Purpose and format of case comments
Case comments are short pieces of academic writing about judicial decisions. They vary
from circa 2000-3000 words, for example the case comments published in the Oxford
Journal of Law and Religion, OUP, to between 5000 words for case comments and up to
17,000 words for case notes in the American tradition evident in the Harvard Law
Review, The Stanford Law Review and the Columbia Law Review.
This section will consider the purpose and format of case comments using the shorter
case comment style used in the Oxford Journal of Law and Religion as a reference
point, while also bringing in some examples from the American tradition. When writing a
case comment it is important to have in mind the journal or web resource for which the
comment is being written in order to identify the format used by the intended publication.
First you will consider the purpose for which the comment might be written.
ACTIVITY
Think about the different ways in which it is possible to analyse a case – for
example it is possible to compare the case with other cases in the same subject
area or to analyse it in the light of current political trends.
Write out some thoughts on a piece of paper or in an online word document.
END OF ACTIVITY
In the following section you will read about the various ways to analyse a judicial
decision.
Purpose
Case comments provide academic insight into judicial decisions. They are useful
to, amongst others, practitioners and those working in the voluntary sector who
may not have the time to read around a subject in depth; to other academics
studying in similar areas; to the judiciary to assist them in future judicial decision
making and to students researching in the area.
A case comment may carry out one or more of the following:
Critically examine a judgment of the court to identify whether
the court’s judgment is or is not, in the light of academic and
other opinion, in the author’s view, just. If it is deemed unjust
then consider what the remedy might be?
This involves asking the questions “what is the law established by the
judgment”, “is the result just?” or “what should the law be”? It may involve
sythesising law with another discipline such as theology, philosophy,
economics or sociology: see, for example, A Marginal Victory for Freedom
of Religion by Dr David H McIlroy [2013] 2 OJLR I: 210-216, The Brüstle
and Eli Lilly cases: Creation-God or Humankind? by Jessica Giles, [2012]
I OJLR II: 518-523, Zgodnie z Obysczajami Religijnymi (According to
Religious Rights): A Dissenting Opinion on the Polish Slaughter case by
Joel Silver [2014] 3 OJLR II-347: these case comments are available on
open access at: http://ojlr.oxfordjournals.org .
Examine the context and background of the case and explore the
various arguments presented by the parties. This type of comment
can be predictive in nature where the case is still subject to appeal.
This involves explaining the legislative context, case law and factual
background to the case. It can involve considering how the judgment
further develops the law: see for example The Affordable Care Act
Employer Mandate Cases: Regulation versus Conscience on its Way to
the United States Supreme Court, by Eric C Rassbach [2013] 2 OJLR
I:200-205 and Duty or Dignity? Competing Approaches to the Free
Exercise Rights of For-Profit Corporations by Spencer Churchill. 37
Harvard Journal of Law and Public Policy 1171 2014.
Explain the background and then the implications of a particular
case on an area of law and put forward suggestions for the future
application of the case or for reform.
This involves understanding the wider implications of the judgment on
other areas of law, or on other groups or individuals beyond the
immediate parties to the action: see the case comments by McIlroy,
Silver, Giles and Religious Values and Two Same-Sex Marriage Cases
Decided by the Supreme Court of the United States by Lynn Wardle
[2013] 2 OJLR 2-462, see also Questioning Sincerity: The Role of the
Courts After Hobby Lobby by Ben Adams and Cynthia Barmore: Stanford
Law Review online http://www.stanfordlawreview.org/online/questioning-
sincerity date accessed 25 November 2014.
Create a comparison between the case under discussion and
other similar cases.
This involves examining other cases that have been decided on the issue
and highlighting and explaining similarities and differences: see Religious
Autonomy in Europe and the United States – Four Recent Cases by
Donlu Thayer [2013] 1 OJLR II-510.
Present two or more points of view on issues arising in the case in
order to come to a conclusion.
