cedatopic

CEDA Topicblog is moving

2006-06-08T19:08:00.000-04:00

Thanks in large part to the success of this site it is now necessary for us to move to a site that allows additional features, including a means of indexing the threads and a corresponding website to store all of the relevant materials. Anyone who saw the difficulties the site faced on the last day of the CEDA summer meetings can appreciate the need for change.

The new site will allow a link back to this site and all reports and links have likewise been produced on that new site. The link for the newest is www.cedatopic.com and the direct link for the new blog is blog.cedatopic.com

Thanks to everyone whose participation made this process a success.

2006-2007 Topic Ballot

2006-06-05T19:08:00.000-04:00

Note the (comments) before each resolution are designed to help interepet the ballot and are not part of the formal topic. This is the recorded ballot from the topic committee meeting. The formal and final ballot will be provided via the balloting procedures as established in the CEDA constitution.

1. (First Amendment)

The United States Supreme Court should curtail the protection provided for free speech by the First Amendment of the United States’ Constitution by overruling one or more of its decisions on obscenity, hate speech, and or campaign finance.

2. (Five cases)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey (1992)
Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)

3. (Seven cases)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)
Terry v. Ohio, 392 U.S. 1 (1968)
City of Boerne v. Flores, 521 U.S. 507 (1997)

4. (Six cases. No Casey)

The United States Supreme Court should overrule one or more of the following decisions

Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)
City of Boerne v. Flores, 521 U.S. 507 (1997)
American Booksellers Association v. Hudnut, 475 U.S. 1001 (1986)

5. (Eight cases)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)
City of Boerne v. Flores, 521 U.S. 507 (1997)
Terry v. Ohio, 392 U.S. 1 (1968)
Gregg v. Georgia, 428 U.S. 153 (1976)

6. (Six cases. No Quirin or Terry)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)
City of Boerne v. Flores, 521 U.S. 507 (1997)
Gregg v. Georgia, 428 U.S. 153 (1976)

7. (Four cases. No Gratz).

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Ex parte Quirin, 317 U.S. 1 (1942)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)

8. (Four cases. No Quirin)

The United States Supreme Court should overrule one or more of the following decisions

Planned Parenthood v. Casey, 505 U.S. 833 (1992)
U.S. v. Morrison, 529 U.S. 598 (2000)
Milliken v. Bradley, 418 U.S. 717 (1974)
Gratz v. Bollinger, 539 U.S. 244 (2003)

Coalition of the list supporters

2006-06-03T18:10:00.000-04:00

Coalition of the list Supporters

Dear Debate Community,

When the final slate of topics was announced, it was apparent that first amendment would be what we debate in the fall for a couple of reasons: 1) some, perhaps many, feel that it is the only topic with enough limits; 2) many just don't like the use of "overrule" in the other topics; 3) it is the only area topic competing against 7 area topics, which means the most likely outcome is that a 1/3 to ½ of the community votes for first amendment as their #1 choice, and no one list topic generates more than 1/5 of the vote. Now, given the criticisms coming out, perhaps that is not the case, but the lone area topic is at a huge strategic advantage. Ironically, as someone who supported areas, the process created strange bedfellows the way it played out. I think the lists were made with broad strokes to allow for a lot of flexibilty. Ironically, this is the major criticism of the list topics. I strongly feel that the committee created a series of lists that have much pedagogical value in terms of diversity of case options, than the free speech topic. And finally, I don't agree that the stem for the lists are as open-ended as others do. But that is not here nor there. If you are interested in voting for a list as your #1 topic, please continue.

The last three years, whatever topic had the overall most number of #1 votes, won. 93 total ballots cast last year with pressure getting 29 first round first place votes, with 21 the next highest. The year before that, there were 95 total ballots, with the winning topic receiving 46 followed by 19, and in 2003-4, there were 75 ballots cast, and the winning Europe list had 31 first round first place ballots, with second place having 22.

If your school is a list supporter, and I concede that for many it is too early to make that call (depending on how much investigation the school wants to do or the inclusiveness of the decision making process at the school), I call on those in favor of any list to participate in a coalition-building process to give a list topic a fighting chance to win.

I propose this: If you support any of the lists, let's have a discussion on the blog until a deadline date, perhaps July 1st or even a little later. The goal of the discussion is to create some consensus for what order we think the lists should be voted in. From there let's have our own vote amongst the supporters of a list. We each agree to support the results of that voting as a group and vote accordingly. And we all cast our individual ballot as part of a collective voting block.

If we got 48 willing schools to participate, we could assure that a list topic was likely victorious. I suspect we can't get that many, but we should strive to maximize our coalition. Without any external effort on this, a relatively small minority of first amendment #1 votes will likely win.

I will post this note to edebate, CEDA-L, and the Blog. Please let me know if you are interested. I will create and defend a rank order of the lists to start the discussion, only on the blog. I hope people see the strategic necessity to think of this as one list versus one area, and not 8 separate topics. Thanks for reading.

Ede "Doc" Warner

The First Amentment topic on the ballot

2006-06-02T15:50:00.000-04:00

The United States Supreme Court should curtail the protection provided for free speech by the First Amendment of the United States’ Constitution by overruling one or more of its decisions on obscenity, hate speech, and or campaign finance.

vote it down

2006-06-02T15:45:00.000-04:00

clean up the ballot you have.

Slate of lists

2006-06-02T15:39:00.000-04:00

A discussed stem wording is:

The United States Supreme Court should overrule one or more of the following decisions

(Code numbers will be included)

List # 1:

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)

List #2:

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
Terry v. Ohio (1968)
City of Boerne v. Flores (1997)

List #3:

Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
American Booksellers v. Hudnut (1986)

List 4

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
Terry v. Ohio (1968)
Gregg v. Georgia (1976)

List 5

Planned Parenthood v. Casey (1992)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
Gregg v. Georgia (1976)

List #6

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)

List #7

Planned Parenthood v. Casey (1992)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)

My suggestion

2006-06-02T15:32:00.000-04:00

Put first amendment off.
Create three topics of 4.
One without Casey.
One without Milliken and Gratz.
One without Quilin.

That's fair and gives everyone an equal chance to win.

The contradiction

2006-06-02T15:22:00.000-04:00

I be a lot more comfortable about this if the race-equal protection area topic makes it on, but with the time constraints, I suspect that won't happen.

I will say this, you can't have it both ways: if Milliken and Gratz both access "race", why are they that expansive? Your discussion is proving their different pedagogical value?

This solution to the problem is a poor quick-fix based on time. The better solution is to fix the wording.

That the Supreme Court should increase constitutional protection to:

the right to an abortion by overruling the Casey decision;limit presidential war powers by overruling Quirin decision;
reduce violence against women by overruling Morrison decision;
increase state affirmative action by overruling Gratz decision;
increase desegregation in education by overruling Milliken.

Revisiting the list

2006-06-02T14:46:00.000-04:00

That the Supreme Court should do one or more of the following:

increase protection for the right to an abortion by overruling Casey;
reduce protection for presidential war powers by overruling Quirin;
increase protection for violence against women by overruling Morrison;
increase protection in affirmative action by overruling Gratz;
increase Congressional protection for religious freedom by overruling Boerne;
and/or
increasing protection against search and seizure by overruling Terry.

First Amendment Resolution Will be on the ballot

2006-06-02T14:40:00.002-04:00

It recieved sustantial support from at least seven members of the committee.

Overrules - Need to narrow the mechanism

2006-06-02T14:40:00.000-04:00

Open thread- discuss.

Updated working first amendment resolution

2006-06-02T14:00:00.000-04:00

The United States Supreme Court should curtail the protection provided for free speech by the United States Constitution’s First Amendment’s protection by overruling one or more of its decisions on obscenity, hate speech, and or campaign finance.

An alternative areas resolution - equal protection

2006-06-02T13:13:00.000-04:00

An alternative areas resolution -- Equal Protection (I wrote about this on the blog - see my very first blog post)

The resolution would say:

The United States Supreme Court should strengthen the constitutional protection against race discrimination by overruling one of its decisions which held that a government action/law/statute did not violate the equal protection clause of the 14th amendment.
Cases would include: Milliken v. Bradley (school desegregation), Washington v. Davis (held that policy with disparate impact on blacks was not unconstitutional without evidence of discriminatory intent), Gratz (affirmative action), Shaw v. Reno (racial gerrymandering),, Palmer v. Thompson (holding that city's decision to close all public swimming pools rather than integrate them did not violate the Equal Protection Clause because the city closed all swimming pools "equally").

This topic would be great and you are already familiar with most of the key cases because they tend to be the "landmark" cases in constitutional law. And this would appease the fear that a bunch of list resolutions plus one areas resolution (1st amendment) would inevitably result in a 1st amendment topic.

Updated working first amendment resolution

2006-06-02T13:01:00.000-04:00

The USSC should limit the first amendment’s protection of free speech by overruling one or more of its decisions in the area of ______

First Amendment Area Resolution

2006-06-02T11:54:00.000-04:00

Under discussion. There are some wording variations to come, but this is what was discussed yesterday.

(Working wording) - The United States Supreme Court should overrule one or more of its controlling decisions that struck down a statute on the grounds that it violated the First Amendment's protection of free speech.

Decision on the the First Amendment vs. Ntl Security resolution

2006-06-02T11:39:00.000-04:00

The committee voted 8-1 against including the topic on the ballot. Darren Elliot voted to include it on the topic.

Decision on the plenary power option

2006-06-02T11:37:00.000-04:00

Despite great work by Lindsay, the committee unanimously decided to not included it on the slate of topics.

It should be noted that the emphasis on foreign policy and national security was a substantial concern for the committee.

Agenda for Day 3

2006-06-02T11:05:00.000-04:00

1. Area Topics
First Amentment
Race
Education
Religious Freedom

2. Mahoney - update on 1A vs. Ntl Sec

3. Harrison - Plenary Power

4. Adjust size of the lists (shrink)

5. Can the affirmative specify the grounds for overrule?

From Dallas

2006-06-02T11:03:00.000-04:00

I apologize for coming to this discussion late, but I only returned from
abroad yesterday.

I would like to make an appeal for the inclusion of one or more "area"
topics. I think freedom of religion would be a good one, although I don't
think it would necessarily be the best, and it certainly is not the only
possibility.

I propose: Resolved: That the USSC should substantially change the law of
First Amendment religious freedom by overruling one of more of its
decisions regarding establishment or free exercise of religion.

This is not too broad. There will be some cases you won't predict right
now, but there won't be a huge number, and by the end of October,
everybody will know what nearly all of them are.

This is fresh. We have never debated religion before, and while people
are very interested in the subject and the controversies, most college
students know little about the cases and controversies involved.

There is INEVITABLY strong negative ground. ANY rule that limits
establishment, liberally construed, will in some way limit free exercise.
And any enshrining of a right to worship smacks of establishment. I have
not done any research lately, but my memory from law school is that there
was not a single "easy" case on religion.

I believe the topic should include both free exercise and establishment,
and I admit this is "bidirectional." That's good. It makes the negative
learn about both sides of the issues, so they have to have at least two
generics. Also, it lets affs choose their side; if Liberty feels
strongly that free exercise should triumph, they can support that. If
Pagan U wants to say the government should get out of the business of
protecting religious exercise in the labor market, they can support that.
What would be included? Relying merely on memory, with no current
reading, I would say that there would be a lot of education cases
(parochial school support, vouchers, etc,) a lot of labor market
accommodation cases, and a smattering of other interesting issues.
Big Love (polygamy) comes to mind. Creeches on public property. The Ten
Commandments in Courtrooms. In God We Trust on the Money. The Pledge of
Allegiance case. Prayer in public schools. Peyote(!)

As I say, I'm sure there will be surprises, cases I can't remember and you
won't discover in a day. But that is the fun of a topic developing over
time. And there just are not that many cases, this really can't get out
of control.

