[eDebate] In Defense of the Topics and the Process
Mon Jun 12 09:27:18 CDT 2006
This will be a long post, bear with.
I will first say that I have not posted to e-debate recently, in large measure because of what I feel were highly inappropriate comments made on e-debate during the DCA biographies. I think our community needs to take seriously the notion that the electronic forums we affiliate with, and do official business on, should be very wary of what I view as severe sexual harassment by members of the community. Thus, to those who ask why, as the author of the topic paper involved, I have not been posting, that is the primary reason why.
I also don't like the spotlight very much. It can blind. It can also make you very ego-involved. Folks, I wrote the topic paper I wrote because I desperately want us to do a legal topic and do it right. This does make me ego-involved. At the same time, I've been asked to "go public," and not to just sit there and debate Dunbar behind the scenes about the perfect topic. So, I'm going to take a deep breath, and defend what we did.
I said at the topic committee meeting I have two agendas: 1) to create a fair, balanced, and educational topic for our students to debate; 2) to make people not hate legal topics so much. 15 years is too long.
We achieved both those goals in Kansas City. Whatever list you vote for, or if you vote for the First Amendment topic, those goals have been achieved. All the topics are backed by enormous quantities of research, massive input from the legal community, and have been hashed out more thoroughly than any topic I've ever been involved with. If you think any of the above is not true, that is fine. I think all of the above is true, and the committee worked really, really, really hard to help make it true. At least give us that.
I will defend overrule in this post, and I will defend the process the committee went through to achieve it. Let me just reiterate how proud I was when I came home from Kansas City. We did it. We came up with a slate of good, fair, well-balanced topics. And for several days, it seemed people largely agreed. Then I went on vacation for four days and found out after the fact that an effort was made to rewrite the topics by adding phrases to it. I didn't get to immediately comment because I had intentionally turned off my cell phone and shunted internet contact to get away from it all.
My wife left last night for Florida for a conference paid by her school. I could have gone with her and vacationed in Florida for several days, staying in the room for free. Part of the reason I didn't go this time is making sure I'm here to deal with topic issues. I will talk about that later on as well.
The process was not hijacked. There is no cabal. A group of dedicated individuals tried their best to come up with compromises for a community as diverse as it comes. Our diversity is our strength. But it is our weakness when we let disagreements become divides. I don't know where CEDA ends and NDT begins anymore. I don't think it matters. I am most likely being referred to as part of the NDT cabal. In some ways, I guess I should take pride that people think that a geeky, curl-twisting, chip-eating, video-game playing nerd could ever be part of any secret cabal. The reality is I'm someone that is far more comfortable cutting cards and writing papers than doing anything remotely political--or hitting a 4 iron.
I hate hurting other people (although I know I do too frequently). I hate not being all things to all people (although I know I cannot be). To quote some Pearl Jam, "I wish I was a messenger, and all the news was good..." But it isn't always. Nor can it be, in everyone's eyes. That's part of why I hate the spotlight. I want everyone to be happy, and they can't be. The committee is not all things to all people. I wish it could be. I wish everyone could look at the topics this year and find that they liked all of them. Perversely, this is part of the reason I work the way I do. I always want everyone to be happy. I always want everyone to know that every angle has been considered, every sub-argument has been fleshed out, all concerns have been met. This makes me a hard-worker, but it makes me neurotic. It also makes me easy to take advantage of. So be it. I am who I am.
Many of you may not care who I am, or think I am arrogant to presume that you care. I say all this so you know how wrenching the last few days have been for me. I really feel like the O'Donnell proposal did a disservice to all the hard work that everyone put in both before and during Kansas City. I insulted Tim privately very, very badly. I'm not sure I was substantively wrong, but I was WRONG in how I treated someone else. Perhaps this makes me a bad representative, or just a bad person. Maybe both. That's where I'm at.
