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Wikipedia:Featured article candidates/Pepper v Hart/archive2

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The following is an archived discussion of a featured article nomination. Please do not modify it. Subsequent comments should be made on the article's talk page or in Wikipedia talk:Featured article candidates. No further edits should be made to this page.

The article was not promoted by SandyGeorgia 23:24, 22 June 2010 [1].

Pepper v Hart

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Pepper v Hart (edit | talk | history | protect | delete | links | watch | logs | views)

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Nominator(s): Ironholds (talk) 17:08, 5 June 2010 (UTC)[reply]

I am nominating this for featured article because I feel it is of sufficient quality, and enough time has passed between the last nomination and this one. Those of you who want a summary of what the article is before you review it, leads exist for a reason. Ironholds (talk) 17:08, 5 June 2010 (UTC)[reply]

Sources issues: The sources look OK, but there are issues of clarity associated with citation style:-

  • It would be helpful, and informative, if BAILII was spelt out on first mention
  • Is there any reason why the third, rather than the first, of the BAILII citations is given in full?
  • Citations to cases: the form "[1678] 3 Swan 644" as used a number of times is not clear to the general reader, and needs to be explained.

Brianboulton (talk) 20:53, 5 June 2010 (UTC)[reply]

All fixed; for the second point, I forgot to fix it :(. Ironholds (talk) 21:42, 5 June 2010 (UTC)[reply]
On the case citations, my point is that the ordinary reader won't know how to interpret the format, or how to verify the citation. Where are the records of these cases to be found (you presumably had access to them, or to their findings)? Brianboulton (talk) 22:24, 5 June 2010 (UTC)[reply]
Ahh, I see the confusion here. They aren't being used as sources (they'd be primary), the case citations are simply there so that people can, if they choose, look up the original judgment(s) of each case mentioned. They aren't necessary for verifiability, merely something nice to add in case we have some interested legally-minded readers. Most of them can be found through BAILII and similar; the older cases in the English Reports. Ironholds (talk) 23:58, 5 June 2010 (UTC)[reply]
Yes, but the trouble is, these are listed with the references, and your point above will not be apparent to the general, non-legal reader (such as me, for example). Why not list the case citations separately, under a "Case citations" heading, and add an explanatory note as to the format, which as given is pretty well meaningless to the non-legal reader? Brianboulton (talk) 08:55, 8 June 2010 (UTC)[reply]
Point; I'll do that this evening and give you a poke when I'm done. Ironholds (talk) 09:07, 8 June 2010 (UTC)[reply]
Right, fixed. Ironholds (talk) 00:09, 9 June 2010 (UTC)[reply]
Separate listing fixed, good. But what about an explanatory note on the format? Brianboulton (talk) 08:51, 9 June 2010 (UTC)[reply]
I was assuming a bluelinked section header would do; do you mean like the one I had before, or is something more needed? Ironholds (talk) 14:11, 9 June 2010 (UTC)[reply]
WP:MOS disapproves bluelinks in section headings. What I had in mind was a simple note under the heading, thus:
  • "Citation format: year of decision; abbreviated title of the court; the decision number"
That should deal with it. Brianboulton (talk) 11:13, 10 June 2010 (UTC)[reply]
Right, dealt with. Ironholds (talk) 18:08, 10 June 2010 (UTC)[reply]
Great! Brianboulton (talk) 16:25, 13 June 2010 (UTC)[reply]

Media File:UK_Royal_Coat_of_Arms.svg is a user made image, why is there not a pd-old version from an official government source? Fasach Nua (talk) 09:29, 6 June 2010 (UTC)[reply]

