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CEDA Topicblog is moving

Thanks in large part to the success of this site it is now necessary for us to move to a site that allows additional features, including a means of indexing the threads and a corresponding website to store all of the relevant materials. Anyone who saw the difficulties the site faced on the last day of the CEDA summer meetings can appreciate the need for change.

The new site will allow a link back to this site and all reports and links have likewise been produced on that new site. The link for the newest is www.cedatopic.com and the direct link for the new blog is blog.cedatopic.com

Thanks to everyone whose participation made this process a success.

2006-2007 Topic Ballot

Note the (comments) before each resolution are designed to help interepet the ballot and are not part of the formal topic. This is the recorded ballot from the topic committee meeting. The formal and final ballot will be provided via the balloting procedures as established in the CEDA constitution.

1. (First Amendment)

The United States Supreme Court should curtail the protection provided for free speech by the First Amendment of the United States’ Constitution by overruling one or more of its decisions on obscenity, hate speech, and or campaign finance.

2. (Five cases)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey (1992)
Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)

3. (Seven cases)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)
Terry v. Ohio, 392 U.S. 1 (1968)
City of Boerne v. Flores, 521 U.S. 507 (1997)

4. (Six cases. No Casey)

The United States Supreme Court should overrule one or more of the following decisions

Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)
City of Boerne v. Flores, 521 U.S. 507 (1997)
American Booksellers Association v. Hudnut, 475 U.S. 1001 (1986)

5. (Eight cases)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)
City of Boerne v. Flores, 521 U.S. 507 (1997)
Terry v. Ohio, 392 U.S. 1 (1968)
Gregg v. Georgia, 428 U.S. 153 (1976)

6. (Six cases. No Quirin or Terry)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)
City of Boerne v. Flores, 521 U.S. 507 (1997)
Gregg v. Georgia, 428 U.S. 153 (1976)

7. (Four cases. No Gratz).

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)

8. (Four cases. No Quirin)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)

Coalition of the list supporters

Coalition of the list Supporters

Dear Debate Community,

When the final slate of topics was announced, it was apparent that first amendment would be what we debate in the fall for a couple of reasons: 1) some, perhaps many, feel that it is the only topic with enough limits; 2) many just don't like the use of "overrule" in the other topics; 3) it is the only area topic competing against 7 area topics, which means the most likely outcome is that a 1/3 to ½ of the community votes for first amendment as their #1 choice, and no one list topic generates more than 1/5 of the vote. Now, given the criticisms coming out, perhaps that is not the case, but the lone area topic is at a huge strategic advantage. Ironically, as someone who supported areas, the process created strange bedfellows the way it played out. I think the lists were made with broad strokes to allow for a lot of flexibilty. Ironically, this is the major criticism of the list topics. I strongly feel that the committee created a series of lists that have much pedagogical value in terms of diversity of case options, than the free speech topic. And finally, I don't agree that the stem for the lists are as open-ended as others do. But that is not here nor there. If you are interested in voting for a list as your #1 topic, please continue.

The last three years, whatever topic had the overall most number of #1 votes, won. 93 total ballots cast last year with pressure getting 29 first round first place votes, with 21 the next highest. The year before that, there were 95 total ballots, with the winning topic receiving 46 followed by 19, and in 2003-4, there were 75 ballots cast, and the winning Europe list had 31 first round first place ballots, with second place having 22.

If your school is a list supporter, and I concede that for many it is too early to make that call (depending on how much investigation the school wants to do or the inclusiveness of the decision making process at the school), I call on those in favor of any list to participate in a coalition-building process to give a list topic a fighting chance to win.

I propose this: If you support any of the lists, let's have a discussion on the blog until a deadline date, perhaps July 1st or even a little later. The goal of the discussion is to create some consensus for what order we think the lists should be voted in. From there let's have our own vote amongst the supporters of a list. We each agree to support the results of that voting as a group and vote accordingly. And we all cast our individual ballot as part of a collective voting block.

If we got 48 willing schools to participate, we could assure that a list topic was likely victorious. I suspect we can't get that many, but we should strive to maximize our coalition. Without any external effort on this, a relatively small minority of first amendment #1 votes will likely win.

I will post this note to edebate, CEDA-L, and the Blog. Please let me know if you are interested. I will create and defend a rank order of the lists to start the discussion, only on the blog. I hope people see the strategic necessity to think of this as one list versus one area, and not 8 separate topics. Thanks for reading.

Ede "Doc" Warner

The First Amentment topic on the ballot

The United States Supreme Court should curtail the protection provided for free speech by the First Amendment of the United States’ Constitution by overruling one or more of its decisions on obscenity, hate speech, and or campaign finance.

vote it down

clean up the ballot you have.

Slate of lists

A discussed stem wording is:

The United States Supreme Court should overrule one or more of the following decisions

(Code numbers will be included)

List # 1:

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)

List #2:

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
Terry v. Ohio (1968)
City of Boerne v. Flores (1997)

List #3:

Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
American Booksellers v. Hudnut (1986)

List 4

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
Terry v. Ohio (1968)
Gregg v. Georgia (1976)

List 5

Planned Parenthood v. Casey (1992)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
Gregg v. Georgia (1976)

List #6

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)

List #7

Planned Parenthood v. Casey (1992)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)

My suggestion

Put first amendment off.
Create three topics of 4.
One without Casey.
One without Milliken and Gratz.
One without Quilin.

That's fair and gives everyone an equal chance to win.

The contradiction

I be a lot more comfortable about this if the race-equal protection area topic makes it on, but with the time constraints, I suspect that won't happen.

I will say this, you can't have it both ways: if Milliken and Gratz both access "race", why are they that expansive? Your discussion is proving their different pedagogical value?

This solution to the problem is a poor quick-fix based on time. The better solution is to fix the wording.

That the Supreme Court should increase constitutional protection to:

the right to an abortion by overruling the Casey decision;limit presidential war powers by overruling Quirin decision;
reduce violence against women by overruling Morrison decision;
increase state affirmative action by overruling Gratz decision;
increase desegregation in education by overruling Milliken.

Revisiting the list

That the Supreme Court should do one or more of the following:

increase protection for the right to an abortion by overruling Casey;
reduce protection for presidential war powers by overruling Quirin;
increase protection for violence against women by overruling Morrison;
increase protection in affirmative action by overruling Gratz;
increase Congressional protection for religious freedom by overruling Boerne;
and/or
increasing protection against search and seizure by overruling Terry.

First Amendment Resolution Will be on the ballot

It recieved sustantial support from at least seven members of the committee.

Overrules - Need to narrow the mechanism

Open thread- discuss.

Updated working first amendment resolution

The United States Supreme Court should curtail the protection provided for free speech by the United States Constitution’s First Amendment’s protection by overruling one or more of its decisions on obscenity, hate speech, and or campaign finance.

An alternative areas resolution - equal protection

An alternative areas resolution -- Equal Protection (I wrote about this on the blog - see my very first blog post)

The resolution would say:

The United States Supreme Court should strengthen the constitutional protection against race discrimination by overruling one of its decisions which held that a government action/law/statute did not violate the equal protection clause of the 14th amendment.
Cases would include: Milliken v. Bradley (school desegregation), Washington v. Davis (held that policy with disparate impact on blacks was not unconstitutional without evidence of discriminatory intent), Gratz (affirmative action), Shaw v. Reno (racial gerrymandering),, Palmer v. Thompson (holding that city's decision to close all public swimming pools rather than integrate them did not violate the Equal Protection Clause because the city closed all swimming pools "equally").

This topic would be great and you are already familiar with most of the key cases because they tend to be the "landmark" cases in constitutional law. And this would appease the fear that a bunch of list resolutions plus one areas resolution (1st amendment) would inevitably result in a 1st amendment topic.

Updated working first amendment resolution

The USSC should limit the first amendment’s protection of free speech by overruling one or more of its decisions in the area of ______

First Amendment Area Resolution

Under discussion. There are some wording variations to come, but this is what was discussed yesterday.

(Working wording) - The United States Supreme Court should overrule one or more of its controlling decisions that struck down a statute on the grounds that it violated the First Amendment's protection of free speech.

Decision on the the First Amendment vs. Ntl Security resolution

The committee voted 8-1 against including the topic on the ballot. Darren Elliot voted to include it on the topic.