One more thing. I know the topic committee thinks that it can say the
word "overrule" and name a famous case and know what the debate will be
about. This is TRAGICALLY misguided, as Ms. Harrison has so vividly
illustrated. My topic COMPELS the aff to change the law of religious
freedom, inevitably creating strong and predictable negative ground. I
GUARANTEE I can write affs on your list topics that you have never heard
of and won't find predictable or useful or manageable with your generics.
Respectfully,

dp

Strength of the Unifying Mechanism

2006-06-02T09:49:00.000-04:00

Europe -- no unifying mechanism. Disparate areas. Bad

China -- Strong unifying mechanism. Disparate areas. Maybe "too easy" to be neg. If we think of the unifying mechanism as a way to protect negative ground on a scale of 1 to 10, the pressure mechanism may have been an 11 (or higher). Very difficult to defend pressure vis-a-vis engagement

Courts. Unifying mechanism. Disparate areas.

The question is how strong is the mechanism and does it weigh in to heavily for one side.

Reason it is weak: Ryan has steadfastly defended the Court Legitimacy and Hollow Hope DAs, but you obviously can't run both at the same time and these strategies have generally taken a beating from individuals who have debated the topics. Anyone want to post their win-loss record going for Stare Decisis? What happens if the Court does overrule a case in the Fall or makes a relatively liberal decision?

Reason it is strong: The Court doesn't usually overrule things -- On the neg people will find ways to solve the harms of these cases, and probably even their legal precedents, without overruling them. Perhaps they will just run the distinguish counterplan or even be more sophisticated. This is my general understanding as a non-lawyer and every lawyer, law professor, and law student who has commented on this has made this point without exception from the very beginning and it hasn't been answered.

So, the mechanism may be either incedibly weak or incredibly strong in its ability to provide generic negative ground. AT BEST, we don't know.

Potentially debating many disparate areas and relying on a mechanism that may be incredibly strong or incredibly week seems problematic.

How would people rate the mechanism as a means to protect negative ground on a scale to 1 to 10?

2006-06-02T09:47:00.000-04:00

Does anyone think it may be useful to create a list where we know there is a strong defense of the need to overrule? Perhaps a topic where we have the best 5 or 6 six solvency cards that say why it really needs to be overruled

Another swipe has been taken at the ability of the affirmative to generally defend the need to overrule in

On Lists and Areas

2006-06-02T09:42:00.000-04:00

Although this may contradict Ede's call to the committee (and I hate to disagree with Ede), I'd like to make another call for the committee to work on a plenary powers or other "areas" resolution, in part based on Paul's comments below and in part based on what I have heard over the past two days. I apologize in advance for the length - I had not a lot of time to edit.

First, Paul is correct when he states that the Court almost never directly states that X case is overruled. It overrules its precedents by announcing new rules that displace the old ones. As an example -- in Lawrence, the Supreme Court announces that there is a privacy interest in adult, consensual, private sexual conduct, thereby overruling Bowers. The Supreme Court chose to overrule Bowers in that way, but it could have done so in an infinite number of ways -- by announcing a completely new test for fundamental rights, by ruling on the basis of equal protection (which O'Connor did in her concurrence), by ruling on the basis of the first amendment right to expressive association (which many law review scholars advocated), by ruling on the basis of the privileges and immunities clause (which an amicus brief advocated), by ruling that the regulation of sexuality is outside the state's police powers (which the CATO institute advocated), etc. I think this is what the various members of the topic committee understand when they say the topic will be "too big." Each precedent may be overruled in a tremendously large number of ways.

Because of this, I see this year headed in a dangerous direction if the resolution simply requires the Aff to overrule a case --there are very, very, very few advocates there are for the simple overruling of Supreme Court precedent without advocating a new rule to displace the old (very, very, very few - pretty much just conservative crackpots discussing the need to "overrule Roe"). Once the community realizes this, I foresee Affirmatives that do a huge, wide range of things in very disparate areas of the law (examples -- if Glucksberg or Casey is included -- plan: rule that gays have a fundamental right to marry/kids have a right to education/etc., thereby overruling the test used in Glucksberg and Casey holding that fundamental rights must be deeply rooted in the concept of ordered liberty). Affirmatives will overrule the cases on your "list" resolutions by doing virtually anything that they want.

You are listing cases that come from a huge range of areas of the law -- your smallest resolution includes these:
Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)

Casey involves substantive due process - the test for what constitutes a fundamental right. This means one could overrule Casey by doing ALMOST ANYTHING that announces a new fundamental right by displacing the Casey test.

Ex parte Quirin involves the war powers of the president - one could overrule Quirin by limiting the war powers of the president or by announcing a new test for the judicial evaluation of those powers (displacing that announced in Quirin) or by announcing that questions concerning the president's war powers are now to be considered "political questions" from which the court will now abstain, etc.

Morrison involves both Congress's commerce power and its enforcement powers under section 5 of the 14th amendment. Since Congress has not passed the VAWA again, the Court could only overrule Morrison by announcing new tests for the evaluation of the scope of Congress's commerce power or its section 5 authority. In other words, the Court could "overrule" Morrison by announcing almost any piece of Congressional legislation constitutional under the 14th amendment or the interstate commerce clause. This is particularly dangerous since the Negative will need to be prepared to debate both "Court affirms legislation" and "Court strikes down legislation" Affs.

Milliken involves the authority of courts to order injunctive relief. Yes, the case involved a desegregation order, but you won't find authors advocating that the Supreme Court overrule Milliken by approving the plan that was ordered in effect in Detroit because no such plan exists today to approve - what you will find are any number of authors who advocate enlarging the authority of the courts to order various remedies, thereby overruling the central holding of Milliken that the plan in effect was impermissible. There are also, of course, the racial aspects of Milliken, which held that busing remedies could extend across district lines only where there was actual evidence that multiple districts had deliberately engaged in a policy of segregation. Well, you could overrule Milliken by holding that there was, in fact, evidence of intentional segregation in Detroit (thereby overruling the main factual holding of the case, but leaving the legal rule the same).

Finally, Gratz involves the evaluation of an affirmative action plan under the equal protection clause. This is another hugely bidirectional case -- you could overrule Gratz by holding that diversity is not a compelling state interest OR by holding that affirmative action plans should not be subject to strict scrutiny because they remedy racial discrimination. There are solvency advocates for doing so in a variety of ways.

I hope I have given you a sense of how huge the topic could get. I think the community seriously needs to consider the scope of the resolution and needs to consider putting some limited "areas" resolutions on the ballot.

I'll advocate here for plenary powers since I genuinely think it would be a much more limited topic than the "lists" resolutions presently under consideration. I also will explain why I think it is wholly faithful to the "Supreme Court overrule" topic the community elected.

As I have previously stated, the plenary power doctrine is wholly the creation of the Supreme Court. For the court to rule that the powers of the Executive or Congress are not plenary IS an overruling of court precedent. Thus, the committee could easily draft a plenary powers resolution that is faithful to the community's election of a "Sup Ct overrule" topic but that does not include the actual word "overrule."

I still say the best resolution for a plenary powers topic -- one that is limited and one that has substantial numbers of solvency advocates and one that excludes Indians -- is this one:
The United States Supreme Court should substantially limit the plenary power of the Executive or Congress in one or more of the following areas of the law: immigration, foreign affairs, public lands.

I will try to be clear about why I think this resolution is faithful to the "Supreme Court overrule" topic in case I have not been in the past. Because the Supreme Court created the doctrine of plenary powers, for the Court to now limit those powers is PRECISELY the kind of overruling of Court precedent that the legal literature is talking about when it discusses "overrule." Plus, I don't understand why the plans under a plenary powers resolution would be any more about "overrule" than the plans I have given as examples for the "lists" topic above. A plan advocating a new fundamental right (and thereby overruling Casey) doesn't "overrule" precedent any more than a plan that limits the Executive or Congress's plenary powers -- in fact, it is probably less faithful to the "overrule" topic.

I think an areas resolution is superior because the Negative will at least know the direction the Aff must go. The Negative can still use all of its "overrule" evidence (though, as Josh Zive states in his comments, the hollow hope and other courts generics are not nearly as strategically beneficial as the case debates and PICs on a courts topic -- there just aren't a huge number of Negative authors discussing why overruling precedent, in itself is bad -- just ask anyone who has debated Korematsu or Bowers whether those strategies were ever successful -- i mean, "stare decisis good" is just not a great debate argument -- do you really want every round to be "CP - do the Aff but don't overrule a case, net benefit is stare decisis"????). Debates will still be about whether the Court should backtrack from a doctrine that it created. And the community will learn a ton about a key area or two of the law -- the area that is, in fact, THE legal hot topic in a post-9/11 world. I do think a first amendment resolution would be good as well, requiring the Court to overrule one of its first amendment precedents. At least in such a resolution, the area of the law is singular and well-defined. I think you could also solve some of the problem by adding in a directional limiting phrase (requiring the Aff to rule in a particular way and not just simply to "overrule" a case).

If you have questions about this, I'm happy to talk with the topic committee today - my work number is 305-579-4414. I'm not trying to scare anyone - I just have thought about it a lot (while watching the Mavs kick total ass last night) and felt obligated to share those thoughts...I love that the community is debating a legal topic and don't want it to be another 15 years until it happens again.

Peace.

Lindsay

Dear Topic Community,

2006-06-02T01:26:00.000-04:00

We have elected a set of representatives to make a series of difficult decisions for this community. For over three weeks, I've heard a deafening silence in answer to my question: what is the role of the topic committee? My interpretation of that silence was a community interested in the topic committee producing a series of the "best" topics, using their experiences and knowledge to produce those topic. The goal of the committee is not the creation of representative "community choices", in other words, is not to represent all possible interests in a democratic manner. In fact, the limiting process of topic construction in many ways does the opposite, it limits out a lot of interests so we can have engaged focused and developed discussion on a few interests. And I believe that the committee has done just that in the set of list topics it has created over the last two days. At the same time, the committee has created a series of lists that allow for predictable narrow debates, while also allowing a host of different areas as possible case consideration.

Earlier discussions suggest that the committee wants students to have legal topic debates in their careers, and wants healthy and relatively equal discussion of both domestic and foreign policy concerns. Our last three topics have had been decidedly unbalanced in favor of foreign policy interests (energy was as much or more about global impacts as it was domestic impacts).

My request today is that the topic community use their knowledge and experience to vote not to include the free speech/national security topic on the ballot, or any other single area topic. I make this request not because Tim did a poor job making a strong case that this is an interesting, debatable resolution with predictable negative ground. He in fact, did a great job in constructing an interesting, debatable topic. I make this request not because the majority of members of this community lack interest in the area. In fact, I make this request for just the opposite reason: a national security only topic would very likely win.

The committee has worked very hard to protect a wide variety of minority interests, introducing a variety of topics that don't often get debated by this community, in the spirit and promise of the original topic paper written by Galloway. We are on the verge of debating at a minimum: poronography, affirmative action, desegregation in education, executive authority, federalism, and gendered violence with the possibility of adding abortion, the death penalty, religious freedom, and euthansia to that list. We are on the verge of a truly unique season created by this community.

The decision to add a 1st amendment/national security topic is likely a decision to move away from all of that work, the bulk of the committees work over the last six weeks. While all combined, these areas might still be a minority interest in being debated compared to a topic with a strong foreign policy impact interest, but a strong challenging coalition has been built by the committee.

There is a strong pedagogical warrant to preserve this difference, there is a strong political warrant for the community to protect minority interests in this case, and finally there is a strong moral justification to embrace the representative leadership that stands up for minority interests when those interests are in the best interest of the entire community.

I suspect some will argue for the right for the community to have democractic choices, and that the community doesn't have the right to make this call. But remember, there was almost no discussion when I called for the community to discuss the role of the community. To demand a pure democractic process as a response to this would be curious at best and at somewhat hypocritical at the least. Remember, despite a small, vocal minority, there won't be a broad--change a landmark decision-topic on the ballot.

It would have been nice to have this discussion on the front end of the process, as Tim is right, it is hurtful to do the work to later find out it won't be used. At the same time, if a topic that is single focused on a limited area makes the cut and wins, it makes irrelevant the work of a lot of folks.

