[eDebate] List topics, as written, Blow-A Reply to Mancuso

scottelliott at grandecom.net scottelliott
Thu Jun 8 16:40:08 CDT 2006


Dear Steve and the rest of the debate community,

I have to respond.

All I want are debate topics that are good. No hidden agenda. No real dog in the
hunt. I don't care what the topic of debate is. i just want topics that don't
suck. In response to Mancuso, I would first direct people to read my past posts
explaining the Bollinger "decision." I think ede and Mancuso are just flat
wrong. I have a feeling that many other lawyers would agree with me. I will not
go point by point down Mancuso's list of Panglosian platitudes, but I will
address some that I find just to be flat wrong. We can agree to disagree, but I
think you are just wrong. let the voters decide.

First, you say:

"Every year people look at the wordings and say ?the AFF can run X, Y and Z and
never debate what the topic intends.  Every year.  Last year Scott Elliott
thought we?d never hear a debate about IPR, China-Taiwan war, Tibet, Labor
Camps, Proliferation, etc.  But even on the China topic the VAST majority of
debates took place in the way the committee anticipates.  They do every year.
This year ? even with the current wordings ?I?m confident that again a large
majority of rounds will be roughly what we expect."

I say: I was laughing my ass off this year when EVERY case idea I listed when i
bitched about how bad the China topic sucked was actually run. And, Call me
crazy, Steve, But those "wild exaggerated cases" turned out to be ass kicking
cases. Look at the Deforestation, Honeybee, and Sudan cases for example. Sure
people go middle of the road. But, I guarantee you people are going to find
strategic advantages in a poorly worded topic. I see China as an example of
exactly what I am talking about. If you are a big school, you don't mind the
"Resolved: the USFG should do _____________. " form of topics. But, for small
schools and schools with novice and JV programs, it must just suck to have
these poorly worded topics that function to screw a team with limited resources
and limited abilities.  As much as my comments on China were proven to be true,
I will bet you that my arguments on these list resoltuions will also prove to
be true. I'll take the Pepsi challenge.

Mancuso states:

"The evidence was overwhelming at the meeting that the ?decision? was the bottom
line outcome of the case ? the statement of who won or lost.  It was easy to
differentiate from holding ? the holdings are the reasoning for the decision.
So, there really aren?t several ?decisions? in each case because they can
easily be distinguished from ?holding?."

WTF does that mean? The "evidence at the meeting"? Are you going to be quoting
the Topic Committe's record as some sort of bullshit legislative intent when
you are getting crushed on the "T" debate?

Also, I agree that the "decsion is the bottom line outcome of the case." No
shit. You are missing the point. I really do ask everyone, before they vote, to
just actually read a single S.Ct. case that is listed. Actually read it. I am
telling you that what you think the court case says is often not what your
coach or some member of the TC said it meant. Please, go back and read Casey.
Please, go back and read the search and seizure case. Go back and read
Bollinger.

I have used Bollinger as an example, not because I like or dislike the topic of
AA. I picked it randomly. But in Bollinger, contrary to what you, your coaches,
and 20,000 million academic liberals think, the S.Ct. was NOT focused on AA.
What? Buh! Buh! Buh! Huh?! Go back my children and read the case. The main
areas of focus for the Supreme Court were (1) whether the Plaintiffs had
standing to sue and (2) whether strict scrutiny or the rational relationship
test applies to government created racial categories. That AA in the U. Michigan
UNDERGRADUATE admissions program was not upheld was really a secondary concern.
If you don't believe me, then look at Grutter v. Bollinger, decided the same
day. In Grutter, the court applied strict scrutiny and UPHELD the AA program of
the U. of Michigan LAW SCHOOL.

Go read Casey. My jaw dropped when I read it. You will too when people start
bopping you over the head with the thirty or forty different precedents that
are within this decsion--many of them flat out contridictory.

If I take Mancuso at his word, "The evidence was overwhelming at the meeting
that the ?decision? was the bottom line outcome of the case ? the statement of
who won or lost." Then the discussion should end here and EVERYONE should see
that the list topics are not just poorly worded, but are out and out stupid.

If the topic cases are restricted to just s saying, for example that Ms. Gratz
lost and U. of Michigan won. Then, I posit that nothing has happened. In fact,
this is exactly the "stupid/cute" case I was writing about a couple days ago. I
agree with mancuso that such a case is "stupid." But the way Steve defines
"decision," thats exactly the stupid case you get. LOL.

