[eDebate] Areas vs. list, let's look at just one listed case to overturn.

Ede Warner ewarner
Tue Jun 6 10:32:21 CDT 2006


I'm tired and you don't seem to get it.  In the Gratz decision a couple
of standards justified a judgement over a particular content.  Over
time, the Court applies those standards/precedents to other content
areas.  That is how the court works, except that is not how debate
works.  If debate chooses to say that decision=judgment and requires
your overrule using your Black's law definition (on whatever grounds you
refer) deals with the judgment, then the topic stays limited. If we can
overrule any one precedent or standard and not the judgement, we have
the world that allows for the application of standards/precedents to
later cases.  Decision, together with overrule, allows us to limit
debates to an overrule of the judgement, it's that simple.  The
counterplan helps check this interpretation by forcing any debate back
to the judgement/content of the original case.  I can c/p out of the
advantages that aren't germane to the original content/judgement and
force the aff to debate affirmative action.  Together, they work quite
nicely to limit the VIABLE literature base and consquently the scope of
the topic.
 
You see, topicality is about interpretations, not definitions.  The
same "bad" overrule definition becomes quite good when combined with a
"bad" definition of decision to make quite a strong interpretation.  My
interpretation is supported by the courts itself as demonstrated in
Smelko's paper on overrule.  The topic doesn't say overrule precedents
or standards, it says overrule the decision. There is a qualitative
difference that is quite defensible for the negative.  The judgement of
the case must be reversed.  And that interpretation is good because it
creates the best brightline for our community, in terms of educational
and competitive value, the two values we care about in most topicality
debates.  So even if, you are right and other interpretations CAN be
chosen, you still have to win the limits debate, something you keep
conceding that your interpretation can't do.  If your interpretation
opens up debate to anything, why would the debate community consistently
vote for that interpretation?
 
In the same vein, having cards saying that Bollinger is used in 1000
later court cases, doesn't mean that if we vote for a topic, we have to
research 1000 cases.  The game of debate created c/p's to force
competition by both the aff and the neg.  It is not strategic to run
advantages from those other 999 cases because the c/p will easily solve
the advantage and the debate will be decided by the original decision.
 
I'm made my point and people will make their own decisions.  I think
the case listings we debate out in a relatively limited way and I think
in fairness I'm going to vote for the largest list possible to give as
many people as possible the chance to find a case that is important and
interesting to them.  

>>> <scottelliott at grandecom.net> 6/6/2006 11:00 AM >>>

But, Ede,

Examples ARE arguments. See e.g. Socrates, Plato, Aristotle and every
other
logician in the world. (LOL) I know it sucks, but arguments based on
real world
examples are a bitch because they force your wishes, hopes, dreams and
theories
to face the stark truth of reality. As for Cites. I could go back. But,
tell you
what.
Here's my secret. I went on Lexis. I typed in the following search
string:
"Gratz /s Bollinger." Ede, are you really implying that I just made
these cases
up? For the "prisons" case, here is the complete cite--but I am not
going to go
back and find all of the other ones for you: Johnson v. California, 543
U.S.
499 (2005).

Let's define the term so everyone knows what we are writing about.
"overrule"  Black's Law Dictionary 4th edition (goin' old school!):
"To
supercede; annul; make void; reject by subsequent action or decsion. A
judicial
decision is said to be overruled when a later decsion, rendered by the
same
court or by a superor court in the same system, expresses a judgment on
the
same question of law directly opposite to that which was before given,
thereby
depriving the earlier opinion as all authority as a precedent."

Now, for many of you voters, this defintion should make you immediately
vote for
the areas topic without me having to spell out all of the ramifications
and
burdens for the affirmative. For example, this opens you up to a
"distinguish
the shit out of Bollinger" counter-plans that suck up all of your case
advantages. Second, this defintion includes every case I cited
yesterday. Cases
get overturned on specific precedents all of the time. let me give you
an
example of what the real courts say when they really "overturn" a case.
A few
weeks ago, I cited Gussie Fox v. Dallas Hotel Company, a 1922 Texas
case, for
the proposition that one's duty to another can arise from one's
engagement in
an affirmative act. The yahoo for the other side started ranting that
Fox had
been overturned. I went back to find the case that "overturned" Fox. He
was
RIGHT! But he was also an IDIOT!, which we pointed out to the judge,
biting our
lips to keep from laughing. the Texas Supreme Court stated:

"There may be some continuing question about our holdings concerning
issue
submission because we have not previously overruled those cases which
have
required a specific issue for each specific element of negligence. We
now
expressly overrule those cases that arose before the 1973 revision of
Rule
[**42]  277 and which followed the mandate of Fox v. Dallas Hotel Co.
requiring
a submission of "each issue distinctly and separately, avoiding all
intermingling" and stating "issues should be restricted to specific
acts of
negligence alleged and proven." Among those cases HN12we now overrule
and
disapprove are: Barclay v. C.C. Pitts Sand & Gravel Co., 387 S.W.2d 644
(Tex.
1965); Kainer v. Walker, 377 S.W.2d 613 (Tex. 1964); Agnew v. Coleman
Elec.
Coop., Inc., 153 Tex. 587, 272 S.W.2d 877 (1954); Roosth & Genecov
Prod. Co.,
Inc. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953); Solgaard v. Texas &
N.O.R.R., 149 Tex. 181, 229 S.W.2d 777 (1950); City of Fort Worth v.
Lee, 143
Tex. 551, 186 S.W.2d 954 (1945); Walgreen-Texas Co. v. Shivers, 137
Tex. 493,
154 S.W.2d 625 (1941); Wichita Falls & O. Ry. v. Pepper, 134 Tex. 360,
135
S.W.2d 79 (1940); Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517
(1922);
Coleman v. Texas & Pac. Ry., 241 S.W.2d 308 (Tex.Civ.App. -- Dallas
1951, writ
ref'd); Weidmer v. Stott, 48 S.W.2d 389 (Tex.Civ.App. -- Ft. Worth
1932, writ
ref'd)."

"Yeah, you win! You are right that Fox was "overruled"" Unfortunately,
it was
overruled on an entirely different proposition of law that we are
arguing! LOL.
And, (kick in the teeth) here are twenty other Texas cases that
reaffrim Fox on
our specific proposition of law.

Same exact thing can be done for Bollinger and every other case listed
by the
TC.

Next,
You are ignoring the FACT that the "precedents" of Gratz are the issues
I am
using. I guarantee you--(what, A lawyer may know something about how
precedents are actually used?)--That lawyers and Courts EVERYDAY use
Gratz and
the "precedents" in Gratz for purposes that are entirely different
than
Affirmative Action. I don't think your "overrule" term in the
resolution is at
all as strong as you think, or, rather, HOPE. I can tell you from
experience
that the courts rarely, if ever overturn an entire case. For example, I
can
still cite Plessy versus Ferguson on key points of law that are still
very
valid. You see, the only way you get to your "Affirmative Action" issue
is if
the resolution specified something to the effect of "Overturn Gratz v.
Bollinger on the issues of Affirmative Action in Higher Education."
Now, if you
had that limiter, I'd be with you all of the way. But, whith the
rather
simplistic "overrrule" or "overturn," you have not really limited the
resolution as much as you think. Everyday I write briefs to the 5th
Circuit
(Federal) and Texas State Court of Appeals. Everday, I cite cases that
have
been "overturned" on other grounds. So, I can say with a straight face
in front
of a real court--not to mention a debate judge--that we should
overturn
Bollinger for its holding on X issue while statingt that we maintian
the
precedent of Bollinger on other issues. Not to mention, in this
instance, we
have a S.Ct. precedent that was decided THE SAME DAY that incorporates
almost
all of Gratz. So, even if I, for some strange reason, have to overturn
all the
legal precedents ensconced in Gratz, the couurts can still use the
other case
as precedennt to preserve AA in Higher Ed or to go the other way.

Ede, if your position is (1) we have to overtrun the entirety of Gratz,
then I
would say (a) that is not required by the resolution and (b) this would
force
the Affirmative to destroy the U.S. Judiciary. Why? Because, the first
principle in Gratz is that the USSCT has the right to interpret the
Constitution. Your "must overturn all" would be an absurd burden on the
Aff.