Finally, if the committee makes the decision to add single area topics at this point, I hope they reconsider the number of topics they put on the ballot. Give the list a fighting chance and put one list on to challenge, for a total of two topics.

If first amendment/national security ends up on the ballot as a single area, I'll be disappointed but I'll live with it. High school recently had many of these debates and this topic will really be a last minute addition in terms of time allocated during the topic meetings. And if national security doesn't make the ballot, I'll buy Tim a drink as I share his frustrations for his work not producing a topic, a place I've been several times. At the end of the day, I respect the difficult choices the committee must make.

Adjourn for the day...

2006-06-01T20:35:00.000-04:00

We are breaking for the day. We will return tomorrow at 10:00 am.

Items on the agenda are the first amendment area and the full slate of topics.

Thanks for all of the help. Please let us know what you think.

Size of the topics?

2006-06-01T20:22:00.000-04:00

Discuss.

First Amendment vs. Ntl Security

2006-06-01T20:06:00.000-04:00

Discussion has been under way. Tim Mahoney has two papers on the subject.

2006 Strike Exec on 1A - Mahoney
2006 1A vs. Ntl Sec Supp - Mahoney

Returning to the First Amendment Area

2006-06-01T19:07:00.000-04:00

We are reviewing specific wording for the first amendment area topic. To review, the current proposal is

The United States Supreme Court should overrule one of more of its decisions that struck down a statute on the grounds that it violated the First Amendment's protection of free speech.

Your comments?

Themed lists

2006-06-01T18:20:00.000-04:00

We will breaking for a few minutes and then considering themed lists. Let us know if you have any perspectives.

Early discussion of potential lists - list 5

2006-06-01T18:18:00.000-04:00

Planned Parenthood v. Casey (1992)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
Gregg v. Georgia (1976)

Terry vs. Ohio

2006-06-01T17:46:00.000-04:00

We have support for this case from Lindsay and Stefan. We are likely to review it tonight and discuss it tomorrow. Please weigh in if you have any perspective on this question.

Glucksberg

2006-06-01T17:12:00.000-04:00

Glucksberg would be a fun addition not because of the right-to-die literature, but because it is a way to access the right to privacy/substantive due process literature....One could overturn Glucksberg by overturning the test announced therein, that a fundamental right must be rooted in history. Those debates would be really good, I think.

Early discussion of potential lists - list 4

2006-06-01T17:06:00.001-04:00

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
Terry v. Ohio (1968)

And one of the following:

Kelo v. City of New London (2005)
Gregg v. Georgia (1976)

Criminal vs. Civil

2006-06-01T17:06:00.000-04:00

Something no one has mentioned, I don't think, is that putting a capital punishment case on the list opens up the topic to both civil and criminal cases. This is a BIG increase in the literature and something for the topic committee to discuss.

Incidentally, if you are going to put a criminal case on the topic, I would think Terry would be more interesting than a death penalty case, wherein you would rehash much of the debates from the treaties topic. The Fourth Amendment literature on Terry is awesome.

Kelo

2006-06-01T16:56:00.000-04:00

Whoever was responsible for researching Kelo, did you find people advocating that the Supreme Court actually overrule the decision? I cannot imagine the Court overruling itself so soon after rendering the decision, even given the change in the composition of the Court. Were there actually authors suggesting this was a possibility (or advocating for it)?

Malcolm, here you go

2006-06-01T16:55:00.000-04:00

My antedotal evidence from last night, hearing students talk about how close friends and parents talk about co-workers get angry that they had higher test scores while their "Black" friends got race-based scholarships was powerful. I think there is plenty of evidence to support my claim...The recent faculty discussion we had in my department over hiring a Black faculty member who might not be as "qualified" was a hotly emotional issue. Trust, this is a core controversy on the level of abortion in terms of emotion, and unique to college students. I feel stronger about this than desegregation in the core of an intercollegiate debate topic.

http://www.puaf.umd.edu/IPPP/1QQ.HTM

Evidence to support Gordon's last Claim

2006-06-01T16:41:00.000-04:00

I spoke to a group of incoming first years who will be receiving a race-based scholarship. None could defend the merits of their award. We had about an hour conversation. Rank order of importance for a college student:

1) admissions based on race
2) busing
3) emminent domain

I'd argue that in terms of race, #3 might be more pressing in the short term, given the climate, but I'd still prefer 1 and 2.

What's up JOE MILLER!!!!!!

Control size by content, not number of cases

2006-06-01T16:31:00.000-04:00

Three topics of seven:
Baby bear: Hudnut, no Casey
Mama: Casey andGratz (which is also huge)
Daddy: Everybody and their mama

The fact that no one agrees by size is exactly why topic committee should not allow size (number) to be a relevant criteria.

MAKE THE SMALL TOPIC 6 CASES

2006-06-01T16:18:00.000-04:00

Gratz should be in the core! The offense against c/p's: we need consistency. Any c/p that increases that a consistent signal would have a solvency deficit if the aff + perm equals a more consistent signal...Preferrably, they all should be same size so vote is solely on size.

Size

2006-06-01T16:10:00.000-04:00

History tells us the smallest will win, doesn't it. So why not make 4 topics with different combinations of 6 or 7 topics instead of writing three different sizes? Create a core and trade out 2-3 on each one.

Early discussion of potential lists - list 3

2006-06-01T16:08:00.000-04:00

List #3:

Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
City of Boerne v. Flores (1997)
American Booksellers v. Hudnut (1986)

Early discussion of potential lists - list 2

2006-06-01T16:05:00.000-04:00

List #2:

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)
Terry v. Ohio (1968)
City of Boerne v. Flores (1997)

Early discussion of potential lists - list 1

2006-06-01T16:03:00.000-04:00

List option 1:

Planned Parenthood v. Casey (1992)
Ex parte Quirin (1942)
U.S. v. Morrison (2000)
Milliken v. Bradley (1974)
Gratz v. Bollinger (2003)

Gratz and Milliken

2006-06-01T16:00:00.000-04:00

While desegregation and affirmative action both address education, they are very different vehicles to discuss race, and very different literature bases (no one calls desegregation an act of "affirmative action" for example).

I would prefer deseg and aff axn to be in the core. I think there will be recency issues with Adarand, not as much writing about it of late, other than as precendent for other discussions of strict scrutiny (will move those debate advantages in all kind of directions). If Adarand makes it in at all, I'd prefer to see it only in larger topic lists. I'm enjoying this discussion.

Topic Notes - Day 2

2006-06-01T15:19:00.000-04:00

Thanks to Brad Hall for his work today.

Day 2 Notes

Determining the size of list topics

2006-06-01T15:17:00.000-04:00

How many is big? How many are small? Do certain cases impact this calculation?

Your comments?

landmark

2006-06-01T13:11:00.000-04:00

there aren't 50 us v morrison LANDMARK decisions! You don't need to use numbers with landmark. You have good contextual topicality debates if you use landmark. And you avoid the painful choices like including codes...

Potential stem wording

2006-06-01T13:07:00.000-04:00

A discussed stem wording is:

The United States Supreme Court should overrule one or more of the following of its decisions ____

Note: If the specific Supreme court code for each case is included, the topic would likely not include 'its.'

Note2: The phrase 'United States' was supposed to be included in the original post. This is the default stem for list topics.

Overrule - Holding/Decision

2006-06-01T12:47:00.000-04:00

Ken Strange and Ryan Galloway are presenting their findings on these wording matters.

Role of the Committee

2006-06-01T12:41:00.000-04:00

I'll offer my thoughts up to this point, and get back to grading and my workout. I think the committee should decide it's likely outcome and proceed. At this point, 2 or 3 lists of differing sizes and perhaps 1 or 2 topics about a particular direction/area (plenary power; fundemental rights). Generate the list of potential cases and rank them from 1-12, using overrule as the limiter. If you only have 11 areas, add gun control as the 12th. Write the best plenary power topic that can be agreed on and the best fundemental right. The word landmark can't work alone, but could support one or both of these areas with some additional limiting functions. And by the way, please add to the minutes that Mancuso made this dumbass remark about ...blah, blah, blah". He said it, I didn't. Good luck folks.

Other Areas (includ plenary power)

2006-06-01T11:55:00.000-04:00

We arw now in a discussion of other area topics. We are currently considering Lindsay Harrison's plenary power paper. 2006 Plenary Power - Harrison

Affirmative Action / School Desegretation Area Discussion

2006-06-01T11:32:00.000-04:00

Ed Lee is leading a discussion on the area of affirmative action and school desegregation.

Your comments?

First Amendment Topic Area

2006-06-01T11:12:00.000-04:00

Joe Patrice is leading a discussion of a possible first amendment area topic.

(Working wording) - The United States Supreme Court should overrule one of more of its decisions that struck down a statute on the grounds that it violated the First Amendment protection of [free] speech.

Your comments?

Area 1 - Abortion

2006-06-01T11:05:00.000-04:00

Mike Davis is leading a discussion of abortion as an area approach.

Your thoughts?

Day 2 - Back in Session

2006-06-01T11:03:00.000-04:00

We are back in session and opening a discussion of area topics.

Your thoughts?

Day 2 Open Thread

2006-06-01T10:34:00.000-04:00

Today's session will begin at 10 am.

Let us your reactions to the discussions.

Debating Abortion

2006-06-01T09:02:00.000-04:00

If Roe is the "abortion case" that makes it into the topic, and assuming "overrule a decision" means that the original party (yes, new party with same basic case -- I perhaps now South Dakota wins) that won has to lose, it seems to me that the case has to either ban abortion or simply return the matter to the states (most likey) where it will be determined abortion is more or less available.

Both the subsequent impacts and morality of abortion and general are interesting topics of debate, but these seem to be more policy and moral issues than legal issues (I realize that they are not entirely distinct).

I did an awful lot of abortion research on the privacy topic. I thought the more interesting debates were about how to better establish abortion rights and generally thought that the LEGAL criticisms of Roe by both the left and the right were pretty damning. How to better secure abortion rights on a more solid legal foundation such as Equal Protection, Due Process, or 13th Amendment seemed to be better arguments and were widely vetted in the law reviews. We even had a new aff that we never ran that said that we should adopt a brain standard for life rather than the trimester framework. The 1AC was just a scientific criticism of the trimester framework and then we had arguments both ways on how this would impact abortion rights -- cards that said brain functioning was earlier than where the trimester framework endorsed a stronger fetal interest and cards that said the trimester framework would eventually collapse abortion rights because science would make it possible to sustain life outside the womb earlier and earlier. Anyhow, my general point is that I'm concerned that these more interesting (in my mind) debates will not occur if the the resolution is limited to Roe and T can box the aff only into either banning abortion or returning the matter to the states. Granted the negative can always CP with these other legal rationales, but these debates will only occur if someone actually overrules Roe v. Wade. And, even that is problematic because if the aff just sends the matter back to the states and OT Roe for a rationale of "flawed legal reasoning" none of these CPs are competitive.

I don't favor the areas approach, but one alternative may be to list more abortion decisions that the affirmative could overrule. For example, one resolution could have Roe, Casey, and Webster. It's not a silver-bullet solution, since overrule may still limit the affirmative more than was recognized on the 92 privacy topic (or not), but more decisions in more directions seems to increase the room to maneuver for the affirmative in the abortion debate. Since there doesn't seem to be widespread support for a strong directionality standard, and giving flexibility on the abortion question to advocates may be socially desirable, this may be a good idea.