Decision on the plenary power option

Despite great work by Lindsay, the committee unanimously decided to not included it on the slate of topics.

It should be noted that the emphasis on foreign policy and national security was a substantial concern for the committee.

Agenda for Day 3

1. Area Topics
First Amentment
Race
Education
Religious Freedom

2. Mahoney - update on 1A vs. Ntl Sec

3. Harrison - Plenary Power

4. Adjust size of the lists (shrink)

5. Can the affirmative specify the grounds for overrule?

From Dallas

I apologize for coming to this discussion late, but I only returned from
abroad yesterday.

I would like to make an appeal for the inclusion of one or more "area"
topics. I think freedom of religion would be a good one, although I don't
think it would necessarily be the best, and it certainly is not the only
possibility.

I propose: Resolved: That the USSC should substantially change the law of
First Amendment religious freedom by overruling one of more of its
decisions regarding establishment or free exercise of religion.

This is not too broad. There will be some cases you won't predict right
now, but there won't be a huge number, and by the end of October,
everybody will know what nearly all of them are.

This is fresh. We have never debated religion before, and while people
are very interested in the subject and the controversies, most college
students know little about the cases and controversies involved.

There is INEVITABLY strong negative ground. ANY rule that limits
establishment, liberally construed, will in some way limit free exercise.
And any enshrining of a right to worship smacks of establishment. I have
not done any research lately, but my memory from law school is that there
was not a single "easy" case on religion.

I believe the topic should include both free exercise and establishment,
and I admit this is "bidirectional." That's good. It makes the negative
learn about both sides of the issues, so they have to have at least two
generics. Also, it lets affs choose their side; if Liberty feels
strongly that free exercise should triumph, they can support that. If
Pagan U wants to say the government should get out of the business of
protecting religious exercise in the labor market, they can support that.
What would be included? Relying merely on memory, with no current
reading, I would say that there would be a lot of education cases
(parochial school support, vouchers, etc,) a lot of labor market
accommodation cases, and a smattering of other interesting issues.
Big Love (polygamy) comes to mind. Creeches on public property. The Ten
Commandments in Courtrooms. In God We Trust on the Money. The Pledge of
Allegiance case. Prayer in public schools. Peyote(!)

As I say, I'm sure there will be surprises, cases I can't remember and you
won't discover in a day. But that is the fun of a topic developing over
time. And there just are not that many cases, this really can't get out
of control.

One more thing. I know the topic committee thinks that it can say the
word "overrule" and name a famous case and know what the debate will be
about. This is TRAGICALLY misguided, as Ms. Harrison has so vividly
illustrated. My topic COMPELS the aff to change the law of religious
freedom, inevitably creating strong and predictable negative ground. I
GUARANTEE I can write affs on your list topics that you have never heard
of and won't find predictable or useful or manageable with your generics.
Respectfully,

dp

Strength of the Unifying Mechanism

Europe -- no unifying mechanism. Disparate areas. Bad

China -- Strong unifying mechanism. Disparate areas. Maybe "too easy" to be neg. If we think of the unifying mechanism as a way to protect negative ground on a scale of 1 to 10, the pressure mechanism may have been an 11 (or higher). Very difficult to defend pressure vis-a-vis engagement

Courts. Unifying mechanism. Disparate areas.

The question is how strong is the mechanism and does it weigh in to heavily for one side.

Reason it is weak: Ryan has steadfastly defended the Court Legitimacy and Hollow Hope DAs, but you obviously can't run both at the same time and these strategies have generally taken a beating from individuals who have debated the topics. Anyone want to post their win-loss record going for Stare Decisis? What happens if the Court does overrule a case in the Fall or makes a relatively liberal decision?

Reason it is strong: The Court doesn't usually overrule things -- On the neg people will find ways to solve the harms of these cases, and probably even their legal precedents, without overruling them. Perhaps they will just run the distinguish counterplan or even be more sophisticated. This is my general understanding as a non-lawyer and every lawyer, law professor, and law student who has commented on this has made this point without exception from the very beginning and it hasn't been answered.

So, the mechanism may be either incedibly weak or incredibly strong in its ability to provide generic negative ground. AT BEST, we don't know.

Potentially debating many disparate areas and relying on a mechanism that may be incredibly strong or incredibly week seems problematic.

How would people rate the mechanism as a means to protect negative ground on a scale to 1 to 10?

Does anyone think it may be useful to create a list where we know there is a strong defense of the need to overrule? Perhaps a topic where we have the best 5 or 6 six solvency cards that say why it really needs to be overruled

Another swipe has been taken at the ability of the affirmative to generally defend the need to overrule in

On Lists and Areas

Although this may contradict Ede's call to the committee (and I hate to disagree with Ede), I'd like to make another call for the committee to work on a plenary powers or other "areas" resolution, in part based on Paul's comments below and in part based on what I have heard over the past two days. I apologize in advance for the length - I had not a lot of time to edit.

First, Paul is correct when he states that the Court almost never directly states that X case is overruled. It overrules its precedents by announcing new rules that displace the old ones. As an example -- in Lawrence, the Supreme Court announces that there is a privacy interest in adult, consensual, private sexual conduct, thereby overruling Bowers. The Supreme Court chose to overrule Bowers in that way, but it could have done so in an infinite number of ways -- by announcing a completely new test for fundamental rights, by ruling on the basis of equal protection (which O'Connor did in her concurrence), by ruling on the basis of the first amendment right to expressive association (which many law review scholars advocated), by ruling on the basis of the privileges and immunities clause (which an amicus brief advocated), by ruling that the regulation of sexuality is outside the state's police powers (which the CATO institute advocated), etc. I think this is what the various members of the topic committee understand when they say the topic will be "too big." Each precedent may be overruled in a tremendously large number of ways.

Because of this, I see this year headed in a dangerous direction if the resolution simply requires the Aff to overrule a case --there are very, very, very few advocates there are for the simple overruling of Supreme Court precedent without advocating a new rule to displace the old (very, very, very few - pretty much just conservative crackpots discussing the need to "overrule Roe"). Once the community realizes this, I foresee Affirmatives that do a huge, wide range of things in very disparate areas of the law (examples -- if Glucksberg or Casey is included -- plan: rule that gays have a fundamental right to marry/kids have a right to education/etc., thereby overruling the test used in Glucksberg and Casey holding that fundamental rights must be deeply rooted in the concept of ordered liberty). Affirmatives will overrule the cases on your "list" resolutions by doing virtually anything that they want.

You are listing cases that come from a huge range of areas of the law -- your smallest resolution includes these:
Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)

Casey involves substantive due process - the test for what constitutes a fundamental right. This means one could overrule Casey by doing ALMOST ANYTHING that announces a new fundamental right by displacing the Casey test.

Ex parte Quirin involves the war powers of the president - one could overrule Quirin by limiting the war powers of the president or by announcing a new test for the judicial evaluation of those powers (displacing that announced in Quirin) or by announcing that questions concerning the president's war powers are now to be considered "political questions" from which the court will now abstain, etc.

Morrison involves both Congress's commerce power and its enforcement powers under section 5 of the 14th amendment. Since Congress has not passed the VAWA again, the Court could only overrule Morrison by announcing new tests for the evaluation of the scope of Congress's commerce power or its section 5 authority. In other words, the Court could "overrule" Morrison by announcing almost any piece of Congressional legislation constitutional under the 14th amendment or the interstate commerce clause. This is particularly dangerous since the Negative will need to be prepared to debate both "Court affirms legislation" and "Court strikes down legislation" Affs.

Milliken involves the authority of courts to order injunctive relief. Yes, the case involved a desegregation order, but you won't find authors advocating that the Supreme Court overrule Milliken by approving the plan that was ordered in effect in Detroit because no such plan exists today to approve - what you will find are any number of authors who advocate enlarging the authority of the courts to order various remedies, thereby overruling the central holding of Milliken that the plan in effect was impermissible. There are also, of course, the racial aspects of Milliken, which held that busing remedies could extend across district lines only where there was actual evidence that multiple districts had deliberately engaged in a policy of segregation. Well, you could overrule Milliken by holding that there was, in fact, evidence of intentional segregation in Detroit (thereby overruling the main factual holding of the case, but leaving the legal rule the same).