If I was going to go out on a limb I'd say its because coats of arms here have specific and very unusual copyright status. A derivative of a pd-old work is acceptable; finding a pd-old work is not. Ironholds (talk) 14:31, 6 June 2010 (UTC)[reply]
  • Comment—no dab links, no dead external links. Ucucha 15:55, 7 June 2010 (UTC)[reply]
  • Comments from Savidan 00:36, 10 June 2010 (UTC)[reply]
    • I think you've got to blockquote the section of the statute at issue in the fact section. Verbatim would be my preference. We read this case even in the US, and I do not recall the relevant section being excessively long.
    • I think you need to quote the juiciest parts of the legislative history that made the House of Lords change its mind.
    • I think you need to mention, link, and likely explain the economic concepts of marginal cost and average total cost so that reader's can understand the two competing interpretations of the statute.
    • The article states that the House of Lord initially agreed with the lower court before rehearing. The article should explain the source of this claim. Is it just the text of the final opinion? Other statements by the judges? A draft opinion?
    • Name the five judges on the initial panel.
    • With reference to both panels, explain which judges: (1) found the statute unambiguous; (2) found the statute ambiguous before reading Hansard; (3) found the statute ambiguous only after reading Hansard
      • Well, the first panel never gave a judgment. The second, I'll look into.
        • This information and the above is in Eskridge and Frickey's Legislation. They didn't make it up, and when they get their information from personal correspondence, they note it in a footnote. That tells me that it's available in a law review or similar. I'd give you the page #, but I don't think its appropriate to cite a tertiary source. Savidan 23:58, 10 June 2010 (UTC)[reply]
        • I've now added the way people were swayed by Hansard. Ironholds (talk) 18:20, 10 June 2010 (UTC)[reply]
    • With reference to Pickstone, I think you need to explain what you mean by "determine the purpose of legislation (but not to interpret the statute)." Determining purpose, to many, would seem to be a critical and often dispositive component of interpretation.
    • There are only two words of academic praise of the decision quoted. Are you representing that there are no other legal scholars who have been supportive of the decision? Granted that legislative history is a controversial issue, but not an entirely one-sided one.
    • Do any of the critics you have cited argue that Parliament actually intended otherwise with the relevant statute? In other words, do they simply object to the use of legislative history or do they also argue that the court has used it incorrectly? This should be clarified.
      • It's fairly clear; if you can show me any ambiguous phrasing I'd be happy to correct it. 01:19, 10 June 2010 (UTC)
    • The Pepper decision briefly discusses the legislative history situation in the US, Australia, and New Zealand. I think the comparative context should be mentioned, albeit briefly. Good article for the US: 35 Stan. J. Int'l L. 231 (which you appear to have cited, but not on this issue). Consider also the impact of the decision in Canada (47 Can. Tax. J. 471 & 741)
    • I think you might consider explaining what "Hansard" is, not just linking
    • The empirical result of Pepper on the lower courts must be explained. A good starting point is: Brudney, "Below the Surface," 85 Wash. U.L. Rev. 1 (2007)
    • The commentary of the Lords themselves should be included. See Millett (20 Stat. L. Rev. 107).
    • You mention Hoffman's article but the citation is to Vogenauer. I suggest you read the article itself and cite it on its own weight (114 S. A. L. J. 656).
    • A good article overall, and I hope to be able to support its promotion if these are rectified.
I'll send you the articles I have linked. However, it has become clear to me that you do not have access to a law research database (e.g. Lexis, Westlaw). Therefore, I am unwilling your assertion that academic support for this decision simply does not exist. I also think that someone should do a systematic search of decisions that cite to Pepper v Hart. I would do this myself but I am busy for the foreseeable future and this is not my area of expertise. Therefore, I don't think I'll be comfortable supporting this article until you get yourself to a law library or find a kindly lawyer or law student to assist you. Savidan 23:58, 10 June 2010 (UTC)[reply]
      • Tell me, do they write a book on being highly patronising, or did you learn it yourself? A kindly lawyer or law student? I am a law student. The most scant search into my contributions would have discovered the six featured articles, thirty-one good articles and one hundred and sixty one Did You Know credits I have for writing, primarily about the law. I do have access to both Lexis and Westlaw, just not to some of those articles; in case the subject of the article wasn't a hint, I'm British. Our Westlaw and LexisNexis access doesn't line up exactly with yours. Where on earth do you think I got the journal articles cited from, the inside of my head? As explained to you, it isn't "my" assertion - it's Stefan Vogenauer's assertion. In case you've never heard of him, he's Professor of Comparative Law at the University of Oxford. Ironholds (talk) 00:39, 11 June 2010 (UTC)[reply]
