[eDebate] final morning notes

Eric M. Slusher Eric.M.Slusher
Fri Jun 2 14:55:12 CDT 2006

Brad may post some too.  This is what I took.

Final morning session ? 

Galloway wants to spend time on Patrice and Rubino's 1st amendment topic

Vik Keenan wants to revisit the issue of theme based lists.  Mancuso asks if she means an "areas" topic or re-visiting the lists.  Are you suggesting we should revisit the issue of thematic lists?

Elliot wants to talk about Lindsay's Plenary Power resolution.

Last call for proposals.

Massey asks if we're going to talk about areas.  Asked...do you mean you would like an "education area"?  Yes...like that.

Mancuso says we're going to do some theme areas, we're going to talk about Mahoney's proposal.

Do we need to talk about "overrule" anymore?  Stables wants to have it out now in light of Harrison's post to edebate/blog. 

Malgor wonders if we're going to shorten a list topic.  Elliot asks a procedural question...will there eventually be a vote about which list topics go on the ballot.  Mancuso wants to make them all longer.  Tim O'Donnell mentions something about the aff being able to specify the grounds for an overrule.  It will be discussed.

Galloway makes a plea for sanity at this morning session.  Should treat one another with respect.  Galloway wants to write a good set of topics because he wants people to like legal topics again.  Everyone has worked very hard, emotions are high, but we all like and respect one another....etc.

Vik Keenan wants to talk about a free exercise of religion rez.

So, that's the agenda.  When do we have to quit?  Tim O'Donnell has to leave at noon.  The meeting will likely go beyond that time.  Couple of people have to leave at 3 ? so 3pm CDT is the absolute drop-dead  time.  Work through lunch, etc.  Time O'Donnell will appoint a proxy or entrust someone to be a ninth vote.

Stables thinks Harrison's plenary power idea should be discussed first...thinks it may be least controversial. 

Stables argues against it ? overlaps with HS topic, which CEDA east doesn't like.  Doesn't solve "overrule"  problems.  Mansuco thinks it's too broad.  Public lands hasn't been talked about as much as an area.  Stefan points out that Lindsay may have an argument as to why Harrison's rez is more limiting.  The way it is constructed arguably limits the topic...if you say "overrule req a change in a particular law"...even if we reject Plenary Power her wording suggestion could be useful for our other topics.  Mancuso thinks it's still too broad ? could constrain any action by the executive or legislature...could run an aff to withdraw from Iraq.  Massey wants it on the ballot.  If wanted to limit it you could take out executive and just do legislature.  Massey is asked to explain what affs would be possible.  Says indians and lots of others.

Elliot is frustrated that these topics are getting shoved off to the last morning.  People have worked hard...Lindsay worked hard on this topic.  Chief's understanding was different than what went down.  Someone has to say how we got to where we got yesterday.  Stables says he's not opposed to areas in a philosophical sense...just that no one has come up with any good ones.  The productive work led us to lists.  We had openings to discuss areas topics, no one produced any ev or args.

Tim points out that we do have area lists...Casey on a list is an entry point to an area...people are worried it's too broad.  Also doesn't think it is productive to say at this late time what we should have talked about.  Ed Lee thinks the most valuable thing we can do is create topics that encourage people to do research and get into Lit about the law and the Court in the broadest way possible.  Mancuso reminds us of Ede's point is that a topic like Harrison's takes the topic away from some of the domestic social policy issues that many hoped they were voting for when they chose Courts.

Galloway likes the idea of domestic violence affs as an alternative to wars and nuclear blah blah blah that dominates our recent history in debate.  People fear that kind of change but he welcomes it.  Could be another 15 years before we get this kind of a chance again.

Vote on Harrison's resolution ? is there anyone on the TC in favor of including Harrison's rez ? no votes in favor.

Mahoney's topic is next ? 

Tim O'Donnell thinks it suffers form the same flaw as Harrison's ? only about forpol, natsect, etc.  

Elliot implies we owe it to Mahoney ? we discussed it, asked him to cross hurdles and he did.

Mancuso asks if there is any limit at all in his latest topic?  

Stables says it is limitless.  Mancuso also points out the Galloway/Warner argument from before (don't get to talk about social policy).

First amendment is covered by the Patrice/Rubino proposal later.  If you are in favor of 1st amendment on the topic then the question is whether this topic does it best.(Stables)

Mancuso thinks both Harrison and Mahoney have assisted us in other ways ? it's not disrespectful to exclude their topics ? it doesn't deny the work they've done.