Next, Steves says:

"On the other hand there are some contextual examples of ?overrule
decision?
that meant the affirmative has to change the specific holding leading up to the
decision.  I have no fear of that interpretation (see below)."

To this I say. (1) No Shit. and (2) That has been MY POINT all along. Damn you
all can be obtuse sometimes. I agree 100% with the statement steve is
making--that overturning a decision means overturning a holding of the S.Court.
Yep. he is right right right. But, he is also wrong, WRONG. WRONG.

Look at the "Holdings" in these cases. Look at them. They are listed at the top
of each S. Ct. case in the syllabus. Bollinger has Three holdings: (1) Standing
to sue must be based on actual harm (2) strict scrutiny and (3) that Ms. Gratz
was entitled to relief under Title VI. So, Steve, you win the argument, but you
lose the fight. Note, none of these "holdings" are what you thought you would be
debating--AA in colleges and Universities. Sure, you can get there, but you can
also argue a lot of stuff that has nothing to do with AA.

Let's take the Search and Seizure case, i can't recall the name right now. but I
do recall there were 7, yes SEVEN specific holdings made by the court.

Now, those are just the "official holdings." I think, and every lawyer I know
will back me up on this, that what you think is a holding is NOT what I, as a
lawyer, think is a holding. We use every part of an opinion to support our
propositions. If you don't believe me, look at the pasts posts I have made
where Bollinger is cited. better yet, take a look on Lexis for all of the
propositions of law that Casey is cited for.

For example, I can "reverse" Bollinger by arguing that persons do not need to
demonstrate immediate harm to have standing to sue. There is no way around the
fact that this was a, if not THE, major holding in Bollinger. Then I get to
argue why I, as a human, need to have standing for the trees beuz I am the
Lorax and the trees can't speak. Even though I am not personally harmed, the
trees are getting destroyed. Overturning Bollinger on the holding of standing
is essential in order to achieve injunctive relief. Advantage-Defo, Species,
warming global death prevention.

Steve says: "The affirmative would want to affect the legal precedent so they
could have solvency.  My bottom line expectation is that the affirmative will
take one of the lines of reasoning that lead to the outcome in one of the
decisions and reverse it."

I say. You are right. That is why all of the cases i listed would be topical
under your vision of the topic. by the way, if you all think I am crazy about
trees, your right, but I ain't stupid. There is a seminal article on rights of
natural objects called "Do Trees have standing?"  it addresses the problems
environmentalists have with being able to sue because they lack standing--one
of those problems is the very standard/decsion/holding/precedent enuciated in
Bollinger.

So Steve and Ede and everybody else on their side have offered us the panacea of
"we can counter-plan." Well yes. Of course. the counter-plan. But, as you will
all find out soon, the counter-plans work against the core of the topic as well
as against these so-called "fringe" cases. If you can counter-plan "standing to
sue" out of the round, then you can damn sure counter-plan strict scrutiny (the
reason why the AA for U. of Michigan undergraduate program was held to violate
Title VI and Equal protection). So, I'd say that Steve and Ede (wasn't that a
Vegas act in the 1970's?) have proven too much--namely that all affirmative
cases are now vulnerable to PIC du jour and agent of action c-plans.

Your Plan; U.S. S.Ct. overturns Bollinger.  Advantage AA in colleges, warm and
fuzzy feelings for everone, MLK's dream fulfilled, Black empowerment, etc.

C-plan 1 Overturn Bollinger except for the issue of standing to sue.
C-plan 2 Don't overturn, but distinguish Bollinger to allow AA in collges, but
not in other areas of government work.
C-Plan 3 Clarify the ruling
C-Plan 4 Amend the Constitution
C-Plan 5 Overturn Grutter instead of Gratz

Further, Steve's premise is that the affirmative must change a portion of the
case that would effect the outcome of the case. O.K. Guess what, if standing to
sue were changed to allow any person, without real harm, to sue, then the
outcome would have changed in Bollinger. How? Well there were two people suing
Bollinger. First, was Ms. Gratz and second was a Mr.___I forget his name. I'll
say "Smith." Well, Ms. Gratz had standing to sue and was given relief. Mr.
Smith was not and did notget relief. Change standing to sue changes the outcome
of the case.

In Casey and in just about every case listed, a single change in a single,
unthought of "holding" "decision" or preceent will change the outcome of the
case. let me give you a few examples:

If the court held in Bollinger that it no longer had the right to judicial
review--something that is implicit within Bollinger--then it would DAMN SURE
influence the outcome of the case. Why? because Gratz's case would have never
been heard in the first place. LOL. My advantage, Judicial Tyranny, activist
judges. Oh, your AA debate? Grutter is still on the books, so you can chew on
AA, but you ain't getting anywhere with it.

