Case Commentaries, An Introduction
Case commentaries, or case comments, are a vital component of legal scholarship and serve as a critical practice tool used by attorneys. They are articles that analyze significant decisions made by appellate courts in the United States. In Law Review journals, such case commentaries typically appear in a separate section, as opposed to publishing them with full-length scholarly articles and reviews. Even with this separation, most law school libraries have an index that makes case commentaries easy to find. Law Review case commentaries may also provide an abstract of the decision before actually discussing it in-depth. Additionally, many case commentaries submitted to law reviews offer a brief statement about their purpose at the beginning of the article itself, similar to any abstract submitted for law review articles .
Likewise, many law review editors have come to require or encourage the public submission of manuscripts that comment on judicial decisions as essential to the legal scholarship maintained by the publication. However, even if such commentaries are made public, an author may later request that the commentary be removed from public view based upon certain distorting or otherwise incorrect statements. In any event, some journals even classify case commentaries as a separate category for the purposes of indexing.
In law review articles, case commentaries can be written exclusively upon the decision and its holding, or they can more broadly address the facts behind the case under consideration. Some case commentaries even classify the decision as a landmark or precedent-setting decision. Given this flexibility, case commentaries can be among the most broadly distributed legal scholarship and far more accessible to the public than many of the other types of publications submitted to law reviews.
Selecting a Case on Which to Comment
Selecting the appropriate case for commentary on is the most important factor in generating a high quality law review case comment. The selected case should have certain characteristics. The most important is relevance. Saying something new about older legal precedent is unlikely to be as digestible as cracking the nut of a recent case that has become increasingly relevant in a modern context. A case that has not been cited heavily, or is so new that it will continue to be cited heavily for years to come can be ideal. When the law under review is not yet settled, and may still be defining itself, a piece on it has tremendous potential to establish a voice in the legal scholastic community.
While not essential, an ideal case comment will also be on a case that breaks ground on the topic at hand, signaling the start of a shift of some kind in the jurisprudence of that legal issue. A decision that brings a massive change to the law has more effect; if the issue is relevant for years to come, it will be cited exhaustively for decades, with your work at its inception carrying on through time. While all decisions see some degree of citation in the future for years and years, the "big bang" cases, so to speak, are going to be reminded of the most from generations long after your voice has faded away.
It is also vital that the case has still not been extensively analyzed. If a case is a hot topic of discussion, articles, opinions, case comments and criticisms are going to abound, meaning that your own article will be just helping to add a layer to more than a paper trail, but a criminal labyrinth of articles, opinions, case comments and criticisms.
It is possible to go wrong by selecting a case that is most easily digestible by the reader. Your target audience is law students and professors. They are trained listeners, with complete knowledge of all of the things that go unsaid in a conversation. A good case comment will assume the reader understands all of the obvious points.
Common Structure for a Case Comment
Even though there may be some variation from law review to law review, the majority of case comments will follow a relatively standard structure. This method has been used for decades and is the most accepted form of case comment. (Generally, a Topic Comment differs in that it focuses on an issue or area of the law, rather than a specific case; such as an area like the applicability of the Statute of Frauds to alternative dispute resolution clauses or enforceability of arbitration clauses.) Irrespective of the Journal, a case comment will typically include: Introduction-this will state the name of the case (including citation), explain its importance and provide a brief overview of the remainder of the comment. Try to be as short as possible with this portion. While some comments might have an introductory paragraph or two in the "Case Facts" section, those are virtually never counted as part of the case comment; and should only be used if absolutely necessary. As such, take care to establish the case’s importance without too much information—a very difficult task. On that note, it should go without saying, but I want to emphasize this point—regardless of where you are in a case comment, do not copy and paste text from the court’s opinion. Even if the court is saying something you think is perfect, it won’t be your words. Someone else wrote it. The court is the author, not you. You cannot use it. If you must rephrase what the court is saying, you must do so in your own voice. Case Facts-the purpose of this section is to provide all of the relevant facts the court dealt with. This almost always includes a timeline of the events. Try to be as succinct as possible here. There is never a need for speculation as to motives or other things that are not included in the opinion. Most journals, however, will also expect that you include some analysis in this section—so if the court references a chronology of events, you should do the same. Avoid side-bar discussions. Unlike the introductory paragraph, it is rare that you will re-cap the entire case in a single paragraph. It is usually best to maintain separate paragraphs for separate issues, and a case like this will usually be broken into paragraphs, as well. Legal Issues-this will involve stating the central issue(s) the court dealt with in rendering its decision. It is not uncommon for this to be contained within the previous section as part of the chronology of events. This section should be somewhat flexible, however, as some journals will allow for you to elaborate on these issues (and even provide some history as to prior case law on the issue) while some will not. It is best to err on the side of caution on this point. Essentially, be very careful not to include too much information with regards to the court’s determination on the issues (in the "Case Facts" section), but take care to provide enough information so as to not be incomplete in your analysis. Analysis-possibly the most difficult section of the entire case comment to write well. This section will usually involve breaking down the legal issues into separate categories and discussing them separately. It is not uncommon for case comments, especially in long opinions, to contain separate analyses for federal and state issues. Keep in mind that you are not doing a full-fledged law review article. Think of this more as a discussion among co-workers. It is almost always preferable to use simple terminology when explaining complex issues. Some journals may prefer you to maintain strict formality with regards to the tone of the comment—most do not, however. Don’t be afraid to loosen the tone at times, but take care to avoid providing personal anecdotes or attempts at humor. These can almost universally be found in the main body of the comment. Instead, anything like this should be saved for the "Conclusion." Conclusion-like the introduction, this section will usually consist of a one or two paragraph recap of the case’s importance, your critical thinking on the issues at hand and your conclusions as to why the court came to the decision it did. At this point it should almost go without saying that copying and pasting simply will not do; but please be aware that this point goes doubly so for the final section of the case comment. I am going to do you a big favor and assume that you are clever enough to know that it is stupid to do this.
