Talk:Hoffman Estates v. The Flipside, Hoffman Estates, Inc.

GA Review

This review is transcluded from Talk:Hoffman Estates v. The Flipside, Hoffman Estates, Inc./GA1. The edit link for this section can be used to add comments to the review.

Reviewer: David.thompson.esq (talk · contribs) 03:23, 17 September 2012 (UTC) I would place this article on hold. Primarily, I believe there are three issues with the article: 1. In several places, including the beginning of the article, the writing is not as clear as it needs to be. 2. In terms of accuracy, I believe the article's description of the holding of the case needs further work -- it is arguably not correct to state that the vagueness portion of the holding relates primarily to the First Amendment. 3. The article's description of the holding of the case (the "Opinion of the Court" section) also appears to contain original research, in that the interpretation of the holding is the authors' opinion as to what the holding of the case is -- it does not come from other sources saying what the holding is.

CLARITY The clarity issues begin with the introductory paragraphs. The article states: "Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), is a United States Supreme Court decision concerning the vagueness and overbreadth doctrines as they apply to commercial speech." These doctrines don't apply to commercial speech, however. They apply to legislation -- so what the article needs to be saying is that the case ruled on how these doctrines applied to legislation regulating commercial speech. Otherwise it could seem that the court was ruling on speech that is vague, or speech that is overbroad. This will be confusing, especially to non-lawyers.

 Done I see your point. Daniel Case (talk) 04:53, 17 September 2012 (UTC)

A related clarity issue is the article does not say what the vagueness and overbreadth doctrines are. Since there are articles on these doctrines, the description of them in this article need not be comprehensive, but there needs to be something that describes what the doctrines are, or else very few people will be able to follow what the article is talking about.

In a similar vein, if it is true that Hoffman Estates changed the jurisprudence of these two doctrines, then this would be made more clear if there were some description of what the jurisprudence was before this decision, and what it was afterwards. This exists in the article to some degree, but this part of the discussion focuses on subsequent developments concerning the legality of the sale of paraphernalia, while the premise of the article seems to be that the holding of the case concerned regulation of commercial speech. This part of the discussion should also be sourced -- if the editors rely on their own understanding of how the jurisprudence was changed, that would be original research. One solution might be to write something like: "Subsequent cases have cited Hoffman Estates for the proposition that ...." (with appropriate citations).

ACCURACY & ORIGINAL RESEARCH As the article states, the opinion discusses the overbreadth doctrine as it applies to commercial speech. However, the holding of the opinion with respect to the vagueness issue is less clear -- it reads to me as if it is simply treating the vagueness argument as a due process issue. The point is not what I or the authors of this article think the holding says, however -- what matters is what published sources say the holding says. Citations of this kind are missing from the "Opinion of the Court" section. Instead, the article relies on the editors' interpretation of the language of the opinion itself. While the opinion is, of course, a published source, the opinion is not self-interpreting. Indeed, part of the danger in relying on the text of the opinion itself is that the opinion is, in certain places, not terribly well written or clear. Thus, to avoid a possibly inaccurate interpretation of the holding, and also to avoid including original research, the article should add some citations in the "Opinion of the Court" section to sources that explain what the opinion says and means. What would be especially useful would be a subsequent Court of Appeals or Supreme Court case summarizing the holding of this case. (As a matter of practicality, in American law it almost does not matter what the text of a Supreme Court case actually says -- what matters is what subsequent Appellate and Supreme Court cases say it says. An extreme case of this is Santa Clara County v. Southern Pacific Railroad, 18 U.S. 394 (1886), which was later cited for the proposition that corporations enjoy Constitutional personhood, despite the fact that this assertion appears only in the court reporter's commentary on the case). So, in describing the holding of this case, subsequent citations by federal courts and perhaps law review articles advocating 'alternative' interpretations (if any) of the holding should be privileged over merely quoting the text of the opinion.

Good points, although I'd like a specific instance or two of exactly where this is the problematic, since I try to paraphrase as little as possible. I prefer to do it this way, with a lot of the original text quoted, because too often popular-press citations (which most editors reach for) get this sort of thing wrong. It's easy to quote the original text at length, since it's public domain and doesn't run afoul of our fair-use policies.

