cedatopic

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Thursday, June 08, 2006

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.

Monday, June 05, 2006

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)

Friday, June 02, 2006

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.

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)

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?

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

Thursday, June 01, 2006

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)?

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)

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?

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.

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.

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.

Wednesday, May 31, 2006

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.

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

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!

Tuesday, May 30, 2006

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

Monday, May 29, 2006

Role of the Topic Committee - Ede Warner and Reply

Dear Topic Committee and NDT/CEDA Community:

Given the lack of public discussion about my last post which offered two ways to view the role of the topic committee, one can only assume that the role of the topic committee is to find the best topics it can, based on two primary factors: 1) the debate theoretical knowledge and experience of the topic committee members; 2) filtering the available research through that debate knowledge and experience. No matter how willing the committee is to consider outside "voices" and perspectives , the reality is that at the end of the day, the topics that will appear on the topic will come down to the votes of those on the committee. And they have made it repeatedly clear, that they will only support topics they are comfortable with as part of their charge. And I can accept that. We vote for qualified topic committee members whose job is to create the best topics they can for the purpose of a general election in which the larger committee picks the best topic from a group of topics deemed acceptable for a year of debate by the topic committee. Those who disagree, if there are many, need to be more vocal and vote in topic members willing to consider alternative ways of topic construction, or live with the choices being made presently.

But I do struggle with the lack of evidence that currently seems to drive present day decision making about topic construction. And I certainly don't believe the following concern is only true of the topic committee, but a majority of NDT/CEDA members as demonstrated by these discussions over possible topics, areas, and ground. While I see everyone fervisherly working on constructing possibilities for this year's topic, I still see a lack of goals and asessment measures in place PRIOR to making those decisions. In the earlier post, the question posed to the committee was simply: is the purpose of the committee to create a ballot of the "best" topics or should the committee create a set of different community choices which represent the areas of topic construction disagreement so that the community can use the voting process to resolve those differences? Is the committee charged with resolving differences like area versus list, or questions of who is the best agent, or is the committee charged with producing a series of topics which represent those differences so the community can vote on it's preference of those differences as it relates to this particular topic? These are very different thought processes. My challenge to the community is that if it wants to produce the best topics it can, it must be willing to think reflexively about the history of topic construction and where present ideas about construction come from, and most importantly, the quality of the evidence that drives many of the commonplace beliefs held by a majority in the community.

One example which creates some of the tenstion I believe is the notion that the term "predictable ground" has evolved to become synomous with the term "absolute certainy." Although I think the evidence is overwhelming that this evolution has occurred, I'll offer some evidence before making any arguments:

EVIDENCE:

Wake's NDT page has a list of topics at http://www.wfu.edu/organizations/NDT/HistoricalLists/topics.html

I'll post the last 60 years for years ending in 6-7:

1946-1947
RESOLVED: "That labor should be given a direct share in the management of industry.

1956-1957
RESOLVED: "That the United States should discontinue direct economic aid to foreign countries."

1966-1967
RESOLVED: "That the United States should substantially reduce its foreign policy commitments

1976-1977
RESOLVED: "That the federal government should significantly strengthen the guarantee of consumer product safety required of manufacturers."

1986-1987
RESOLVED: "That one or more presently existing restrictions on First Amendment freedoms of press and/or speech established in one or more federal court decisions should be curtailed or prohibited."

1996-1997
RESOLVED: "That the United States Federal Government should increase regulations requiring industries to substantially decrease the domestic emission and/or production of environmental pollutants."

And each year since 1997:

1998-1999
RESOLVED: "That the United States Federal Government should amend Title VII of the Civil Rights Act of 1964, through legislation, to create additional protections against racial and/or gender discrimination.

1999-2000
RESOLVED: That the United States Federal Government should adopt a policy of constructive engagement, including the immediate removal of all or nearly all economic sanctions, with the government(s) of one or more of the following nation-states: Cuba, Iran, Iraq, Syria, North Korea

2000-2001
RESOLVED: That the United States Federal Government should substantially increase its development assistance, including increasing government to government assistance, within the Greater Horn of Africa.

