agent counterplans

Gordon Hull hullgd
Sun Sep 7 13:20:41 CDT 1997

Some perhaps generalizable thoughts from the courts...

At 12:39 AM 9/6/97 -0400, you wrote:

>In regards to your supreme court example.  First, I think that debates about
>legal theory and the use of the courts as actors are inherently deficient in
>making generalizations about debate theory, especially when comes to what is
>traditionally called policy debate.  The burdens that would apply to the
>Supreme Court's over ruling of one of it's earlier decisions are somewhat
>different.  As you stated, the Supreme Court could not just overturn a
>decision it made last spring.  In fact, the Supreme CANNOT simply overturn
>ANY decision!  At best, If they choose to hear a case that involves a similar
>legal precedent (the controversial "test case") they can can only overturn a
>decision by ruling that the former precedent was invalid (for X reasons) and
>that a new one should applym based on the facts presented in the new "test
>case."  Granted, this is somewhat of an oversimplification, but the Court is
>not traditionally a policy maker.  It's methods of actions are unique unto
>itself.  Most debates that I have seen that involved the advocacy of court
>action were horribly inaccurate in their developmentsof legal theory and the
>implications of that legal theory to debate theory on questions of fiat,

Well, yes, but i don't think this is a good reason to denigtate court cases
examples for debate theory, even if they aren't, as you say, policy makers
in the
traditional sense (see #5):

1) The Supreme Court cannot "simply overturn" anything.  Correct.  Which is
true for any other agency.  Congress can't "simply" pass a law to, for
have national health care, or do anything else.  This would be true for any
institutional agent - for at least two reasons.  First, the agent will have
some sort
of procedure or protocol for changing its policy/stance on something.
there will be some person/people within the agency who have their own
interests and
perceptions the world and what's important in it, as well as their own
of how to follow institutional procedure.

2) The court's actions are unique.  Again, right, but those unique actions
come with
a literature to check abuse of the court's decision-making procedure.  I am
of a legitimacy disad, for a start, which if argued well can at least nullify
solvency for the plan.  The negative can always say "it's a bad idea to change
court precedent."  To get out of the disad, the affirmative has to (a) say
the court
is bad, which usually contradicts their 1AC;  (b) say everybody else
already thinks
the court is bad, which uniqueness argument gets overwhelmed by a big link
- ie a
completely idiotic overturn; or (c) show that the overruling restores
precedent or
cleans up problems in existing case law.  In the case of (c), good affs
have cards
that say that it is better to have cleaner law, even at the expense of stare
decisis, than bad law.  Also, even assuming the aff. has turns, they still
have to
win the argument that the turns are enough to answer the original link,
which in
the case of (for example) abortion decisions might or might not be enough -
the aff has cards that say "Roe is a crummy decision," that doesn't answer
a stare
decisis link necessarily - as the Supreme Court's majority opinion in Planned
Parenthood v Casey explicitly argues.

3) Other agents have the same sort of literature check built into them -
the Clinton
disad, or some sort of branch relations disad, are for the political
branches what
the legitimacy disad is for court decisions.  In other words, they provide a
literature-bound test of whether the affirmative is doing something that
other folks
would be willing to say is within the scope of appropriate institutional
Outside this scope of what other folks think is appropriate action, i'd say
isn't a lot else left to define what is appropriate action - since even the
for decision-making have to be interpreted.  There is at least not a unique
with the court in this area.  If anything, the nature of the court means
the lit.
check on inappropriate actions is stronger than with other actors, which
should cut
against the problems caused by the "unique" nature of court decisions.

4) There other positions to argue against actions that violate bureaucratic
Like cards that say they are invalid and impossible on their face.  A
separation of
powers disad comes close to saying this, too.  Or cards that says they will
unenforced/unenforceable - which check seems particularly appropriate in the
context of court decisions.  Not only are these subject to possible
by other branches - the general topic of a hollow hope disad, for example -
but there
are questions of lower court enforcement.

5) Is the court a "policy maker?"  Well, no, it doesn't draft legislation.
neither does the DoD or President or anybody else put in charge of
implementing or
interpreting a legislative action.  The court does make decisions which
cause others
to act in a certain way, diferently from how they did before.  Is that
I think a "no" answer has a couple of serious problems: first, it would limit
policy-making to agents with specific legislative authority.  The problem
with this
is that it is question-begging, since an instruction to implement a policy,
would carry with it the implicit instruction to decide on appropriate means
do so ("normal means").  That being the case, any agent would have some
sort of
"legislative authority," and so the question repeats itself: what is

Second, singling out the court for its interpretive role begs the question
in a
general way of wheher any interpretation which binds others is a policy.
Even if you
are a strictly originalist judge, who views the court's action as purely
you presumably have opinions about particular decisions which can be directly
translated into desirable courses of action - eg that Roe v Wade be
You at that point would be advocating a policy of originalism.  Or
somethign like
that.  My point is simply that this is a really muddy area.  Should the court
interpret the constitution?  Well, yes.  But Congress is supposed to uphold
it too,
which means that they have to interpret it in policy-making.

6) That debates on these points have been bad doesn't seem like a reason to
a somewhat arbitrary standard from above.

If anything, it seems to me that the court literature is a good place to
the questions involved in institutional policy and decision-making, precisely
because there is so much written about it.  Indeed, even terms like "legal
are far from univocal.  It also focuses the debate on questions of (as Korcok
suggests) in directions of who has the "authority" to do something.  A
couple of

Res: The USFG should do something to reduce discrimination
Plan: The Supreme Court will overrule Bowers v Hardwick, finding that the
decision violates principles of equal protection...
CP: Congress will...