This involves examining what others with different views have written
about the topic or considering the arguments presented by counsel
for both sides in the case and reaching a conclusion by weighing
these views: see McIlroy page 210 and Silver page 352
Create a dialogue with an existing commentary and add
some additional original thought to the debate
Where a case comment already exists a subsequent author might choose
to take issue with a comment that has been made and “reply” to the points
made in the earlier comment and then add in some original thought of
their own. This creates a useful dialogue between academics on points of
current debate: see Reports of Accommodation’s Death Have Been
Greatly Exaggerated response by Elizabeth Sepper in Harvard Law
Review 2014 Vol 128:I : see http://harvardreview.org/2014/11/reports-of-
accommodations-death-have-been-greatly-exaggerated/
In each case it is important to ensure that research is carried out to find
what has been written about the case or the topic in academic literature. It
is also important to add in an original insight concerning the effects or
implications of the case.
Format
Whatever structure is chosen a case comment requires a clear structure and
certain basic content. The content needs to include an introduction, a brief
explanation of the case to set the scene with further explanations brought
into the body of the case comment as necessary, the discursive argument
(analysis) and a conclusion drawing together the points made in the
comment.
Case comments differ from longer articles that can be found in legal journals in
that they tend to be focused on a particular case or limited group of cases. The
explanation and analysis will be limited to the particular case or the issues arising
from that case. They will be shorter – a journal article will be 5000 words or
longer whereas a case comment will be 2000-3000 words.
Key elements of a case comment: the introduction
A case comment should include a brief introduction. This can explain why
the case comment is being written or indicate the importance of the case, for
example Thayer, page 510:
“On 11 January 2012, the Supreme Court of the United States issued its
judgment in Hosanna-Tabor Evangelical Lutheran Church and School v Equal
Employment Opportunity Commission (EEOC) (132 S Ct 694), the most
important religious freedom case to come before the Court since the 1990
Employment Division, Department of Human Resources v Smith (494 US
872).”
Or it might provide some context to indicate the tenor of the case comment,
for example see A road cut through the law to get after Orbán? By Carl Gardner
[2014] 3 OJLR III-p 506
“Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to
get after the Devil?
Robert Bolt, A Man For All Seasons
(1960) Act I
On 8 April 2014, the European Court of Human Rights (Second Section)
gave a judgment in Magyar Keresztény Mennonita Egyház and Others v
Hungary (application nos 70945/11, 23611/12, 26998/12, 41150/12,
41155/12, 41463/12, 41553/12, 54977/12 and 56581/12), a case
concerning the registration of churches under the controversial 2011
Churches Act. This is among a number of constitutional and legal changes
in Hungary that have caused concern internationally, and was referred to in
a letter to the ungarian government by the then US Secretary of State
Hillary Clinton in
December 2011:
The US government is deeply concerned that no modifications have been
made to the Law on Churches. Outside observers note the rules for religions
to gain recognition are prohibitively cumbersome, and the requirement for
two-thirds approval by Parliament unnecessarily politicizes decisions
surrounding a basic human right. (http://www.refuge.hu/hillary-clinton-s-
letter-to-pm-orban/)
Viktor Orbán’s FIDESZ government is widely considered populist and
authoritarian. As the Wall Street Journal reported on 31 July this year
"I don't think that our European Union membership precludes us from
building an illiberal new state based on national foundations," Mr Orban said
in a speech earlier this week. He went on to cite Russia, Turkey and China as
successful models to emulate, "none of which is liberal and some of which
aren't even democracies." (http://online.wsj.com/articles/hungarys-illiberal-
turn-1406829873).”
And Giles pages 518-519:
“It is difficult to find … anyone who would argue that human beings created
the world or human kind. When, however, a step is taken into the world of
the patenting of biotechnical inventions… the theological and theoretical
ground starts to shift under ones’ feet. This commentary will consider the
Brüstle and Eli Lilly cases on the patenting of biotechnical inventions and
biological material in the light of the deontological and consequentialist
basis of the reasoning of the Court of Justice of the European Union and the
Supreme Court of the UK, respectively, to seek to discover whether a more
cautious approach needs to be taken in the interpretation of the legislative
provisions and case law.”
