[eDebate] Fwd: Coalition of the list-supporter

Ede Warner ewarner
Mon Jun 5 16:27:01 CDT 2006



>>> "Joe Patrice" <joepatrice at gmail.com> 6/5/2006 12:21:58 PM >>>
For clarity's sake I'm not entirely compelled by the First Amendment
topic (because I still think it is large and I'm starting to think that
if the topic is going to be big it may benefit my squad to have it be
super-big so no one has any depth -- still thinking though), but I feel
thrust into the role as its defender since I worked on it. 
 
Responding in order to the big points:
 
> Let me make an argument by authority: the folks who have debated or 
coached on privacy seem to have less worries about the size of the 
"lists" topics, than those who didn't. Who would have thought prior to

a week ago that those big topic folks like Stables, Galloway, Tim 
O'Donnell and Mancuso would side with that crazy, boundary-less Warner

in support of lists that are bigger than the common area topic? 
 
Response: First, Tim O'Donnell thought the "list topic" should be one
case so he should not be in that group -- I say this because I could
feel him wincing at the suggestion that he wanted a huge topic.  Second,
I wouldn't be worried about redoing the privacy topic either...but the
lists are all privacy + a bunch of other areas.  Third, to make my own
argument by authority, we previously debated the following topic: 
 
RESOLVED: "That one or more presently existing restrictions on First
Amendment freedoms of press and/or speech established in one or more
federal court decisions should be curtailed or prohibited." 
 
It's the other direction but the same lit.  Based on that, I feel
comfortable saying that the community can find a good deal to say within
that umbrella.
 
Ede says:
1) I was using irony to say that this group DIDN'T think the topic was
big.
2) We didn't list cases in privacy, so technically it was privacy plus
a bunch of areas.  It was overrule a decision in privacy.  It was huge
using your literature base standards.  In terms of number of decisions
that used privacy as a precedent, I can't begin to count.  I'm trying to
suggest why it didn't play out huge in debates.  We will have 5-7 case
advantages with a couple of different mechnisms for overturning the
cases.  
 
> I believe that the lists are not as big 
as you suggest and the 1A topic is bigger than you suggest. I don't 
think either will be large literature wise, although there is a lot of

literature about these cases. The reason is that we have solid and 
predictable negative strategies which will functionally reduce the 
literature size and make many of your arguments non-starters on the 
affirmative and much more likely disad ground on the negative, which 
shouldn't pose a problem. 
 
Response: Perhaps.  I do think that every topic is debateable at the
end of the day.  I also would encourage people to stop using "lists" and
"area" because functionally it's a choice between areas of varying
sizes. 
 
As for the specific rounds:
 
>I) Topicality on decision- You are reading cards talking about the 
precedential value of Morrison but not from the decision. In a riveting

c-x, Stitch asks Bob to read the part of the decision that talks about

gun control. Stitch says it doesn't, but my topicality arguments come 
from the Malgor decision, where the court uses Morrison as precedent to

justify not having gun control. Louisville argues that there is a 
difference between topicality cards from any Supreme Court decision 
versus cards from Morrison. 
 
Response: I'll use the most famous "overrule" scenario which is the
Plessy was overruled by Brown fact pattern.  This T argument is
analogous to saying Brown isn't an overrule of Plessy because Plessy was
about trains.  In fact, Plessy set a legal standard about the 14th
Amendment -- perhaps in the context of a transportation fact pattern --
but the decision is about the 14th Amendment.  The Court overruled that
decision in Brown by overruling that legal standard.  Under your T
interpretation, Brown would not have been a topical case if Plessy had
been on this list topic pre-1954.  Morrison's fact pattern is about
domestic violence just as Plessy's was about trains, but the case is
about the power of the federal government to legislate over the states
just as Plessy was really about the 14th Amendment 
 