Now, the debate should rapidly center on the question of who ought to do
Should the court, or congress?  Is it better to overturn a court decision, or
invoke the Morgan Doctrine?  If the neg. doesn't show up ready for this
debate, the
cp won't compete.

Given example two:
Same res.
Same plan.
CP: Using European Human Rights law as a model, the UN will...

The abuse question solves itself in the literature.  Does Bowers v Hardwick
the ECHR?  Probably.  Could the neg come up with 500 cards that talk about
this and
wish the US would follow the ECHR?  Sure.  Could the neg come up with any
cards that
answered the implementation question?  Nope.  In other words, the answer to
counterplan is "so?  Irrelevant to US law."  There are cards that say that
international law etc. is binding on the US, but SOMEBODY in the US would
still have
to change their minds about court precedent or precedential law... which
means the
neg. has the same solvency and legitimacy problems as the aff, except
worse, since
the neg. also has to fiat the the US accept customary international law.
The neg.
can read solvency cards all day that say that "it would be wonderful if the
US followed the ECHR," and they would all be question-begging at this level
they said "it would be better if the US followed the UCHR than if it went
out on
its own," in which case the question would by WHY it was better, and
whether the
reason it was better outweighed the disads to international action...)  Even
without cards, the affirmative could show that the counterplan didn't
compete with a
"do both" argument, since presumably if the aff had advocated doing
something that
brought the US in line with the ECHR, that would go a long way to solving the
neg's "international law" solvency evidence.

I would suggest two lessons: first, the uniqueness of the court and other
forces the discussion into the literature on a somewhat a case by case
basis - and
this is probably better than having a rule beforehand about the court being
a bad example.  Second, it suggests again that one of the central issues is
whoever thinks they are going to do something has any institutional or other
authority to do it.

hullgd at

>From  Sun Sep  7 15:17:05 1997
Message-Id: <SUN.7.SEP.1997.151705.0500.>
Date: Sun, 7 Sep 1997 15:17:05 -0500
Reply-To: tshuman at CCP.COM
To: Team Topic Debating in America <EDEBATE at LIST.UVM.EDU>
From: Terrance Shuman <tshuman at CCP.COM>
Subject: Aff Bias Update

We interrupt normal programming to bring you a special bulletin:

About a month ago I posted some information regarding the lack of
a demonstrable Affirmative bias in outcomes of late outrounds at
the NFL National Tournaments over the past five years.  The current
issue of NFL's ROSTRUM provides the info for the 1997 edition of
the tournament, summarized below--

    From Round 11 (last 21 teams) through Finals:

        Aff = 15 wins, Neg = 9 wins

    Rounds 11 and 12 were basically even (9-7 Aff), but in Rounds
    13 and 14 Aff scored a 6-0 sweep.  Negative bounced back to win
    Rounds 15 and 16 (Finals).  Incidentally, that gives Negative a
    67% winning percentage in Final rounds over the six years (4-2).

Even with the decided Aff advantage this year, the overall figures
(73-60 Aff) over the six years don't show much evidence of an Aff
bias; it amounts to a couple of wins per year difference, which
hardly justifies the sort of hand-wringing heard from some quarters.

I will repeat my earlier hypothesis:  If there *is* an Aff bias,
then it should be most visible in circumstances where the skill
differentials of the competing teams are smallest.  That certainly
does not appear to be the case, at least at NFLs.

I am in the process now of collecting some data from NFL National
Tournaments held in the 60s and 70s.  Those tournaments were small
enough that it was possible to publish the *entire* round-by-round
result in ROSTRUM each fall.  I shall be interested to see how the
numbers come out, but it would surprise me if the percentages vary
much from those of contemporary National Tournaments.

We now return you to your regularly-scheduled pissing contests,
already in progress....  ;-)

Terrance Shuman
Bishop LeBlond Memorial High School
St. Joseph, Missouri

>From  Sun Sep  7 17:11:16 1997
Message-Id: <SUN.7.SEP.1997.171116.0400.>
Date: Sun, 7 Sep 1997 17:11:16 -0400
To: Team Topic Debating in America <EDEBATE at LIST.UVM.EDU>
From: Michael Bear Bryant <MWBRYANT at AOL.COM>
Subject: Re: Aff Bias Update
Comments: To: tshuman at

Interesting info, though I seem to disagree several of the non-quantitative
assumptions that undergird your interpretation of the statistics.

First, and foremost, I disagree with your assumption that NFL Nationals is a
good choice to test the hypothesis because of similar levels of skill. My
personal experiences, and  those related to me by a virtual consensus of
other voices, is that NFL Nationals is one of the few tournaments of the year
where the full-range of skill levels are usually present in the same
division. Might I recommend refining your statistics with inclusion of
Kentucky TOC results, given that TOC skill levels seem far more homogenous?

Secondly, why do you feel that an analysis of one high school tournament
answers a question that didn't even seem to be focused to the HS level? I
still believe that over the past twenty years there has clearly been an aff.
bias in collegiate debate. I admit, proudly, that I am operating out of
narrative framework (borne of thousands of decions from myself and others
around me) and not a quantitative one. I will continue to cling to this
belief because I see it consistently being acted out around me at the college
tournaments my teams are active in competing at. Maybe my sample is biased.
But enough other people that are associated with my sample agree, so that
this non-proven hypothesis is part of the culture. Witness Korcok's recent
trembling over the prospects the total collapse of debate if negatives are
not allowed the ability to fiat actions that have no probability of taking
place. Witness CEDA addiction to as an argumentative abomination as "whole
rez" for so much of the 1980's.

I'll be keeping my eye open for further results as your data set expands,


To My Future Potential Employers: "Want to debate the ethics of punishing
people for free, diverse, non-obscene expression? I didn't think so....."

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