Finally, Gratz involves the evaluation of an affirmative action plan under the equal protection clause. This is another hugely bidirectional case -- you could overrule Gratz by holding that diversity is not a compelling state interest OR by holding that affirmative action plans should not be subject to strict scrutiny because they remedy racial discrimination. There are solvency advocates for doing so in a variety of ways.

I hope I have given you a sense of how huge the topic could get. I think the community seriously needs to consider the scope of the resolution and needs to consider putting some limited "areas" resolutions on the ballot.

I'll advocate here for plenary powers since I genuinely think it would be a much more limited topic than the "lists" resolutions presently under consideration. I also will explain why I think it is wholly faithful to the "Supreme Court overrule" topic the community elected.

As I have previously stated, the plenary power doctrine is wholly the creation of the Supreme Court. For the court to rule that the powers of the Executive or Congress are not plenary IS an overruling of court precedent. Thus, the committee could easily draft a plenary powers resolution that is faithful to the community's election of a "Sup Ct overrule" topic but that does not include the actual word "overrule."

I still say the best resolution for a plenary powers topic -- one that is limited and one that has substantial numbers of solvency advocates and one that excludes Indians -- is this one:
The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more of the following areas of the law: immigration, foreign affairs, public lands.

I will try to be clear about why I think this resolution is faithful to the "Supreme Court overrule" topic in case I have not been in the past. Because the Supreme Court created the doctrine of plenary powers, for the Court to now limit those powers is PRECISELY the kind of overruling of Court precedent that the legal literature is talking about when it discusses "overrule." Plus, I don't understand why the plans under a plenary powers resolution would be any more about "overrule" than the plans I have given as examples for the "lists" topic above. A plan advocating a new fundamental right (and thereby overruling Casey) doesn't "overrule" precedent any more than a plan that limits the Executive or Congress's plenary powers -- in fact, it is probably less faithful to the "overrule" topic.

I think an areas resolution is superior because the Negative will at least know the direction the Aff must go. The Negative can still use all of its "overrule" evidence (though, as Josh Zive states in his comments, the hollow hope and other courts generics are not nearly as strategically beneficial as the case debates and PICs on a courts topic -- there just aren't a huge number of Negative authors discussing why overruling precedent, in itself is bad -- just ask anyone who has debated Korematsu or Bowers whether those strategies were ever successful -- i mean, "stare decisis good" is just not a great debate argument -- do you really want every round to be "CP - do the Aff but don't overrule a case, net benefit is stare decisis"????). Debates will still be about whether the Court should backtrack from a doctrine that it created. And the community will learn a ton about a key area or two of the law -- the area that is, in fact, THE legal hot topic in a post-9/11 world. I do think a first amendment resolution would be good as well, requiring the Court to overrule one of its first amendment precedents. At least in such a resolution, the area of the law is singular and well-defined. I think you could also solve some of the problem by adding in a directional limiting phrase (requiring the Aff to rule in a particular way and not just simply to "overrule" a case).

If you have questions about this, I'm happy to talk with the topic committee today - my work number is 305-579-4414. I'm not trying to scare anyone - I just have thought about it a lot (while watching the Mavs kick total ass last night) and felt obligated to share those thoughts...I love that the community is debating a legal topic and don't want it to be another 15 years until it happens again.

Peace.

Lindsay

Dear Topic Community,

We have elected a set of representatives to make a series of difficult decisions for this community. For over three weeks, I've heard a deafening silence in answer to my question: what is the role of the topic committee? My interpretation of that silence was a community interested in the topic committee producing a series of the "best" topics, using their experiences and knowledge to produce those topic. The goal of the committee is not the creation of representative "community choices", in other words, is not to represent all possible interests in a democratic manner. In fact, the limiting process of topic construction in many ways does the opposite, it limits out a lot of interests so we can have engaged focused and developed discussion on a few interests. And I believe that the committee has done just that in the set of list topics it has created over the last two days. At the same time, the committee has created a series of lists that allow for predictable narrow debates, while also allowing a host of different areas as possible case consideration.

Earlier discussions suggest that the committee wants students to have legal topic debates in their careers, and wants healthy and relatively equal discussion of both domestic and foreign policy concerns. Our last three topics have had been decidedly unbalanced in favor of foreign policy interests (energy was as much or more about global impacts as it was domestic impacts).

My request today is that the topic community use their knowledge and experience to vote not to include the free speech/national security topic on the ballot, or any other single area topic. I make this request not because Tim did a poor job making a strong case that this is an interesting, debatable resolution with predictable negative ground. He in fact, did a great job in constructing an interesting, debatable topic. I make this request not because the majority of members of this community lack interest in the area. In fact, I make this request for just the opposite reason: a national security only topic would very likely win.

The committee has worked very hard to protect a wide variety of minority interests, introducing a variety of topics that don't often get debated by this community, in the spirit and promise of the original topic paper written by Galloway. We are on the verge of debating at a minimum: poronography, affirmative action, desegregation in education, executive authority, federalism, and gendered violence with the possibility of adding abortion, the death penalty, religious freedom, and euthansia to that list. We are on the verge of a truly unique season created by this community.

The decision to add a 1st amendment/national security topic is likely a decision to move away from all of that work, the bulk of the committees work over the last six weeks. While all combined, these areas might still be a minority interest in being debated compared to a topic with a strong foreign policy impact interest, but a strong challenging coalition has been built by the committee.

There is a strong pedagogical warrant to preserve this difference, there is a strong political warrant for the community to protect minority interests in this case, and finally there is a strong moral justification to embrace the representative leadership that stands up for minority interests when those interests are in the best interest of the entire community.

I suspect some will argue for the right for the community to have democractic choices, and that the community doesn't have the right to make this call. But remember, there was almost no discussion when I called for the community to discuss the role of the community. To demand a pure democractic process as a response to this would be curious at best and at somewhat hypocritical at the least. Remember, despite a small, vocal minority, there won't be a broad--change a landmark decision-topic on the ballot.

It would have been nice to have this discussion on the front end of the process, as Tim is right, it is hurtful to do the work to later find out it won't be used. At the same time, if a topic that is single focused on a limited area makes the cut and wins, it makes irrelevant the work of a lot of folks.

Finally, if the committee makes the decision to add single area topics at this point, I hope they reconsider the number of topics they put on the ballot. Give the list a fighting chance and put one list on to challenge, for a total of two topics.

If first amendment/national security ends up on the ballot as a single area, I'll be disappointed but I'll live with it. High school recently had many of these debates and this topic will really be a last minute addition in terms of time allocated during the topic meetings. And if national security doesn't make the ballot, I'll buy Tim a drink as I share his frustrations for his work not producing a topic, a place I've been several times. At the end of the day, I respect the difficult choices the committee must make.

Adjourn for the day...

We are breaking for the day. We will return tomorrow at 10:00 am.

Items on the agenda are the first amendment area and the full slate of topics.

Thanks for all of the help. Please let us know what you think.

Size of the topics?

Discuss.

First Amendment vs. Ntl Security

Discussion has been under way. Tim Mahoney has two papers on the subject.

2006 Strike Exec on 1A - Mahoney
2006 1A vs. Ntl Sec Supp - Mahoney

Returning to the First Amendment Area

We are reviewing specific wording for the first amendment area topic. To review, the current proposal is

The United States Supreme Court should overrule one of more of its decisions that struck down a statute on the grounds that it violated the First Amendment's protection of free speech.

Your comments?

Themed lists

We will breaking for a few minutes and then considering themed lists. Let us know if you have any perspectives.

Early discussion of potential lists - list 5

Planned Parenthood v. Casey (1992)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
Gregg v. Georgia (1976)

Terry vs. Ohio

We have support for this case from Lindsay and Stefan. We are likely to review it tonight and discuss it tomorrow. Please weigh in if you have any perspective on this question.

Glucksberg

Glucksberg would be a fun addition not because of the right-to-die literature, but because it is a way to access the right to privacy/substantive due process literature....One could overturn Glucksberg by overturning the test announced therein, that a fundamental right must be rooted in history. Those debates would be really good, I think.

Early discussion of potential lists - list 4

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
Terry v. Ohio (1968)

And one of the following:

Kelo v. City of New London (2005)
Gregg v. Georgia (1976)

Criminal vs. Civil

Something no one has mentioned, I don't think, is that putting a capital punishment case on the list opens up the topic to both civil and criminal cases. This is a BIG increase in the literature and something for the topic committee to discuss.