Ed Lee says the community will select a for pol topic if we put it on the ballot.  Elliot thinks there were a lot of people that didn't want the committee to decide we would only debate legal topics so this would throw them a bone.

Motion to put it on the ballot fails by an 8-1 margin.

Patrice/Rubino 1st Amendment area:

Overturn RAV / O'Brien ? sexual harassment laws invalidated on 1st amendment grounds.  Could implicate copyright laws.

Overturn Conrad ? could access lit on violent video games or violence in the media

Overturn Renton ? adult entertainment establishments ? strip clubs.

Patrice points out that the "ground" for overrule could be different in each case...strip clubs aff could implicate cross-burning...potentially broad.

ag industry having to pay into generic advertisement campaigns.  Court said that was compelled speech.

Campaign finance laws, etc.  Mancuso is concerned about the size of the topic being a strike against it with some people.  

1st Amendment good is neg ground.  

Mancuso thinks the topic shouldn't be limited to just statutes...ordinances are some good cases...what about agency rulings?  

Working wording: The United States Supreme Court should overrule one of more of its decisions that struck down a statute and/or ordinance on the grounds that it violated the First Amendment protection of free speech.

Lots of discussion about how to do the "statute", "ordinance", maybe just "law" (Harrison's suggestion)

Mancuso reads a list provided by JT to demonstrate the shear size of the topic.  It's really, really big.  

Galloway says this concern could be addressed by having another ballot option item out there that was a narrower version of this 1st Amendment topic.  Rubino says her personal opinion is that a narrower version would not be as good.  Says 1st Amendment stuff is broad...wouldn't need a "unions" file per se.  Manscuso says "yes you will!"  When you start talking about gag orders you get into a bunch of stuff.  Patrice thinks this topic is still smaller than the list topics.  Malgor wants to hear about why it is smaller.  Patrice says it's limited because a team can just focus on one area of law.

Mancuso thinks it's 10 times the size of the list topics.  Thinks could put a date on it.  Without it people could go back to the Alien & Sedition acts.  Rubino says we need to put in there something about it being "controlling law."  

Malgor asks how many really good affs are there on the broad version of the topic?    Discussion demonstrates that it is gianormous.

Elliot says whenever we talk about an area topic people start off saying it is too narrow and then end up excluding it because it is too large.

Mancuso argues against the people implying that areas topics have been summarily excluded by the committee.  Says that's untrue.  Shouldn't put this area topic on the ballot simply to put an areas topic on the ballot.

Matt Moore asks what the generic neg against an aff where the aff has to overrule a previously activist decision?  Goes the opposite direction from most activism links.

Others point out that you can still say 1st Amend good and it ain't like activism links only go one way.  Activism is in the eye of the beholder, etc.

Discussion about maybe doing 2 versions of the 1st Amendment topic to give choice to voters.

Mancuso suggests we go back to yesterday's wording

The USSC should overrule one or more of its decisions that struck down a statute on the ground that it violated the first amendment's protection of free speech.

Is "law" better than statute?  Perhaps...

Want to include ordinances too.  Patrice says law could be too broad.  

The USSC should overrule one or more of its currently controlling decisions that struck down a statute on the ground that it violated the first amendment's protection of free speech.

Administrative regulations are not included in either "statute" or "ordinance".    

Mancuso proposes....
The USSC should overrule one or more of its currently controlling decisions that upheld the first amendment's protection of free speech.

Rubino and Mancuso work together on....
The USSC should limit the first amendment's protection of free speech by overruling one or more of its currently controlling decisions.

Mancuso likes that it avoids the problem of statute or ordinance.
Rubino does point out that inclusion of statute or ordinance does create a limit.
Galloway says the appeal is that it solves the agent cp problem.

Strange doesn't know what "currently controlling" means ? fears that uncertainty more than the potential for an aff to be about something that isn't really current precedent.

Galloway says it's in present tense "should limit" rather than "should have limited."  Strange agrees.  Galloway looks up limit in the dictionary.  Limit means "restrict."

Currently controlling is dropped.

The USSC should limit the first amendment's protection of free speech by overruling one or more of its decisions
(in the areas of...commercial speech, obscenity, sexual harassment.)

with holdings in the area of
with holdings related to

will try to come up with areas with this stem:

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


Mancuso has some procedural issues ? don't talk bad about the TC during the breaks because the microphones are on.

