In academia academic analysis of legal cases is carried out in the form of case comments. These are 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 journals such as the Harvard Law Review, The Stanford Law Review and the Columbia Law Review.
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. They also assist other academics studying in similar areas, the judiciary and to students researching in the area.
By formulating a blog entry you will be creating a mini case comment and entering into dialogue with others about that comment.
Deciding on a research question about a case
Once you have found a case which interests you, you will then need to decide an angle to take for your analysis.
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 or theological or philosophical theory.
You might like to write out some thoughts on a piece of paper or in an online word document identifying your initial reactions to and questions about the case you have chosen.
In the following section you will read about the various ways to analyse a judicial decision.
End of activity
A blog entry 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 just. If it is deemed unjust then consider what the solution 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 synthesising law with another discipline such as theology, politics, philosophy, economics or sociology:
In order to make such a blog entry it is necessary to carry out some research to discover the views of others. This then facilitates a balanced view point which takes into account both sides of an argument to reach a conclusion as to which is more convincing. It also provides reasons for the point of view presented.
To discover what others think about your chosen case or to learn more about concepts you consider important you can use freely available internet resources:
- Listen to what leading academics in the field have to say in these short videos: http://www.open.edu/openlearn/people-politics-law/the-law/sacred-and-secular
- Google – often barristers chambers or solicitors firms will post comments on important cases on their web sites.
- One such useful site is One Crown Office Row’s Human Rights Blog: http://ukhumanrightsblog.com .
- Google Scholar – by using Google Scholar you can search using key words such as the name of the case or a concept such as “justice” or “law and religion”.
- The Open University’s Ope Learn platform contains units of study or material from Open University modules, one such unit covers international law http://www.open.edu/openlearn/people-politics-law/exploring-the-boundaries-international-law/content-section-0
- On the topic of “what is justice” there are a set of animations at http://www.open.edu/openlearn/history-the-arts/what-justice or a series of additional materials http://www.open.edu/openlearn/tags/justice
- Future Learn: this includes short freely available courses (moocs) from various universities around the world: for example a course on religion and conflict from the University of Groningen. https://www.futurelearn.com/courses/categories/politics-and-the-modern-world .
- Professor Michael Sandel has provided some public lectures from Harvard University on the concept of justice: http://www.justiceharvard.org
- blogs such as the law and religion blog also contain interesting and useful information: http://www.lawandreligionuk.com
- sites run by consortiums or universities: the Centre for Law and Religion at Cardiff University database: http://www.law.cf.ac.uk/clr/networks/lrsncd.html; the Strasbourg Consortium http://www.strasbourgconsortium.org
- For academic commentary see, for example, A Road Cut through the Law to Get after Orban?, by Carl Gardner (2014) OJLR 3(3), 506-511; Religious Autonomy in Europe and the United States – Four Recent Cases by Donlu Thayer (2012) OJLR 1(2), 510-514; A Marginal Victory for Freedom of Religion by Dr David H McIlroy (2013) OJLR 2(1): 210-216, The Brüstle and Eli Lilly cases: Creation-God or Humankind? by Jessica Giles, (2012) OJLR 1(2): 518-523, Zgodnie z Obysczajami Religijnymi (According to Religious Rights): A Dissenting Opinion on the Polish Slaughter case by Joel Silver  OJLR 3(2)-347: these case comments are free to view at: http://ojlr.oxfordjournals.org .
Other questions that you might like to explore in respect of the case you have identified might include:
- the context and background of the case and 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 understanding the legislative context, case law and factual background to the case. It can involve considering how the judgment further develops the law: for academic commentary of this type see for example 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 wider implications of the case.
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  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) OJLR 1(2), 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 blog and add in some additional original thought to the debate
Where a blog entry has already been made it is possible to take issue with what has been said and “reply” to the points made in the earlier blog and then add in some original points backed by authority – these should be supported by arguments from an academic piece or from a piece written by a barrister or solicitor on a chambers or firm web page or well argued on your behalf. This creates a useful dialogue on points of current debate: for an academic example of this 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/
Reliability of sources
It is important to consider the reliability of the resources that you use. You can use The Open University’s PROMPT criteria which are available on our OpenLearn site in content section 1.7.1 of this free course about Information on the web.
PROMPT stands for:
Presentation: is the material you propose to use appropriately presented?
Relevant: is it appropriate for your research question?
Objectivity: is there bias or is the material objectively written providing balanced analysis?
Method: is it clear how the information was obtained?
Provenance: is it clear where the information comes from?
Timeliness: is the information up to date?
As you identify relevant material run the PROMPT check to ensure it is reliable.
Key elements of a case comment: engaging in discursive argument.
Academic discursive argument involves identifying more than one point of view on an issue. You need to be able to:
- deconstruct and reconstruct the arguments presented by an author of a journal article. In this way it is possible to learn how discursive argument is constructed and to construct some yourself.
- compare and analyse the views of different authors
- weigh arguments and decide which are the stronger
- think creatively on the basis of what has been read
- come up with original insights or original ways of dealing with the material
- pull these together in a focused manner
This section has covered how to identify research questions and find resources to research a judgment. It has also identified the steps undertaken for academic discursive argument. The next section will lead you through an exercise in discursive argument to practice considering issues from more than one angle.