[eDebate] A thought (not necessarily an argument) about the topic conceptualization

Stefan Bauschard SBauschard
Fri Jun 9 19:39:25 CDT 2006

This is really just a thought more than an argument for either side of the list vs. non-list debate.

There may be a fundamental conceptual problem in accessing the type of issues we want to debate through the topics that we are trying to write (have written):

We start from these two premises:

1)	People think debating about the courts is educational
2)	People want more than just a topic about how the courts and how the law is made.  They want to debate some important social issues that have intersected the law ? race, gender, abortion etc.

To accomplish both of these goals we write a topic that establishes a generic mechanism based at least partially on positive past experience and then toss in X, Y, and Z cases that are *generally considered to be * ?about? those ISSUES   And we say, ?hey, if the Court(s) ruled the other way on those issues

But to us and the general public what is at the heart of those cases ? domestic violence, affirmative action ? is really not the central focus, or even a focus, of the Court.

I?ll give two examples:

1.	 The affirmative action case.  This is Scott?s example, and it is the example that promoted me to think of this whole issue. We think of it as being about ?affirmative action.? Lawyers like Scott think of it as being (primarily) about standing and how strict scrutiny is applies. These he contends are the important precedents ? how it is applied in the lower courts ? and not about (primarily) affirmative action.  In fact he contends that affirmative action wasn?t even all that important to the Justices and that the affirmative will have a difficult time claiming an affirmative action advantage if a ?narrow? version of the topic prevails because there are plenty of other affirmative action cases that the aff doesn?t deal with.

2.	Morrison.  I pick this because it is something I have more knowledge of and there is ?debate history? behind it.

Ryan Galloway wrote a topic paper a few years ago about federalism.  One very important issue related to federalism is how much room the Court gives the Congress to regulate state crime issues by giving them leeway to say ?Well, the crime impacts interstate commerce.?  Prior to 1995 in Lopez, the courts gave Congress a lot of leeway.  In 1995, Congress passed a law that tried to regulate guns around schools. I believe the law said that it was a federal offense to possess a gun w/I 500 yards of a school (or something similar).  Some dude named Lopez got caught and challenged the law, claiming Congress didn?t have the authority to pass it.  Congress contended that it did because guns around schools impact education, education impacts the economy, the economy impacts commerce.  The Court said ?maybe crime from guns around schools impacts education and, yes, generally education impacts the economy,? but the link from gun crime to around schools to the economy is not substantial  and they established a test/principle that if Congress wants to regulate in the area of crime control (an issue traditionally reserved to the states) that crime must substantially impact commerce.

So, yes, the case was somewhat about ?gun control,? but only insofar as the crime impacted commerce.  That is that test and that test is what is important in the law.  That is what lower courts look at.  The ruling isn?t a precedential claim that the court is opposed to controlling gun violence around schools (though some would like to, (conceptually) force the affirmative to reverse that supposed "holding" in the instances of the cases in our list resolutions).

I think this is all very interesting, and so does Ryan, but the community thought it was dull as dirt and overwhelmingly voted against Ryan?s topic.

So, why does this ?dull as dirt topic? win by an overwhelming margin when brought back up?  Well, it?s all relative is one answer, but I think the better answer is that Ryan made the topic much ?sexier? ? says, hey, we can debate important social issues like violence against women, affirmative action, our criminal rights, privacy, abortion
.Ya, sounds more interesting than interstate commerce.

So, this ?overrule? mechanism get stuck in, and we say that we should overrule some core cases on these key issues.  The resolution formulation process is largely driven by this approach.

Why does this run into some problems?  It runs into problems because these cases aren?t *primarily* about these issues, they are about the legal precedents and how they are applied and tested by these cases & controversies.  I know some of you are incredibly liberal and very cynical, but do you really think the people on the Court are so evil that they think people should be allowed to carry guns next to school yards and that they endorse violence against women?  No, they think the STATES should come to that conclusion and that Congress shouldn?t strip that authority from the states under the guise of interstate commerce regulation (and Equal Protection, I believe, in the case of Morrison).

Morrison is mostly about Congress? authority under the commerce clause and the 14A, not violence against women.  I?m sure the Court thinks violence against women is bad, but they don?t think it has a big impact on the economy and interstate commerce - -the same thing they said about guns around school yards.  In fact, the affirmative will even be pressed to claim a violence against women advantage because most people say this Congress wouldn?t pass the law even if the Court said  they could.  But it doesn?t matter because the affirmative will be able to claim advantages that say expanding the interpretation of the commerce clause mean congress can more aggressively act to protect & fight crime and civil liberties (if they want to).

Because this case is really about these tests, any case that overruled Morrison could do so by changing this test in a zillion different ways..  And that?s just two tests that could be altered.  More creative individuals could find more tests to ?overrule (change).  Then we look at Bollinger and Scott says standing and strict scrutiny are the important issues.  He looks at Casey an almost faints
.I?ll trust him that there are lots of key tests and precedents the affirmative could change.  The *core* issues are these tests and controversies, not what people on the court thought about the person needing permission for an abortion (I realize some CLS scholars would disagree).  Skiermont says our combination of case precedents  means the Court can overrule ?anything? ? perhaps hyperbole, perhaps not because the Court deals with so many of them in these decisions.

We?ve created a topic that really creates debate about the application of different tests, precedents, and key constitutional issues (such as judicial review) and not *so much* about the issues.  It?s about the issues to the extent that the tests intersect them, but the real impact/debate in the courts is about the legal issues like standing (which we both want to debate and don?t want to debate).

So a lot of people (I think everyone with a law degree) sees a conceptual problem in the ability of our topic to a) encourage debate about what they think we want to debate about, and b) be of reasonable size.  Some other people become persuaded that those with law degrees may be right about how the law works and suggest we make some changes.

Those changes are generally focused on trying to force the affirmative to make a legal change that impacts the ?substantive merits? about we want to discuss.  The primary concern *seems* to be just to direct the debate back to the merits of the substantive issue.  This gets hard to do?  Why ?  Not really sure exactly yet, but perhaps because it is pushing the debates *away* from the legal mechanisms that ?overrule? encourages and how that impacts precedent and back to the substantive merits creates somewhat of a ?disjunction? (as articulate as I can be at the moment).  

I don?t know precisely what to conclude from this.  I?m post this to edebate, however, so I think I have to make a (vitriolic) point or people will go back to reading (j)ack.

1)	It may be conceptually incredibly difficult to add modifiers that balance our desire to debate about how the law works and focus the debate on the substantive issues.  If we want to have it both ways perhaps we *can?t* have one that is ?legally correct.?  I mean how can the aff NOT have the opportunity to change ALL the legal precedents and doctrines that produced the outcome of the case?

2)	If we wanted to debate about these social issues, then perhaps we should have had a topic about them and not tried to jam them into a topic about the ?courts? ? which arguably would be more about how the courts interpret and develop case law.  Too late for that, but

3) If we had a "legal/court" topic more than every 15 years resolution writing may be easier.

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