Research Strategies for a Case Comment
You’ve got the case in front of you, and now it’s time to put in the research. A good first stop when researching for a case comment is tracking down other comments on the case. Law reviews tend to be about what is happening in the jurisdiction the law review is published in, so if your case is from the Texas Supreme Court, you’ll want a Texas law review. Consider using HeinOnline or Westlaw to find any comments, or at least see if someone pulled the case in a case note.
Don’t find any comments? That’s okay. Now go for harder-to-search sources, and generally speaking, older sources. For example, if the case is a Texas case, you will likely want to check journals like the Texas Law Review, the Jackson Journal of International Law, or the Houston Law Review. For this, textbooks can be helpful—for example, for a Fed. Cir. case, the two volume intellectual property casebooks (IP and IP Warfare) are highly useful.
Going further back in time can be helpful as well. For example, there is a tax case to consider, and you know it was decided in 1988. First you would check general resources, but then consider older resources. Why? Well, recognizing that law professors still generally produce a much smaller number of publications each year than judges do in cases, one might find that a smaller (old) law review article is more relevant than a (recent) case note, because it simply has more thought put into it. Or one may find that an old treatise is still being cited to in practice or in recent law review articles. Another way to consider why old sources are worth checking, if they’re available, is that a case that isn’t cited to often might not be widely known and so much easier to get insights because it hasn’t been written about much.
But if your case has gone through the Supreme Court itself, and still has problems, well, that’s pretty rare. As a final consideration, the U.S. Supreme Court also publishes a US Supreme Court Review, which is distributed by the University of Chicago Press (many law reviews on the model of the U Chicago Review have a large amount of editorial comments and essays)—so a US Supreme Court case might have fewer comments than a problem that occurred after the court has chimed in on the issue, especially a case that has then gone back down to the lower courts.
Writing Style and Mechanics
Use jargon sparingly. Law reviews at the University of Chicago and Yale, among others, have a page of "statements about style," where they say things like "Avoid wordiness, jargon, and other stylistic problems." A typical law review article uses words like "disfavored" or "rationale" but case comments should use "not favored" or "reason."
Use headings and lists. Obviously headings and lists help the reader. Law reviews individual pieces are supposed to have their own heading for each section. But here use headings for each paragraph since case comments are in paragraphs.
Stay above the level of the case. Case comments are often useless because you can’t tell from the opening paragraphs if the case is even relevant. So the paper often has summaries of dozens of horrible cases. Yes, sometimes case comments do list a string of reliable circuit court cases that disagree with the circuit in question. But mostly case commentators do not add much value. Don’t bother summarizing your case. You get a paragraph or maybe two. If you can’t explain the gist of the decision in that amount of space, you have no business writing about the case.
Use rigorous logic. Law reviews are full of arguments starting with a generalization like "[s]ome courts are now allowing punitive damages [in situations that previously would not] . . . ." But that isn’t a sentence. You must name some courts. Whenever you start with an indefinite article or pronoun or adverb , make sure you give specifics shortly thereafter. Some laws scholars write like they do not understand the difference between inductive and deductive reasoning. Some law scholars write like they have never read a philosophy book. They prefer a "theory" over logic.
Be sure to focus. Most law review article narrows the reader’s attention to a particular case like the Sixth Circuit case. As the CDC says, this is where the "case comment departs from law review articles." If the "problematic case," instead of being on point, is tangentially related to other cases, then you might study the other cases, and work your way back to the "problematic case." But be careful not to explain the other cases at too great a length. You might leave unexplained only your particular problem or the "problematic case."
Give other contexts and examples. There are dozens of courts and state legislatures, not to mention other countries. Maybe, like, it would be worth pointing out how decisions like your "problematic case" have been decided elsewhere. Or maybe it would be worth pointing out how decisions like your "problematic case" ought to have been decided elsewhere, or how those "supposed" other decisions can be resolved by the "proper" view, or perhaps a better view.