Anyhow....WHAT ROE SHOULD HAVE SAID got me thinking.. I guess there is a WHAT BROWN SHOULD HAVE SAID

http://balkin.blogspot.com/2005/07/what-roe-v-wade-should-have-said.html

What Roe v. Wade Should Have Said
JB
My new book, What Roe v. Wade Should Have Said, has just been published by New York University Press. (You can buy the book here and here). I asked a group of eleven scholars to rewrite the opinions in Roe v. Wade and its companion case, Doe v. Bolton, using only materials available as of January 1973 when the cases were decided. The contributors included Anita Allen ( Penn), Akhil Amar (Yale), Teresa Stanton Collett (St. Thomas), Michael Stokes Paulsen (Minnesota), Jeffrey Rosen (George Washington University), Jed Rubenfeld (Yale), Reva Siegel (Yale), Cass Sunstein (Chicago), Mark Tushnet (Georgetown), and Robin West (Georgetown).
Acting as the book’s “Chief Justice,” I wrote an opinion announcing the judgment (but not the opinion) of the Court; It strikes down the Texas and Georgia abortion statutes in Roe and Doe. Seven contributors upheld some form of the abortion right, three did not, and one contributor, my colleague Akhil Amar, struck down only the Texas abortion statute but not the 1968 Georgia statute in Doe v. Bolton. None of the contributors adopted Roe’s original trimester framework. Here is an except from the introduction talking about some of the contributors' different approaches to Roe. This is only a summary; if you want the actual reasoning you should read the book.
* * * * *
My opinion argues that abortion statutes violate both women’s liberty and their equality. Restrictions on abortion compel women to become mothers, with all of the social expectations and duties that come with motherhood. Whether fairly or not, women in American society still bear most of the responsibility for childcare. They are expected to make sacrifices for their children and they feel most of the brunt of social condemnation if their children are not properly cared for. Moreover, because of the strong social expectations about the duties of motherhood, women suffer stigma and shame if they give their children up for adoption. The right to abortion is the right to have a reasonable time to decide whether to take on the responsibilities of motherhood. Deciding how long to give women to make that decision should be determined by legislatures in the first instance: “[L]egislatures must specify a period of time during pregnancy in which women may obtain medically safe abortions.” After this point, “legislatures may restrict or even completely prohibit abortions, except where it is necessary, in the judgment of medical professionals, to preserve the life or health of the mother.” The basic idea behind this formulation is that the right to abortion has two components: Women have a right to decide whether or not to become parents, so the state must afford them an appropriate period of time in which to make that decision. But women also have a right not to be forced by the state to sacrifice their life or health to bear children, and this right continues throughout the pregnancy. My opinion rejects the rigid trimester system in Roe. Instead, courts should let states try out different frameworks for abortion regulation. Over time courts should then judge the validity of these laws based on whether they give women a reasonable time to decide and a “fair and realistic chance” to end their pregnancy.
Reva Siegel [who writes a concurring opinion] argues that the proper basis of the abortion right is women’s equality, and that the Court’s heightened scrutiny for laws imposing sex discrimination should have begun with Roe v. Wade. Abortion is a constitutional right necessary to secure women’s equal citizenship. Siegel argues that exemptions in abortion statutes like those in Roe and Doe demonstrate, often in quite telling ways, that abortion restrictions are deeply tied to stereotypical views about the sexes and about the duties of women: “Whatever respect for unborn life abortion laws express,” Siegel notes, “state criminal laws have never valued unborn life in the way they value born life.” Instead, states “have used the criminal law to coerce and intimidate women into performing the work of motherhood.” “Abortion laws do not treat women as murderers, but as mothers: citizens who exist for the purpose of rearing children; citizens who are expected to perform the work of parenting as dependents and nonparticipants in the citizenship activities in which men are engaged.” Siegel bases her opinion on the equality arguments offered in amicus briefs submitted to the Supreme Court by various women’s groups. These briefs grounded the abortion right in what we would today call an antisubordination model of equality law. Siegel’s answer to what Roe should have said is to give voice to the lawyers who were part of the legal vanguard of the second wave of American feminism, and whose arguments were largely ignored by the courts.
Mark Tushnet interpreted the question of what Roe should have differently from all of the other participants: He asked what were the best arguments that could have been generated by someone who could plausibly have been a Justice on the Supreme Court in 1973. The men who decided Roe (there would not be a woman Justice for almost a decade) did not understand the connection between abortion rights and the Equal Protection Clause. In his view, Justice Douglas’ concurrence in Doe (which was drafted in conversation with Justice Brennan), was the best that the Court probably could have done under the circumstances, and it forms the model for Tushnet’s [concurring] opinion.
Four other participants, Anita Allen, Robin West, Jed Rubenfeld, and Cass Sunstein, concur in the judgment. This means that although they agree that the Texas and Georgia statutes criminalizing abortion are unconstitutional, they do so for different reasons.
Anita Allen grounds her opinion on women’s procreative liberty protected by the Due Process Clause of the Fourteenth Amendment. She argues that because laws compelling women to abort their pregnancies would clearly be unconstitutional, so too should be laws preventing abortion: “Like the right to prevent pregnancy, the right to terminate pregnancy is a fundamental right.”
Jed Rubenfeld argues that the constitutional right to privacy is part of a more general prohibition against totalitarian policies that take over people’s private lives and impose a specific occupation on them by force of law. Restrictions on abortion are unconstitutional because they conscript women against their will and force them “to carry out a specific, sustained, long-term, life-altering and life-occupying course of conduct.”
Robin West argues that restrictions on abortion violate both women’s liberty and their equality. However, she does not base her argument on either sex discrimination or the right of privacy. Rather, she argues that restrictions on abortion impose duties of good samaritanship on pregnant women that states impose on no other persons. Moreover, restrictions on abortion prevent pregnant women from using self-help to avoid the consequences of pregnancies imposed on them in cases of marital rape and coerced sex. Although West believes that the courts should protect a basic abortion right, courts cannot deal with the larger structural problems of sex inequality in the United States. “Mothering children, as we presently socially construct that work,” West argues, “is incompatible with the basic rights and responsibilities of citizenship,” and this “incompatibility has constitutional implications.” But merely striking down abortion laws is “a pathetically inadequate remedy.” Emphasizing Congress’s duty to interpret and enforce the Fourteenth Amendment independent of the courts, West argues that Congress is the body best able to pass legislation that protects women’s equality and secures their equal citizenship.
Yet another way of answering the question of what Roe should have said focuses not on the best doctrinal or theoretical justifications for Roe but on what was the best way for the Court to perform its institutional role. Cass Sunstein has advanced a theory of judicial minimalism; he argues that in courts should usually decide cases on narrow grounds and refrain from offering comprehensive and controversial justifications for their decisions. By leaving things undecided, and underspecifying the grounds for decision, courts can act as catalysts for democratic deliberation and avoid provoking an unnecessary political backlash. His opinion decides Roe and Doe on the ground that the abortion statutes were “overbroad,” i.e., that they abridged too much constitutionally protected liberty, without specifying the exact contours of the abortion right.
Akhil Amar concurs in part and dissents in part in Roe, and dissents in Doe. He argues that the Texas statute in Roe is unconstitutional because it was passed before women gained the right to vote. The Georgia abortion statute in Doe, passed in 1968, is another matter entirely, and Amar believes that the Court should have abstained from considering it, leaving the interpretation of the statute to the Georgia courts.
Jeffrey Rosen dissents from both Roe and Doe. Like Sunstein, Rosen also focuses on the Court’s proper institutional role, but he argues that the question of abortion rights should be left to legislatures. He takes up many of the arguments made against Roe by John Hart Ely in a famous law review article in 1973. In Rosen’s view, the Court should have stayed out of controversial questions like abortion, because the right to privacy has no basis in the constitution’s text, structure, and history, and the Court’s previous precedents do not require extension of the right to privacy to abortion. Instead of holding that abortion was constitutionally protected, the Court should have allowed the political process to work out the issue of abortion rights. Rosen notes that abortion reform was just beginning in the early 1970's, and in his opinion, written from the standpoint of 1973, he predicts that the Court’s hasty and ill-considered intervention will only cause severe political problems both for the protection of abortion rights and progressive causes generally in the years to come.
Objections to Roe generally fall into two categories, procedural and moral. Procedural objections argue that the question of abortion rights should have been left to the political process. Moral objections argue that the right to abortion is a substantive wrong that should not be elevated to a constitutional right. Rosen’s objections to Roe are largely procedural. Teresa Stanton Collett and Michael Stokes Paulsen offer the moral case against Roe. Roe, Collett argues, is the product of a misguided radical individualism that undermines women’s liberty and equality. Making abortion freely available will allow men to escape responsibility for sex and parenthood, while “artificial birth control and abortion . . . treat women’s bodies as unatural: something to be altered to conform to the male model.” “I refuse to accept, Collett declares, “that women must deny their fertility and slay their children in order to obtain equal access to the marketplace and the public square.”
Michael Stokes Paulsen offers a forthrightly pro-life opinion, arguing that abortion is deeply immoral and that the Court has severely damaged its authority by recognizing it as a fundamental right. “Abortion,” he insists, “does not destroy potential life. Abortion kills a living human being.” Paulsen writes in a prophetic voice, denouncing the evils of abortion and condemning the Court for having been complicit in the destruction of so many innocent human lives. Paulsen calls on the conscience of Americans to abandon what he regards as the Court’s most lawless and immoral opinion, or, as he describes it, “the most awful human atrocity inflicted by the Court in our Nation’s history.”

End of day one thanks

2006-06-01T01:07:00.000-04:00

We have finished up the group sessions tonight and there are small groups working on areas and cases for tomorrow's session. I wanted to thank everyone for their detailed comments. Even if we don't immediately respond to your posts they are a HUGE help. Lindsay, Anjali, Ede, Paul, Jonathan, Will and everyone else who posted or commented today - thank you for the detailed help. It is a huge resource.

We also owe Darren and the folks at KCKCC a big thanks for making the tech work. They worked hard to correct technical problems that put them above and beyond the call of service.

And thanks to everyone else who followed along and checked the blog and/or watched the live feed. People say the community isn't interested - you disagree. Our hit counter for just day one of the meetings registered 1,747 hits.

We have a lot more to do and we will work hard to keep you informed. Thanks.

Areas (vs. lists)

2006-05-31T19:43:00.000-04:00

Extensive discussion...Your thoughts?

Meeting Notes

2006-05-31T19:38:00.000-04:00

These are Eric's notes from day 1 linked from edebate. Many thanks for the hard work in a long day.

Use of the phrase 'decision' in the context of an overrule

2006-05-31T19:14:00.000-04:00

The Dictionary of Modern Legal Usage discusses overrule, overturn, and reverse in the following quote:

ENTRY: overrule; overturn; reverse; set aside; vacate. Overrule is usually employed in reference to procedural points throughout a trial, as in evidence <"Objection|" "Overruled.">. Overrule is also used to describe what a superior court does to a precedent that it decides should no longer be controlling law, whether that precedent is a lower court's or its own. Overturn and reverse are terms to describe an appellate court's change to the opposite result from that by the lower court in a given case.

CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered the opinion of the Court with

respect to Parts I, II-A, II-B, and II-C, and an opinion with respect [*499] to Parts II-D and III, in which JUSTICE WHITE and JUSTICE KENNEDY join., July 3, 1989,

WEBSTER, ATTORNEY GENERAL OF MISSOURI, ET AL. v. REPRODUCTIVE HEALTH SERVICES ET AL., No. 88-605, SUPREME COURT OF THE UNITED STATES, 492 U.S. 490; 109 S. Ct. 3040; 106 L. Ed. 2d 410; 1989 U.S. LEXIS 3290; 57 U.S.L.W. 5023

Both appellants and the United States as amicus curiae have urged that we overrule our decision in Roe v. Wade. Brief for Appellants 12-18; Brief for United States as Amicus Curiae 8-24. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. 410 U.S., at 117-118. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, id., at 164, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting, , June 26, 2000

CHARLES THOMAS DICKERSON v. UNITED STATES, No. 99-5525, SUPREME COURT OF THE UNITED STATES, 530 U.S. 428; 120 S. Ct. 2326; 147 L. Ed. 2d 405; 2000 U.S. LEXIS 4305; 68 U.S.L.W. 4566; 2000 Cal. Daily Op. Service 5091; 2000 Daily Journal DAR 6789; 2000 Colo. J. C.A.R. 3855; 13 Fla. L. Weekly Fed. S 488

The Court cites Patterson v. McLean Credit Union, 491 U.S. 164, 173, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), as accurately reflecting our standard for overruling, see ante, at 14 -- which I am pleased to accept, even though Patterson was speaking of overruling statutory cases and the standard for constitutional decisions is somewhat more lenient. What is set forth there reads as though it was written precisely with the current status of Miranda in mind:

"In cases where statutory precedents have been overruled, the primary reason for the Court's shift in position has been the intervening development of the law, through either the growth of judicial doctrine or further action taken by Congress. Where such changes have [*463] removed or weakened the conceptual underpinnings from the prior decision, . . . or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies, . . . the Court has not hesitated to overrule an earlier decision." 491 U.S. at 173.