        • I did not mean to offend you. What I said has nothing to do with your personal qualifications, only your ability to access articles. However, I do think you need to search more than just UK-only law reviews before claiming that something doesn't exist. In fact, I do not believe that Vogenauer himself makes as extreme a claim as you do. He says: "The first academic responses to Pepper were much more muted. Only a few writers regarded it as a 'long overdue' decision from 'which there is no turning back'. n39 Most case notes rather emphasized the problematic aspects and essentially rehearsed the familiar reasons for the exclusionary rule. Some of them focused more strongly on the pragmatic reasons, n40 others highlighted the argument against intentionalism n41 or the argument from the rule of law. n42 It was, however, the argument from the separation of powers which almost all the commentators advanced as the most serious concern." First, he is only talking about the early academic responses. Second, he says most, not all. He may be right that >50% of the responses were negative, but thats a far cry from saying there were no positive responses. Third, he said that five years ago. Savidan 01:48, 11 June 2010 (UTC)[reply]
          • You didn't mean to be offensive? Read what you wrote. To translate it into your area of expertise, how would you feel if you spent ages working on an article about catholicism only to be told that you can't have any sources, because the reviewer has a source you don't, and that maybe you should sit at the little boys table until a real catholic comes along to fix it. And I'd love to look further than UK law journals; as stated, however, I'm using the British westlaw and lexisnexis versions; they're fairly limited. Ironholds (talk) 02:20, 11 June 2010 (UTC)[reply]
            • I don't see how you can simultaneously admit that you have access only to a very limited set of sources and then take offense when someone points that out. In my mind, that pool of sources is not comprehensive enough to satisfy the featured article standards. This concern is amplified when the article includes substantial criticism, but hardly any support. That would only be acceptable if there truly was no academic support for the decision, and it would appear that you simply are not in a position to verify that at the moment. Savidan 02:34, 11 June 2010 (UTC)[reply]
              • No, I can take offence to someone saying that I don't have access to sources I do have access to, and patronisingly assuming I have no legal qualifications or education. I will make the changes you've suggested (with the help of the articles you've helpfully provided me with) this morning and tomorrow morning, since I'm moving back to London this afternoon. Thank you. Ironholds (talk) 02:38, 11 June 2010 (UTC)[reply]
Comment I should add that after conducting the GA review for this article I did a thorough search for additional academic sources and could only find one article of real substance (which I sent to Ironholds). I can access a lot of stuff: I'm a lawyer and hopefully a kindly one. I was concerned in the GA review that the academic commentary was resoundingly negative; but so it is. I wasn't able to find anything positive. Academics like to criticise judges and very rarely have nice things to say about their professional superiors.--Mkativerata (talk) 05:03, 15 June 2010 (UTC)[reply]
Heh, you should talk to my old contract law lecturer. Eeevery lecture was a trip down the garden path to "and I'll tell you something about JUDGES...". Ironholds (talk) 09:46, 15 June 2010 (UTC)[reply]
  • Summary of concern about lack of academic support for decision - Both Ironholds and Mkativerata have represented that they have searched for academic support for the decision, and found none. I accept 100% that they have actually done so and that both of them are qualified to appropriately identify such commentary. However, it is still an extraordinary claim to state that all academic commentary about a decision is resoundingly negative. Extraordinary claims require extraordinary evidence. The fact remains that without very much effort I was able to identify 5 articles that I considered crucial to writing this article comprehensively, and neither Ironholds nor Mkativerata were able to find any of the them. Either of them should feel free to correct me if they were able to access these articles but simply did not consider them of "real substance." Therefore, I am unable to accept that either of them have access to enough sources to infer evidence of absence from absence of evidence. If they were finding some support for the decision in UK and Australian law reviews, I would possibly be willing to accept those authors as representative of the [US, Canadian, etc.] literature base. However, I am not willing to give a stamp of approval to an article that claims there is no academic support for the decision based on a search of only a portion of the literature. I know from personal experience that there are numerous defenders of the practice of citing legislative history in the academic community. It is possible that all of them have failed to comment upon probably the most significant single judicial decision authorizing the practice, but that is a claim I cannot yet accept. Perhaps others can. Savidan 14:27, 15 June 2010 (UTC)[reply]
    Actually, no, neither of us said that. I have included multiple quotes and bits and bobs from people who indeed supported that decision; I have never claimed the academic community unanimously asserted that the decision was a bad one. " I know from personal experience that there are numerous defenders of the practice of citing legislative history in the academic community. It is possible that all of them have failed to comment upon probably the most significant single judicial decision authorizing the practice, but that is a claim I cannot yet accept." - you are evidently unable to provide these people. Obviously, like us, you're not qualified to comment. Ironholds (talk) 15:21, 15 June 2010 (UTC)[reply]