Traps to Avoid When Writing a Case Comment
The universal "tense error" in case comments is presenting the facts of the case in the present tense (usually mixed with past tense). Unfortunately, this error occurs in even the best legal writing! Common problems include: "the trial court held that the psychic’s advice constituted actionable fraud" instead of "the trial court holds that the psychic’s advice constitutes actionable fraud"; "courts find that a police detective is not a state actor for the purposes of Fourth Amendment analysis" instead of "courts have found that a police detective is not a state actor for the purposes of Fourth Amendment analysis." There is a simple rule for deciding how to refer to a case or holding: the tense should reflect whether it has been decided. So when a case has been decided and it is clear when it was decided (e.g., without a parenthetical stating the date of the decision), it is appropriate to state the case in the past tense and its holding in the present. When it has not been decided, always use past tense. It is helpful to keep "the timeline of the case" in mind when you are writing. One way to prevent yourself from forgetting to apply past tense to a case that has already been decided is to put the authority to rest at the start of one section, and then write about it in another section.
Another common problem in case comments is that they are far too long. You have one year of law review experience to write one relatively short case comment. Remember: the point of the case comment is not to summarize the case. It is to elucidate the helpful information from the case for other law students and to showcase your ability to think deeply about the law. Be concise in your explanations whenever possible. Where possible, explain more in depth the rationale behind the holding and its impact on the topic being studied. If the holding of your case is that the exclusionary rule does not apply if the police officer had an honest, reasonable mistake of fact or law, then tell the reader why it is important that the court held this rule and what other courts and authorities said about the rule being examined, and then give them a brief overview of how the reasoning underlying your case supports or contrasts with the views of these authorities. Evaluate the outcome of the case, including its practicality and impact on the public and other powers of government. Sometimes you can avoid problems by finding a specific problem with the opinion in your case and evaluating how your case impacted that problem. A recent example of such a case is the Supreme Court’s decision in NFIB v. Sibelius (2012), 132 S.Ct. 2566, in which it evaluated Obamacare. It was written in a convoluted way and was difficult to follow in places. This is not a good case to comment on, as the "mistakes" were on the court’s part. While these may be interesting arguments to make, they do not fall within the scope of the average case comment.
The Peer-Review Process
A major difference between law reviews and other publications is their internal review. Law reviews have an extensive, multi-step, peer-reviewed publication process. This section discusses the peer review process for law review articles and how it can affect your submission.
Law reviews often evaluate dozens or hundreds of articles for a single volume. These reviews are typically completed according to a strict timeline set by students who act as editors for the journal. Student editors select articles for review based on abstracts and covering emails submitted by authors. Articles that pass this initial threshold review are then selected for full review.
After a law review staff member reads and reviews a threshold selection, they send a case comment for editorial review. Editorial review involves a comparison of the case comment to prior similar comments in past years’ issues. A discussion with one or more other staff members may also take place regarding the merits of the article and how to pitch it to the editorial board.
Editorial review is typically followed by presentation to an editorial board. After discussion with the editorial board, the staff member makes a decision about offering publication. Staff members decide which articles to recommend based on the preference of the editorial board. If an offer is made, the author will typically have the choice of accepting it or tailoring it to make it better suit that law review in particular. On the other hand, if an article is not selected for publication, the staff member needs to find an explanation that more than likely meets the author’s expectations.
Most law review reviews are somewhat impersonal. Authors would be naive to expect a detailed explanation for a rejection. In fact, most law reviews are happy to provide the names of reviews peers, but they will not provide copies of the reviews themselves. This is because most law reviews consider the reviews of their peer to be coarse food for thought. They are not intended to provide authors with detailed work or criticism, and hence should not be taken too seriously.
The Effect of Case Comments
Over time, case comments and reviews can have a significant impact on the development of a legal theory or practice area, or even on the law itself. A case comment or review may spur litigation on an issue it addresses. In the case of the University of Pennsylvania Law Review, even the article’s title can have an impact. As a quick example, at the time of the passage of the Affordable Care Act, there was much debate regarding its constitutionality. The University of Pennsylvania Law Review published four articles addressing the ACA that fall. One of the titles was "Sixth Time’s the Charm: The Constitutionality of the Affordable Care Act." Imagine if the title had been "The Unconstitutionality of the Affordable Care Act," or a similar title? You can be sure that the particular way in which the subject matter was framed and described in the title had an impact on how the discussion of the topic was presented and resulted .
Peter Tiersma has pointed out that a law review article in 2004 titled Bad Faith and the Evolution of Contract Law, has had the effect of "dramatically changed the thinking of the courts on what constitutes bad faith." Tiersma writes: Since the publication of this article, courts have, in nearly every jurisdiction, adopted [Professor Bruner’s] interpretation of the doctrine when considering cases involving insurance contracts. This is a remarkable result in a field where scholarly works seldom inspire the courts to change their views on important issues.
Sometimes a case comment can even help to alter the procedural environment on a particular issue, such as by changing the prevailing rule changes with respect to the availability of punitive damages, or on certain types of class actions.