Use of the phrase 'holding' in the context of an overrule

2006-05-31T18:59:00.000-04:00

http://dictionary.lp.findlaw.com/scripts/results.pl?co=dictionary.lp.findlaw.com&topic

=97/97b6223e606d0402b5c2ec197bfc4898

holding

1: a ruling of a court upon an issue of law raised in a case: the pronouncement of law supported by the reasoning in a court's opinion
(compare decision dictum disposition finding judgment opinion ruling verdict)

2: any property that is owned or possessed (usu. used in pl.)
Example: an increase in the company's {h,1}holdings

Merriam-Webster's Dictionary of Law ©1996.
Merriam-Webster, Incorporated.
Published under license with Merriam-Webster, Incorporated.

CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered the opinion of the Court with

respect to Parts I, II-A, II-B, and II-C, and an opinion with respect [*499] to Parts II-D and III, in which JUSTICE WHITE and JUSTICE KENNEDY join., July 3, 1989,

JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE SOUTER, June 29, 1992

(announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, [*844] V-C, and VI, an opinion with respect to Part V-E, in which JUSTICE STEVENS joins, and an opinion with respect to Parts IV, V-B, and V-D.) PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA, ET AL., PETITIONERS 91-744 v. ROBERT P. CASEY, ET AL., ETC. ROBERT P. CASEY, ET AL., ETC., PETITIONERS 91-902 v. PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA ET AL., No. 91-744, SUPREME COURT OF THE UNITED STATES, 505 U.S. 833; 112 S. Ct. 2791; 120 L. Ed. 2d 674; 1992 U.S. LEXIS 4751; 60 U.S.L.W. 4795; 92 Daily Journal DAR 8982; 6 Fla. L. Weekly Fed. S 663

The Court of Appeals found it necessary to follow an elaborate course of reasoning even to identify the first premise to use to determine whether the statute enacted by Pennsylvania meets constitutional standards. See 947 F.2d at 687-698. And at oral argument in this Court, the attorney for the parties challenging the statute took the position that none of the enactments can be upheld without overruling Roe v. Wade. Tr. of Oral Arg. 5-6. We disagree with that analysis; but we acknowledge that our decisions after Roe cast doubt upon the meaning and reach of its holding. Further, THE CHIEF JUSTICE admits that he would overrule the central [**2804] holding of Roe and adopt the rational relationship test as the sole criterion of constitutionality. See post, 505 U.S. at 944, 966. State and federal courts as well as legislatures throughout the Union must have guidance as they seek to address this subject in conformance with the Constitution. Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.

Discussion of the verb (i.e., overrule)

2006-05-31T18:37:00.001-04:00

We have several documents that speak to this question, but we would appreciate your input.

Gun control

2006-05-31T18:37:00.000-04:00

I couldn't make out what was just discussed, but was gun control summarily dismissed? I don't know the cases, but I do know there has been some interesting discussions both in urban and rural areas about this. No dog in the fight, but Steve did just ask about other interesting areas...

Possible Areas

2006-05-31T18:33:00.000-04:00

The following areas have come up in the context of today's discussions. We are considering directions (ie increase or decrease in each area).

Reduce Free Speech
Abortion
School Desegretation
Religious Freedom
Executive authority

Thoughts for Topic Committee

2006-05-31T18:23:00.000-04:00

I listened to a good portion of the topic committee meeting today while trying to get other work done, but I'm taking off for the night. Let me say at the outset how impressive today's discussion has been - an outside observer would easily conclude that you all had graduated from law school. You have all obviously done a ton of work. I hope you receive immense gratitude from the community for your efforts.

Before I take off, I figured I would send my thoughts on what I anticipate will be the next big discussion for you all -- how to frame the resolution.

In our blog discussions, I see 4 major types of resolutions we have blogged about so far: list of areas, list of cases, and list of areas/cases with directional limiting phrases. I list them from broadest to narrowest.

#1 - Areas - The USSC should overrule one of its decisions in one of the following areas: abortion, affirmative action, etc.

#2 - Areas with Directional Limits - The USSC should overrule one of its decisions in one of the following areas: abortion (in order to increase access to abortion), affirmative action (in order to increase the availability of affirmative action) etc.

#3 - Cases - The USSC should overrule one of the following: Casey, Grutter, etc.

#4 - Cases with Directional Limits - The USSC should overrule one of the following: Casey (to increase access to abortion), Grutter (to increase the availability of affirmative action), etc.

If I were debating, I would probably prefer #2 - it provides the Aff with flexibility in terms of the number of cases to choose from, but provides the Neg with predictable advantage ground (by specifying the direction/goal of the Sup Ct decision) and predictable generic ground (by requiring the Aff to do the action of overruling).

You have an extremely tough job. Good luck!

Right to Die

2006-05-31T18:13:00.000-04:00

The following cases are being examined:

Cruzan v. Missouri Dept. of Health (1990)
Gonzales v. Oregon (2006)
Washington v. Glucksberg (1997)

The general area paper is available. 2006 Right-to-Die - Moore
There is also a specific paper from David Cram Helwitch on the Glucksberg decision.

Pornography

2006-05-31T18:05:00.000-04:00

A discussion of pornography regulation cases:

American Booksellers v. Hudnut (1986)
Ashcroft v. ACLU (2004)
Ashcroft v. Free Speech Coalition (2002)
Miller v. California (1973)

The paper is also available. 2006 Hudnut - Galloway

Capital Punishment

2006-05-31T17:53:00.000-04:00

A discussion of capital punishment and the specific decision of:

Furman v. Georgia (1972)
Gregg v. Georgia (1976)
Roper v. Simmons (2005)

The report on the Greg decision is available. 2006 Gregg - Stables

School Drug Tests Under Consideration

2006-05-31T17:21:00.000-04:00

The following cases are under consideration.

Board of Education v. Earls (2002)
New Jersey v. T.L.O. (1985)
Vernonia School District v. Acton (1995)

Semi-Obvious Solution to Bidirectionality Problem

2006-05-31T17:08:00.000-04:00

Can't you just limit bidirectionality within the resolution by specifying the direction the Aff must rule? For example....

The USSC should overrule one of the following:
Casey v. Planned Parenthood, in order to increase access to abortion
Gratz v. Bollinger, in order to increase the availability of affirmative action
Morrison, in order to permit a federal civil remedy for gendered violence
etc.
etc.

Abortion under discussion

2006-05-31T16:56:00.000-04:00

The following cases are being considered:

Roe v. Wade (1973)
Planned Parenthood v. Casey (1992)

The full area report is also available. 2006 Abortion - Lee

Your comments?

Affirmative Action Under Discussion

2006-05-31T16:38:00.000-04:00

The following cases are being discussed:

Gratz v. Bollinger (2003)
Grutter v. Bollinger (2003)

The report is also available 2006 Aff Action - Hall

cedatopic

2006-05-31T16:33:00.000-04:00

Sorry about that! The last discussion gave me an idea. It's radically different than what has been done to date, so perhaps it should be ignored, but...

Resolved: That the Supreme Court should rule on one or more of the following: (a list of important lower cases yet to be heard by SC)

Debates should be about the merits of the cases. Would meet Repko's standard. Debates wouldn't get mucked up in "overrule" or worry about too much aff flexibility. Just a thought...

cedatopic

2006-05-31T16:29:00.000-04:00

cedatopic

Religious Freedom under consideration

2006-05-31T16:18:00.000-04:00

The following cases are being considered:

City of Boerne v. Flores (1997)
Cutter v. Wilkinson (2005)
Employment Division v. Smith (1990)

The full area report is also available.

There are concerns about using a specific case, but there appears to be support for inclusion of 'religious freedom' as a possible area.

Your comments?

Executive Authority Now Being Discussed

2006-05-31T15:31:00.000-04:00

The following cases are considered in the area of executive authority.

Ex parte Quirin (1942)
Hamdan v. Rumsfeld (2006)
Hamdi v. Rumsfeld (2004)
Rasul v. Bush (2004)
Rumsfeld v. Padilla (2004)
U.S. v. Curtiss-Wright (1936)
Korematsu v. United States

The specific case given the most consideration is Quiran. The support for is Quiran here. The rest of the cases are examined in the initial report.

School Desegregation

2006-05-31T15:17:00.000-04:00

Now being discussed. This includes an analysis of four possible cases:

Brown v. Board of Ed. of Topeka (1954)
Milliken v. Bradley (1974)
Missouri v. Jenkins (1990)
San Antonio Ind. Sch. v. Rodriguez (1973)

The focus of the recomendation for a specific surrounds Milliken. There is also support for the area of school desegregation. Mancuso's full report is linked here.

Eminent Domain

2006-05-31T14:53:00.000-04:00

We are now discussing Eminent Domain (Kelo v. City of New London).

The oyez summary of the case is linked.

Add your comments below.

Back in session...discussing the US vs. Morrison case

2006-05-31T14:32:00.000-04:00

We are working to make the audio better. The BBQ was also tremendous.

We are discussing US v. Morrison (federalism/ gendered violence).... Please provide your feedback on the subject below. Just click on the comments link.

You can also check out the paper for this area here 2006 Morrison - Galloway

Important ways to evaluate each case/ area

2006-05-31T12:55:00.000-04:00

Area (Non-case approaches)

These are some of the tests/standards for the issues as we consider each area/case.

We will explore the cases for their merits as well as are they?

Liberal/Conservative (pro-govt or pro-individual)
Did thet include relevant tests
Did they strike down statututes (state, federal or executive action)
Would striking down the case be bi-directional? (multiple holdings or pluarity decisions)

We are now reviewing the various decisions/cases

2006-05-31T12:42:00.000-04:00

Steve is reviewing the full list of sorted areas, complete with relevant cases in those areas. You may review the list at 2006 Case List Survey - Mancuso

2007-2008 Topic Area Options

2006-05-31T10:46:00.000-04:00

This is not an exclusive list, but the committee will now select six areas to be explored in the coming year. Steve Mancuso and Charles Olney have developed the following list. We will then be commisoning people to write papers on this area for March 07.

1. Latin America (paper by Mike Davis)
2. Military Reform (paper by Charles Olney)
3. Middle East - Iraq, Iran, etc.
4. Global poverty/infectious diseases
5. US policy toward Genocide (paper by Ben Voth)
6. US policy toward South Asia
7. Immigration (paper by Sue Peterson)
8. Executive Authority (paper by Gordon Stables).

The session has started - our tentative agenda

2006-05-31T10:34:00.000-04:00

This is tentative and subject to change. The streaming webcast is up and running at http://www.kckcc.edu/ Just follow the big green link.

Morning
1. Logistics and procedures
2. 2007-2008 Topics
3. Role of the committee discussion
4. Current situation - report of the chair
5. Proposed agenda

Afternoon
1. Introduce and discuss cases
2. Verb
3. Agent
4. Direct object - precedent, decision, holding

After Dinner
1. Discuss non-case list approaches
2. Decide case lists only?
3. Set Thursday agenda

Open Thread - Topic Committee Day 1

2006-05-31T02:33:00.000-04:00

As I just posted on edebate, it will be easiest for the committee to have community input made available through the blog. If you choose to backchannel any of us, please keep in mind that we got a ton of mail both through the list and other means. If, however, you add comments to the blog it is able to be viewed by the entire committee and it keeps the conversation organized.

Throughout the day we will add more posts to keep you informed and allow us to get the most from your feedback. Thanks!