If your position is (2) must overturn the primary precedent established
in
Gratz, then I'd say (a) the resolution does not require it and (b) who
the hell
gets to decide what the major or primary precedent in Gratz is? (c) I'd
say that
the real lower courts are the primary determiner of what the "major or
primary
precedent" is, not a bunch of law school professors trying to get
published.
When delaing with real world controversies, involving real people's
lives, the
Bollinger precedents being used are not the ones you thought. I have
already
cited them and won't repeat them. Do you really think that the people
in the
courts arguing Bollinger regarding "standing to sue in a class action,"
 or
"strict scrutiny for all government contracts" are going to accept the
burden
of debating affirmative Action in college. In courts, which is where
your agent
of action lies, the litigators would simply say, "We don't challenge
Bollinger
on the propositions regarding AA in higher, Ed, we only want to
overturn
Bollinger to the extent that it effects standing to sue in X case, or
to the
extent that Bollinger requires strict scrutiny for every government
contract."
(Which, by the way, will often give me EXCELLENT turns to any of your
racism
bad, diversity good arguments.)

Your argument that the negative can always c-plan out the advantages
that don't
stem from Gratz argument:

(1) Every advantage that stems from gratz can be counter-planned away,
so, I
don't see your point.
(2) Every example I gave DOES stem from Gratz. You see, you may not
like how
Gratz is being used, but I am just the bearer of bad news. I did not
make these
cases up, they are what they are. The Court's say gratz stands for X.
But they
also say Gratz stands for ABCDEFG and H. So, the advatages do stem from
gratz.
(3) Ede makes a fundamental misstep when he states, "you can overrule
this
specific case." Ede, you have given up the entire game if you grant
that this
is a legitimate strategy against cases on this topic. Example, you run
Gratz
"straight up," on the Affirmative Action issue. Under your paradigm, I
c-plan
overturn the other Bollinger case, or distinguish, or modify, or extend
the
other Bollinger case to suck up your case advantages. All i have to win
now is
that there is some minute advantage to not out and out overturning
Gratz. Or, I
just c-plan a lower level court case gets cert and we distinguish the
hell out
of Gratz on the facts of the case--i.e. your case advantages.

Ede says "T" "major outcome" can overcome the deficiencies. I say,
counter-standard, debate judges should look to the courts to determine
what the
"major outcome" of a case really means. Example--Marbury vs. Madison.
The true
focus of the orginal decision in that case was whether a person should
recieve
his federal appointment. The "major outcome" (i.e. Court's Judical
Review
power)did not occur until the lower courts and the S.Ct. subsequently
cited
Marbury for the Judical review proposition. Similarly, what the real
world
judges and lower courts are citing Bollinger for are the exact
propositons of
law that I gave you yesterday. Five years from now, Bollinger will not
be cited
primarily for the issue of AA in schools. Rather, Bollinger will be
cited for
the "strict scrutiny in every government contract" test.

Independently, the resolution does not state "overturn the major
outcome of
Bollinger," so, why do you get to add words to the res.? Should have
done that
last week instead of singing kumbiyah and worrying about inclusion
during the
topic process.

Ede says, "we have to look at the outcome of the decision, not
procedure." (1)
We meet. Every case example/argument I gave yesterday is a real world
outcome
of the Bollinger Decision. (2) What was the "major outcome" of
Bollinger? Most
schools still have forms of AA that adapt to second Bollinger
decision,
rendering Gratz virtually a moot point anyway. It's not like after the
gratz
decision, all preferential treatment in higher ed went away. Look at
the U. of
Texas Decision, for example. (3) The topic is not "exploded," the limit
is what
the real world courts are using Gratz to justify. Not my fault the TC
did not
put the right qualifiers on the resolution, you should have voted for
the areas
topic--it would have given you a clear direction of action.

