cedatopic
Friday, May 26, 2006
Need for area input
Over the last week or see I have seen a reasonable amount of discussion that favors an area approach to the topic. It generally works where someone says 'lists are bad' and then says 'areas are good.' I feel as though there is a lot of support for giving the community a lot of opportunity to guide the topic, but we need some more perspective on what you mean, by 'area.'
One reason that cases have an intuitive appeal is that they are narrower than an entire body of law in a particular subject. This doesn't mean that areas wouldn't work quite well (I think they might be great), but that if we want to use areas we may need to select fewer diverse subjects and instead have a greater emphasis on certain areas.
If you feel that an area topic is best, which of the following would make the best choices? Which options work best together? Which items wouldn't make the best choices?
This is the list of areas that the committee has been considered, suggested and/or is working on:
- Abortion
- Affirmative Action
- Executive Power/ War on Terror
- Federalism (federal remedies for violence against women)
- Eminent Domain
- Death Penalty
- Education (including school desegregation)
- First Amendment
- Right to die
- Plenary power (Immigration, pres power, Native Americans, US Territories, etc)
- Criminal Law
- Pornography
- Religious Freedom
- Gay Rights
Thanks for your input.
One reason that cases have an intuitive appeal is that they are narrower than an entire body of law in a particular subject. This doesn't mean that areas wouldn't work quite well (I think they might be great), but that if we want to use areas we may need to select fewer diverse subjects and instead have a greater emphasis on certain areas.
If you feel that an area topic is best, which of the following would make the best choices? Which options work best together? Which items wouldn't make the best choices?
This is the list of areas that the committee has been considered, suggested and/or is working on:
- Abortion
- Affirmative Action
- Executive Power/ War on Terror
- Federalism (federal remedies for violence against women)
- Eminent Domain
- Death Penalty
- Education (including school desegregation)
- First Amendment
- Right to die
- Plenary power (Immigration, pres power, Native Americans, US Territories, etc)
- Criminal Law
- Pornography
- Religious Freedom
- Gay Rights
Thanks for your input.
posted by Gordon Stables at 5/26/2006 03:13:00 PM
¶ 5 comments
Presidential Powers - Clarification of the reports
I have completed two reports on the possiblities of using the overrule mechanism to address presidential powers, specifically in the context of war powers. The first paper addresses a whole body of cases and provides a generally pessimistic view of finding specific solvency evidence for any case. The second report focuses on only one case, ex Parte Quiran, but provides evidentary support for its inclusion in the topic.
I would encourage anyone who is struggling with how to make a specific body of law work into the overrule angle to carefully read Galloway's inerim paper, Smelko's paper and Harrison's post on the matters. The combination has helped me realize the latititude we may enjoy in some of these approaches.
I would encourage anyone who is struggling with how to make a specific body of law work into the overrule angle to carefully read Galloway's inerim paper, Smelko's paper and Harrison's post on the matters. The combination has helped me realize the latititude we may enjoy in some of these approaches.
posted by Gordon Stables at 5/26/2006 06:45:00 AM
¶ 2 comments
Thursday, May 25, 2006
School Desegregation - Milliken
Prompted by Ede Warner's recent post on edebate we've been looking at Supeme Court cases that deal with school desegregation. There are many cases over the past 30+ years that have diluted Brown v. Board.
Right now it looks like Milliken v. Bradley (1974) is the best candidate to include in the topic. Milliken made it very difficult for lower federal courts to order inter-district integration strategies. The result, over time, was reinforcement of white flight to the suburbs, and stigmatizing of integration itself.
Including this case in our topic would certainly access the broader debate about the wisdom and efficacy of Brown v. Board, and legal strategies in general in solving school segregation.
There are also many counterplans in the literature. One interesting suggestion, by Erwin Chemerinsky writing in 2003, is the abolition of private and parochial schools. He argues that once rich white people have to send their children to large metropolitan public schools the schools will become cathedrals of excellence. There are also counterplans regarding other SC decisions that could be reversed. Obviously the negative could counterplan with greater funding for public schools - which goes along with Derrick Bell's critique of Brown, that maybe we shouldn't have faught for desegregation as much as adequately fund minority-populated schools.
