[eDebate] Fwd: Coalition of the list-supporter

Joe Patrice joepatrice
Mon Jun 5 17:54:39 CDT 2006


These are getting deep, which is great and what everyone should be engaging
in right now rather than focusing on basketball (especially since Shaq and
Dwade are a lock...:-))  That said it's getting a little hard to organize.
I'll do my best and try to select down.  I have two overarching themes that
get at the heart of most of the specifics below:

1) I don't think people will be overruling another case...they will just
overrule the main case and access unrelated advantages -- This means X case
good is always stable Neg ground, but can it outweigh every unrelated
advantage that can flow from a case?

2) We cannot ignore the mechanics of the Court.  The evidence we read will
presume the normal functioning of the Court, and while I don't advocate
process args, the core of this topic is the advantages and disadvantages of
Court action as opposed to legislative/executive action and we need to be
mindful of the impacts of precedent.  This is debateable of course but it
means each "case" is really an entire area.

Ede --
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.

Joe --
This goes to the question I'll address below over the nature of overrule,
but I also think the fact that electronic research was in its infancy helped
keep the topic in check.

Ede --

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.

Joe --  Well there aren't many cards advocating overruling ANYTHING.  The
topic will play out as citing advocates who say the decision was wrong.  I
have already found cards saying Morrison was wrong because it limits access
to abortion clinics.  The author never says "overrule" but "Morrison was
wrong."

Ede --
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.

Joe --

First of all...that's the perfect test case name.  Second, I'm not saying
that debaters will overturn some other case that applied the Morrison
standard.  I think that they will take cards from one of hundreds of law
reviews that say Morrison's standard is bad because it implicated [abortion,
discrimination, gun control, etc.] and then advocate an overrule of
Morrison.  The Neg would still have the ground that Morrison was right of
course, but that's not much without some cards against whatever impact
scenario the Aff is recounting about why Morrison is blocking some other
actual or proposed (and likely to pass) federal legislation.  The other
arguments you identify are also fair game, but I don't think the research
will yield evidence for that.

I do agree that good Affs won't stray from the core of the case and make
jurisdictional overrules, but I think overruling the core of a case raises a
lot of issues.

I reiterate the time-warp example from my last post: if we were debating
pre-1954 an overrule Plessy argument, an Aff plan to overrule Plessy
followed by an advantage about the value of integrated education (or an
advantage about the value to US foreign policy and winning the Cold War as
Derrick Bell argues) would be topical.  I don't necessarily think this is
bad, debaters should be able to get on top of an area of the law, but I
think adding more and more bodies of law expands it too much.  Those that
disagree should vote for the bigger lists.  I'm not going to make that
normative call.

Ede --

>        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.
>

Joe -- While I don't think one can do that, it doesn't matter for my
concern.  Rehear Morrison and overrule its standard...setting the new
standard is good because [unrelated federal power issue here].  One can try
and argue that the plan only overrules the prior case and sets no standard
but I think

Ede --
    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?

Joe --
I didn't say that.  I think we fundamentally disagree on where the Aff
accesses literature beyond domestic violence in the case of Morrison and
when I said "advantages are extra now?" it was my lead in to my explanation
that I think the "gun control" will come in at the advantage stage rather
than the plan stage.  I did think you knew how T worked.  I think there is
no way to check this back, but I will reiterate that no matter how unrelated
the advantages are the Neg still has the ground that the original decision
was right, thus no matter how far flung the advantages, the Neg still has
"federal enforcement of domestic violence legislation is bad (states better,
VAWA was demeaning, VAWA ignores gay and lesbian relationships, etc.)" as a
DA to weigh against the advantages of the Aff.

Ede --

>      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.
>

Joe --

If the topic were limited to rehearing cases and distinguishing the facts so
application to whatever standards they applied achieved a different result I
would agree that we are set.  I just keep falling back to Brown -- the
Supreme Court pretty much never overrules itself explicitly and I take my
guidance from how they did so in the most famous instance of explicit
overrule, and they did not limit themselves to the facts of Plessy.  The
salient issue for debate is that each of these cases set a standard that is
wrong and the impacts of that are multifold.  Again, I have no problem with
this so long as we're limited to one body of lit.

Ede --


>   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?
>

Joe --
I agree that having a unique net benefit means the Neg wins, I just don't
think that's present in the lit.  For this reason I think debaters need to
be able to debate the core of the Aff impacts straight on and that requires
a good deal of research (manageable only if one or two cases were involved).

Ede --
[JP: I think the next few points are answered in the body of what I've
already written so moving on]
Right, but we are debate and not the courts.  There are no perfect
analogies, and we choose how to create fiat.  See above.

Joe --
I don't think we can ignore how courts work because I think all the evidence
will be married to it.

Ede --

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.

Joe --

I read the post to Stefan but it's still important because it shows how the
problem exists in First Amendment and the lists and, once we take that as
non-unique, the question becomes: one lit base or 4,5,6,7,8?
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