First, a procedural note. It helps everyone when we use comments to let a thread develop. The blog becomes harder to follow when everything is posted on the front page, even when the follow a single thread.

Onto the overrule issue, one of several made in the last few hours.

The argument in favor of overrule is that is a term commonly used in legal jurisprudence to describe a collection of activities that include what we are looking for, a reversal of a case of the law behind it.

It is unquestionable that we have recieved concerns about this wording, but a great deal of those are in the context of preferring a more limited way to influence the direction of action. For example, a number of the concerns expressed about overrule speak to the need not to replace that term, but offer a specific modifier to that phrase. Casey should be overruled to increase reproductive freedoms, Quiran should be overruled to limit the desgination of enemy combatants, etc.

I made this point yesterday - there has been no support for creating a resolution with either a central stem that modifies overrule (that is overrule one or more of the following cases to do .....) with the exception of plenary power (discussed elsewhere and more coming). This would not only be an area topic, which has proven difficult, but an area topic with a directional modifier. I asked the question on edebate last week - which area. I stil don't think we have this mix of area and mechanism.

The second concern is that overrule means nothing. To this I would strongly disagree with the claim that because there are somewhere between 150-250 Supreme Court overrules in history that literature doesn't use the phrase. This is not 'dip and econ pressure.' Searches of law reviews and Supreme Court decisions reveal that the phrase is used quite often. I am not sure which cases are being suggested that lack specific advocates - many of the papers included some references to these phrases. What this means is that there will be topicality debates. Affirmatives will have options and debaters will have legal phrases to mediate the debate.

Finally, I am hearing the flip-side of the above argument. Stefan is concerned that there are no solvency advocates even as we read other posts suggesting that anything is an overrule. Even sidestepping the inclusion of 'decision' as a term specifically designed to provide some limit, that is you can't simply reverse a single holding, this is the essence of what makes overrule the best term, even if it is not a single interpretation of what it describes. Part of the goal of a major Supreme Court cases topic was to allow affirmatives the opportunity to enjoy creativity at the same time that the negative retained some predictability with the decision as a limiting term.

We are dealing with several other issues at this moment, but I wanted to give a first opportunity for people reading the blog (and a lot of you are!) to appreciate that there is room for different interepretations of overrule, but that the decision to substantially deviate from this path would require an area and mechanism agreement that has yet to be supported.

In fairness, Lindsay has posted the only suggestion, that I am aware of, that would address this issue. I have spoken in the meetings about my concerns with plenary power. They are based on the types of issues that we would be debating as our one bite at the legal topic, not on the utility of the topic construction.

Thanks.
 

Gordon - I think the problem is that "overrule" either means nothing or everything. Either "overrule" is extremely limited and the Aff must simple "overrule" a decision without replacing it with a new rule, which has never happened and only the anti-Roe crackpots advocate, OR "overrule" is extremely broad and the Aff can replace a decision on the list with almost any rule it wants.

I do think the topic committee should at least consider adding specific modifiers to the cases on the various list resolutions. I think, at a minimum, that should be done to ensure SOME limits to the topic.

As for plenary powers, I think if you go back and take another look at my paper you will see that there are a wide range of legal issues that teams could debate -- the Affs I have listed provide the community with a few examples of how race, immigration, foreign policy, and property rights would all be included in the topic. I think you will be suprised at how similar the types of issues in a plenary powers topic are to the issues in the "lists" resolutions.

The directional phrase "limit plenary powers" would give the Neg predictable ground. All the "supreme court overrule" literature would be negative ground, for what it's worth. And I do think that it is much broader and very different from a "Presidential Powers" topic because it focuses on the rejection of a judicial doctrine and on the rights of parties (immigrants, aliens, racial minorities, land-owners) as protected by the Court.
 

I agree with Lindsey on the overrule issue.

Is there evidence explicitly advocating that the Supreme Court should explicitly overrule any of the following cases (as opposed to walking back from some test/standard announced therein)?

U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
Gregg v. Georgia (1976)
Terry
Ex parte Quirin

I would be shocked.

PJS
 

HARRIS (ASSOCIATE PROFESSOR OF LAW, UNIVERSITY OF TOLEDO COLLEGE OF LAW. LL.M., GEORGETOWN UNIVERSITY LAW CENTER, 1988; J.D., YALE LAW SCHOOL, 1983.) SUMMER, 1994 (DAVID A. INDIANA LAW JOURNAL. “FACTORS FOR REASONABLE SUSPICION: WHEN BLACK AND POOR MEANS STOPPED AND FRISKED.”, P.?

Overturning Terry represents the cleanest solution to the numerous problems the case has raised from the beginning. A return to pre-Terry law for all searches and seizures would address these difficulties comprehensively. Courts would have no need to describe the perhaps inarticulable line between a "mere" hunch and a reasonable suspicion.
 

Paul - Please review the area papers. I can speak to my papers and that from several other committee members that there are ALREADY included.
 

