Wednesday, May 10, 2006
On "Overrule" and Resolutional Wording
In my mind, "overturn" means actually overturning the decision with respect to the two parties involved, whereas "overrule" means overturning the precedent set by the prior decision -- in other words, Lawrence didn't overturn Bowers because Hardwick's conviction still stands, but it did overrule Bowers because the due process clause now protects the fundamental right of adults to engage in private, consensual sodomy.
Even still, what happened is Lawrence is extremely rare -- the parties almost never ask the Court to overrule a prior decision unless it has the symbolic value of a Bowers. Normally, the parties will simply attempt to distinguish a prior decision to permit the Court to save face and side with them without admitting it got it wrong the last time. That's not to say that the Court doesn't overrule prior decisions -- it just happens very infrequently, and requiring the Aff to overrule a prior decision would give the Negative a pretty powerful "distinguish prior decision but reach the same result" CP with stare decisis net benefits. You may, therefore, want to consider resolutions that don't require the Aff to "overrule" a USSC decision.
A separate thought regarding overrule resolutions:
I previously proposed:
The major problem I see with this resolution is that the Aff could theoretically overrule one of those decisions on jurisidictional or some other procedural grounds (extra-topicality notwithstanding). To resolve this problem, the resolution might be modified to read:
Another solution would be to require the Aff to overrule the holding, as opposed to the decision. I think many of you have been referring to precedent in this way, but precedent includes the jurisdictional precedent (i.e., the Aff could overrule the precedent of Bowers by holding that the Court lacked jurisdiction to hear the case without overruling the holding of Bowers that there is no fundamental right to sodomy). The solution would result in a resolution like this:
Even still, what happened is Lawrence is extremely rare -- the parties almost never ask the Court to overrule a prior decision unless it has the symbolic value of a Bowers. Normally, the parties will simply attempt to distinguish a prior decision to permit the Court to save face and side with them without admitting it got it wrong the last time. That's not to say that the Court doesn't overrule prior decisions -- it just happens very infrequently, and requiring the Aff to overrule a prior decision would give the Negative a pretty powerful "distinguish prior decision but reach the same result" CP with stare decisis net benefits. You may, therefore, want to consider resolutions that don't require the Aff to "overrule" a USSC decision.
A separate thought regarding overrule resolutions:
I previously proposed:
The USSC should overrule one or more of its decisions holding
unconstitutional an Act of Congress because Congress lacked the constitutional authority to pass the Act.
The major problem I see with this resolution is that the Aff could theoretically overrule one of those decisions on jurisidictional or some other procedural grounds (extra-topicality notwithstanding). To resolve this problem, the resolution might be modified to read:
The USSC should increase Congress's legislative authority by overruling one or more of the Court's prior decisions holding unconstitutional an Act of Congress because Congress lacked the constitutional authority to pass the Act.
Another solution would be to require the Aff to overrule the holding, as opposed to the decision. I think many of you have been referring to precedent in this way, but precedent includes the jurisdictional precedent (i.e., the Aff could overrule the precedent of Bowers by holding that the Court lacked jurisdiction to hear the case without overruling the holding of Bowers that there is no fundamental right to sodomy). The solution would result in a resolution like this:
The USSC should overrule the holding of one of its prior decisions that an Act of Congress was unconstitutional because Congress lacked the constitutional authority to pass the Act.
posted by Lindsay at 5/10/2006 01:49:00 PM
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I'm pasting in an e-mail we received from Michael Gottlieb, who recently completed his term clerking for Justice Thomas. He has a few comments about the term "overrule."
Michael Gottlieb:
There are some problems with using that word as a topic word, although I'm not sure any of them are fatal:
1. There are a lot of ways to overrule a case. You can overrule part of it. You can overrule all of it. You can overrule it by saying "Bowers v. Hardwick is overruled," or you can overrule it by simply stating contrary doctrine ("abortion precedents shall be overruled by declaring that there is no constitutional right to have an abortion"). So you'd have to be pretty specific about actual cases that the aff had to overrule, or you'd have really quite a lot of ground in a micro sense, even if limited in a sort of macro sense. Perhaps that's a good thing. I don't really know.