I have no smooth transition to the rest. "The rest" is why what the topic committee did was good, and why the topics should not be revised. I'll have some concluding remarks on topic committee reforms I support, and am currently working with Gordon Stables to create. Here is my "preview statement:"
#1: Rewriting the topics would replace ideological judgments with the work of the committee
#2: There is no fatal flaw in "overrule a decision"
#3: The consensus of legal opinion is not in favor of those who oppose the topic
#4: Revisiting the topic process is worse than staying with the one we have now
#1: The current efforts to rewrite the topics would replace an ideological judgment with the work of the committee. This committee received a ton of legal input to come up with this topic. I personally vetted approximately 50 emails from legal alumni before we got started. We received excellent commentary on the ceda blog from several legal experts, especially Lindsay Harrison. Some reforms I will mention later will help ensure that input like hers make it directly into ballot choice options in the future. This section will illustrate the difference between what words mean and an ideological judgment about what the topic should look like. A "fatal flaw" about what a term means is different than challenging the judgment of the committee when trying to create an ideological compromise between those who want a broader view of topic construction and those who want a narrow one. Tim quotes Paul Skiermont: "Each case has several decisions. Also, even if the neg has a viable T argument, history shows that has very little to do with the actual contours of a topic because good teams can run to the corners of the topic and skillfully defeat topicality."
This is out of reality with debating in 2006. Teams win on "competing interpretations" far too often, in reality. It has allowed a paradigm of debate very different than when you could hardly ever win on T. "History" doesn't illustrate what Skiermont says: not in 1991 (when teams didn't run the overrule type affs he is referring to), nor in 2006 (when teams will likely lose on Topicality because of this). This is a legal expert commenting on debate. We, as debate experts, can filter legal opinion into what debates are happening now. BTW, I have no doubt that Paul would mop up on this topic. He sure did when he debated. My only comment here is to say we need to be very careful when we are receiving input on what words mean and ideological judgments from alumni about what they have to say. Mike Gottlieb makes this point beautifully in a recent email to me...
"To be perfectly clear, I did not mean to suggest that using the phrase "overrule decision" in the topic would present a fatal flaw. What I meant to say (and indeed, what I think I said) was that the words are ambiguous and can be interpreted in a number of different ways, such that (1) there are often numerous "holdings" represented within a particular decision; (2) there are often several ways to "overrule" a particular holding, and by extension, even more ways to "overrule" a decision...But as I think I said in my original email to you, I don't see that as a fatal problem with the resolution, it just means that it's perhaps bigger than it might seem on first glance, and THAT PEOPLE NEED TO CONSIDER WHETHER THAT'S A GOOD OR A BAD THING ON ITS MERITS." [emphasis added].
And that is what we should do. We as the committee help to decide whether a topic is too broad or too narrow based on what the words mean. The legal experts help us decide what the words mean, and whether we are misreading the literature. We, as the debate experts, can look at that input and ask whether we want a topic that is too broad or too narrow. We have to filter large quantities of diverse opinions, both from within our community and the legal community. The process is now more at a danger of information overload than it is lack of information. I will talk more about legal opinion in Section #3. Suffice to say, there are numerous legal experts who agree that this topic is debatable. Some like it more than others, and I know some legal experts disagree. Most are debaters, and thus we could expect disagreement. Suffice to say, many also support what the committee worked so hard to put together.
Many of the legal woes could also be solved by not writing overrule in the plan text. Lindsay Harrison and I have discussed this on the blog, and I've made this argument in public before. Worried that someone will say "distinguish the plan, don't overrule it?" Don't write overrule in your plan. Then they don't have textual (or in my mind even functional) competition to their counterplan. Now it is a T debate. Did you overrule the decision or not?
The topic doesn't say "explicitly overrule." In fact I "explicitly" considered this before. Why is it not there? Because then you might have to say overrule in the plan. Those that think explicit overrule is a solution should consider this. Does this answer the "rule on other grounds" counterplan? Of course not. Those debates will be great. What it does do is eliminates the "rule on the same grounds, but don't say overrule" cp. There is more I could say here, including an excellent, long exchange with Kelly Dunbar. However, I feel this addresses people's concerns about the one word counterplan.
Now, the primary argument left for the committee to consider is whether or not the affirmative got too much flexibility in the first place with overrule.