    This experience is becoming increasingly bizarre for me. I'm generally opposed to quoting people's words back to them, but I now no longer understand your position. Above, I asked: "Are you representing that there are no other legal scholars who have been supportive of the decision?" You replied: "Basically, yes" and added "all the commentary I found was negative" (your emphasis). If you have in fact identified authors who supported the decision, add that to the "approval" section, which currently includes no academic commentary except for the two words quoted from Vogenauer (himself an opponent of the decision). As a start, perhaps I could suggest that you go to the original article quoted by Voeganuer, read it, see who it cites, and see who cites it. Savidan 16:10, 15 June 2010 (UTC)[reply]
    Yes, "no other legal scholars", interpreted by me as "no scholars other than those already given". I can't find the scholar he's quoting, and evidently you can't either. Surely the fact that three lawyers/law students (me, you and Mkativerata) can't find any other sources should be a sign? Particularly when academic commentators have noted that the overwhelming reaction has been negative. The requirement is not to include every source on the face of the earth, it is to include a fair representation of commentary. Most commentators don't like it, and commentators say most commentators don't like it. The article includes largely negative reactions, because the reactions were largely negative. You will note that I have included positive academic and judicial reactions where such reactions cannot be found (this is including the sources you provided). You can't find anything else positive. I can't find anything else positive. Mkativerata can't find anything else positive. We are all lawyers or law students with access to the journals of three different major common law jurisdictions as well as international commentary. Have you considered we can't find much positive commentary because, like Vogenauer said, most of it wasn't positive? Ironholds (talk) 16:22, 15 June 2010 (UTC)[reply]
    Don't include me in this. I haven't had time (and don't have time, for the forseeable future) to perform a full search. Based on the above, I think it's clear that neither you or Mkativerata have access to large swathes of US and Canadian law journals. I want someone to search those journals before I so conclude. I'm not going to get into repeating myself, but as I explained above, I do not share your interpretation of Vogenauer as saying anything more than "most" (i.e. >50%) and do not believe it is current enough. Savidan 17:13, 15 June 2010 (UTC)[reply]
    I have, noting your concern, asked User:Bearian to undertake a search. He's a US law lecturer; is that acceptable? Ironholds (talk) 17:43, 15 June 2010 (UTC)[reply]
  • New comment - wherever possible, sources should be cited to the most direct source possible, not a secondary or tertiary source. For example, several commentators are referred to but the citation is to someone citing them. Even quotes from judicial decisions are sometimes cited to commentators. Even the statute (which still has an unnecessary [...]) is cited to "Glover" instead of using a more traditional method for citing statutes. Savidan 16:10, 15 June 2010 (UTC)[reply]
    If you were to actually read Glover's entry in the bibliography, you would see that he was the head of Her Majesty's Stationary Office, which provides the print versions of all sources. I fail to see what the problem is. On the direct sources front, "wherever possible" is something I agree with, but since none of us have been able to provide the direct sources (despite, as said above, having collective access to vast numbers of journals)... Ironholds (talk) 16:22, 15 June 2010 (UTC)[reply]
    I did read it and think you can do better. There are publicly available statute databases that are far more useful, and that doesn't get into the question of proper citation. I don't know whether I have access to these sources; I don't have time to check them all, but in my mind this citation does not conform to best practices or the FA standards. If someone is important enough to single out in the article, they should be cited on their own weight. If you really don't have access to so many of the sources (keeping in mind that many journals are available outside of Westlaw and Lexis), I find it troubling that so many sources deemed so important haven't actually be read first hand. Savidan 17:22, 15 June 2010 (UTC)[reply]
    How many is "so many"?
  • To simplify this whole debate; you claim that extraordinary claims require extraordinary evidence. Can you, then, provide extraordinary evidence to prove the assertion that when three lawyers or law students with access to three wide-ranging, highly different sets of journals in distinct and important common law jurisdictions cannot provide large amounts of positive academic criticism about a decision, the conclusion to be drawn is that people aren't looking hard enough? the most likely explanation is usually the correct one. In this case, what is more likely; that the mass of journals trawled through don't have positive commentary because there hasn't been enough trawling, or because that commentary simply doesn't exist to a significant degree? Ironholds (talk) 16:35, 15 June 2010 (UTC)[reply]
    Let me state my hypothesis clearly: I think that US and Canadian law reviews will provide some support for the decision. Savidan 17:22, 15 June 2010 (UTC)[reply]
    And I've included both. Again, you are a US law student. If there are so many US law commentators with positive things to say, why have you been unable to find them? Could it be that they don't exist? Ironholds (talk) 17:41, 15 June 2010 (UTC)[reply]
The above discussion is preserved as an archive. Please do not modify it. No further edits should be made to this page.
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