You are, however, correct that this is not one of the great moments of Marshall's jurisprudence, or even the Court's as a whole, as I believe one of the law-review articles I was able to find makes clear.

Your point about how the way a case is interpreted by later courts being more important is understood; what's somewhat frustrating here is that there's very little of that here (I wrote this one primarily because it was relied on by the district court which first heard United States v. Approximately 64,695 Pounds of Shark Fins to support its holding that the the regulations at issue were not impermissibly vague, and I wanted to make the link from that article blue). But equally, as a Wikipedian I find something fundamentally wrong about relying as an authoritative source on the subject of an article a document which meets all our reliability and verifiability standards yet is demonstrably or arguably wrong in part about what it describes. I have had this happen in articles about National Register of Historic Places listings, where the nomination document submitted to the federal government makes clear factual errors about the geography of the listed property, or historical errors. Whether these are typoes or not, if I write what the source says (yet I know to be wrong because I've seen the property myself) I'm knowingly perpetuating a falsehood or misunderstanding; if I don't and describe the subject property accurately, I'm doing original research or writing something unsupported by the sources.

Of course, I'm also aware that the remedy to this problem is better and wider sources; in a matter apropos to your point about Santa Clara County v. Southern Pacific Railroad, I found a law-review article making the point that Justice Brennan's dictum in Moses H. Cone Memorial Hospital v. Mercury Construction Corp. that the Federal Arbitration Act applies to contracts executed under state law was given such weight by the respondents in Southland Corp. v. Keating that they really didn't challenge that (although there was ample material in the FAA's legislative history to suggest otherwise) and it became the central holding of the latter case.

But I see what you mean about at least citing the interpretations to law-review articles (which often do contain long explications of decisions) or later decisions (as frustrating as I (and I suppose many legal professionals) often find it when a particular case, cited as a precedent, is in fact citing a previous case) and I will do that here. When I get the chance. Daniel Case (talk) 04:53, 17 September 2012 (UTC)

Daniel Case (talk) 04:53, 17 September 2012 (UTC)

ADDITIONAL COMMENTS I would consider limiting the discussion of arguments made at the earlier stages of the case to only that which is necessary to understand the holding -- indeed, it should be limited to that which other published sources say is necessary to understand the holding. The volume of discussion of the trial court and appellate arguments is somewhat overwhelming. This is not, after all, a case of the significance of (for example) Roe v. Wade, where arguments considered at lower levels might retain some historical interest.

I do that because it makes it easier to write the section on the Supreme Court's opinion without reiterating the facts of the case and the nuances to which the justices may be responding (and assuming their reader is familiar with). In this case it led to a much more compact summary of the Court's opinion than I would have written otherwise. I do agree I could probably summarize a bit more, and the judges' interpretations of Hoffman Estates in their own decisions are perhaps better consigned to the footnotes as you suggest. Daniel Case (talk) 04:53, 17 September 2012 (UTC)

I would consider being briefer and more selective in the discussion of subsequent cases. Subsequent cases that are simply about drug paraphernalia statutes should either be omitted or dealt with more briefly. If the significance of Hoffman Estates is its impact on legislation impinging on commercial speech, then drug paraphernalia caselaw is largely beside the point. If the case has an independent (or even primary) existence as a landmark in paraphernalia regulation outside the Constitutional context, then that material should probably be put in its own section to avoid mixing up separate issues.

Well, it has significance both in the commercial-speech area and the paraphernalia-regulation area. I will put them in separate sections; frankly I found it hard to keep them together under the chronological heading. And again I can summarize more. Daniel Case (talk) 04:53, 17 September 2012 (UTC)

David.thompson.esq (talk) 03:23, 17 September 2012 (UTC)

Review status

It has been over seven weeks since the above, and no edits have been made to the article except to address the single "done" checkmark above. Under the circumstances, the review should probably be closed. BlueMoonset (talk) 16:22, 11 November 2012 (UTC)

Actually, go ahead and do this. I've just been too busy with other things, online and off, to really address these concerns. Daniel Case (talk) 18:38, 11 November 2012 (UTC)

Closing per Daniel Case. The original reviewer has not edited in over a week, so no point in letting this sit around any longer. BlueMoonset (talk) 02:05, 15 November 2012 (UTC)

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