Folks, that is an ideological argument, not an argument about fixing a wording flaw. If we are to apply strict scrutiny to reconsiderations of the topic committee, then one member's agenda item that the topic is too broad is not worthy of reconsidering the entire topic. This is about IDEOLOGY, not WORDING. The ideology was debated. The committee included overrule because of the balance of affirmative flexibility and ground for the negative. If we reopened the process to every ideological disagreement with any committee member or any member of the community, we would slide far down a slippery slope quickly.
Some might say, "do it." I think GW likes the Con Con? This ignores the unique opportunity represented by Kansas City. We will never be able to replicate the advantages of the following...
*This debate happened live on a webcam, allowing full access to the process, warts and all
*This debate occurred in public, allowing community members to directly challenge/question/and provide input to the topic committee
*Everyone had all their documents prepared for the meeting
*We could all engage in a back and forth dialogue on arguments and counter-arguments: not wait for emails and overly focus on particular wording choices as opposed to overall intent
*Email is a bad forum for dialogue: anyone witness to the Ross Smith/Rich Edwards dispute over the PEP proposal at the NDT committee realizes the multiple flaws that come through email communication
*During the meeting, all members had access to edebate and the blog for instant input. Many are away from their computers now, and/or not checking edebate constantly
*While many members set aside a particular portion of their schedule for the KC meeting, reality dictates they cannot do so now. I went to Tennessee for four days with my wife and turned off the cell and didn't give myself internet access--on purpose. I wanted to get away.
I wish I had a "Beav-Bot 2000" to sit back here, cut cards for me, answer emails, shop for Doritos, and keep its own personal fridge stocked with tasty sodas. I do not have such a Beav-Bot. If you would like to invent it, I would buy one. And Frito-Lay's stock would soar*
Many are about to start teaching at camps. We are scattered everywhere, whereas we once were altogether, with all the resources there. The topic committee meeting, which many view as horrifically bad, is also very good in many ways. It is unique. It is better than nine "Cabal members" emailing back and forth privately and leaving angry messages on cell phones.
Tim contends that we could do better in two ways. He says, ""I do believe that if we took some time over the next couple of weeks, we could produce a ballot that a) represents what we really thought we were producing"
This argument confuses me. I think the debate over "overrule" clarified that it meant the "other side in the case would have to win" and something along these lines would be true (from Black's Law Dictionary): "A judicial decision is said to be overruled when a later decision, rendered by the same court or by a superior court in the same system, expresses a judgment upon the same question of law DIRECTLY OPPOSITE to that which was before given, thereby depriving the earlier opinion of ALL AUTHORITY as precedent." That's pretty much what I thought overrule meant.
Tim then contends that the committee "b) would produce the kind of topic that so many desire."
This is an ideological judgment call. This was debated at the meeting, and the call was made to favor affirmative flexibility in the equation. I fear Tim's solution would "write people's plans for them" a criticism the committee has received much of. Furthermore, many on the committee think it's harder to be affirmative these days.
I understand the American Debate Association may add holdings to the topic whether or not the CEDA Topic Committee does. If this is true, I would highly discourage the organization from doing so. I think it would deter participation, increase the wall between the ADA and CEDA (I liked Neil Berch's proposal to address this), and is ultimately unnecessary and counterproductive to many goals. I offer this up as the first answer to calls to do this, and would like to further debate out with relevant ADA representatives the merits of such a proposal. I grew up in the ADA. I helped expand it to the Midwest a few years ago when five Midwest tournaments were added under ADA rules. I support its overall goals, including a focus on building regional and novice debate. Thus, my argument is ultimately one that is designed to bolster the ADA, not hurt it.
I do think there are times the topic process could be reopened on a narrow basis. If the committee used the wrong word for a term, it should substitute it. An example would be if we used the word "vacate" instead of "overrule." Then, we got home and said, "you know what, we all really meant overrule, and not vacate." In this instance, the wording change would be consistent with what the ballot options were designed to do.