Incidentally, if you are going to put a criminal case on the topic, I would think Terry would be more interesting than a death penalty case, wherein you would rehash much of the debates from the treaties topic. The Fourth Amendment literature on Terry is awesome.

Kelo

Whoever was responsible for researching Kelo, did you find people advocating that the Supreme Court actually overrule the decision? I cannot imagine the Court overruling itself so soon after rendering the decision, even given the change in the composition of the Court. Were there actually authors suggesting this was a possibility (or advocating for it)?

Malcolm, here you go

My antedotal evidence from last night, hearing students talk about how close friends and parents talk about co-workers get angry that they had higher test scores while their "Black" friends got race-based scholarships was powerful. I think there is plenty of evidence to support my claim...The recent faculty discussion we had in my department over hiring a Black faculty member who might not be as "qualified" was a hotly emotional issue. Trust, this is a core controversy on the level of abortion in terms of emotion, and unique to college students. I feel stronger about this than desegregation in the core of an intercollegiate debate topic.

http://www.puaf.umd.edu/IPPP/1QQ.HTM

Evidence to support Gordon's last Claim

I spoke to a group of incoming first years who will be receiving a race-based scholarship. None could defend the merits of their award. We had about an hour conversation. Rank order of importance for a college student:

1) admissions based on race
2) busing
3) emminent domain

I'd argue that in terms of race, #3 might be more pressing in the short term, given the climate, but I'd still prefer 1 and 2.

What's up JOE MILLER!!!!!!

Control size by content, not number of cases

Three topics of seven:
Baby bear: Hudnut, no Casey
Mama: Casey andGratz (which is also huge)
Daddy: Everybody and their mama

The fact that no one agrees by size is exactly why topic committee should not allow size (number) to be a relevant criteria.

MAKE THE SMALL TOPIC 6 CASES

Gratz should be in the core! The offense against c/p's: we need consistency. Any c/p that increases that a consistent signal would have a solvency deficit if the aff + perm equals a more consistent signal...Preferrably, they all should be same size so vote is solely on size.

Size

History tells us the smallest will win, doesn't it. So why not make 4 topics with different combinations of 6 or 7 topics instead of writing three different sizes? Create a core and trade out 2-3 on each one.

Early discussion of potential lists - list 3

List #3:

Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
American Booksellers v. Hudnut (1986)

Early discussion of potential lists - list 2

List #2:

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
Terry v. Ohio (1968)
City of Boerne v. Flores (1997)

Early discussion of potential lists - list 1

List option 1:

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)

Gratz and Milliken

While desegregation and affirmative action both address education, they are very different vehicles to discuss race, and very different literature bases (no one calls desegregation an act of "affirmative action" for example).

I would prefer deseg and aff axn to be in the core. I think there will be recency issues with Adarand, not as much writing about it of late, other than as precendent for other discussions of strict scrutiny (will move those debate advantages in all kind of directions). If Adarand makes it in at all, I'd prefer to see it only in larger topic lists. I'm enjoying this discussion.

Topic Notes - Day 2

Thanks to Brad Hall for his work today.

Day 2 Notes

Determining the size of list topics

How many is big? How many are small? Do certain cases impact this calculation?

Your comments?

landmark

there aren't 50 us v morrison LANDMARK decisions! You don't need to use numbers with landmark. You have good contextual topicality debates if you use landmark. And you avoid the painful choices like including codes...

Potential stem wording

A discussed stem wording is:

The United States Supreme Court should overrule one or more of the following of its decisions ____

Note: If the specific Supreme court code for each case is included, the topic would likely not include 'its.'

Note2: The phrase 'United States' was supposed to be included in the original post. This is the default stem for list topics.

Overrule - Holding/Decision

Ken Strange and Ryan Galloway are presenting their findings on these wording matters.

Role of the Committee

I'll offer my thoughts up to this point, and get back to grading and my workout. I think the committee should decide it's likely outcome and proceed. At this point, 2 or 3 lists of differing sizes and perhaps 1 or 2 topics about a particular direction/area (plenary power; fundemental rights). Generate the list of potential cases and rank them from 1-12, using overrule as the limiter. If you only have 11 areas, add gun control as the 12th. Write the best plenary power topic that can be agreed on and the best fundemental right. The word landmark can't work alone, but could support one or both of these areas with some additional limiting functions. And by the way, please add to the minutes that Mancuso made this dumbass remark about ...blah, blah, blah". He said it, I didn't. Good luck folks.

Other Areas (includ plenary power)

We arw now in a discussion of other area topics. We are currently considering Lindsay Harrison's plenary power paper. 2006 Plenary Power - Harrison

Affirmative Action / School Desegretation Area Discussion

Ed Lee is leading a discussion on the area of affirmative action and school desegregation.

Your comments?

First Amendment Topic Area

Joe Patrice is leading a discussion of a possible first amendment area topic.

(Working wording) - The United States Supreme Court should overrule one of more of its decisions that struck down a statute on the grounds that it violated the First Amendment protection of [free] speech.

Your comments?

Area 1 - Abortion

Mike Davis is leading a discussion of abortion as an area approach.

Your thoughts?

Day 2 - Back in Session

We are back in session and opening a discussion of area topics.

Your thoughts?

Day 2 Open Thread

Today's session will begin at 10 am.

Let us your reactions to the discussions.

Debating Abortion

If Roe is the "abortion case" that makes it into the topic, and assuming "overrule a decision" means that the original party (yes, new party with same basic case -- I perhaps now South Dakota wins) that won has to lose, it seems to me that the case has to either ban abortion or simply return the matter to the states (most likey) where it will be determined abortion is more or less available.

Both the subsequent impacts and morality of abortion and general are interesting topics of debate, but these seem to be more policy and moral issues than legal issues (I realize that they are not entirely distinct).

I did an awful lot of abortion research on the privacy topic. I thought the more interesting debates were about how to better establish abortion rights and generally thought that the LEGAL criticisms of Roe by both the left and the right were pretty damning. How to better secure abortion rights on a more solid legal foundation such as Equal Protection, Due Process, or 13th Amendment seemed to be better arguments and were widely vetted in the law reviews. We even had a new aff that we never ran that said that we should adopt a brain standard for life rather than the trimester framework. The 1AC was just a scientific criticism of the trimester framework and then we had arguments both ways on how this would impact abortion rights -- cards that said brain functioning was earlier than where the trimester framework endorsed a stronger fetal interest and cards that said the trimester framework would eventually collapse abortion rights because science would make it possible to sustain life outside the womb earlier and earlier. Anyhow, my general point is that I'm concerned that these more interesting (in my mind) debates will not occur if the the resolution is limited to Roe and T can box the aff only into either banning abortion or returning the matter to the states. Granted the negative can always CP with these other legal rationales, but these debates will only occur if someone actually overrules Roe v. Wade. And, even that is problematic because if the aff just sends the matter back to the states and OT Roe for a rationale of "flawed legal reasoning" none of these CPs are competitive.

I don't favor the areas approach, but one alternative may be to list more abortion decisions that the affirmative could overrule. For example, one resolution could have Roe, Casey, and Webster. It's not a silver-bullet solution, since overrule may still limit the affirmative more than was recognized on the 92 privacy topic (or not), but more decisions in more directions seems to increase the room to maneuver for the affirmative in the abortion debate. Since there doesn't seem to be widespread support for a strong directionality standard, and giving flexibility on the abortion question to advocates may be socially desirable, this may be a good idea.