Will Repko on Topic Style and Size

2006-05-30T19:57:00.000-04:00

A Five Tub Topic

I. Introduction

This partially stems from a post by Ross Smith on the new CEDATOPIC blog.

(http://cedatopic.blogspot.com/ -- his post is titled "Narrow plus affirmative "bias" = best").

This also stems from my experiences on the Committee.

It is intended to spark two meta-discussions:

 What is the Role of the Committee ?....

and:

 What should final product look like for 2006-7 ?...

II. Summary

The cliff-note version is:

1. For the foreseeable future, the Committee should strive to create topics that -- when reasonably engaged -- will necessitate teams bring no more than (roughly) 5 tubs to a season-ending tournament.

2. I believe the Committee should abide by a Charter that reads something like this:

Debate should be an important and intense component of an undergraduate education -- but should strive not to be all-consuming. Topic wording should reflect this balance.

3. Committee Members should not view their responsibilities as static or even consistent between topics, but instead should consider their responsibilities contextually.

Four contemporary "contexts" that I'd like to call (more) attention to are:

a) The underlying purpose of a legal-only ballot was to "court" students to learn about contemporary legal issues.

Unless the topic is rather narrow, I fear many negatives will view the approach of "engaging my opponent's specific legal Aff" as overwhelming. The topic probably needs to be perceived as manageable, or else the very purpose of forced rotation will be lost.

b) Airlines and the 2 bag rule.

This is a relatively new development that makes broader topics even more difficult to manage.

c) We exist in an era of Neg (judging) bias -- particularly in debates where both teams are relatively evenly-matched.

Topic construction should -- for the time being -- reflect that bias.

d) The emergence of the Kritik places (automatically huge) research burdens on programs.

Topic Construction should pragmatically allot time for reacting to the large research burdens brought on by this genre of argument.

III. Warrants

A) How things have changed

It is not 1991.

Color Me Badd is not rocking the airwaves.

None of us are wearing Bugle Boy Jeans....hopefully.

Near as I can tell, the 1991 "blueprint" for a debate topic looked something like this:

 Force the Aff to do something "mean". It gives the neg good general ground.
 Have an elegant wording, so as to not box-out interesting and valuable corners of the topic.

I sense this blueprint worked in 1991 b/c of some of the specific contexts of that era. Judges were tougher on neg generics. Also, in a largely pre-K era, Affs were reluctant to simply ignore the topic.

This 1991 blueprint seems to have been summoned when writing the "pressure China" topic. Here's why I believe this blueprint has lost much of its value:

1. the 1AC no longer serves as the centerpiece of discussion -- the 1NC does.

Debates need not be about Chinese Toys or Trans-Racial Adoptions. "No specific link" is usually a losing argument for an Aff. Accordingly, these so-called "interesting" areas that "we should not box-out" are often not engaged in a terribly meaningful way. Negs do not "fear" their lack of a specific hit against a small aff to the same degree that they did in 1991 -- they simply don’t have to. If you believe that much of the education occurs both before the tourney begins (research phase) or after the 1AC (refutation phase), then it’s fair to say that the community is not learning that much from including these small/new Affs.

2. If Affs do not like the “mean” direction of the topic -- an increasingly large percentage of teams simply won’t defend it.

Many won’t control Indian Country. Many won’t pressure China. They just won't.

They assuredly take on some baggage by not doing so -- but this baggage does not manifest itself by having a DEEP debate about the topic. It takes place as a T or theory argument. I'd posit that such debates must exist conceptually, but -- in practice -- are not *that* meaningful (in terms of knowledge outside the activity).

The idea of "forcing the Aff to be mean" WAS ONCE a useful counter-weight to flexible Aff choice. Now, it often means that Affs will run as fast as they can AWAY from the (ostenably) central question. They often run so far that they defend the antithesis of it.

This is not a slap at a particular "kind" of debate. Far from it. It is pragmatic acknowledgement that said debate is out there, and that the reasoning that undergirds that defense of broad topics pretends that it is not.

Better put -- Kritik debate exists, people. And -- because it does -- Negs don’t do as many specific hits. Affs don’t need to abide by the topic. And, broad topics are not meaningfully explored.

Meaningful exploration of the Aff USED to be a requirement. NOW, it is an option.

In 2006-7, a limited topic will cause MORE teams to OPT for meaningful exploration of legal issues.

b) Why a 5 tub topic ?...

1. Airlines.

This sounds silly at first -- but actually is becoming an increasingly serious issue that complicates most every debate program (as nearly all programs fly at least *once* a season).

We just finished a topic that -- when fully engaged -- was (conservatively) a 10+ tub topic.

Bracketing the pedagogical wisdom of such wordings, the last two (broad) topics have made it almost impossible to travel with all your materials.

Our community spends considerable energy discussing whether "there is a place" for schools that want to engage in certain argument practices. While it is not perfect, the Committee has and does try to "build" that place into the topic for critical and policy teams alike.

I’d contend that "a place" needs to be preserved for teams that wish to engage the topic. This is not because it is the "Correct" or "Only" way to debate. It is because it's a reasonable "way" to debate -- one that deserves "a place". Not everyone needs to approach debate this way, but the Committee should respect those that opt to.

If the Committee puts out a topic so large that "engagers" cannot bring all of their damn materials to the tourney, then the Committee is not really preserving that "place".

As an aside -- it wouldn’t be the end of the world if:

 We could check a bag
 Debaters weren’t ALWAYS the passengers that irritated every other person on the plane by carrying-on too much crap.

2. Balanced Lives & the "Effort gap"

While I (or MSU more generally) may have a reputation more endorsing insane work habits, I actually believe the following:

"Debate should be an important and intense component of an undergraduate education -- but should not strive to be all-consuming. Topic wording should reflect this balance"

Broad topics tilt debaters towards both (bad) extremes.

Huge topics create an unenviable forced choice -- either:

 engage it all. Creating huge time trade-offs educationally, socially, etc.

OR:

 go mondo-generic. For many, this decision is reached b/c the first option is just so damn daunting. One can meet with reasonable success if they "go generic", all while avoiding the (many) drawbacks having to work endlessly. To me, this is perfectly logical.

I believe broad topics have helped fuel a widening "effort gap". The consequences of this "divide" are getting serious. Let me explain.

Those in the community that are in the "engage it all" camp get a little bitter. Maybe they shouldn't -- but they do. Ideology sharpens.

Those in the community that are (for whatever reason) in the mondo-generic camp also get a little bitter. Some of it is reactive -- they do not appreciate some of the flack or decisions that come their way. A different ideology sharpens.

Frankly, I think this ideological split could cause new debate organizations to emerge. I believe it to be that serious.

While I suspect some sort of effort gap will always be inevitable, I also feel that more narrow topics are a starting point for bridging this divide.

Both camps can see the middle ground again. One camp will be able to go see a movie every now & again. The other would not view parts of the community as hoisting an unfair or unmanageable research burden upon them.

As an aside -- it wouldn’t be the end of the world if:

 Students and Coaches had a little more time on their hands.

They could invest it in all sorts of good things.

 Kritiks were able to be a little more specifically tailored to the Aff at hand.

It's been a little while since someone really rolled Texas EG-style and had a specific link to Korea, or Cuba, etc. I'll contend that made Kirk-Jarius not just *more mainstream* K debaters, but also *better* K debaters. Part of the reason they were able to do this was because the sanctions topic was predictable and narrow.

3. Because the Committee finally bit the bullet – and forced legal rotation.

A legal-only ballot was not an uncontroversial step.

Many in the community find the step irritating or a recipe for boredom. Others just wish it didn’t hit during their senior year.

Unless this topic is quite narrow, I believe the benefits of forced rotation will be lost.

If the Committee is going to pragmatic and wise enough to say the following:

“Hey, we’ll never select anything other than IR topics unless we have legal-only ballots”

Then the Committee should not be afraid to say:

“Hey, unless the topic is fairly narrow, we won’t (on balance) learn anywhere near as much about the law”

Both statements are pragmatic and reasonable uses of bio-power in my opinion. The latter flows from the former.

4. Because the quality of Neg case hits is down, and honing that specific skill set is a particularly important part of a legal education.

Let me start with a disclaimer – I am firmly not in the camp that current debaters are worse than a prior era.

On balance, I am blown away at what they know and how they improve. There are many reasons I think this – though none are important to this paper. I just wanted to be clear that this is not one of those “golden era” nostalgia comments.

But, one skill that has dropped off in college debate (for sure) over the course of the last 10 years is the quality and depth of specific case hits.

For better or worse, this has a lot to do with high school and college debate softening to off-case generics. As stated earlier, the expectations for specific research are just different.

When I first entered college debate, a “complete” neg file included second and third lines of attack. More of the scouting process entailed finding out what :

“their answers to our answers to their answers to…are”

(if that makes any sense)

It is that specific kind of intense depth and anticipation that makes for an impressive law review article or well prepared case. Muddling through fine distinctions of this sort is part of the law.

In fairness, I do see deep, deep case hits every now and again. But, by and large, I see them from coaches like a Ryan Galloway or David Heidt – and less from current debaters or even active first year graduate assistants. I think has something to do with expectations that were placed on Ryan or David when they were students.

The Committee’s decisions create pedagogical norms. They did when Galloway was debating. They do today.

On this topic in particular, the Committee should foster a pedagogical norm that “courts” discussion about a series of important legal cases.

The best way to accomplish this is to endorse list-oriented topics. It will “hook” our youngsters on an important skill set.

IV. Closing Thoughts:

1. Elegant topic wordings from the early 90's may have a special place in our hearts, but if re-debated today would (honestly) be twice as large. The Committee should be specifically be hesitant extrapolate the positive experiences of the pre-merger Privacy Topic to a modern era where the Kritik is pervasive, the judge pool is different, and there is a tempting disincentive to “go-specific”.

2. I do not think the “overturn” problem (cited by Stefan and others) is a deal-breaker.

Call upon ex-debaters that are experts in the legal field, and select the appropriate verb for each of the (many) ideas that have already been put on the table as possible cases for a list topic. Generic ground should not come from the verb anyway – it should come from the politics of the decision (liberal or conservative). It’s the difference between encouraging ticky-tack Branson cplans (universal “overturn” in the stem) and encouraging solid generic disads based on the politics of the new conservative court.

3. Ask yourself if “areas” served as a remotely decent limit on Indians, China, or Energy.

4. While this paper seems to strongly preach limits, I do think an appropriate list would have more than 5 cases. I like 8-11 – maybe even more – Aff-leaning list items. Treaties got tough on the Aff at the end. The Community seems to want a uniform direction (politically). Having them all be liberal rulings seems fine to me.

Take it easy,

Will

Role of the Topic Committee - Ede Warner and Reply

2006-05-29T12:37:00.000-04:00

Dear Topic Committee and NDT/CEDA Community:

Given the lack of public discussion about my last post which offered two ways to view the role of the topic committee, one can only assume that the role of the topic committee is to find the best topics it can, based on two primary factors: 1) the debate theoretical knowledge and experience of the topic committee members; 2) filtering the available research through that debate knowledge and experience. No matter how willing the committee is to consider outside "voices" and perspectives , the reality is that at the end of the day, the topics that will appear on the topic will come down to the votes of those on the committee. And they have made it repeatedly clear, that they will only support topics they are comfortable with as part of their charge. And I can accept that. We vote for qualified topic committee members whose job is to create the best topics they can for the purpose of a general election in which the larger committee picks the best topic from a group of topics deemed acceptable for a year of debate by the topic committee. Those who disagree, if there are many, need to be more vocal and vote in topic members willing to consider alternative ways of topic construction, or live with the choices being made presently.