Tim O'Donnell has a question given the time limits ? can we come up with a good 1st amendment topic during this time without shotgunning it?

Rubino and Keenan think so ? have a base of information to work from.  Mancuso asks the committee with they thing.  Stables thinks we're close.  Patrice thinks Harrison's suggestion about adding "US constitution" is a good idea.  Stables says there is a leap of faith going on here, doesn't know for sure, but thinks it's possible.  O'Donnell doesn't know where the threshold is.  Galloway found some "area" definitions in a con law book during the break.  Thinks it's feasible to do some listed areas.

Rubino and Patrice talk about some possible areas...commercial speech, obscenity, etc.

Galloway says some of them are what we might consider "terms of art."

Still wondering how many cases would there be.  Rubino says a lot still.  Patrice says don't just think about number of cases when you think about size.  Holdings matter...a lot of decision will utilize a similar standard so the neg comes from overruling the application of the standard not the particular case.

Mancuso is flipping through the con law book looking at area definitions.  Electronic media is possible.  Are there really affs in these areas?  Mancuso feels like he can guess a medium to medium-small size in certain areas.  Hate speech is seemingly limited, but could it include sexual harassment?  If it is true that sexual harassment is a hate speech issue then people will go there because there's probably cards there.

Rubino brings up the idea of election laws.  Those might be a little murky, should perhaps be excluded.  Mancuso thinks it's an awesome area, it's a first amendment issue, goes the right direction.  For years he's thought it would be a good area.  Patrice, Rubino and Mancuso agree that it won't be directional.  

Mancuso feels less confident about what "commercial speech" really means and includes and excludes.  Patrice says he'd be happy if it were replaced.  Thinks hate speech and obscenity need to be in there but doesn't care about what the third is.

Rubino brings up protests and access cases ? where you can hand out leaflets, regulation of charities.
Mancuso sees them listed as "public forum" cases.

Galloway says he found some ev that suggests hate speech as an area includes sexual harassment.  Mancuso asks him to figure out what to call the election regulations area.  Need a category title for it.  Mancuso fears commercial speech is going to get into too much stuff ? advertising regs, etc.  Rubino says it's kind of a recent move so the number of cases may be more limited than we think.

Strange points out that these things might not be "terms of art" per se, but are fairly commonly used in the legal lit.

Patrice says Harrison's point about "political speech" is good ? could be a catch-all for some of the non-commercial areas.  Strange says it's too broad ? too imprecise ? covers everything.  Mancuso would like something that covers picketing, protests and campaigns.  All that stuff.  Tim is still uncomfortable about shotgunning it.  Maffie agrees ? dangerous to do this at the last minute.  Any misstep could create huge problems for the whole year.  You'll take a tremendous amount of blame, which will outweigh the criticism you take for not doing an areas topic.

Mancuso wants Campaign finance in there.  Patrice still likes Harrison's "political speech" idea.  Mancuso agrees with Strange that it is too broad.  Strange says he'll defer to Harrison, but he just sees it in reference to everything...pornography cases, etc.

Mancuso wonders if we could say "political campaigns", which would include protests, etc.

Missed some stuff ? had to step out for a sec.  

Galloway thinks election law opens the door to a lot of potential affs.  Could run an aff about getting big oil out of politics and run a global warming advantage.  Not that he dislikes this case but we should be aware of the possibility.

Fitzmier suggests whistle-blowers as the 3rd area.

Mancuso wonders what people think about just doing the two areas ? hate speech and obscenity.  What about religious speech?  Not peyote because speech is different from free exercise according to Keenan.

Strange thinks election is better than campaign.  Campaign includes a lot of political speech.   Stables says there's a lot of Court uses of the term "political campaign."

The USSC should limit the U.S. constitution's first amendment protection of free speech by overruling one or more of its decisions regarding hate speech, obscenity and/or political campaigns.

Mancuso thinks you could take out "U.S. constitution's first amendment."  Patrice thinks we should leave it in.  Galloway agrees.  Off chance something could turn up.  Strange says you could say "the constitution's protection of free speech" or something along those lines.

Tim O'Donnell thinks this whole topic is D.O.A. and that we either should vote now or not even have a vote.  Says he won't support this topic's inclusion.  Ed Lee seems to agree that it's just not been worked on enough.  We needed to have more work done on the word choices.  Stables says we've worked on it for a few days.  Ed Lee thinks that if it takes the next 2 hours to get it right we need to be sure we can and want to invest that time.