However, wording changes that add holdings to the topic are not what the committee was trying to do. Overrule was a balance between affirmative flexibility and negative ground (which I will defend explicitly as a term of art below). Adding 200 + words to the topic doesn't accomplish what the committee wanted to do. Maybe the committee is wrong. Maybe we are an elite cabal that does what we want that doesn't listen to input. But that is what the committee was trying to do. Thus, to "revisit" the process would not be to revisit the process to further the will of the committee, but to fundamentally alter it. We should be very cautious of doing so, especially when we consider the unique advantages of the topic committee meeting as a forum.
#2: There is no fatal flaw in "overrule a decision"
This is the part where I most strongly disagree with Tim (read: was the biggest jerk when I wrote the original version of this paper to the committee).
First of all, history is simply on the side of those who favor "overrule a decision." It has been used before. Yes, a long time ago. But not so long ago to be an era where "stock issues" reigned and elim rounds at national tournaments were decided on PMN's. The type of overrule cases being discussed simply did not surface in mass numbers. People ran lots of new cases, but seemed to be utilizing different cases accessing privacy, not the factor of overruling. Perhaps more will do so now. I think folks will win a lot of T debates against those (Hester won about 8 gazillion the first time, in an era without competing interpretations to help the negative). This is a confirmed statistic. My historical records indicate that Hester won 8 gazillion debates on Topicality on the 1991-1992 topic.
Learning to debate topicality on both sides is good. Maybe you can ask Dallas how he made a million dollars learning to debate topicality. Josh Zive has said that T debating was probably the most important thing he learned before his legal career. I don't think we should write T debating out of the resolution altogether, especially when there is so much contextual evidence on overrule a decision.
Tim thinks we equivocated "decision" and "judgment" and uses a Black's Law Dictionary definition to say decision has "no fixed, legal meaning."
I am going to try to be very delicate here. The end of this very definition in Black's Law Dictionary says: "having no fixed, legal meaning*A decision of the court IS ITS JUDGMENT; the opinion is the reasons given for that judgment, or the expressions of the views of the judge." (BLD, 1990, pg. 407).
This very definition supports the interpretation that "deicision" is the court's "judgment." And the T debate makes sense. Ken Strange (who coached the Copeland winners on the 1991-1992 topic) and Steve Mancuso (who had a team in the Quarters and three teams at the NDT that year) thinks a good bright line is "the party that won last time would have to lose." Seems a good bright line. I think there are others, as will be illustrated.
Tim then goes on to provide an awesome Negative T card: "Overrule: "To overturn or make void the holding (decision); generally accomplished in a different or subsequent case, when a court renders a decision that is substantially opposite the decision made in a prior case."
This evidence says you have to make a decision "substantially opposite the decision make in a prior case." Have a debate on whether or not the plan is the opposite decision, or consistent with the opinion seems like an excellent Topicality debate. Let the kids hash it out. Here's another one to add to your T collection:
Overrule means you have to do the OPPOSITE of the prior decision:
"A judicial decision is said to be overruled when a later decision, rendered by the same court or by a superior court in the same system, expresses a judgment upon the same question of law DIRECTLY OPPOSITE to that which was before given, thereby depriving the earlier opinion of ALL AUTHORITY as precedent." (BLD, 1990, 1104).
Directly opposite. All authority. Great Negative T ground. If you leave any authority, or don't rule directly opposite, you are not topical.
And, overruling is like the decision never existed, it is the equivalent of a repealed statute: "Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of ALL AUTHORITY. It becomes null and void, LIKE A REPEALED STATUTE, and a new principle is authoritatively substituted for the old" (BLD, 2004, 1137).
Far from being a "fatal flaw," overrule a decision makes for excellent topicality debates, backed by large quantities of legal literature. I have more evidence on this in the "Interim topic paper" on the CEDA blog, and a great deal of evidence on this in my research related to City of Boerne v. Flores. I think debaters will not be surprised to find a great deal of evidence discussing overrule and decision in context.