But I do struggle with the lack of evidence that currently seems to drive present day decision making about topic construction. And I certainly don't believe the following concern is only true of the topic committee, but a majority of NDT/CEDA members as demonstrated by these discussions over possible topics, areas, and ground. While I see everyone fervisherly working on constructing possibilities for this year's topic, I still see a lack of goals and asessment measures in place PRIOR to making those decisions. In the earlier post, the question posed to the committee was simply: is the purpose of the committee to create a ballot of the "best" topics or should the committee create a set of different community choices which represent the areas of topic construction disagreement so that the community can use the voting process to resolve those differences? Is the committee charged with resolving differences like area versus list, or questions of who is the best agent, or is the committee charged with producing a series of topics which represent those differences so the community can vote on it's preference of those differences as it relates to this particular topic? These are very different thought processes. My challenge to the community is that if it wants to produce the best topics it can, it must be willing to think reflexively about the history of topic construction and where present ideas about construction come from, and most importantly, the quality of the evidence that drives many of the commonplace beliefs held by a majority in the community.

One example which creates some of the tenstion I believe is the notion that the term "predictable ground" has evolved to become synomous with the term "absolute certainy." Although I think the evidence is overwhelming that this evolution has occurred, I'll offer some evidence before making any arguments:

EVIDENCE:

Wake's NDT page has a list of topics at http://www.wfu.edu/organizations/NDT/HistoricalLists/topics.html

I'll post the last 60 years for years ending in 6-7:

1946-1947
RESOLVED: "That labor should be given a direct share in the management of industry.

1956-1957
RESOLVED: "That the United States should discontinue direct economic aid to foreign countries."

1966-1967
RESOLVED: "That the United States should substantially reduce its foreign policy commitments

1976-1977
RESOLVED: "That the federal government should significantly strengthen the guarantee of consumer product safety required of manufacturers."

1986-1987
RESOLVED: "That one or more presently existing restrictions on First Amendment freedoms of press and/or speech established in one or more federal court decisions should be curtailed or prohibited."

1996-1997
RESOLVED: "That the United States Federal Government should increase regulations requiring industries to substantially decrease the domestic emission and/or production of environmental pollutants."

And each year since 1997:

1998-1999
RESOLVED: "That the United States Federal Government should amend Title VII of the Civil Rights Act of 1964, through legislation, to create additional protections against racial and/or gender discrimination.

1999-2000
RESOLVED: That the United States Federal Government should adopt a policy of constructive engagement, including the immediate removal of all or nearly all economic sanctions, with the government(s) of one or more of the following nation-states: Cuba, Iran, Iraq, Syria, North Korea

2000-2001
RESOLVED: That the United States Federal Government should substantially increase its development assistance, including increasing government to government assistance, within the Greater Horn of Africa.

2001-2002
RESOLVED: That the United States Federal Government should substantially increase federal control throughout Indian Country in one or more of the following areas: child welfare, criminal justice, employment, environmental protection, gaming, resource management, taxation.
2002-2003 RESOLVED: that the United States Federal Government should ratify or accede to, and implement, one or more of the following:

The Comprehensive Nuclear Test Ban Treaty;
The Kyoto Protocol;
The Rome Statute of the International Criminal Court;
The Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the Abolition of the Death Penalty;
The Treaty between the United States of America and the Russian Federation on Strategic Offensive Reductions, if not ratified by the United States.

2003-2004 Resolved: that the United States Federal Government should enact one or more of the following:
Withdrawal of its World Trade Organization complaint against the European Unions restrictions on genetically modified foods;
A substantial increase in its government-to-government economic and/or conflict prevention assistance to Turkey and/or Greece;
Full withdrawal from the North Atlantic Treaty Organization;
Removal of its barriers to and encouragement of substantial European Union and/or North Atlantic Treaty Organization participation in
peacekeeping in Iraq and reconstruction in Iraq;
Removal of its tactical nuclear weapons from Europe;
Harmonization of its intellectual property law with the European Union in the area of human DNA sequences;
Rescission of all or nearly all agriculture subsidy increases in the 2002 Farm Bill.

2004-2005

Resolved: That the United States Federal Government should establish an energy policy requiring a substantial reduction in the the consumption in the total non-governmental consumption of fossil fuels in the United States.

2005-2006

The United States Federal government should substantially increase deplomatic and economic pressure on the People's Republic of China in one or more of the following areas: trade, human rights, weapons nonproliferation, Taiwan.

And of course, the last Supreme Court topic:

1991-1992
RESOLVED: "That one or more United States Supreme Court decisions recognizing a federal Constitutional right to privacy should be overruled."

MY ARGUMENTS:

1) The original goal of topic construction was to define an area for debate, sometimes defining a particular mechanism, and from that area came the negative's predictable ground. There historically was always some measure of uncertainty which allowed students "the right to define" the topic in some aspect. The number of possible cases has varied from literally thousands on some topics to a handful on others. However, some aspects of affirmative flexibility have been kept in place until very recently.
2) There has been a growing shift in the destruction of affirmative flexibility in topic construction. In the beginning, the affirmative has had flexibility in the mechanism, like how labor should be given a share of management (46-7) or how the USFG should influence foreign policy (56-7). 96-7 is the first time in our list that the affirmative is required to amend a particular piece of legislation, a serious departure from allowing the affirmative room to figure out how they would achieve the terms outlined in the topic. But there, the affirmative is allowed to pick the area within Title Seven that they want to amend. In 97-98, while the affirmative is required to lift sanction to five countries, use of the term "constructive engagement" allowed the affirmative flexibility in creating the case. By 2002, the affirmative flexibility is all but destroyed as both the area (5 treaties) and the mechanism (ratify, accede to and implement) drastically reduced flexibility.
3) The number of cases perceived topical by the community on the 91-2 courts topic, changed over the course of the year, as a result of research and an evolution of argument strategies.
4) In recent year's, topic construction seems quite concerned with eliminating affirmative flexibility and increasing absolute certainty of predictable ground as opposed to a reasonable estimate of predictable ground. Certainly, Treaties and Europe were moves in that direction. And while energy and China did not list the cases that could be run, the requirement of both mechanism (the how) and the area (the what), drastically reduce affirmative flexibility in case construction in an effort to create absolute certainty and not reasonable predictability.
5) The number of cases run on any given topic is generally substantially lower than the number of possible cases that could be run, although that number varies I'm sure from year to year.

IMPLICATIONS FOR TOPIC CONSTRUCTION:
1) Is the goal of absolute certainty desirable? Is there any educational value to affirmative flexibility? Does absolute certainty necessarily tradeoff with predictable ground?
2) Is there a community consensus on the number of possible cases that one tries to create in outlining a topic? 5, 10, 100, 1000? Should there be different numbers on the ballot or should all topics create about the same certain number of cases? Does the goal of negative ground as a reasonable estimate no longer exist?
3) Are there any measures of how to balance concerns about "predictable ground" with "affirmative flexbility"? Have any formulas or criteria been developed to test topics in this area?
4) During topic construction, does a large number of possible cases eliminate a topic from consideration? If a topic has potentially 1000 cases, but only 10 are "good" affirmatives, does that topic get treated the same as a topic with 10 total affirmatives, with only 5 of those being "good"? Will the committee be able to "test" topics in 2 ½ days? If so, how?
5) Is there a point where the goal of predictable ground begins to tradeoff with other important competitive and educational goals, like creativity and strategy? How does that goal get balanced?
6) Where is the evidence that the debating of the last decade is substantially better than the debating of the forty years prior to that, given the current method of the topic committee is relatively new in historical context? How willing is the committee in defering to that history in the production of some of its topics, in an effort to offer the community some topics where predictable ground is a reasonable estimate as opposed to an absolute certainty?

I write this because I fear than many of the justifications for what the committee considers "best" these days is subjective to me and flies in the face of a lot of history. I won't make arguments that the way we write topics has lead to the downfall of debate, because that is overly, overly simplistic. But I will say, that as we get further entrenched in a debate belief that attempts to create absolute certainty as the standard for a good topic, I would hope that the community is willing to stay introspective and test that premise against our own historical evidence to the contrary. I think that the goal of the committee has evolved as topics have evolved, from a role of producing a series of topics which offer some reasonable estimates at predictable ground to a charge of producing with absolute certainty what the negative ground will look like. I think this is an unmanageable goal for 2 ½ days or even a month, and may be part of the growing difficulty in creating topics. But I wish the committee luck over the next week in overcoming these hurdles. I hope my questions and thoughts are productive ones.

Thanks for reading,

Ede

School Drug Tests - Bd of Ed. v. Earls (2002)

2006-05-28T17:18:00.000-04:00

Board of Education v. Earls (2002) was suggested to me today by Erwin Chemerinsky as a good criminal procedure case to put in the resolution. He likes it more than Miranda/Dickerson because it is more controversial. Earls greatly expanded the ability of schools to do suspicionless searches of students.

I did some research on it today and it's promising. Several affirmative approaches. It accesses privacy, intrusiveness, and school rights/civics/democracy.

I'll paste the summary of the case here and will attach a file of cards later.

Board of Education v. Earls
536 U.S. 822 (2002)
Docket Number: 01-332

Argued: March 19, 2002; Decided: June 27, 2002

Facts of the Case
The Student Activities Drug Testing Policy adopted by the Tecumseh, Oklahoma School District (School District) requires all middle and high school students to consent to urinalysis testing for drugs in order to participate in any extracurricular activity. Two Tecumseh High School students and their parents brought suit, alleging that the policy violates the Fourth Amendment. The District Court granted the School District summary judgment. In reversing, the Court of Appeals held that the policy violated the Fourth Amendment. The appellate court concluded that before imposing a suspicionless drug-testing program a school must demonstrate some identifiable drug abuse problem among a sufficient number of those tested, such that testing that group will actually redress its drug problem, which the School District had failed to demonstrate.

Question Presented
Is the Student Activities Drug Testing Policy, which requires all students who participate in competitive extracurricular activities to submit to drug testing, consistent with the Fourth Amendment?

Conclusion
Yes. In a 5-4 opinion delivered by Justice Clarence Thomas, the Court held that, because the policy reasonably serves the School District's important interest in detecting and preventing drug use among its students, it is constitutional. The Court reasoned that the Board of Education's general regulation of extracurricular activities diminished the expectation of privacy among students and that the Board's method of obtaining urine samples and maintaining test results was minimally intrusive on the students' limited privacy interest. "Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren," wrote Justice Thomas.

Need for area input

2006-05-26T15:13:00.000-04:00

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.

Presidential Powers - Clarification of the reports

2006-05-26T06:45:00.000-04:00

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.

School Desegregation - Milliken

2006-05-25T17:36:00.000-04:00

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.

"landmark decisions"

2006-05-24T12:02:00.000-04:00

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

Considering Brown vs. Board of Education

2006-05-24T11:14:00.000-04:00

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

"cases" vs. "areas"

2006-05-21T20:31:00.000-04:00

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.

Two week update

2006-05-19T14:30:00.000-04:00

Here is an update regarding the steps the committee is taking right now. We are primarily working on the approach of a list of Supreme Court cases. This is not the only type of topic we will consider in Kansas City, it is just the one we are finishing up right now. Various people are working on small wording papers for these areas. As we receive them they will be posted on this blog. We may take up additional areas.

Abortion - Roe or Casey [Ed Lee, 2006; see also Galloway, 2006]

Affirmative Action - Grutter or Gratz [Malcolm Gordon in progress; see also Hall, 2006; and Galloway, 2006]

Criminal Law - Terry and others [Josh Gonzales in progress]

Death Penalty - Gregg [Galloway. 2006]

Emminent Domain/Race - Kelo [Joe Patrice, 2006]

Euthenasia/Right-to-Die - Glucksberg, Cruzan [Matt Moore, 2006; and additional paper in progress]

Executive Power/War on Terror - Hamdi, Hamdan, Curtiss-Wright [Gordon Stables and Stefan Bauschard, in progress]

Federalism/Gender - Morrison [Galloway, 2006; and additional paper in progress]

Pornography - Hudnut [Joe Patrice, 2006]

Religious Freedom - Boerne, Smith, Cutter, Lemon [Tim O'Donnell in progress; and see also Galloway 2006]

We are also looking for additional cases to access race [Joe Patrice] and gender [Ryan Galloway] issues, and doing a preliminary consideration of gun control [Malcolm Gordon].