Anyhow....WHAT ROE SHOULD HAVE SAID got me thinking.. I guess there is a WHAT BROWN SHOULD HAVE SAID

http://balkin.blogspot.com/2005/07/what-roe-v-wade-should-have-said.html

What Roe v. Wade Should Have Said
JB
My new book, What Roe v. Wade Should Have Said, has just been published by New York University Press. (You can buy the book here and here). I asked a group of eleven scholars to rewrite the opinions in Roe v. Wade and its companion case, Doe v. Bolton, using only materials available as of January 1973 when the cases were decided. The contributors included Anita Allen ( Penn), Akhil Amar (Yale), Teresa Stanton Collett (St. Thomas), Michael Stokes Paulsen (Minnesota), Jeffrey Rosen (George Washington University), Jed Rubenfeld (Yale), Reva Siegel (Yale), Cass Sunstein (Chicago), Mark Tushnet (Georgetown), and Robin West (Georgetown).
Acting as the book’s “Chief Justice,” I wrote an opinion announcing the judgment (but not the opinion) of the Court; It strikes down the Texas and Georgia abortion statutes in Roe and Doe. Seven contributors upheld some form of the abortion right, three did not, and one contributor, my colleague Akhil Amar, struck down only the Texas abortion statute but not the 1968 Georgia statute in Doe v. Bolton. None of the contributors adopted Roe’s original trimester framework. Here is an except from the introduction talking about some of the contributors' different approaches to Roe. This is only a summary; if you want the actual reasoning you should read the book.
* * * * *
My opinion argues that abortion statutes violate both women’s liberty and their equality. Restrictions on abortion compel women to become mothers, with all of the social expectations and duties that come with motherhood. Whether fairly or not, women in American society still bear most of the responsibility for childcare. They are expected to make sacrifices for their children and they feel most of the brunt of social condemnation if their children are not properly cared for. Moreover, because of the strong social expectations about the duties of motherhood, women suffer stigma and shame if they give their children up for adoption. The right to abortion is the right to have a reasonable time to decide whether to take on the responsibilities of motherhood. Deciding how long to give women to make that decision should be determined by legislatures in the first instance: “[L]egislatures must specify a period of time during pregnancy in which women may obtain medically safe abortions.” After this point, “legislatures may restrict or even completely prohibit abortions, except where it is necessary, in the judgment of medical professionals, to preserve the life or health of the mother.” The basic idea behind this formulation is that the right to abortion has two components: Women have a right to decide whether or not to become parents, so the state must afford them an appropriate period of time in which to make that decision. But women also have a right not to be forced by the state to sacrifice their life or health to bear children, and this right continues throughout the pregnancy. My opinion rejects the rigid trimester system in Roe. Instead, courts should let states try out different frameworks for abortion regulation. Over time courts should then judge the validity of these laws based on whether they give women a reasonable time to decide and a “fair and realistic chance” to end their pregnancy.
Reva Siegel [who writes a concurring opinion] argues that the proper basis of the abortion right is women’s equality, and that the Court’s heightened scrutiny for laws imposing sex discrimination should have begun with Roe v. Wade. Abortion is a constitutional right necessary to secure women’s equal citizenship. Siegel argues that exemptions in abortion statutes like those in Roe and Doe demonstrate, often in quite telling ways, that abortion restrictions are deeply tied to stereotypical views about the sexes and about the duties of women: “Whatever respect for unborn life abortion laws express,” Siegel notes, “state criminal laws have never valued unborn life in the way they value born life.” Instead, states “have used the criminal law to coerce and intimidate women into performing the work of motherhood.” “Abortion laws do not treat women as murderers, but as mothers: citizens who exist for the purpose of rearing children; citizens who are expected to perform the work of parenting as dependents and nonparticipants in the citizenship activities in which men are engaged.” Siegel bases her opinion on the equality arguments offered in amicus briefs submitted to the Supreme Court by various women’s groups. These briefs grounded the abortion right in what we would today call an antisubordination model of equality law. Siegel’s answer to what Roe should have said is to give voice to the lawyers who were part of the legal vanguard of the second wave of American feminism, and whose arguments were largely ignored by the courts.
Mark Tushnet interpreted the question of what Roe should have differently from all of the other participants: He asked what were the best arguments that could have been generated by someone who could plausibly have been a Justice on the Supreme Court in 1973. The men who decided Roe (there would not be a woman Justice for almost a decade) did not understand the connection between abortion rights and the Equal Protection Clause. In his view, Justice Douglas’ concurrence in Doe (which was drafted in conversation with Justice Brennan), was the best that the Court probably could have done under the circumstances, and it forms the model for Tushnet’s [concurring] opinion.
Four other participants, Anita Allen, Robin West, Jed Rubenfeld, and Cass Sunstein, concur in the judgment. This means that although they agree that the Texas and Georgia statutes criminalizing abortion are unconstitutional, they do so for different reasons.
Anita Allen grounds her opinion on women’s procreative liberty protected by the Due Process Clause of the Fourteenth Amendment. She argues that because laws compelling women to abort their pregnancies would clearly be unconstitutional, so too should be laws preventing abortion: “Like the right to prevent pregnancy, the right to terminate pregnancy is a fundamental right.”
Jed Rubenfeld argues that the constitutional right to privacy is part of a more general prohibition against totalitarian policies that take over people’s private lives and impose a specific occupation on them by force of law. Restrictions on abortion are unconstitutional because they conscript women against their will and force them “to carry out a specific, sustained, long-term, life-altering and life-occupying course of conduct.”
Robin West argues that restrictions on abortion violate both women’s liberty and their equality. However, she does not base her argument on either sex discrimination or the right of privacy. Rather, she argues that restrictions on abortion impose duties of good samaritanship on pregnant women that states impose on no other persons. Moreover, restrictions on abortion prevent pregnant women from using self-help to avoid the consequences of pregnancies imposed on them in cases of marital rape and coerced sex. Although West believes that the courts should protect a basic abortion right, courts cannot deal with the larger structural problems of sex inequality in the United States. “Mothering children, as we presently socially construct that work,” West argues, “is incompatible with the basic rights and responsibilities of citizenship,” and this “incompatibility has constitutional implications.” But merely striking down abortion laws is “a pathetically inadequate remedy.” Emphasizing Congress’s duty to interpret and enforce the Fourteenth Amendment independent of the courts, West argues that Congress is the body best able to pass legislation that protects women’s equality and secures their equal citizenship.
Yet another way of answering the question of what Roe should have said focuses not on the best doctrinal or theoretical justifications for Roe but on what was the best way for the Court to perform its institutional role. Cass Sunstein has advanced a theory of judicial minimalism; he argues that in courts should usually decide cases on narrow grounds and refrain from offering comprehensive and controversial justifications for their decisions. By leaving things undecided, and underspecifying the grounds for decision, courts can act as catalysts for democratic deliberation and avoid provoking an unnecessary political backlash. His opinion decides Roe and Doe on the ground that the abortion statutes were “overbroad,” i.e., that they abridged too much constitutionally protected liberty, without specifying the exact contours of the abortion right.
Akhil Amar concurs in part and dissents in part in Roe, and dissents in Doe. He argues that the Texas statute in Roe is unconstitutional because it was passed before women gained the right to vote. The Georgia abortion statute in Doe, passed in 1968, is another matter entirely, and Amar believes that the Court should have abstained from considering it, leaving the interpretation of the statute to the Georgia courts.
Jeffrey Rosen dissents from both Roe and Doe. Like Sunstein, Rosen also focuses on the Court’s proper institutional role, but he argues that the question of abortion rights should be left to legislatures. He takes up many of the arguments made against Roe by John Hart Ely in a famous law review article in 1973. In Rosen’s view, the Court should have stayed out of controversial questions like abortion, because the right to privacy has no basis in the constitution’s text, structure, and history, and the Court’s previous precedents do not require extension of the right to privacy to abortion. Instead of holding that abortion was constitutionally protected, the Court should have allowed the political process to work out the issue of abortion rights. Rosen notes that abortion reform was just beginning in the early 1970's, and in his opinion, written from the standpoint of 1973, he predicts that the Court’s hasty and ill-considered intervention will only cause severe political problems both for the protection of abortion rights and progressive causes generally in the years to come.
Objections to Roe generally fall into two categories, procedural and moral. Procedural objections argue that the question of abortion rights should have been left to the political process. Moral objections argue that the right to abortion is a substantive wrong that should not be elevated to a constitutional right. Rosen’s objections to Roe are largely procedural. Teresa Stanton Collett and Michael Stokes Paulsen offer the moral case against Roe. Roe, Collett argues, is the product of a misguided radical individualism that undermines women’s liberty and equality. Making abortion freely available will allow men to escape responsibility for sex and parenthood, while “artificial birth control and abortion . . . treat women’s bodies as unatural: something to be altered to conform to the male model.” “I refuse to accept, Collett declares, “that women must deny their fertility and slay their children in order to obtain equal access to the marketplace and the public square.”
Michael Stokes Paulsen offers a forthrightly pro-life opinion, arguing that abortion is deeply immoral and that the Court has severely damaged its authority by recognizing it as a fundamental right. “Abortion,” he insists, “does not destroy potential life. Abortion kills a living human being.” Paulsen writes in a prophetic voice, denouncing the evils of abortion and condemning the Court for having been complicit in the destruction of so many innocent human lives. Paulsen calls on the conscience of Americans to abandon what he regards as the Court’s most lawless and immoral opinion, or, as he describes it, “the most awful human atrocity inflicted by the Court in our Nation’s history.”

