So, what is a case note?
A case note is a summary of a judgement of a court, often including an analysis and discussion of that case. The term ‘case note’ thus can be confusing. Sometimes a case note is simply a short summary of a case. However, more often a case note is the summary of a case plus a critical commentary on the case. This is also what we expect from you: to write a summary plus critical commentary.
What’s the structure of a case note?
Every case note should include:
- an introduction, • a summary of the case, and
- a critical commentary.
Introduction
In the introduction, you should identify the broader legal area relating to the ruling in the particular case at hand (e.g. the broader legal area of a case of the CJEU on the Polish law on retirement of Polish Supreme Court judges is the rule of law and art. 2 TEU values in the EU). The broader legal area can relate to the structural and general principles of EU law (e.g. principle of conferral, judicial independence) or the particular area of EU competences and policies (e.g. Area Freedom Security and Justice, Common Commercial Policy). Describe how the specific case you are analysis fits into the broader legal area and what its relevance is for that area. Does it add a new element? Does it consolidate an existing line of case law or break with it?
Then, briefly state in 2-3 sentences what your main argument in the critical commentary of your case note is. Be clear what your argument is and use simple words.
At the end of your introduction, describe briefly the structure of the case note, e.g. “In section 2, I briefly summarize the proceedings before the national courts. This is important to understand … In section 3, I describe the main arguments of the Advocate General and in section 4 I analyze the arguments of the Court of Justice….”
Overall, the introduction should not be longer than 10% of the overall word count of the case note.
Summary of the case
The summary of the case is essentially a concise analysis of the main legal aspects of the case. The summary of the case should include:
- Parties involved
- Applicable procedure
- Facts of the case (What happened? What did national courts do?)
- Pleadings before the Court (What do the parties want?)
- Relevant legal norms (What norms are crucial for deciding?)
Write this in your own word (so no quotes needed), as briefly and succinctly as possible (aim at less than 10% of the word count).
Then proceed with the major aspects of the judgment that should include: • Legal reasoning of the court (the main arguments of court),
Decision (outcome of the ruling).
This part is analytical in the sense that you need to analyse the decision and structure it accordingly. What are the main arguments that the court makes? What are the argumentative steps that the court makes to make the main argument(s)? Analysis of the legal reasoning is the main part of your case summary.
Note, this is only a rough structure of the summary of the case. The exact structure depends on the specific type of case and procedure, e.g. CJEU decisions based on preliminary references you have a preceding national procedure that might be important to describe, an opinion of the Advocate General that may differ from the Court’s interpretation of the law, in Grand Chamber decisions of the ECtHR a preceding Chamber decision etc. If the case involves several layers that you describe (e.g. opinion of Advocate General), structure your summary into different subsections.
Critical commentary
In this section you should formulate your own critique of the case. Choose 1 (or max. 2) aspect of the case and focus on this aspect. This can be, for instance, something that the court said (e.g. a specific argument of the court that you identified in your previous section), something the court did not say (but should have said, or that that Advocate General said), or the result that the court reached. Come up with your own thoughts and write in your own words. Avoid technical vocabulary, unless it really is necessary (then make sure you use these terms in the correct way).
When formulating your critique, you can adopt several angles. First, you can either focus on procedural issues or substantive issues. Second, you can formulate either an internal critique or an external critique. Internal critique means that the critique takes place within the legal discourse and is therefore based on legal arguments. This is what most critique in legal scholarship actually looks like.
An external critique means that a decision analyzed critically outside legal discourse, e.g. that the decision is immoral (moral critique), that the ruling has certain political consequences or reflects certain political debates (political critique), that it produces economically inefficient results (economic critique), or that it furthers marginalization of specific communities (sociological critique).
An internal critique can take different forms, for example:
- point out that the reasoning is logically inconsistent (within the legal reasoning in one judgment);
- compare the legal reasoning in the case with the legal reasoning in other similar cases of the same court; pointing out the consistency or inconsistency or tension with previous cases. You can also describe the (likely) impact that the case might have on future cases;
- address ambiguous statements made by the court and questions the court left unanswered (if necessary);
- different conclusion could have been reached and that this conclusion would have been more desirable;
- highlight a problematic assumption upon which an argument is based (e.g. consumer as rational agents making rational choices);
- inconsistency or tension with basic principles (e.g. principle of loyalty, fundamental rights);
- giving too much weight to certain legal interests (e.g. state sovereignty) and not enough to other interests (e.g. individual rights).
Formulating your own thought requires that you need to read other judgments that are mentioned in the case, journal articles on the broader legal area, other case notes etc. As you read other cases and literature, you will gradually develop your own thoughts and critique of the case.
Style and form
Use simple words and short, complete sentences, without attempting to imitate the language of the court. If you use technical terms (e.g. mutual recognition) make sure you use them correctly, i.e. that they have in your case note the same legal meaning as the legal community gives them. Use one paragraph for one argument/point that you are making.
Quote only when necessary, that is, when you want to highlight what the court or an author says. Otherwise sum up the argument of the court or author in your own words and cite the source. Make sure you cite correctly. Your citations are formally correct if they are in line with the Chicago Manual of Style. If you cannot find a specific source in the Chicago Manual, quote it in a way that is clear where it can be found (name of author, place of appearance etc.) and where the specific reference can be found within that source.