Ede's response:
1) The law doesn't operate the same way debate does
    a)  In law, a decision is made with reasons.  Those reasons, called
precedents are used in later cases to justify or change future cases. 
Hence, Plessy can be about trains, set a standard about the 14th
amendment.  Brown can change that standard in a case about education. 
Patrice vs the CIA, 2008 will play with past court precedents to change
that standard again.
    b)  But in debate, we have topicality and counterplans.  Debaters
have been told to overrule the Morrison decision.  I'll make a BOLD
claim right now:  that are NO cards saying that one should overrule
Morrison to create gun control legislation.  There are cards that say
Malgor vs. US (my make believe gun control decision) decided that a
precedent in Morrison should be applied to the facts of another case
(Malgor).  You might at best, even have cards that says Congress can't
do gun control because of the Morrison decision.  Here is the problem
for using these arguments on the affirmative:  even if that is true, the
only way to rectify the problem ISN'T BY OVERTURNING MORRISON.  Negative
could overrule Malgor and say that Morrison no longer applies.  They
could create a test case that elminates Morrison as a precedent for gun
control, but they don't have to overrule Morrison to get the advantage
which means the only good ground for the affirmative is the facts of the
case that have been decided.  So in that regard, teams will be bound by
the facts of the case.  And though you can overrule the case on
different grounds, the only time it will matter is if there is a unique
advantage to the facts of the case, because if the advantage is not
germane to the facts of the case, then you can overrule a different
decision.  Hell, the aff could be in trouble even if it stays germane to
the facts of the case, because the neg could overrule a less visible
decision that decides similar facts of the case, and argue the symbolic
value of overruling the bigger case is worse or a bigger link to court
disads.  The point is:  good aff's won't stray from the facts of the
case.
     c)  The interpretation of what a plan is on this topic is the key.
 You are right, mine is a topicality interpretation.  Courts don't have
topicality and we don't have precedents.  At the end of the day, the
plan describes a make-believe action.  The community can choose that the
plan describe a make-believe case or a real lower court test case to
overturn a past decision OR the plan can describe a re-hearing of the
original case, something the courts have done, albeit less often. 
Either topicality interpretation can guide the community:  if we plan
make-believe and describe imaginary or even real test cases, the limits
are blown off the topic.  But guess what, we don't have to do that:  we
could and I think we will say:  to keep the topic limited, a better
interpretation is to rehear the past case and create a new ruling on the
past case.  You are correct:  how we interpret the meaning of a plan
relative to a Supreme Court overruling of a decision is the crux around
which the entire limits/no limits debate jumps off.
2)  How do we traditionally resolve topicality:
    a) where do we get the evidence:  Later in your post you say, "I
didn't know the advantages sprang from topicality", implying that I
don't know what I'm talking about, which is perhaps true.  I'll argue
that Supreme Court overrule debates are unique in that they conflat the
solvency/topicality debate in ways that we think is a bad thing in most
of our debates.  I'll argue that there are two ways to prove what the
decision is about:  someone describes it or we read from the decision. 
I'll defend that one good limit, that is certainly debatable, is to read
from the decision to get an accurate discussion of what the decision
says.  Now the question is: how much of the decision do you have to read
to satisfy overrule?
   b)   You can decide that the facts of the case are part of what has
to be overruled or not (I don't think there is a conclusive definition
that will satisfy Will/Shakira/James Bond/Mr. Peanut (or whoever that
Lansing dude is), but I think there is a better interpretation:  IT IS
MORE EDUCATIONAL (we learn about the cases in the topic), AND A MORE
COMPETITIVE LIMIT TO SAY THAT THE AFF HAS TO OVERRULE THE FACTS OF THE
CASE WITH EVIDENCE FROM THE DECISION.  Will everyone adhere/debate this
as a topicality standard, probably not.  Can it be defended as best for
this community on this topic?  Easily, just read cards from the
listserve discussion.
   c)  If this is the standard, guess what?  The advantages will have
to be borne from the facts of the case and that's why the committee
worked so hard to put together the lists.  So in essence, on this topic,
the advantages are likely to spring from the topic.
   d)  Another reason that is true
3)  All of this means that good affs will be about the facts of the
case.  None of the broader principles you keep talking about are unique
to any one case.  Even if Morrison establishes some new legal criterion
or concept, you don't necessarily need Morrison to eradicate the broad
concept.  The facts of the case, or more specifically, the impacts that
derive from them are where the competitive affirmative debating will
lie.  But I'm just a guy who rejects the norms of procedures of debate,
so how would I know.
 