End of day one thanks

We have finished up the group sessions tonight and there are small groups working on areas and cases for tomorrow's session. I wanted to thank everyone for their detailed comments. Even if we don't immediately respond to your posts they are a HUGE help. Lindsay, Anjali, Ede, Paul, Jonathan, Will and everyone else who posted or commented today - thank you for the detailed help. It is a huge resource.

We also owe Darren and the folks at KCKCC a big thanks for making the tech work. They worked hard to correct technical problems that put them above and beyond the call of service.

And thanks to everyone else who followed along and checked the blog and/or watched the live feed. People say the community isn't interested - you disagree. Our hit counter for just day one of the meetings registered 1,747 hits.

We have a lot more to do and we will work hard to keep you informed. Thanks.

Areas (vs. lists)

Extensive discussion...Your thoughts?

Meeting Notes

These are Eric's notes from day 1 linked from edebate. Many thanks for the hard work in a long day.

Use of the phrase 'decision' in the context of an overrule

The Dictionary of Modern Legal Usage discusses overrule, overturn, and reverse in the following quote:

ENTRY: overrule; overturn; reverse; set aside; vacate. Overrule is usually employed in reference to procedural points throughout a trial, as in evidence <"Objection|" "Overruled.">. Overrule is also used to describe what a superior court does to a precedent that it decides should no longer be controlling law, whether that precedent is a lower court's or its own. Overturn and reverse are terms to describe an appellate court's change to the opposite result from that by the lower court in a given case.

CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered the opinion of the Court with

respect to Parts I, II-A, II-B, and II-C, and an opinion with respect [*499] to Parts II-D and III, in which JUSTICE WHITE and JUSTICE KENNEDY join., July 3, 1989,

WEBSTER, ATTORNEY GENERAL OF MISSOURI, ET AL. v. REPRODUCTIVE HEALTH SERVICES ET AL., No. 88-605, SUPREME COURT OF THE UNITED STATES, 492 U.S. 490; 109 S. Ct. 3040; 106 L. Ed. 2d 410; 1989 U.S. LEXIS 3290; 57 U.S.L.W. 5023

Both appellants and the United States as amicus curiae have urged that we overrule our decision in Roe v. Wade. Brief for Appellants 12-18; Brief for United States as Amicus Curiae 8-24. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. 410 U.S., at 117-118. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, id., at 164, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting, , June 26, 2000

CHARLES THOMAS DICKERSON v. UNITED STATES, No. 99-5525, SUPREME COURT OF THE UNITED STATES, 530 U.S. 428; 120 S. Ct. 2326; 147 L. Ed. 2d 405; 2000 U.S. LEXIS 4305; 68 U.S.L.W. 4566; 2000 Cal. Daily Op. Service 5091; 2000 Daily Journal DAR 6789; 2000 Colo. J. C.A.R. 3855; 13 Fla. L. Weekly Fed. S 488

The Court cites Patterson v. McLean Credit Union, 491 U.S. 164, 173, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), as accurately reflecting our standard for overruling, see ante, at 14 -- which I am pleased to accept, even though Patterson was speaking of overruling statutory cases and the standard for constitutional decisions is somewhat more lenient. What is set forth there reads as though it was written precisely with the current status of Miranda in mind:

"In cases where statutory precedents have been overruled, the primary reason for the Court's shift in position has been the intervening development of the law, through either the growth of judicial doctrine or further action taken by Congress. Where such changes have [*463] removed or weakened the conceptual underpinnings from the prior decision, . . . or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies, . . . the Court has not hesitated to overrule an earlier decision." 491 U.S. at 173.

Use of the phrase 'holding' in the context of an overrule

http://dictionary.lp.findlaw.com/scripts/results.pl?co=dictionary.lp.findlaw.com&topic

=97/97b6223e606d0402b5c2ec197bfc4898

holding

1: a ruling of a court upon an issue of law raised in a case: the pronouncement of law supported by the reasoning in a court's opinion
(compare decision dictum disposition finding judgment opinion ruling verdict)

2: any property that is owned or possessed (usu. used in pl.)
Example: an increase in the company's {h,1}holdings

Merriam-Webster's Dictionary of Law ©1996.
Merriam-Webster, Incorporated.
Published under license with Merriam-Webster, Incorporated.

CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered the opinion of the Court with

respect to Parts I, II-A, II-B, and II-C, and an opinion with respect [*499] to Parts II-D and III, in which JUSTICE WHITE and JUSTICE KENNEDY join., July 3, 1989,

WEBSTER, ATTORNEY GENERAL OF MISSOURI, ET AL. v. REPRODUCTIVE HEALTH SERVICES ET AL., No. 88-605, SUPREME COURT OF THE UNITED STATES, 492 U.S. 490; 109 S. Ct. 3040; 106 L. Ed. 2d 410; 1989 U.S. LEXIS 3290; 57 U.S.L.W. 5023

Both appellants and the United States as amicus curiae have urged that we overrule our decision in Roe v. Wade. Brief for Appellants 12-18; Brief for United States as Amicus Curiae 8-24. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. 410 U.S., at 117-118. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, id., at 164, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.

JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER, June 29, 1992

(announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, [*844] V-C, and VI, an opinion with respect to Part V-E, in which JUSTICE STEVENS joins, and an opinion with respect to Parts IV, V-B, and V-D.) PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., PETITIONERS 91-744 v. ROBERT P. CASEY, ET AL., ETC. ROBERT P. CASEY, ET AL., ETC., PETITIONERS 91-902 v. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA ET AL., No. 91-744, SUPREME COURT OF THE UNITED STATES, 505 U.S. 833; 112 S. Ct. 2791; 120 L. Ed. 2d 674; 1992 U.S. LEXIS 4751; 60 U.S.L.W. 4795; 92 Daily Journal DAR 8982; 6 Fla. L. Weekly Fed. S 663

The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional standards. See 947 F.2d at 687-698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions after Roe cast doubt upon the meaning and reach of its holding. Further, THE CHIEF JUSTICE admits that he would overrule the central [**2804] holding of Roe and adopt the rational relationship test as the sole criterion of constitutionality. See post, 505 U.S. at 944, 966. State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.

Discussion of the verb (i.e., overrule)

We have several documents that speak to this question, but we would appreciate your input.

Gun control

I couldn't make out what was just discussed, but was gun control summarily dismissed? I don't know the cases, but I do know there has been some interesting discussions both in urban and rural areas about this. No dog in the fight, but Steve did just ask about other interesting areas...

Possible Areas

The following areas have come up in the context of today's discussions. We are considering directions (ie increase or decrease in each area).

Reduce Free Speech
Abortion
School Desegretation
Religious Freedom
Executive authority

Thoughts for Topic Committee

I listened to a good portion of the topic committee meeting today while trying to get other work done, but I'm taking off for the night. Let me say at the outset how impressive today's discussion has been - an outside observer would easily conclude that you all had graduated from law school. You have all obviously done a ton of work. I hope you receive immense gratitude from the community for your efforts.

Before I take off, I figured I would send my thoughts on what I anticipate will be the next big discussion for you all -- how to frame the resolution.

In our blog discussions, I see 4 major types of resolutions we have blogged about so far: list of areas, list of cases, and list of areas/cases with directional limiting phrases. I list them from broadest to narrowest.

#1 - Areas - The USSC should overrule one of its decisions in one of the following areas: abortion, affirmative action, etc.

#2 - Areas with Directional Limits - The USSC should overrule one of its decisions in one of the following areas: abortion (in order to increase access to abortion), affirmative action (in order to increase the availability of affirmative action) etc.

#3 - Cases - The USSC should overrule one of the following: Casey, Grutter, etc.

#4 - Cases with Directional Limits - The USSC should overrule one of the following: Casey (to increase access to abortion), Grutter (to increase the availability of affirmative action), etc.

If I were debating, I would probably prefer #2 - it provides the Aff with flexibility in terms of the number of cases to choose from, but provides the Neg with predictable advantage ground (by specifying the direction/goal of the Sup Ct decision) and predictable generic ground (by requiring the Aff to do the action of overruling).