2001-2002
RESOLVED: That the United States Federal Government should substantially increase federal control throughout Indian Country in one or more of the following areas: child welfare, criminal justice, employment, environmental protection, gaming, resource management, taxation.
2002-2003 RESOLVED: that the United States Federal Government should ratify or accede to, and implement, one or more of the following:

The Comprehensive Nuclear Test Ban Treaty;
The Kyoto Protocol;
The Rome Statute of the International Criminal Court;
The Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the Abolition of the Death Penalty;
The Treaty between the United States of America and the Russian Federation on Strategic Offensive Reductions, if not ratified by the United States.

2003-2004 Resolved: that the United States Federal Government should enact one or more of the following:
Withdrawal of its World Trade Organization complaint against the European Unions restrictions on genetically modified foods;
A substantial increase in its government-to-government economic and/or conflict prevention assistance to Turkey and/or Greece;
Full withdrawal from the North Atlantic Treaty Organization;
Removal of its barriers to and encouragement of substantial European Union and/or North Atlantic Treaty Organization participation in
peacekeeping in Iraq and reconstruction in Iraq;
Removal of its tactical nuclear weapons from Europe;
Harmonization of its intellectual property law with the European Union in the area of human DNA sequences;
Rescission of all or nearly all agriculture subsidy increases in the 2002 Farm Bill.

2004-2005

Resolved: That the United States Federal Government should establish an energy policy requiring a substantial reduction in the the consumption in the total non-governmental consumption of fossil fuels in the United States.

2005-2006

The United States Federal government should substantially increase deplomatic and economic pressure on the People's Republic of China in one or more of the following areas: trade, human rights, weapons nonproliferation, Taiwan.

And of course, the last Supreme Court topic:

1991-1992
RESOLVED: "That one or more United States Supreme Court decisions recognizing a federal Constitutional right to privacy should be overruled."

MY ARGUMENTS:

1) The original goal of topic construction was to define an area for debate, sometimes defining a particular mechanism, and from that area came the negative's predictable ground. There historically was always some measure of uncertainty which allowed students "the right to define" the topic in some aspect. The number of possible cases has varied from literally thousands on some topics to a handful on others. However, some aspects of affirmative flexibility have been kept in place until very recently.
2) There has been a growing shift in the destruction of affirmative flexibility in topic construction. In the beginning, the affirmative has had flexibility in the mechanism, like how labor should be given a share of management (46-7) or how the USFG should influence foreign policy (56-7). 96-7 is the first time in our list that the affirmative is required to amend a particular piece of legislation, a serious departure from allowing the affirmative room to figure out how they would achieve the terms outlined in the topic. But there, the affirmative is allowed to pick the area within Title Seven that they want to amend. In 97-98, while the affirmative is required to lift sanction to five countries, use of the term "constructive engagement" allowed the affirmative flexibility in creating the case. By 2002, the affirmative flexibility is all but destroyed as both the area (5 treaties) and the mechanism (ratify, accede to and implement) drastically reduced flexibility.
3) The number of cases perceived topical by the community on the 91-2 courts topic, changed over the course of the year, as a result of research and an evolution of argument strategies.
4) In recent year's, topic construction seems quite concerned with eliminating affirmative flexibility and increasing absolute certainty of predictable ground as opposed to a reasonable estimate of predictable ground. Certainly, Treaties and Europe were moves in that direction. And while energy and China did not list the cases that could be run, the requirement of both mechanism (the how) and the area (the what), drastically reduce affirmative flexibility in case construction in an effort to create absolute certainty and not reasonable predictability.
5) The number of cases run on any given topic is generally substantially lower than the number of possible cases that could be run, although that number varies I'm sure from year to year.