Malgor thinks it's worth working on because it represents a size difference from the case lists.  Elliot is in favor of this topic ? the most recent wording.  Asks Tim what more needs to be done to make him comfortable.  The word "limit" is a real concern for several.

Stables reads from Zive's message to the blog.  Galloway says we're using con law books, didn't pull out of thin air.  Strange asks about procedure.  Says he's sympathetic to Tim's concern.  Suggests the TC really isn't under the perceived time pressure...can refine them later before the ballot goes out.  Have some time after go home.  Stables thinks this should require a super-majority because we've spent months on this.  Mancuso doesn't want to extend this process another month.    We get to take all this blame.  Once you say one thing can be revisited then every thing can be revisited.  He's not willing to spend another month on this.  Not against it procedurally, but personally he's against it.

Stables suggests "curtail" instead of "limit."  Galloway says he's finding contextual stuff for "curtail."  It's backed up by Zive.  Stables says let's vote.

The USSC should curtail the protections provided for free speech by the US constitution by overruling one or more of it's decisions regarding obscenity, hate speech and/or political campaigns.

Mancuso says his concerns about this topic lie in the wording of the areas ? not the stem.  Scrutiny needs to be on the areas not the verb, for instance.  He's a little shaky on the "political campaigns" wording.

Tim O'Donnell thinks this is a real problem ? too little time ? too late to take this on.

Ed Lee asks where the boundary is on political campaigns.  Wonders if it serves any limiting function at all.  Wonders about number of possible cases.  Galloway says there's two protections built in that serve a limiting function ? 1st amendment and overrule.  Stables says Zive has a suggesting to use election and campaign finance law.  Limits out some of the marginal "political speech" cases.  Mancuso wonders if we can leave out election.  Just do campaign finance law.  

The USSC should curtail the protection provided for free speech by the 1st Amendment of the US Constitution by overruling one or more of it's decisions on obscenity, hate speech, and/or campaign finance.

Don't need to vote because there's at least 7 that seem to support.  Darren Elliot now wants to record a vote.  Mancuso wants to avoid voting on every topic the rest of the morning.  Now a bunch of time is being spent (probably wasted time ? slusher) because Chief is concerned about the lack of formal protocol.  

Bottom line ? no formal vote occurred.  The topic will go on the ballot.

Next issue:

Time is short.  Can we really do another areas topic now?  Some support looking into Harrison's latest topic.  Stefan says we need to hurry through Harrrison's.  Maybe we should shorten the case list topics first and if time is left over come back to late additions like Harrison's.

Stables starts it off ? to limit the overrule we would need to include a holding...for instance, making sure that every quirin have had to reduce executive authority at the very least.

2 options ? 

1. add a phrase after each case.
2. procedural overrules  

Galloway says holding is not a term of art ? often added by westlaw.  Galloway defers to Strange.  Strange doesn't think the rez should overrule a holding ? but this is different, and could provide directionality...the idea to overrule a decision holding that....etc.

Mancuso wants people to explain some examples about why they're scared of overrule.  Is it too many ways to do it, or that it is bidirectional?

Lots of discussion about how to go about it.  Will there be enough time to get it right?  Can you overrule a decision without getting into the substantive constitutional issues we're trying to get at with this topic?

There's talk about directional limits too ? a la Ede Warner's post to the blog.

Hudnut is just "affirmed" so the holding language would require a team to get into the lower court's holding.

Decision is that the ordinance is or isn't constitutional.  Holding is just the reasoning for the decision.  Strange analogizes it to a debate judge.  You voted aff (the decision) but the RFD is the holding.

To overrule the decision, aside from procedural questions, you're going to say the opposite of the original outcome.  You don't need to add anything about the holding.  

Stables asks Strange about cases with multiple holdings giving the aff too much flex being the concern.

Strange doesn't see any benefit to including holding in the topic.  The problem is the holding in the plan and your counterplan.

Now the discussion moves to cutting down on the number of cases in the list topics.

ML Sandoz makes a point about trying to do too much because this is a once in 15 years opportunity.  Can't try to do it all this year and need to do Courts more than once every 15 years.

Cut the 5 list topic down to 3 or 4?  Galloway says we have a rez without Quirin because of the concerns of CEDA East not wanting overlap with the HS topic.  Galloway thinks including executive authority unifies the people that voted exec auth 1st and Courts 1st.

Maffie says his first reaction to the topic was negative but he sees the educational benefit now.  If we go down to 3 or 4 we may miss out.  