You have an extremely tough job. Good luck!

Right to Die

The following cases are being examined:

Cruzan v. Missouri Dept. of Health (1990)
Gonzales v. Oregon (2006)
Washington v. Glucksberg (1997)

The general area paper is available. 2006 Right-to-Die - Moore
There is also a specific paper from David Cram Helwitch on the Glucksberg decision.

Pornography

A discussion of pornography regulation cases:

American Booksellers v. Hudnut (1986)
Ashcroft v. ACLU (2004)
Ashcroft v. Free Speech Coalition (2002)
Miller v. California (1973)

The paper is also available. 2006 Hudnut - Galloway

Capital Punishment

A discussion of capital punishment and the specific decision of:

Furman v. Georgia (1972)
Gregg v. Georgia (1976)
Roper v. Simmons (2005)

The report on the Greg decision is available. 2006 Gregg - Stables

School Drug Tests Under Consideration

The following cases are under consideration.

Board of Education v. Earls (2002)
New Jersey v. T.L.O. (1985)
Vernonia School District v. Acton (1995)

Semi-Obvious Solution to Bidirectionality Problem

Can't you just limit bidirectionality within the resolution by specifying the direction the Aff must rule? For example....

The USSC should overrule one of the following:
Casey v. Planned Parenthood, in order to increase access to abortion
Gratz v. Bollinger, in order to increase the availability of affirmative action
Morrison, in order to permit a federal civil remedy for gendered violence
etc.
etc.

Abortion under discussion

The following cases are being considered:

Roe v. Wade (1973)
Planned Parenthood v. Casey (1992)

The full area report is also available. 2006 Abortion - Lee

Your comments?

Affirmative Action Under Discussion

The following cases are being discussed:

Gratz v. Bollinger (2003)
Grutter v. Bollinger (2003)

The report is also available 2006 Aff Action - Hall

cedatopic

Sorry about that! The last discussion gave me an idea. It's radically different than what has been done to date, so perhaps it should be ignored, but...

Resolved: That the Supreme Court should rule on one or more of the following: (a list of important lower cases yet to be heard by SC)

Debates should be about the merits of the cases. Would meet Repko's standard. Debates wouldn't get mucked up in "overrule" or worry about too much aff flexibility. Just a thought...

cedatopic

Religious Freedom under consideration

The following cases are being considered:

City of Boerne v. Flores (1997)
Cutter v. Wilkinson (2005)
Employment Division v. Smith (1990)

The full area report is also available.

There are concerns about using a specific case, but there appears to be support for inclusion of 'religious freedom' as a possible area.

Your comments?

Executive Authority Now Being Discussed

The following cases are considered in the area of executive authority.

Ex parte Quirin (1942)
Hamdan v. Rumsfeld (2006)
Hamdi v. Rumsfeld (2004)
Rasul v. Bush (2004)
Rumsfeld v. Padilla (2004)
U.S. v. Curtiss-Wright (1936)
Korematsu v. United States

The specific case given the most consideration is Quiran. The support for is Quiran here. The rest of the cases are examined in the initial report.

School Desegregation

Now being discussed. This includes an analysis of four possible cases:

Brown v. Board of Ed. of Topeka (1954)
Milliken v. Bradley (1974)
Missouri v. Jenkins (1990)
San Antonio Ind. Sch. v. Rodriguez (1973)

The focus of the recomendation for a specific surrounds Milliken. There is also support for the area of school desegregation. Mancuso's full report is linked here.

Eminent Domain

We are now discussing Eminent Domain (Kelo v. City of New London).

The oyez summary of the case is linked.

Add your comments below.

Back in session...discussing the US vs. Morrison case

We are working to make the audio better. The BBQ was also tremendous.

We are discussing US v. Morrison (federalism/ gendered violence).... Please provide your feedback on the subject below. Just click on the comments link.

You can also check out the paper for this area here 2006 Morrison - Galloway

Important ways to evaluate each case/ area

Area (Non-case approaches)

These are some of the tests/standards for the issues as we consider each area/case.

We will explore the cases for their merits as well as are they?

Liberal/Conservative (pro-govt or pro-individual)
Did thet include relevant tests
Did they strike down statututes (state, federal or executive action)
Would striking down the case be bi-directional? (multiple holdings or pluarity decisions)

We are now reviewing the various decisions/cases

Steve is reviewing the full list of sorted areas, complete with relevant cases in those areas. You may review the list at 2006 Case List Survey - Mancuso

2007-2008 Topic Area Options

This is not an exclusive list, but the committee will now select six areas to be explored in the coming year. Steve Mancuso and Charles Olney have developed the following list. We will then be commisoning people to write papers on this area for March 07.

1. Latin America (paper by Mike Davis)
2. Military Reform (paper by Charles Olney)
3. Middle East - Iraq, Iran, etc.
4. Global poverty/infectious diseases
5. US policy toward Genocide (paper by Ben Voth)
6. US policy toward South Asia
7. Immigration (paper by Sue Peterson)
8. Executive Authority (paper by Gordon Stables).

The session has started - our tentative agenda

This is tentative and subject to change. The streaming webcast is up and running at http://www.kckcc.edu/ Just follow the big green link.

Morning
1. Logistics and procedures
2. 2007-2008 Topics
3. Role of the committee discussion
4. Current situation - report of the chair
5. Proposed agenda

Afternoon
1. Introduce and discuss cases
2. Verb
3. Agent
4. Direct object - precedent, decision, holding

After Dinner
1. Discuss non-case list approaches
2. Decide case lists only?
3. Set Thursday agenda

Open Thread - Topic Committee Day 1

As I just posted on edebate, it will be easiest for the committee to have community input made available through the blog. If you choose to backchannel any of us, please keep in mind that we got a ton of mail both through the list and other means. If, however, you add comments to the blog it is able to be viewed by the entire committee and it keeps the conversation organized.

Throughout the day we will add more posts to keep you informed and allow us to get the most from your feedback. Thanks!

Will Repko on Topic Style and Size

A Five Tub Topic

I. Introduction

This partially stems from a post by Ross Smith on the new CEDATOPIC blog.

(http://cedatopic.blogspot.com/ -- his post is titled "Narrow plus affirmative "bias" = best").

This also stems from my experiences on the Committee.

It is intended to spark two meta-discussions:

 What is the Role of the Committee ?....

and:

 What should final product look like for 2006-7 ?...

II. Summary

The cliff-note version is:

1. For the foreseeable future, the Committee should strive to create topics that -- when reasonably engaged -- will necessitate teams bring no more than (roughly) 5 tubs to a season-ending tournament.

2. I believe the Committee should abide by a Charter that reads something like this:

Debate should be an important and intense component of an undergraduate education -- but should strive not to be all-consuming. Topic wording should reflect this balance.

3. Committee Members should not view their responsibilities as static or even consistent between topics, but instead should consider their responsibilities contextually.

Four contemporary "contexts" that I'd like to call (more) attention to are:

a) The underlying purpose of a legal-only ballot was to "court" students to learn about contemporary legal issues.

Unless the topic is rather narrow, I fear many negatives will view the approach of "engaging my opponent's specific legal Aff" as overwhelming. The topic probably needs to be perceived as manageable, or else the very purpose of forced rotation will be lost.

b) Airlines and the 2 bag rule.

This is a relatively new development that makes broader topics even more difficult to manage.

c) We exist in an era of Neg (judging) bias -- particularly in debates where both teams are relatively evenly-matched.

Topic construction should -- for the time being -- reflect that bias.

d) The emergence of the Kritik places (automatically huge) research burdens on programs.

Topic Construction should pragmatically allot time for reacting to the large research burdens brought on by this genre of argument.

III. Warrants

A) How things have changed

It is not 1991.

Color Me Badd is not rocking the airwaves.

None of us are wearing Bugle Boy Jeans....hopefully.

Near as I can tell, the 1991 "blueprint" for a debate topic looked something like this:

 Force the Aff to do something "mean". It gives the neg good general ground.
 Have an elegant wording, so as to not box-out interesting and valuable corners of the topic.

I sense this blueprint worked in 1991 b/c of some of the specific contexts of that era. Judges were tougher on neg generics. Also, in a largely pre-K era, Affs were reluctant to simply ignore the topic.