I talked to Karla Leeper today for the first time in about two weeks (I've called her like every day, she's just busy being the new chief of staff to the President at Baylor). In addition to giving me fantastic advice on a range of issues, she added a meaningful insight on this question. It may be that the rewriting of the high school topic is working in the backdrop to trigger efforts to rewrite the college topic. Arguably, since the high school community "had" to change its topic, it is possible that the "spook" factor of topics has increased, and the bar has been lowered to change topics wholesale, even after a vote. It is just a thought, and one from a very smart woman. Good luck, KL. To say the community will miss you is a huge understatement.
#3: The consensus of legal opinion is not in favor of those who oppose the topic
One argument that sort of surprised me was that we actually hadn't asked the legal experts I consulted the first time around (with the help of those like Ross Smith) about what they actually thought about what we did. Lots of the input in the first round was about "concerns" that intelligent people had. It was obviously important to look into the "concerns" our legal alums had about the topic.
Unfortunately, the "concerns" have come to eclipse the actual debatability of the resolutions. Up until now, I would understand the legitimate concerns many may have that what we are doing is outside what the legal community thinks is debatable. But I've done some follow-up questions on what we did. I will include four quotes from various attorneys/law profs. to back up this opinion, realizing that I've been collecting more quotes from more attorneys on this question.
Rebecca Tushnet, a two time NDT finalist, and a law professor at the Georgetown University Law Center:
"Hi there. Courts topics were always the most fun in my opinion. As I recall, on privacy we had no trouble debating about "overruling" decisions, though that was before the critical turn.
The concern seems vastly overstated. Sometimes it's hard to tell what an opinion stands for, but in lots of cases it's easy to figure out whether something's been overruled. For example, oftentimes the Justices *say* so, like Bowers in Lawrence v. Texas."
Josh Zive, an NDT semifinalist, and an attorney at Bracewell & Giuliani LLP in Washington DC
"Based largely upon my experience with the privacy topic, I do not think overrule is a particularly dangerous term. I think good T debated will largely check the affirmmative (in response to the scott elliott args). Addittionally, I do not think there is much meat to the distinguish CP (very few, and very weak, net benefits). Put simply, I have trouble thinking of an alternative to overrule which works better than overrule."
Michael Gottlieb, a two time NDT champion, and a two time top speaker at the NDT, from WilmerHale in Washington DC:
"I did not mean to suggest that using the phrase "overrule decision" in the topic would present a fatal flaw. What I meant to say (and indeed, what I think I said) was that the words are ambiguous and can be interpreted in a number of different ways...I don't see that as a fatal problem with the resolution, it just means that it's perhaps bigger than it might seem on first glance, and that people really need to consider whether that's a good or a bad thing on its merits."
Kelly Dunbar, an NDT semifinalist, and fourth speaker at the NDT, now an attorney in Washington DC:
"i have no idea where the process is at; so i have no idea how to make an assessment of the merit of going back and revisting now. in short, your best to defending keeping it is (a) it worked before; (b) affirmatives will adapt; (c) putting overrule in simultaneously gives the affirmative some flexibility to do creative things while at the same forcing the affirmative to do something radical, which ensures some type of negative ground.
hope this is helpful -- let me know if i can be of any more help."
In a follow up email for clarification:
"You can most certainly put me in the column that says using overrule wouldn't be a fatal flaw."
None of this dispositively answers the question of where the "legal community stands." I suspect some favor the term, some oppose it, etc. Skiermont and Harrison have been uniquely strong at arguing against this term. Anjali Vats has expressed strong reservations as well. I suggest people thoroughly analyze their arguments for Topicality arguments/Counterplan ideas on both sides. I am just answering the claim that I've seen made that the "legal consensus" stands against the topic. I think there are well-meaning legal experts on both sides of this question. Sounds like a great T debate to me.
#4: Revisiting the topic process is worse than staying with the one we have now
I know many have attacked the Elliott resolutions by now. I will only provide a cursory examination of some of the proposed resolutions. I frame all of this discussion with the following.
If one word, "overrule," is so controversial, how controversial will adding ten or so words to each decision be? I've disagreed with literally every version of the holdings others have written thus far. To ask the committee to decide up or down on all the different iterations of the holdings at this point in time would be a nigh impossible task. It also limits affirmative flexibility, and "writes people's plans for them." If Branson and others are correct, that it is too hard to be affirmative these days, why would we hem in the affirmative in such a way?