Casey, for example,(which is a nightmare if you read it). Giving a woman the
right to an abortion under the Equal Protection Clause is different from giving
that right under the right to privacy. It is easily arguable that such a
distinction would change the outcome of that specific case. But, I don't
overturn the right to an abortion under the 9th--meaning you don't get jack
shit for a link on your reproductive rights disads.

I too disagree that good teams will be running to the corners. Rather, the
center of these topics, straight down the middle center, man, is so broad that
you don't realize the implications until you start researching them. Bollinger,
in my opinion, is a small case area compared to Casey and some of the others.

You have to ask yourself the following question: What was the holding of the
court?

In Bollinger the major, center of the road, holdings were
(1) that a person must have real harm to have standing to sue
(2) All government classifications based on race are subject to strict scrutiny.

Now, that, I agree is what an affirmative should be debating. But, that misses
the point--once you do your plan, to overturn holding 1 or 2, or both, the
advantages you claims are going anywhere.

I have yet to hear or see a c-plan that would exclude my prisons example but
would not also exlcude affirmative action in college admissions. Both stem from
the core holding that government classifications based on race are suspect and
therefore subject to strict scrutiny. You can argue AA is bad, I guess, as a
disad, but my advantages on prisons will outwiegh.

Mancuso argues that the direction is constrained by the topic:
"No matter what interpretation of ?decision? you like, they all create a
directionality in outcome.  No one has really alleged that the list resolutions
are bidirectional with respect to the central outcome (more desegregation, more
affirmative action, less executive authority, less federalism etc.) except for
Casey, and even there the NEG has some basis to argue that OR the ?undue
burden? test to liberalize Casey wouldn?t OR the decision."


I call bullshit
on this. Not true at all. Even the topic committee admits, and Steve impliedly
admits, some of these cases
are EXTREMLY bi-directional. You can overturn Casey, changing the actual outcome
of the case 100 different ways til Sunday, often in ways that are mutually
exclusive. For example--Casey reaffirmed Roe v. Wade. Thus a Aff. can overturn
Casey by overturning Roe v. Wade. On the Other hand, Casey limits a woman's
rights. One can overturn Casey by INCREASING a woman's rights to an abortion.
Folks that just sucks when the affirmative can choose both sides of the debate
for strategic advantage. If they say some of these cases are not bi-directional,
they are just lying through their teeth.

The literature does not check the "abuse." There are people writing cards saying
these cases should be overturned, i.e. the decsion should go a different way,
but for mutually exclusive reasons. If you can't see that just by reading the
first 20 headnotes of Casey, then I pity you.

You can change the outcome of the search and siezure case to increase government
power or decrease government power.

You can even change the outcome of the Gegg v. Georgia case to increase the
death penalty's applicability ot decrease the death penalty's apllicability.

Mancuso says we should look at history. I agree. I have been right before when
it comes to topics that suck. I guess we will see how it all plays out in the
end.

I don't find Dr. Panglosses' arguments at all persuasive.

Scott

P.S.

I have offered suggestions of how to change the lists in ways that would
actually focus the debates. You can only blame the topic committee and
yourselves if those suggested changes are not made.

I will give you an example:

Resolved: that the United States Supreme Court should overrule one or more of
the following precedents:

Greg v. Georgia, to the extent that it holds that the death penalty is not
invariably in violation of the constitution;

Gratz v. Bollinger, to the extent that it holds that classifications based on
race in educational institutions subject to Equal Protection analysis are
subject to strict scrutiny.

I had more, but this will get the point across. With four to seven cases listed,
each with the key precedent identified, there is plenty of room to debate, but
fair limits.

I will bet money that most coaches, if given a choice between the topics as
listed and the alternatives I suggest,  would vote for my suggestions. With
these topics, as amended, we know exactly what affirmative ground is, where they
are going. It does not limt their advantages. it does not limit how they
overturn the precedent--but everyone knows that the precedent to be debated in
Bollinger is strict scrutiny for AA in colleges and everyone knows that when
they get into a Gegg v. Georgia debate, they are going to be debating whether
the death penalty is constitutional. Take the challege. Ask your debate friends
which would they want to debate and or coach:

A topic that simply says "USSCT should overturn Casey" or one that says "the
USSCT should overturn Casey to the extent that it holds the state has an
interest in protecting a fetus."


Scott























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