Sunday, May 21, 2006
"cases" vs. "areas"
An extremely important and timely issue regarding the work of the topic committee is whether we should write resolutions with lists of USSC cases and/or lists of areas. I can't speak for the entire committee on this but my own opinion right now is that we should look into both.
The "cases" approach would generate resolutions roughly like this: the USSC should overrule one or more of the following: Gratz v. Bollinger (affirmative action), Boerne v. Flores (religious freedom), etc.
The "areas" approach would generate resolutions roughly like this: the USSC should overrule at least one precedent in one or more of these areas: affirmative action, religious freedom etc.
[Please note these wordings are only meant to demonstrate briefly the issue involved here. They do not reflect a committee choice on agent, verb, "precedent" vs. "decision" etc.]
Obviously the list of cases provides more predictability and focus on controversial issues, the list of areas allows more affirmative flexibility. The committee has been focused recently on the cases approach, which is reflected in wording papers linked on the cedatopic blog. I expect several more to be posted there in the next couple of days. We are, however, about to turn our attention from "cases" to "areas".
It would be very helpful to us to get a sense of what you (the community) think of the relatively merits of these options - and if you have specific suggestions, please offer them. Now is a great time for you to have input into the process. You can offer any ideas or comments you have to edebate, to our blog (I'll open up a thread for this discussion there right now) or directly to me or other members of the committee.
Thanks to Jackie Massey for bringing this up on edebate. Please comment here if you would like. Just click on the "comment" link at the end of this post.
The "cases" approach would generate resolutions roughly like this: the USSC should overrule one or more of the following: Gratz v. Bollinger (affirmative action), Boerne v. Flores (religious freedom), etc.
The "areas" approach would generate resolutions roughly like this: the USSC should overrule at least one precedent in one or more of these areas: affirmative action, religious freedom etc.
[Please note these wordings are only meant to demonstrate briefly the issue involved here. They do not reflect a committee choice on agent, verb, "precedent" vs. "decision" etc.]
Obviously the list of cases provides more predictability and focus on controversial issues, the list of areas allows more affirmative flexibility. The committee has been focused recently on the cases approach, which is reflected in wording papers linked on the cedatopic blog. I expect several more to be posted there in the next couple of days. We are, however, about to turn our attention from "cases" to "areas".
It would be very helpful to us to get a sense of what you (the community) think of the relatively merits of these options - and if you have specific suggestions, please offer them. Now is a great time for you to have input into the process. You can offer any ideas or comments you have to edebate, to our blog (I'll open up a thread for this discussion there right now) or directly to me or other members of the committee.
Thanks to Jackie Massey for bringing this up on edebate. Please comment here if you would like. Just click on the "comment" link at the end of this post.
posted by Steve Mancuso at 5/21/2006 08:31:00 PM
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Comments:
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The problem with a list of unrelated cases unified simply by the Supreme Court overturning/over-ruling a previous decision is that is makes neg strategies generic to court action that much more compelling. While I'm sure there are people who can and will blather on endlessly about their love of agent CP debates, many find these debates annoying and a way of avoiding case debates/ more "substantive" concerns. Not to say these debates shouldn't happen - they are certain to happen and will be a big part of the topic - but I don't think they should take over the topic.
I think a resolution that listed areas - say, one or two or three closely related areas, with a relatively small number of court decisions in each of those areas - would be preferable. The trick, of course, is finding good terms of art to describe an "area."
I think a resolution that listed areas - say, one or two or three closely related areas, with a relatively small number of court decisions in each of those areas - would be preferable. The trick, of course, is finding good terms of art to describe an "area."
# posted by 
: 9:37 PM, May 21, 2006
: 9:37 PM, May 21, 2006
1 (More importantly): I’m not persuaded that overturn/overrule/reverse a CASE will work at all. I expressed concern from the beginning that cases have multiple holdings, multiple precedents, and may even contain multiple decisions. Many of these operate in different directions. Some of the holdings, decisions, precedents have nothing to do with anything we hope to debate. Tripp teased this out with a couple of examples of recent cases, Breshears made the point in the context of affirmative action, and Lindsay acknowledged it in her point on the “tests” alternative. Dunbar, I believe, also expressed concern regarding this from the get-go.
I know that the question of overrule/overturn/reverse has been addressed by at least Galloway and extensively by Smelko. The case for choosing “overrule” BETWEEN THOSE seems strong, but I’m not sure how it addresses the multiple holdings/decisions/precedents issue. What is it that the affirmative has to overrule in any case?
2. I don’t like the area(s) thing, especially when you make it plural. I debated a privacy topic. That was one area. That was plenty. If there is any serious consideration of an “area” topic it should be one area.
3. I REALLY like the approach suggested by Anjali Vats about saying recognize a fundamental right to privacy in one or more of the following areas. It retains a predictable agent and a core mechanism, but allows some variety and creates very unique DA ground for the negative. I also like Lindsay’s “tests” approach.
4. One other approach may be to say, overrule one or more of the following, reducing government authority (or whatever). That still allows the affirmative to pick different options or precedents to overrule, but it at least forces things in one direction and makes them avoid precedents irrelevant to the topic at hand (whatever that is).
5. Affirmative ground. Saying this amongst this crowd is probably heretical, but I’ll say it anyhow: I don’t think we want to make it TOO EASY to be affirmative. I think that “anything goes” neg theory was largely reactive to the era when I debate when it was awfully hard to be negative. I don’t think that giving the affirmative more room does that much to offset a negative’s process CP, small PIC, and ultrageneric K strategic advantage. Yes, it increases the chance that you can find an aff designed to answer 1000 process pics, 5000 ks, and an awful lot of PICs (and makes those PICs harder when you can write your own plan), but I think the strategic shift to the aff is minimal by writing a very broad topic and it does increase substantive preparation problems.
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I know that the question of overrule/overturn/reverse has been addressed by at least Galloway and extensively by Smelko. The case for choosing “overrule” BETWEEN THOSE seems strong, but I’m not sure how it addresses the multiple holdings/decisions/precedents issue. What is it that the affirmative has to overrule in any case?
2. I don’t like the area(s) thing, especially when you make it plural. I debated a privacy topic. That was one area. That was plenty. If there is any serious consideration of an “area” topic it should be one area.
3. I REALLY like the approach suggested by Anjali Vats about saying recognize a fundamental right to privacy in one or more of the following areas. It retains a predictable agent and a core mechanism, but allows some variety and creates very unique DA ground for the negative. I also like Lindsay’s “tests” approach.
4. One other approach may be to say, overrule one or more of the following, reducing government authority (or whatever). That still allows the affirmative to pick different options or precedents to overrule, but it at least forces things in one direction and makes them avoid precedents irrelevant to the topic at hand (whatever that is).
5. Affirmative ground. Saying this amongst this crowd is probably heretical, but I’ll say it anyhow: I don’t think we want to make it TOO EASY to be affirmative. I think that “anything goes” neg theory was largely reactive to the era when I debate when it was awfully hard to be negative. I don’t think that giving the affirmative more room does that much to offset a negative’s process CP, small PIC, and ultrageneric K strategic advantage. Yes, it increases the chance that you can find an aff designed to answer 1000 process pics, 5000 ks, and an awful lot of PICs (and makes those PICs harder when you can write your own plan), but I think the strategic shift to the aff is minimal by writing a very broad topic and it does increase substantive preparation problems.
# posted by : 6:10 PM, May 28, 2006
: 6:10 PM, May 28, 2006<< Home