Elliott's post on this question, which Tim argues in his paper, "I'd settle for the path of least resistance and implement Elliott's solution."
"Ex parte Quirin, 317 U.S. 1 (1942), to the extent that it holds one who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such;"
Uses gendered language. We get into a debate about what "take up arms means" what a "foreign theater of war" is, and what "treated as such" means. Overrule is looking downright like solid law now. The fact that there are so many disagreements mean we could never "deliberate" over all these questions at a distance.
"U.S. v. Morrison, 529 U.S. 598 (2000) to the extent that it holds Gender-motivated crimes of violence are not economic activity;"
Writes out all the debate around whether or not Section 5 of the 14th Amendment (equal protection) allows for the VAWA. Plus, the Court held that gender-motivated crimes weren't SUBSTANTIALLY RELATED to interstate commerce: which is what the overrule would need to argue--merely acknowledging they are economic activity would not inherently meet the substantially related test in Lopez.
Others have indicted other examples on the list. The precision necessary to write the "central holding" (which is often unclear) is incredible. Perhaps it is doable. Trying, however, and getting it wrong, could literally write an entire line of cases out of the topic. We are now scattered across the country, relying on email and cell phones to do work we couldn't do in Kansas City. It also writes people's plans for them, hindering affirmative flexibility. None of these is desirable.
Conclusion: What Now?
First, I oppose efforts to open up the process. We worked hard before and at KC, and opening up the process raises significant (dare I say substantial) procedural and substantive concerns.
Second, some meaningful reforms of the topic process should be considered. The committee seems to have a "credibility gap." I think this is unfortunate. Perhaps it is because we have not worked hard enough. Perhaps it is because we aren't open to enough input. Perhaps we are too open, and it leads to paralysis. I have heard all the aforementioned made as arguments.
Gordon has created a cedatopic blog so the committee can garner input on these questions. Jason Russell has volunteered to help in creating a qualitative survey to figure out what people want. If others have suggestions as to how we can improve the process, let us know.
Third, we need to develop clearer standards for community input. I currently favor specifically allocated time periods for community input, and then to have members of the community work with significant concerns/input to directly work with members of the committee on arguments related to the topic. If we had developed subgroupings like this, it is possible we could more easily integrate people's concerns, "work with your agenda" in Jackie's terms, and perhaps most importantly, provide a vehicle to integrate work by Lindsay Harrison, Tim Mahoney, and Anjali Vats directly with what the committee was representing/working on. This is just an initial idea to allow excellent input to be more directly reflected in the final ballot output at future topic meetings.
At the same time, I like the process. I like the blog site, I like the webcast, I worked with and met some awfully cool people (shout out to Joe Patrice, Kathryn Rubino, and Vik Keenan). We are better when we are constructive and not destructive. We are better when we use scalpels and not sledgehammers. We are better when we talk to each other and don't yell. These are all lessons I could still learn a lot from. I thought of the WWGZD (What Would George Ziegelmueller Do) rule early this morning, when of course, I was struggling with all of these questions. I'll try harder to apply that rule to my actions in the future.
The process is messy, it is incomplete, it is imperfect. Sometimes watching it happen means you get to watch people yell at each other, friends insult each other, people shout over each other, and someone try to check edebate, a blog, and their private backchannels simultaneously. Some find that horrifying, others think this makes it "worth the price of admission" and fire up the popcorn. That is the price we pay for democracy. Is it worth paying? Sometimes it is really hard to pay, but "that's why they pay us the big bucks."
Thanks for reading this far, if you did. It's been a hard time for a lot of people who have worked on this process. And one last thing,
Tim, I unfairly attacked you. I'm sorry. I suck sometimes.
For now, I hope you enjoy your summers and enjoy the debates on the topic that eventually happen. I think the committee did a good job. But if you've got some anger, point it in the direction of my curly head. After all, this was my idea to begin with, and I wrote the first papers.
Goodbye for now.
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