I've posted a bare sample of evidence about Milliken on this blog.
Right now it looks like Milliken v. Bradley (1974) is the best candidate to include in the topic. Milliken made it very difficult for lower federal courts to order inter-district integration strategies. The result, over time, was reinforcement of white flight to the suburbs, and stigmatizing of integration itself.
Including this case in our topic would certainly access the broader debate about the wisdom and efficacy of Brown v. Board, and legal strategies in general in solving school segregation.
There are also many counterplans in the literature. One interesting suggestion, by Erwin Chemerinsky writing in 2003, is the abolition of private and parochial schools. He argues that once rich white people have to send their children to large metropolitan public schools the schools will become cathedrals of excellence. There are also counterplans regarding other SC decisions that could be reversed. Obviously the negative could counterplan with greater funding for public schools - which goes along with Derrick Bell's critique of Brown, that maybe we shouldn't have faught for desegregation as much as adequately fund minority-populated schools.
I've posted a bare sample of evidence about Milliken on this blog.
posted by Steve Mancuso at 5/25/2006 05:36:00 PM
¶ 0 comments
Wednesday, May 24, 2006
"landmark decisions"
On a different note, when we first discussed the possibility of a courts topic several years ago, it was sold as debates over "landmark" cases on big cases. We have again slowly moved away from that, in part with the Roe discussion and in part because of the way we analyze topics guided by our competitive equity measures.
Forget PICs, forget topicality, forget areas versus lists. What if we had a topic with 3-5 of the biggest, most landmark cases ever? I asked my wife to pick five landmark cases off the top of her head: she picked Roe, Grutter (Mich aff axn), Brown, then stopped. I'd add Korematsu, Bakke, and perhaps TLO vs NJ.
Any smaller cases that cut precedent, still have to deal with symbolic advantages and their value as uniqueness arguments gets limited for the same reasons: neg could make signal arguments (that the smaller case the aff is using for uniqueness didn't kick the DA in because it wasn't noticed outside of the courts, but overturning Korematsu would)--didn't know I could use these terms anymore, did you?
A quick non-lexus search for landmark cases produces a lot of sites. http://www.landmarkcases.org/ is one used to teach students about landmark cases.
The list has Korematsu, Brown, Mapp v Ohio, Roe, US v Nixon, Bakke, and NJ vs TLO, just to name a few. Anyone in debate for the last 20 years won't need much discussion of these. Pick 4-8 in different areas and role with it. If you like areas, put something together with the terms precedent and landmark to limit it to these cases.
* Why isn't landmark a potential limiting term? For those of you into it, there could be great topicality debates again...We could debate frivilous uses of the term versus more defined and field contextual uses.
If there was ever a chance to keep it simple and engage some of the most important debates of our time, this seems to be it. I caution against overthinking the competitive equity issues to the point of moving away from the true precedent setting cases. This seems like something the committee should stay conscious about.
Sincerely,
Ede
Forget PICs, forget topicality, forget areas versus lists. What if we had a topic with 3-5 of the biggest, most landmark cases ever? I asked my wife to pick five landmark cases off the top of her head: she picked Roe, Grutter (Mich aff axn), Brown, then stopped. I'd add Korematsu, Bakke, and perhaps TLO vs NJ.
Any smaller cases that cut precedent, still have to deal with symbolic advantages and their value as uniqueness arguments gets limited for the same reasons: neg could make signal arguments (that the smaller case the aff is using for uniqueness didn't kick the DA in because it wasn't noticed outside of the courts, but overturning Korematsu would)--didn't know I could use these terms anymore, did you?
A quick non-lexus search for landmark cases produces a lot of sites. http://www.landmarkcases.org/ is one used to teach students about landmark cases.
The list has Korematsu, Brown, Mapp v Ohio, Roe, US v Nixon, Bakke, and NJ vs TLO, just to name a few. Anyone in debate for the last 20 years won't need much discussion of these. Pick 4-8 in different areas and role with it. If you like areas, put something together with the terms precedent and landmark to limit it to these cases.
