judgments can be included in the main
body of the case comment to support the discursive argument. However a clear,
brief explanation of the essential facts and the main ruling(s) in the case at the
outset is helpful to ensure that the reader can orientate themselves properly
when reading the case comment. It might help to fill in a table, such as that set
out in section 2, with the details of the case in order to identify the essential
elements of the case for inclusion at the outset.
Key elements of a case comment: engaging in discursive argument.
Writing a case comment involves engaging in some form of discursive argument.
This involves deciding on the purpose of the case comment as highlighted in
section 2 above, carrying out research to provide the basis for the discursive
approach to be taken, drawing that research together and writing it up.
In order to understand how to critically engage in discursive argument for the
purpose of writing case comments it helps:
To be able to deconstruct and reconstruct the arguments presented by an
author of a journal article or book. In this way it is possible to learn how
discursive argument is constructed and to construct some yourself.
To identify resources using key search terms for use as the basis for the
discursive argument
To compare and analyse the views of different authors
To weigh arguments and decide which are the stronger
To think creatively on the basis of what has been read
To come up with original insights or original ways of dealing with the
material
Pull these together in a focused manner to comment in 2000-3000 words
on a specific case or set of cases.
The discursive argument (analysis)
The analysis will reflect the type of case comment that is being written and
will involve research being carried out on one or more of the following points:
The state of the law (legislation and case law) before the judgment was
given.
The effect the judgment has had on the law
What the implications are for other similar cases in the future
What the implications are on other areas of law
What commentators have written about this area of law and whether
the ruling was accurately anticipated by them or not.
Whether there is any (contrasting) academic commentary on the ruling
Interdisciplinary research involving a synthesis with other disciplines such
as theology, philosophy (ethics), sociology, political science or economics.
This means considering what light these disciplines throw upon the ruling
and how the case can be analysed in the context of other disciplines such
as these. This involves asking questions about the case such as, “Could
the judgment be said to be in line with the tenets of a particular religion?”
(synthesis between law and theology). “Can the judgment be said to be in
line with a particular aspect of moral reasoning?” (synthesis of law and
philosophy/theology). “Were there any political motivations behind the
courts ruling and were these acceptable?” (law and politics). You can no
doubt think of many different approaches that could be taken. They key
here is to understand how the additional discipline with which the law is
being synthesised asks questions of itself and other disciplines.
Key elements of a case comment: the conclusion
The conclusion in a case comment should clearly and concisely pull together
the main arguments made throughout the case comment and summarise the
implications or interim conclusions reached in the body of the writing.
Summary
This section has covered the purpose and format of a case comment,
providing guidance on the specific angle you might choose for writing your
case comment and taking you step by step through the various elements of a
case comment including the introduction, explanation of the judicial decision,
the discursive argument and the conclusion.
The next section will lead you through an exercise in discursive argument.