IMPLICATIONS FOR TOPIC CONSTRUCTION:
1) Is the goal of absolute certainty desirable? Is there any educational value to affirmative flexibility? Does absolute certainty necessarily tradeoff with predictable ground?
2) Is there a community consensus on the number of possible cases that one tries to create in outlining a topic? 5, 10, 100, 1000? Should there be different numbers on the ballot or should all topics create about the same certain number of cases? Does the goal of negative ground as a reasonable estimate no longer exist?
3) Are there any measures of how to balance concerns about "predictable ground" with "affirmative flexbility"? Have any formulas or criteria been developed to test topics in this area?
4) During topic construction, does a large number of possible cases eliminate a topic from consideration? If a topic has potentially 1000 cases, but only 10 are "good" affirmatives, does that topic get treated the same as a topic with 10 total affirmatives, with only 5 of those being "good"? Will the committee be able to "test" topics in 2 ½ days? If so, how?
5) Is there a point where the goal of predictable ground begins to tradeoff with other important competitive and educational goals, like creativity and strategy? How does that goal get balanced?
6) Where is the evidence that the debating of the last decade is substantially better than the debating of the forty years prior to that, given the current method of the topic committee is relatively new in historical context? How willing is the committee in defering to that history in the production of some of its topics, in an effort to offer the community some topics where predictable ground is a reasonable estimate as opposed to an absolute certainty?

I write this because I fear than many of the justifications for what the committee considers "best" these days is subjective to me and flies in the face of a lot of history. I won't make arguments that the way we write topics has lead to the downfall of debate, because that is overly, overly simplistic. But I will say, that as we get further entrenched in a debate belief that attempts to create absolute certainty as the standard for a good topic, I would hope that the community is willing to stay introspective and test that premise against our own historical evidence to the contrary. I think that the goal of the committee has evolved as topics have evolved, from a role of producing a series of topics which offer some reasonable estimates at predictable ground to a charge of producing with absolute certainty what the negative ground will look like. I think this is an unmanageable goal for 2 ½ days or even a month, and may be part of the growing difficulty in creating topics. But I wish the committee luck over the next week in overcoming these hurdles. I hope my questions and thoughts are productive ones.

Thanks for reading,

Ede

a blog dedicated to writing the ceda debate topic

TOPIC PAPERS

2006 Supreme Court Interim - Galloway

2006 "Overrule" - Smelko

2004 SC Federalism - Galloway

2003 Supreme Court - Galloway

2006 Abortion - Lee

2006 First Amendment - Patrice

2006 Right-to-Die - Moore

2006 Plenary Power - Harrison

2006 Ripeness - Neal

2006 Aff Action - Hall

2006 Pres Powers via Courts - Stables

2006 Updated War Powers - Stables

2006 Morrison - Galloway

2006 Milliken - Mancuso

2006 Religious Freedom - T. O'Donnell

2006 Strike Exec on 1A - Mahoney

2006 1A vs. Ntl Sec Supp - Mahoney

2006 1A vs. Ntl - Day 3 - Mahoney

2006 Glucksberg - Helwich

2006 Hudnut - Galloway

2006 Gregg - Stables

2006 Fundamental Rights - Vats

2006 Terry Aff evidence - Bauschard

2006 Terry Neg evidence - Bauschard

2006 Terry Blocks - Bauschard

2006 Terry Thoughts - Zive

2006 Garcetti - O'Donnell

2006 - Fundamental Rights - Vats

2006 Case List Survey - Mancuso

2006 Executive Authority - Stables

2006 Detention - Bauschard

2005 Immigration - Peterson

2005 Democracy Promotion - Stables

TOPIC RESOURCES

Supreme Court Website

Guide to US Supreme Court Research

Supreme Court Rules

FindLaw: Cases and Codes

FindLaw: Special Coverage: War on Terrorism

Jurist: Legal News and Research

The Curiae Project/Yale: SC Records/Briefs

The Supreme Court Monitor

The Oyez Project: Multimedia

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American Constitution Society Blogs

ACLU: Supreme Court Page

The Rutherford Institute

2007-08 TOPICS

US Policy Toward Genocide

US Policy Toward Latin America

Global Poverty and Disease

Military/Troop Reforms

TOPIC PROCESS

Topic Process Report 2006

CEDA Constitution

COMMITTEE MEMBERS

Gordon Stables, At-Large Rep, Chair

Darren Elliott, CEDA EC Rep

Ryan Galloway, At-Large Rep

Malcolm Gordon, Student Rep

Ed Lee, At-Large Rep

Steve Mancuso, NDT Rep,

Joe Patrice, CEDA EC Rep

Dave Steinberg, CEDA EC Rep

Kelly Young, ADA Rep

ARCHIVES

2006-05-07 / 2006-05-14 / 2006-05-21 / 2006-05-28 / 2006-06-04 /