This is a comment from Anjali Vats who asked me to post it for her:

The Problem of Bidirectionality

These are just some of my thoughts and observations about this topic and possible issues that might arise. Doubtlessly many of these concepts have already been discussed. I tried not to be too redundant so hopefully some new ideas can be gleaned from this post...

In light of the discussion in the topic paper and Lindsay Harrison’s post about the meaning of the terms “overturning” and “overruling” it seems to me that bidirectionality of the topic will be a huge, huge problem. Planned Parenthood v. Casey illustrates this well.

Given a topic that requires simply “overturning” or “overruling,” even something as specific as the “undue burdens” test, would create a bidirectional topic. In essence, the affirmative could overrule Planned Parenthood by lowering the standard, i.e. requiring that states never burden abortion rights, or increase the standard, i.e. holding that abortion is never legal. This will be an even bigger nightmare in terms of bidirectionality if there is no limit, as many have pointed out, on the scope of the precedent to be altered. Taking the example of Grutter v. Bollinger, the affirmative could change any of the precedents involved, including the level of scrutiny or the test for legality of affirmative action. The affirmative could then increase or decrease the level of scrutiny or make the test for legality of affirmative action more or less stringent. The worst part is that there are far more than just two holdings in Grutter that could be changed. The results are obvious; ten court cases, each with ten possible holdings that can be altered in either direction and with a laundry list of advantages creates limitless affirmative ground.

While I am a huge supporter, like many others, of an affirmatively biased topic, I think it’s important to note that bigger is not always better for the affirmative, especially on a topic like this. The debates that I fear will happen on a topic that states that the United States Supreme Court should overturn/overrule X, Y, and Z cases are topicality debates about whether “overturn” or “overrule” must be contrary to existing precedent. Frankly, these debates are not the purpose of this topic nor are they any more educational than debating the Congress CP every round. Though there are many that doubtlessly disagree with me, a topic in which the majority of debates center around topicality “overrule” or “overturn” and the Congress CP will be mind-numbingly awful and won’t remedy the problem of inherent negative bias in the topic.

The corollary, which is obvious to many, is that the path to creating an affirmatively fair topic is not more possible affirmatives, rather it is to create defensible ground for the affirmative. The very reason that the treaties topic and the sanctions topic are often cited as two of the best topics in recent memory is because the affirmative had great answers to generic arguments. Similarly, the reason that at the end of the year virtually everyone read the Women in the Military affirmative on the Title VII topic is because it had a built in answer to the Courts CP. On the other hand, the China topic, which was the broadest in terms of affirmative flexibility in recent memory, had virtually no cases that dealt well with stock negative arguments like the Engagement CP. In my opinion, “modeling” is not an answer to the Congress CP. Even in a world in which the affirmative has specific contextual evidence (for example, in the case of Korematsu v. United States) about why the Supreme Court should do the plan, that evidence is rarely warranted any better than “Congress won’t do anything.”

I have several suggestions for crafting a more equitable topic. First, I think that Lindsay has a great suggestion in overturning specific tests. Identifying both a court case and a specific precedent to be overturned will narrow the topic substantially while providing a great deal of affirmative flexibility. Second, I think that the topic should specify the direction of affirmative. For example, if abortion is written into the topic, the resolution could read something like:

The United States Supreme Court should substantially increase the availability of abortions in the United States by overturning/overruling the “undue burden” test set forth in Planned Parenthood v. Casey.

Obviously the resolution I have provided as an example has a number of problems. For example, it builds a solvency question into the resolution which might implicate topicality (i.e. the negative could show that overruling the undue burden test does not increase the availability of abortions). Second, if more than one case is included in the resolution, some might fear the possible length of the topic (not really an issue for me). Nonetheless, the sample topic is only meant to show that a topic which limits each court case to altering precedent in one direction will likely be more successful. Though such a limitation might be scary, it is worth noting that the best topics in recent memory committed themselves to one direction and were hugely successful as a result. In other words, attempting to compromise all views isn’t always the best solution.

I also think that the discussion over the terms “overrule” and “overturn” is a somewhat specious one (I will not discuss the terms “reversed” or “vacated” only because in my experience that is a term of art that is used to refer to the appellate court’s stance toward the lower court ruling. However, I have done zero research into that question. My gut, though, is that those terms are similar to “remanded” in that they deal with procedural history and not actual tests and holdings). While it is doubtlessly important to have the correct term of art in the resolution, I think that Gottleib and Dunbar (obviously, as they are experts at this stuff already) hit the nail on the head when they noted the complex nature of precedents and holdings. The danger in this resolution is using too broad of a brush (i.e. only terms like “overrule” and “overturn”) in lieu of terms of precision. Even though there doesn’t seem to be a way around using “overrule” or “overturn,” providing contextual guidance as to the direction of the resulting affirmative (as stated in Galloway’s 2006 paper) could solve any possible problems. My initial thought is as follows:

The United States Supreme Court should substantially increase privacy rights in the United States by overturning/overruling one or more of the following (1) the “undue burden” test set forth in Planned Parenthood v. Casey (2) the “reasonable suspicion” test set forth in Terry v. Ohio (3) the “legitimate pedagogical concerns” test set forth in Hazelwood School District v. Kuhlmeier.

It also seems very wise to significantly limit the number of cases in the resolution, especially if they aren’t in the same general topic area. For example, the Title VII topic only dealt with employment discrimination but there were plenty of generics as well as specific negative arguments. The three cases I listed above implicate three very different and virtually limitless literature bases. Three seems like a lot to me, but more might be bigger than China.

The “Supreme Court key” problem is obviously a very difficult issue to write into the resolution and, frankly, the crux of the topic committee’s job. I don’t purport to know the answer to this question. However, it seems like certain areas (i.e. commerce power, executive authority, and plenary power) deal better with this problem than others (i.e. virtually any individual rights area that can be legislated by either Congress or the states). Perhaps picking areas that have better or comparative evidence regarding Supreme Court action would help. Alternatively, there might be some areas that simply aren’t within the realm of Congress to regulate (for example, abortion rights). Of course, the States CP will dispose of many of these cases, but there might be some that neither the states nor Congress can regulate…

That’s all. Back to studying for the Bar.

anjali