This 1991 blueprint seems to have been summoned when writing the "pressure China" topic. Here's why I believe this blueprint has lost much of its value:

1. the 1AC no longer serves as the centerpiece of discussion -- the 1NC does.

Debates need not be about Chinese Toys or Trans-Racial Adoptions. "No specific link" is usually a losing argument for an Aff. Accordingly, these so-called "interesting" areas that "we should not box-out" are often not engaged in a terribly meaningful way. Negs do not "fear" their lack of a specific hit against a small aff to the same degree that they did in 1991 -- they simply don’t have to. If you believe that much of the education occurs both before the tourney begins (research phase) or after the 1AC (refutation phase), then it’s fair to say that the community is not learning that much from including these small/new Affs.

2. If Affs do not like the “mean” direction of the topic -- an increasingly large percentage of teams simply won’t defend it.

Many won’t control Indian Country. Many won’t pressure China. They just won't.

They assuredly take on some baggage by not doing so -- but this baggage does not manifest itself by having a DEEP debate about the topic. It takes place as a T or theory argument. I'd posit that such debates must exist conceptually, but -- in practice -- are not *that* meaningful (in terms of knowledge outside the activity).

The idea of "forcing the Aff to be mean" WAS ONCE a useful counter-weight to flexible Aff choice. Now, it often means that Affs will run as fast as they can AWAY from the (ostenably) central question. They often run so far that they defend the antithesis of it.

This is not a slap at a particular "kind" of debate. Far from it. It is pragmatic acknowledgement that said debate is out there, and that the reasoning that undergirds that defense of broad topics pretends that it is not.

Better put -- Kritik debate exists, people. And -- because it does -- Negs don’t do as many specific hits. Affs don’t need to abide by the topic. And, broad topics are not meaningfully explored.

Meaningful exploration of the Aff USED to be a requirement. NOW, it is an option.

In 2006-7, a limited topic will cause MORE teams to OPT for meaningful exploration of legal issues.

b) Why a 5 tub topic ?...

1. Airlines.

This sounds silly at first -- but actually is becoming an increasingly serious issue that complicates most every debate program (as nearly all programs fly at least *once* a season).

We just finished a topic that -- when fully engaged -- was (conservatively) a 10+ tub topic.

Bracketing the pedagogical wisdom of such wordings, the last two (broad) topics have made it almost impossible to travel with all your materials.

Our community spends considerable energy discussing whether "there is a place" for schools that want to engage in certain argument practices. While it is not perfect, the Committee has and does try to "build" that place into the topic for critical and policy teams alike.

I’d contend that "a place" needs to be preserved for teams that wish to engage the topic. This is not because it is the "Correct" or "Only" way to debate. It is because it's a reasonable "way" to debate -- one that deserves "a place". Not everyone needs to approach debate this way, but the Committee should respect those that opt to.

If the Committee puts out a topic so large that "engagers" cannot bring all of their damn materials to the tourney, then the Committee is not really preserving that "place".

As an aside -- it wouldn’t be the end of the world if:

 We could check a bag
 Debaters weren’t ALWAYS the passengers that irritated every other person on the plane by carrying-on too much crap.

2. Balanced Lives & the "Effort gap"

While I (or MSU more generally) may have a reputation more endorsing insane work habits, I actually believe the following:

"Debate should be an important and intense component of an undergraduate education -- but should not strive to be all-consuming. Topic wording should reflect this balance"

Broad topics tilt debaters towards both (bad) extremes.

Huge topics create an unenviable forced choice -- either:

 engage it all. Creating huge time trade-offs educationally, socially, etc.

OR:

 go mondo-generic. For many, this decision is reached b/c the first option is just so damn daunting. One can meet with reasonable success if they "go generic", all while avoiding the (many) drawbacks having to work endlessly. To me, this is perfectly logical.

I believe broad topics have helped fuel a widening "effort gap". The consequences of this "divide" are getting serious. Let me explain.

Those in the community that are in the "engage it all" camp get a little bitter. Maybe they shouldn't -- but they do. Ideology sharpens.

Those in the community that are (for whatever reason) in the mondo-generic camp also get a little bitter. Some of it is reactive -- they do not appreciate some of the flack or decisions that come their way. A different ideology sharpens.

Frankly, I think this ideological split could cause new debate organizations to emerge. I believe it to be that serious.

While I suspect some sort of effort gap will always be inevitable, I also feel that more narrow topics are a starting point for bridging this divide.

Both camps can see the middle ground again. One camp will be able to go see a movie every now & again. The other would not view parts of the community as hoisting an unfair or unmanageable research burden upon them.

As an aside -- it wouldn’t be the end of the world if:

 Students and Coaches had a little more time on their hands.

They could invest it in all sorts of good things.

 Kritiks were able to be a little more specifically tailored to the Aff at hand.

It's been a little while since someone really rolled Texas EG-style and had a specific link to Korea, or Cuba, etc. I'll contend that made Kirk-Jarius not just *more mainstream* K debaters, but also *better* K debaters. Part of the reason they were able to do this was because the sanctions topic was predictable and narrow.

3. Because the Committee finally bit the bullet – and forced legal rotation.

A legal-only ballot was not an uncontroversial step.

Many in the community find the step irritating or a recipe for boredom. Others just wish it didn’t hit during their senior year.

Unless this topic is quite narrow, I believe the benefits of forced rotation will be lost.

If the Committee is going to pragmatic and wise enough to say the following:

“Hey, we’ll never select anything other than IR topics unless we have legal-only ballots”

Then the Committee should not be afraid to say:

“Hey, unless the topic is fairly narrow, we won’t (on balance) learn anywhere near as much about the law”

Both statements are pragmatic and reasonable uses of bio-power in my opinion. The latter flows from the former.

4. Because the quality of Neg case hits is down, and honing that specific skill set is a particularly important part of a legal education.

Let me start with a disclaimer – I am firmly not in the camp that current debaters are worse than a prior era.

On balance, I am blown away at what they know and how they improve. There are many reasons I think this – though none are important to this paper. I just wanted to be clear that this is not one of those “golden era” nostalgia comments.

But, one skill that has dropped off in college debate (for sure) over the course of the last 10 years is the quality and depth of specific case hits.

For better or worse, this has a lot to do with high school and college debate softening to off-case generics. As stated earlier, the expectations for specific research are just different.

When I first entered college debate, a “complete” neg file included second and third lines of attack. More of the scouting process entailed finding out what :

“their answers to our answers to their answers to…are”

(if that makes any sense)

It is that specific kind of intense depth and anticipation that makes for an impressive law review article or well prepared case. Muddling through fine distinctions of this sort is part of the law.

In fairness, I do see deep, deep case hits every now and again. But, by and large, I see them from coaches like a Ryan Galloway or David Heidt – and less from current debaters or even active first year graduate assistants. I think has something to do with expectations that were placed on Ryan or David when they were students.

The Committee’s decisions create pedagogical norms. They did when Galloway was debating. They do today.

On this topic in particular, the Committee should foster a pedagogical norm that “courts” discussion about a series of important legal cases.

The best way to accomplish this is to endorse list-oriented topics. It will “hook” our youngsters on an important skill set.

IV. Closing Thoughts:

1. Elegant topic wordings from the early 90's may have a special place in our hearts, but if re-debated today would (honestly) be twice as large. The Committee should be specifically be hesitant extrapolate the positive experiences of the pre-merger Privacy Topic to a modern era where the Kritik is pervasive, the judge pool is different, and there is a tempting disincentive to “go-specific”.

2. I do not think the “overturn” problem (cited by Stefan and others) is a deal-breaker.

Call upon ex-debaters that are experts in the legal field, and select the appropriate verb for each of the (many) ideas that have already been put on the table as possible cases for a list topic. Generic ground should not come from the verb anyway – it should come from the politics of the decision (liberal or conservative). It’s the difference between encouraging ticky-tack Branson cplans (universal “overturn” in the stem) and encouraging solid generic disads based on the politics of the new conservative court.

3. Ask yourself if “areas” served as a remotely decent limit on Indians, China, or Energy.

4. While this paper seems to strongly preach limits, I do think an appropriate list would have more than 5 cases. I like 8-11 – maybe even more – Aff-leaning list items. Treaties got tough on the Aff at the end. The Community seems to want a uniform direction (politically). Having them all be liberal rulings seems fine to me.

Take it easy,

Will