2. What is it that the resolution would require the Court to overrule? Keep in mind that unless you confine the resolution strictly to areas of constitutional law, which Congress can't overrule the Court on, you'll have a resolution that seems bigger than it is. That is because if any of your areas involve statutory or common law subjects (stuff like Title VII, etc), the Congress CP solves 100% of the case every time. See, e.g., Civil Rights Act of 1991 (overruling several Supreme Court Title VII decisions).
So you'll really have to think about what you ask them to overrule. If you just say "one or more of its abortion decisions," you could end up with bi-directional affs because they could either overrule Roe v. Wade / Planned Parenthood v. Casey (pro abortion decisions) or they could overrule cases like Webster or the case from this term (arguably decisions that narrowed the scope of Roe). Alternatively, they could overrule just one part of Casey (say, the abandonment of the rigid Roe trimester framework in Casey (which would be a pro-abortion rights decision) or you could go the other way and overrule the part of Casey that reaffirmed Roe).
Maybe that doesn't matter, and maybe it's better just to choose a few subject areas and then allow the debaters to pick what side of those debates they want to be on, but I thought I should at least flag the issue because it's far more complex than most people understand. If you want to avoid the ability to overrule just one part of a case, you would have to require them to "overrule in whole one or more full decisions in the following areas" (or something similar).
3. What is it that you're trying to accomplish by using the word “overrule”? I suppose it gives you a predictability element b/c of the limited number of Supreme Court cases out there. But beyond that, it's not like it gives the neg much generic ground. What do they get? A stare decisis DA? I suppose there are generic CPs that would be tailored to fit the word overrule in the resolution, but I'm just a little uncertain about it thus far...
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Michael Gottlieb:
There are some problems with using that word as a topic word, although I'm not sure any of them are fatal:
1. There are a lot of ways to overrule a case. You can overrule part of it. You can overrule all of it. You can overrule it by saying "Bowers v. Hardwick is overruled," or you can overrule it by simply stating contrary doctrine ("abortion precedents shall be overruled by declaring that there is no constitutional right to have an abortion"). So you'd have to be pretty specific about actual cases that the aff had to overrule, or you'd have really quite a lot of ground in a micro sense, even if limited in a sort of macro sense. Perhaps that's a good thing. I don't really know.
2. What is it that the resolution would require the Court to overrule? Keep in mind that unless you confine the resolution strictly to areas of constitutional law, which Congress can't overrule the Court on, you'll have a resolution that seems bigger than it is. That is because if any of your areas involve statutory or common law subjects (stuff like Title VII, etc), the Congress CP solves 100% of the case every time. See, e.g., Civil Rights Act of 1991 (overruling several Supreme Court Title VII decisions).
So you'll really have to think about what you ask them to overrule. If you just say "one or more of its abortion decisions," you could end up with bi-directional affs because they could either overrule Roe v. Wade / Planned Parenthood v. Casey (pro abortion decisions) or they could overrule cases like Webster or the case from this term (arguably decisions that narrowed the scope of Roe). Alternatively, they could overrule just one part of Casey (say, the abandonment of the rigid Roe trimester framework in Casey (which would be a pro-abortion rights decision) or you could go the other way and overrule the part of Casey that reaffirmed Roe).
Maybe that doesn't matter, and maybe it's better just to choose a few subject areas and then allow the debaters to pick what side of those debates they want to be on, but I thought I should at least flag the issue because it's far more complex than most people understand. If you want to avoid the ability to overrule just one part of a case, you would have to require them to "overrule in whole one or more full decisions in the following areas" (or something similar).
3. What is it that you're trying to accomplish by using the word “overrule”? I suppose it gives you a predictability element b/c of the limited number of Supreme Court cases out there. But beyond that, it's not like it gives the neg much generic ground. What do they get? A stare decisis DA? I suppose there are generic CPs that would be tailored to fit the word overrule in the resolution, but I'm just a little uncertain about it thus far...
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