* Why isn't landmark a potential limiting term? For those of you into it, there could be great topicality debates again...We could debate frivilous uses of the term versus more defined and field contextual uses.
If there was ever a chance to keep it simple and engage some of the most important debates of our time, this seems to be it. I caution against overthinking the competitive equity issues to the point of moving away from the true precedent setting cases. This seems like something the committee should stay conscious about.
Sincerely,
Ede
posted by Steve Mancuso at 5/24/2006 12:02:00 PM
¶ 6 comments
Considering Brown vs. Board of Education
Dear Topic Committee and NDT/CEDA Community,
I'm not sure what to make of the silence on this listserv since my post of last evening. It was not my intent to silence discussion, but rather create some. But since no one is using the airwaves, I will do what I promised Malcolm I would do: discuss my views on race and the possibilities on a Supreme Court topic.
Several folks have offered different ways of accessing the race debate. Affirmative action seems the most direct route, although there are others. Affirmative action in higher education via the Michigan cases is one route. But I'll argue that it is a more indirect route.
2 years ago, there were celebrations across the country celebrating the *landmark decision Brown versus Board". There is much healthy debate about this decision. Just a quick google search: "Brown versus Board of Education debate" brings up a host of interesting dialogues on the issue.
This is an NPR dialogue led by Tavis Smiley:
http://www.npr.org/news/specials/brown50/
The critical race law literature has a healthy, healthy discussion of Brown from many sides. And Brown is cited as a landmark throughout the legal research.
Here is the beauty of this case to engage race: this discussion/debate has occurred primarily within the Black community. The concern cited earlier on this list that we would "never consider" overturning Brown is a very white, liberal privileged community and I agree that this community would likely not consider it. The topic paper discusses education but ignores Brown. I suspect this is the reading of most in America, outside of the academic discussions to the contrary. Exactly the reason for including this case. It would be a unique case where the best evidence would be found in Black journals and Black authors, a great experience for our students. I'll hypothesize that nor of the other race cases would find as much quality evidence located in a different literature base.
Brown should be given serious, serious consideration. Nothing has cut against it's uniqueness. It's cited everywhere, creating a great possibility of advantages while keeping a stable mechanism, and it opens students up to some literature and perspectives that they might not normally access.
Sincerely,
Ede Warner
I'm not sure what to make of the silence on this listserv since my post of last evening. It was not my intent to silence discussion, but rather create some. But since no one is using the airwaves, I will do what I promised Malcolm I would do: discuss my views on race and the possibilities on a Supreme Court topic.
Several folks have offered different ways of accessing the race debate. Affirmative action seems the most direct route, although there are others. Affirmative action in higher education via the Michigan cases is one route. But I'll argue that it is a more indirect route.
2 years ago, there were celebrations across the country celebrating the *landmark decision Brown versus Board". There is much healthy debate about this decision. Just a quick google search: "Brown versus Board of Education debate" brings up a host of interesting dialogues on the issue.
This is an NPR dialogue led by Tavis Smiley:
http://www.npr.org/news/specials/brown50/
The critical race law literature has a healthy, healthy discussion of Brown from many sides. And Brown is cited as a landmark throughout the legal research.
Here is the beauty of this case to engage race: this discussion/debate has occurred primarily within the Black community. The concern cited earlier on this list that we would "never consider" overturning Brown is a very white, liberal privileged community and I agree that this community would likely not consider it. The topic paper discusses education but ignores Brown. I suspect this is the reading of most in America, outside of the academic discussions to the contrary. Exactly the reason for including this case. It would be a unique case where the best evidence would be found in Black journals and Black authors, a great experience for our students. I'll hypothesize that nor of the other race cases would find as much quality evidence located in a different literature base.
Brown should be given serious, serious consideration. Nothing has cut against it's uniqueness. It's cited everywhere, creating a great possibility of advantages while keeping a stable mechanism, and it opens students up to some literature and perspectives that they might not normally access.
Sincerely,
Ede Warner
posted by Steve Mancuso at 5/24/2006 11:14:00 AM
¶ 5 comments
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
¶ 2 comments