Scott


Quoting Ede Warner <ewarner at louisville.edu>:

> More examples.  It's tough when people ignore your arguments.  But
here
> goes.  I'll keep it simple:  run prison safety runs as an
affirmative
> advantage for overruling Gratz.  Two things are true:  1) you still
have
> to defend affirmative action if you topically overrule Gratz, there
is
> no way around it.  That's what we call predictable negative ground;
2)
> This means you can ALWAYS COUNTERPLAN OUT THE ADVANTAGES THAT DON'T
STEM
> FROM THE GRATZ.
>
> Scott's example:  "Justice Thomas, with whom Justice Scalia joins,
> dissenting.
>
> The questions presented in this case require us to resolve two
> conflicting lines
> of precedent. On the one hand, as the Court stresses, this Court has
> said that
> "'all racial classifications reviewable under the Equal Protection
> Clause must
> be strictly scrutinized.'" Gratz v. Bollinger, 539 U.S. 244, 270,
156
> L. Ed. 2d
> 257, 123 S. Ct. 2411 (2003) (emphasis added) (quoting Adarand
> Constructors, Inc.
> v. Pena, 515 U.S. 200, 224, 132 L. Ed. 2d 158, 115 S. Ct. 2097
(1995)).
> On the
> other, this Court has no less categorically said that "the [relaxed]
> standard
> of review we adopted in Turner [v. Safley, 482 U.S. 78, 96 L. Ed. 2d
> 64, 107 S.
> Ct. 2254 (1987),] applies to all circumstances in which the needs of
> prison
> administration implicate constitutional rights." Washington v.
Harper,
> 494 U.S.
> 210, 224, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990) (emphasis
added).
> Emphasizing the former line of cases, the majority resolves the
> conflict in
> favor of strict scrutiny. I disagree. The Constitution has always
> demanded less
> within the prison walls. Time and again, even when faced with
> constitutional
> rights no less "fundamental" than the right to be free from
> state-sponsored
> racial discrimination, we have deferred to the reasonable judgments
of
> officials experienced in running this Nation's prisons. There is
good
> reason
> for such deference in this case. California oversees roughly 160,000
> inmates,
> in prisons that have been a breeding ground for some of the most
> violent prison
> gangs in America--all of them organized along racial lines. In that
> atmosphere,
> California racially segregates a portion of its inmates, in a part
of
> its
> prisons, for brief periods of up to 60 days, until the State can
> arrange
> permanent housing. The majority is concerned with sparing inmates
the
> indignity
> and stigma of racial discrimination. Ante, at ____ - ____, 160 L.
Ed.
> 2d, at
> 959-960. California is concerned with their safety and saving their
> lives"
>
> There ya go, folks, chew on that distinction for a while. I have a
> feeling that
> the framer sof the resolution were not thinking about prison safety
> issues when
> they decided to list Bollinger. So, now my plan overturns Bollinger
on
> this
> point tot he extent that I prevent prisoners from being gang raped
in
> prison
> and a prison riot/civil war scenario. Not quite Affirmative Action
in
> college,
> is it?
>
> Ede's response:  Scott doesn't cite the case the above quote is
from.
> Let's say Prisoners of America vs. ATF.  You can counterplan out the
> prison discussion by overruling THIS CASE (Prisoners of America). 
Then
> because the aff still has to defend Gratz and what their overrule
means
> for affirmative action, then you have that ground to debate the aff.
> The prisons advantage is no longer relevant and the aff must debate
the
> core issues of the case.
>
> Now perhaps the tricky aff says the standard they overrule won't
affect
> Affirmative Action.  Then you run overrule the decision topicality. 
You
> argue that any topicality interpretation that doesn't explode the
topic
> requires the aff to OR the major outcome of the case in question. 
For
> Gratz it was affirmative action in education.  Even if Gratz is
> bi-directional, you should be able to argue that fair ground means
that
> need to change the outcome of the decision and not the process.
>
> I'm working on my topicality arguments but overrule is clearly used
in
> the context of outcomes and not process.  In other words, if I change
a
> standard in how Gratz gets evaluated but still decide it doesn't
justify
> an increase in affirmative action protection, I've got an argument.
> Would it have been better with qualifiers in the topic to that
effect?
> Probably.  Is this argument winnable with the most generic
definitions
> of overrule and decision?  I think so because any other
interpretation
> explodes the topic.  But who knows.  I won't make another post
without
> some evidence, and frankly I've made my point as well as I could. 
Folks
> either agree or disagree and that's okay.
>





-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://www.ndtceda.com/pipermail/edebate/attachments/20060606/9a655025/attachment.html 



More information about the Mailman mailing list