Stefan,

I sent Gordon and Ryan some thoughts on Terry on that Harris evidence last night.

I think that card is a bit misleading.

I don't have your e-mail address, or I would send them to you.
 

Gordon - quickly I did word search on "overrule" in several of the topic papers, including yours and Galloway's Morrison paper. No cite for overruling Morrison. In one of your papers there is no overrule evidence. In the other one there is an overrule card from Katyal, although he says "overrule or distinguish" which is exactly the problem I raised.

The topic papers have evidence discussing problems with cases with very limited advocacy for an overrule.

Stefan has a good card for Terry. I think cards like that will be few and far between and I GUARANTEE you I could counterplan to capture any advantages without "overruling" Terry.
 

Here are some arg's for Paul.

Even Stefan's Solvency author concedes that it is political backlash that prevents overruling Terry. This from the paragraph immediately following Stefan's:

"Solving a problem, however, requires a practical approach. Only one of the sitting Supreme Court Justices might favor a return to pre-Terry law. 177 Notwithstanding the belief of some commentators that the original intent of the Constitution's framers and its text are the only legitimate source of constitutional law, 178 the Court seems quite content with Terry as decided 179 even though Terry arguably represents a clear departure from the Constitution's text. 180 Terry's status as a fixed part of constitutional criminal procedure seems secure.

Perhaps this illustrates that what underlies the Court's Terry jurisprudence is not constitutional philosophy, but a political approach to criminal justice. The Court seems as focused as ever on crime control as the central tenet of criminal procedure, 181 notwithstanding its refusal to overrule or even contain [*684] certain cases 182 that symbolize the "discredited" jurisprudence of the Warren Court. 183 Terry may have originated with the Warren Court, but it is fundamentally a decision that gives the police added leverage in confronting street crime. Its origins in the context of civil unrest in 1968 and the "law and order" political rhetoric that accompanied this violence speak volumes about the underlying purpose of the case. That purpose -- simple crime control -- seems, if anything, more attractive today than it did in 1968. 184 Thus while a return to the probable cause standard seems desirable from the points of view of both doctrine and legal problem solving, it is, at least in the current environment, an impractical idea. 185"

69 Ind. L.J. 659, 683-684 (1994)

Stefan's isn't really that strong of an advocate. He actually endorses a CP—an alteration to the Terry test that is not an overrule--because it avoids the political backlash he argues would go with an overrule.

A card:

"A third proposal is to make the combination of innocent and necessary activity and constitutionally protected activity legally insufficient to rise to the level of reasonable suspicion.

This proposal is less ambitious than either of the first two. To be sure, it will not resolve all of the larger structural problems that underlie and accompany Terry; only a return to pre-Terry law can do that. Nevertheless, this recommendation would address the subset of Terry problems discussed here. (same source as above, p685.)"


This solves the big race and poverty impacts. Same solvency advocate:

"The rule proposed here would have at least two salutary effects. First, existing law that protects, separately, the rights to be in a place and to refuse to respond to police stops without reasonable suspicion would be respected and kept vital. Allowing a Terry stop based on the combination of location and evasion empties both rights of meaning and content. It causes the rights to, in effect, cancel each other out, instead of existing as related, complementary rights protecting personal freedom and autonomy. Second, it would remove from the courts a set of cases, and from the police arsenal a group of techniques, that clearly have a disproportionate impact on the poor, and on racial and ethnic minorities."

I like this CP card, and the author contrasts this approach to alternatives such as the one proposed in the Harris article (Stefan's solvency advocate):

"The Supreme Court can effectively remedy the reasonableness, race and increased police force issues in the encounters which lower courts have characterized as Terry stops if the Court takes the initiative and provides clear guidance to distinguish a Terry stop from and arrest. This could be accomplished in a "colorblind" fashion if the Court restricts the expansion of Terry. A limitation on the force used in a Terry stop would comport with the framers' intent that individuals remain free from unreasonable searches and seizures and indirectly address the reasonableness and race concerns inherent in Terry stops. The Court would move from the mythical world of Bilbo and the wizard, where racism does not exist and everyone is reasonable, into the proper role of expounding the constitutional rights of all Americans."

50 Okla. L. Rev. 451, 493 (2003)
 

I agree that this is a potential CP option, and I included answers to it in the other blocks.

But, you are right. It is a very strong counterplan. And, most of the authors in the literature reccommend approaches other than overrule for dealing with Terry. Those cards are in the negative blocks.

Relatively, though, I thought and still think, that it is one of the better hopes of the affirmative defending a more limited interpretation of "overrrule."

Of course, if overrrule doesn't mean much, these "counterplans" are all potential affirmatives.
 

oh, and he does agree that the CP solves less, only that it is more politically feasible:

This proposal is less ambitious than either of the first two. To be sure, it will not resolve all of the larger structural problems that underlie and accompany Terry; only a return to pre-Terry law can do that. Nevertheless, this recommendation would address the subset of Terry problems discussed here. (same source as above, p685.)"