[eDebate] Fwd: Coalition of the list-supporter
Mon Jun 5 19:47:20 CDT 2006
A lock to lose to the Mavs :)
On 6/5/06, Joe Patrice <joepatrice at gmail.com> wrote:
> 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
> 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
> 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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