Tim O'Donnell and Malgor think we could just give people a choice.  Maffie says people will vote for the shortest list.  Malgor says you can't not put something on the ballot because you fear it is too small.  Galloway thinks you can.

Ed Lee says he's afraid of overrule and that makes him want to go to a smaller list.  Not sure where things will go.  That's why he wants a smaller option.

Stables says what about 2 gender, 1 race, 1 executive authority.  Patrice says the number of cases isn't the issue when it comes to access to impact area.  Gratz can get you to race well enough.  If the smallest topic is likely to win ? then let's make sure the smallest list covers the cases we think are most "core" or most important.  Stables points out that last year there was complaints about having a ballot with too many options.  We don't want there to be so many options.  Mancuso says the case we should take off of the five is Gratz.  Debate about Milliken vs. Gratz.  Mancuso thinks compulsory schooling is the place to talk about education not college where if race is an issue in primary schooling kids don't get to college.  

Galloway thinks Gratz speaks to college students.  Mancuso says they all went to high school.  Strange says Gratz doesn't get to the heart of aff action.  Just a procedural issue about quotas.  Malgor says the clarification of the decision.  If aff overrules gratz it clarifies the standards and enhances affirmative action across the board.  Mancuso doesn't think Gratz represents a clean break because Grutter upheld affirmative action.  With Milliken there's no question of reseg so a new deseg case would be a fundamental move.

In regards to the discussion over number of choices on the ballot:
Tim O'Donnell says the voters should decide which cases should be overruled.  They have 2 months to decide.  Keenan says this is a permutation issue so it justifies more choices.  Galloway says in terms of central social controversy we need to have casey on the lists.  Malgor thought 4 with casey was the compromise yesterday.  Then went from 3 to 6.  Stables wants to know how many and which ones.  Rubino senses Gratz is on the chopping block.  Mancuso wonders if we're really scared of deciding which should be excluded and included ? making that decision.

Patrice would like to take out one of Quirin, Casey or Morrison ? leaving in Millekin and Gratz. Stefan says increasing the number protects us against awesome counterplans we haven't explored yet.  What if a too-limited topic includes affs vulnerable to the distinguish instead of overrule cp then having more on the list keeps us from getting stuck.

Galloway says history proves the smallest will win ? so we need to be really careful.  His argument is based on pedagogy rather than selfish competitive self-interest.  He's persuaded by Warner's argument.  Sanctions and treaties tells us THIS list will win.  The pedagogical benefits outweigh.  Let's take a vote.

Malgor, Patrice, O'Donnell, Ed Lee and Elliot want to design a topic with only four.  May have been others.  

Mancuso suggests 2 topics with four cases.  

List 4 - final

Stem is - 

The USSC should overrule one or more of the following decisions:

Have to look up the code numbers.  They will be included.

Done with lists ? they'll be posted.

Suggested that we should move on to Harrison's equal protection rez.  Wording concerns expressed.  Too little time perhaps?  

Stables thinks Harrison has been spot-on up to now on wording precision so we might be okay trusting her.

Patrice likes it as is.  Stables doesn't think it will win.  Patrice says each aff gets at the same impact so it's fairly limited.

Mancuso says he thinks it's bad policy to take this on with 15 minutes to go.  People seem to agree.  Trust Harrison.  Strange would go with it...he's a gambler ? and wants to leave for the casino.

Patrice feels in an abstain position.  Had hoped we'd get there earlier.  Wanted to support it.  Fears it's too late.  Galloway says we should consider some of these late comers, like this and Mahoney's for future topics.

Mancuso wants to move on to voting on the slate of resolutions.

8 total ? 7 lists and the free speech resolution.

Accepting the ballot of 8 was unanimous.

New chair vote ? Mancuso will be on the committee but doesn't want to be the chair.  Only those on the committee next year are eligible.  Patrice thinks only those people that can go to the NCA meeting should run for it.  Need to be able to commit.    Elliot thinks this discussion will occur at the ceda meeting today too.  

Galloway is nominated but he won't be at NCA.  Mancuso nominates Gordon Stables.  Patrice seconds.  He asks someone to explain it to his wife.  Strange says if Stables flies him to vegas he will explain it at length.  

Seem to be agreement among everyone but Stables that he will do it.

Ed Lee calls for a standing-o for Mancuso as he leaves his post.  He explains that he decided a while ago not to do it again.  Feels great about Stables do it.

Stables says there's been over 2K unique hits on the topic blog.

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