Potential Solution to "Overrule" Problem

2006-05-18T15:39:00.000-04:00

A possible solution to the "overrule" wording problem is to require the Aff to overrule a specific test. Instead of simply requiring the Aff to "overrule" a Supreme Court decision (which may result in overruling on jurisdictional or other procedural grounds that fail to get at the heart of the decision), a resolution requiring the Aff to overrule a test would ensure that debates center on the heart of the cases in question.

The resolution might read:

The USSC should overrule one of the following tests previously announced by the Court:

the Lemon test from Lemon v. Kurtzman (establishment clause)
the undue burden test from Casey v. Planned Parenthood (abortion)
the reasonable suspicion test from Terry v. Ohio (4th amendment stops)
the McDonnell Douglas test from McDonnell Douglas v. Green (employment discrimination)
the Central Hudson test from Central Hudson Gas & Elec. v. Pub. Serv. Comm'n (commercial speech)
the Boerne test for "appropriate legislation" in Boerne v. Flores (Congressional power)
the Matthews test for procedural due process from Matthews v. Edridge (due process)
etc.
etc.

The notion of "overruling a test" appears frequently in the literature:

"On appeal, the Sixth Circuit was also obligated to follow the Lemon test, until the Supreme Court overrules or abandons it." 42 Williamette Law Review 99 (2006)

"Faced with precedent requiring a "results" test for determining discriminatory practices based on a history of discrimination, in 1980 the Supreme Court, in Mobile v. Bolden, chose to overrule that test and instead require plaintiffs to show the presence of intentional discrimination in order to go forward with their claims of what is now called "vote dilution." In response, in 1982 Congress amended the Voting Rights Act, rendering it unnecessary for plaintiffs to make a showing of intentional discrimination." 14 George Mason Univ. Civil Rights J. 27 (2004)

"In 1987, the Supreme Court explicitly overruled O'Callahan in Solorio v. United States, stating that "on re-examination of O'Callahan, we have decided that the service connection test announced in that decision should be abandoned." In overruling the O'Callahan decision, the Solorio majority also based its decision on historical practice, asserting that "the O'Callahan Court's representation of ... history ... is less than accurate."" 186 Military Law Review 1 (2005)

"[T]he Supreme Court has effectively, if not explicitly, overruled use of the pervasively sectarian test." Barnes-Wallace v. Boy Scouts of America, 275 F. Supp. 2d 1259, 1269 (S.D. Cal. 2003)

"Justice Kennedy, concurring and dissenting in County of Allegheny v. ACLU, argued that: Our cases disclose two limiting principles: government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact "establishes a [state] religion or religious faith, or tends to do so." Kennedy applied his coercion analysis in Lee v. Weisman, where the Court held a graduation benediction unconstitutional on establishment grounds. While Justice Kennedy utilized his coercion test as a rationale; Weisman did not overrule the Lemon test." 58 Vanderbilt Law Rev 555 (2005)

"The Supreme Court, while admitting that the Lemon test is "useful" in Establishment Clause cases, has "emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area." In most relevant cases, however, the Supreme Court has applied the Lemon test. Although there is authority indicating that the Supreme Court has modified the Lemon test by incorporating the entanglement prong into the effect prong and thereby creating essentially a two-prong test, lower courts have continued to apply *69 the three-pronged Lemon test as it was originally formulated. In 2002, the Sixth Circuit acknowledged that "[w]hile [it has] recognized that individual Supreme Court justices have expressed reservations regarding the Lemon test, [it is] an intermediate federal court and [is] bound to follow [the Lemon] test until the Supreme Court explicitly overrules or abandons it." Thus, until the Supreme Court clearly overrules the Lemon test, it remains the law of the land. Therefore, every analysis of potential Establishment Clause violations begins with the three prongs of the Lemon test." 22 Thomas M. Cooley Law Review 55 (2005)

Strike Down Statutes Resolution

2006-05-11T10:47:00.000-04:00

I like the idea of a resolution that "the USSC should strike down as unconstitutional one of the following statutes . . . ." The statutes I would HIGHLY recommend:

(1) the Prison Litigation Reform Act (PLRA),
(2) the Antiterrorism and Effective Death Penalty Act (AEDPA),
(3) the Illegal Immigration Reform and Responsibility Act (IIRIRA),
(4) the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA),
(5) the Contract With America Advancement Act (CWAAA)
(6) the Adoption and Safe Families Act (ASFA)

What these statutes have in common: they were all passed in the last 10 years (by a conservative Congress and signed by Clinton), so there is lots and lots of very current and very interesting literature defending and criticizing them.

There are, however, several problems to consider with a "USSC strike down" resolution:

(1) No one advocates striking down an entire Act, so we really could not require the Aff to strike down an entire Act of Congress. However, Affs could get very, very, very small if they were to strike down only one section of a statute. For an example of how these things work, in a recent 11th Circuit case, United States v. Michael Williams, the court struck down the pandering provision of the PROTECT Act, a federal child pornography statute. The pandering provision prohibited the pandering of materials purported to be child pornography, so that provision was invalidated, but the rest of the PROTECT Act remains constitutional (e.g., the prohibition on the possession, production, sale, etc. of child pornography). We would need to devise a way to require the Aff to strike down a signifant portion of a statute, or at least recognize that there would be theoretically hundreds if not thousands of potential Affs.

(2) The most significant issue I foresee with a "USSC strike down" resolution is the obvious "Congress should repeal" counterplan. This CP obviously mitigates the potential for there to be thousands of Affs because there would be not very many that could withstand a "Congress should repeal" CP. Unless Affs could be creative in finding reasons for the Court to act, these debates could get seriously repetitive and I'm not sure the literature is very good at considering the possibility of Congressional repeal when discussing the unconstitutionality of a statute. If I were still debating, I would hate to have the same Court Strike Down vs. Congress Repeal debate every round. Others, however, may disagree. I am curious to hear people's thoughts.

Incidentally, the Congress CP was what motivated my proposed resolution in which the USSC must enlarge Congressional authority (by overruling one of its decisions limiting Congressional authority). The only agent CP to such an Aff would be a constitutional amendment because Congress could not simply pass a statute on the basis of authority that the USSC has previously stated it did not have (as with the RFRA, the VAWA, and many other examples I list in my first post).

(3) One way of imposing a limit on the Aff and encouraging alternative Neg CPs would be to specify the basis on which the statute must be ruled unconstitutional -- for example, "the USSC should strike down as unconstitutional on the basis of the First/Fifth/Fourteenth Amendment of the U.S. Constitution one of the following statutes . . . ." This way, the Aff is at least forced to defend a particular type of statute -- one that violates the chosen Amendment. I think the Fourteenth would provide the richest literature, because Affs could debate equal protection, procedural due process, and substantive due process (fundamental rights) as well as Congressional power (because section 5 of the 14th amendment is one of the more powerful sources of authority for Congress to enact legislation, notwithstanding recent neutering of such authority by the USSC). I also think that this addition to the resolution could lead to incredibly interesting CP debates involving competiting constitutional amendments (the 1st Amendment CP vs. a 14th Amendment Aff would be great fun to debate and there is actually lots and lots of literature on such things).

Lindsay Harrison

Response to "On Overrule"

2006-05-10T15:09:00.000-04:00

I totally agree. I think the overrule/overturn distinction is less critical because the literature rarely makes a distinction (personally I'd have thought to use reversed/vacated to deal with decisions that change the result of a specific controversy, but that just shows how these terms have practical flexibility), but the relative unwillingness of the Court to "overrule" as opposed to "distinguish to the point of gutting the prior holding" absolutely raises the possibility of the "distinguish CP."

I originally suggested focusing on specific legal standards, but that was too narrow and I whole-heartedly adopt the focus on holdings. I think the proposed topic makes a lot of sense, not just because it is limited to holdings, but because it focuses on constitutional holdings as opposed to jurisdictional or other procedural holdings to avoid squirrels (e.g. procedural holdings in an otherwise constitutional case, such as the recurring yet evading review standard involved in Roe).

One related idea I had early on was to draft the topic around statutes. Essentially:

"The USSC should strike down as unconstitutional one or more of the following Congressional Acts: [List]"

It limits a lot of the questions about how overruling a decision interacts with other decisions in the line because it just focuses on the statute in question. Unfortunately I don't know if there is enough literature about specific statutes to support such a topic, but I post it because I think a topic that addresses the Court by phrasing the resolution as declaring xyz statute or action unconstitutional (or constitutional) avoids a lot of the problems we're encountering.

Joe

On "Overrule" and Resolutional Wording

2006-05-10T13:49:00.000-04:00

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 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.

Ross=right, and other thoughts too

2006-05-10T09:47:00.000-04:00

I agree with Ross, there has to be a topic that gives the affirmative the "better" side of the literature. The nature of floating PICS, process counterplans, and all the other good stuff negs run means that affs need something to stay afloat. The treaties topic was a great model, and some of those affirmatives had great evidence on both sides. Perhaps it isn't an aff bias that is needed, but cases with much more in-depth literature than the china/fossil fuels topics. The benefit of having a topic like treaties was that there were so many pieces of literature on each aff. Even if the negative arguments were good, the depth of literature ensured that there were solid answers available for the aff.

Given the discussion Joe and others are having over the meaning of 'overturn/overrule', it seems a list topic is going to be easier to limit than an areas topic. If, as Joe suggests, the resolution may specify the legal concept being reversed, an areas topic is incredibly hard to write.

As far as Stefan's concerns about how to manage the topic, if it is a list topic, I think we should consider dividing between impact areas, or social issues if you prefer to not use debate lingo. For instance, seven decisions, one revolving around race, one around gender issues, one around the environment, and so on. There would obviously be some overlap. I don't think having a breadth of different issues will hurt the negative that much. First, if there are a limited number of affirmatives squads can manage to cover them all, especially since it will be fairly easy to flag which affs are going to be more popular (a la CTBT with the treaties topic). Second, with a courts topic the negative gets a fair amount of ground across the board. For the first two or three tournaments a lot of team's primary strategies will be process cps, until they get a feel for which affs are going to be run the most. Remember, if it were to be a list topic, the absolute most areas negatives would have to research would be 9 (and I doubt the community would vote for a resolution with 9 affs).

With an areas topic there should be real consistency. I agree with Ross, all of the decisions/area/mechanism/whatever we use to limit the topic should contain a liberal bias, if only to ensure uniqueness ground for the crappy courts DAs the neg will have to run. With areas, it's going to be very hard to limit the number of affs. Maybe this could be solved by having very specific areas. (example: if environment were an area picked, it would be specific, like federal control, or deregulation). Even with specific areas, anything past 3 seems to be getting out of hand with negative research burdens. Unlike a China topic, where there had to be relative advocacy for something that can be construed as diplomatic/economic pressure, a Courts topic will contain a lot of literature on a lot of different cases. Browsing through any number of law reviews/journals reveals that even seemingly small cases will be broken down and discussed. That sounds like a nightmare.

good day

malcolm gordon

Saying Hey

2006-05-09T18:53:00.000-04:00

Testing to see how this goes. All the posts so far have been really good. Harrison's list of cases is excellent--some I've gone through, others we could do more with. I agree with Ross' ideas as well--NEG. gets a lot now + the best way to check NEG. bias might mean GOOD cases (liberal leaning) as opposed to AFF. flex.

I'm looking into the whole overrule/overturn question. It is pretty complex, especially with the interaction of City of Boerne v. Flores. My original thinking is essentially "do what they did in Lawrence v. Texas" which to some degree answers some of Patrice's previous arguments. The fact that the Court rarely does this is well, kind of what makes the topic unique. And they DO overrule cases, even if somewhat infrequently. The lit I've read surrounding Lawrence on the overrule question isn't quite as good about defining what overrule means as I would have liked, more that Lawrence in fact, overruled Bowers.

The notion of overturning a Supreme Court PRECEDENT intrigues me. Definitely worth exploring over an individual case.

More later, working on getting more things to Steve. Thanks for the blog and all the good input.

-RG