>II) Counterplan- Overrule Lopez or the later decision. Make arguments

that Morrison should remain intact for X reasons, all net benefits
 
Response: Perm - do both.  I cannot imagine the literature that says
Lopez was wrong and Morrison was right.  Likewise any overrule of Lopez
that I can envision would overrule Morrison too.
 
If you win that it's good not to overturn Morrison, that is a net
benefit.  You will win.  If you don't have a net benefit, you will win. 
My world assumes the neg has a viable net benefit. In other words, the
debate will be made smaller.  If you argue on the aff. OR Morrison and
claim a gun control advantage because the Malgor vs DEA decision says
Morrison gets in the way, and I counterplan with OR Malgor and make
arguments that Morrison decision good.  Why would the aff win?
 
>III) Gender K - You commit violence against womyn by using Morrison
and 
ignoring core issues of the case. 
 
Response: Fair, though many domestic violence advocates would disagree
as they are attacking every fact pattern that could result in an
overrule of Morrison.  This is classic K ground though where pragmatism
and idealism collide.  I think this is a fair debate for Affs to have. 
 
Again, depends on whether the aff defends that their partial OR of
Morrison does so.  All of your ground arguments have presumed these
worlds where the aff takes off in different directions from the case. 
If the aff always creates domestic violence protection, then there is
always predictable negative ground and the neg can counterplan the
rest.
 
New round:
 
> I) Extra topicality debate. Same as above. Plan has to amend Morrison

in some way to ADD GUN CONTROL language. Since not in original Morrison

decision, it's extra topical. 
 
Response: Advantages are extra now?  The plan text is overrule the
Morrison decision that limits the powers of Congress under the commerce
clause and Section 5.  Everything else is just an advantage to that.
 
Lots of questions about your extra advantage then:  when would it
happen (any evidence saying the court is soon going to revisit Malgor). 
Why wouldn't the counterplan OR Malgor solve faster and more certain
than yours.  Remember you only have cards saying that Morrison's
precedent was applied in the Malgor decision:  that's the only way you
get to the advantage since Morrison's facts are not about gun control. 
So your are correct:  don't write it in the plan and have huge solvency
problems and easy c/p ground or write it in the plan and be extra-top.
 
> II) Counterplan out gun control and debate VAWA straight up. With 
whatever disadv, k's, case turns as net benefits you'd normally use. 
 
Response: How?  The Court writes its decision that CC and Section 5
powers are curtailed except in the area of gun control?  To go back to
the prior real world example this is the CP to say "CP out that
education be integrated and debate segregated transportation straight
up."  I don't know where those cards will be.  To be fair, you could
hang your hat on a Congressional revocation of the Court's jurisdiction
to review gun control decisions -- this would focus the debate on the
fallout of Congress making that drastic decision and that would be a
fair debate. 
 
OR Malgor.  There will always be a later decision where Morrison was
applied.  If not, then you don't have an affirmative...
 
> [Regarding First Amendment being big generally]
 
Response: First Amendment is big.  The only defense of it over the
other "list" topics (which are, again, multi-area topics) is that it is
one lit base and thus provides the Neg one body of law to master rather
than all privacy, all federalism, all Exec. Authority, all racial
discrimination lit, all abortion lit, etc. 
 
> Extra-topicality: You can't specify what content is permissible. You

can only overrule the decision
 
Response: This is not how the Court works (well maybe in a very limited
sense if they summarily overrule and provide no written decision).  The
Court overrules by setting new standards.  The Neg needs to debate the
worth of these new standards, meaning the specific form of speech
limited by the Aff is important only as additional advantages to the
standard.  Once again I would drop a team on this argument because the
Aff plan is topical, they are just reading other advantages to that
plan. 
 
Right, but we are debate and not the courts.  There are no perfect
analogies, and we choose how to create fiat.  See above.
 
> Counterplan- Legislatively just ban the conferderate flag. 
 
Response: But you can't do that, because the Court says that such
legislation is forbidden by their interpretation of "Congress shall make
no law" and until the Court changes that Congress can't do it (unless
we're only talking about banning the confederate flag as part of a state
flag.  They could do that perhaps, but why would the Aff be so
limited?). 
 
Right, that's my answer to this argument.  See post to Stefan about
arguments being taken out of context.  This was a straw person
argument.
 
 

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