[eDebate] Fwd: Coalition of the list-supporter

Joe Patrice joepatrice
Tue Jun 6 10:34:37 CDT 2006


I added the overview at the end of my last email in the hopes it could be
used to check the length, so I'm glad it worked.

1 --

a) I don't think it's easy to CP out.  In my previous posts, I asked
specifically how this could be done.  Overruling the core legal standard
would affect all the cases.  Overruling purely on factual grounds is
unlikely to find support in the lit (I've not yet found any for the small
case list cases...I haven't expanded out yet) which is overwhelmingly
focused on overruling (or criticizing) legal standards.  Likewise, I'm wary
of the distinguish CP having either lit or a net benefit because the
judicial activism links I've seen come off of the action whether it is
tagged "overrule" or not.  Overruling the core standard solely in one case
is even less likely to have lit support because it's not how the legal
system routinely works so no one writes about it.  Congressional
jurisdictional limits, Amendment, and/or Con-Con would work but these
process CPs mean they aren't really CPing out of the additional advantages
but attacking the agent and we were talking about CPing out of advantages in
this discussion.  You say I'm ignoring that CPs will check abuse, but I've
outlined in more than one post that all the CPs that I've heard proposed to
support this argument, by either you or others, either have no perm defense,
no literature support or both.

b) It is solvent because the evidence says Morrison checks federal power in
a specific way...Morrison's check is bad for x,y,z reasons.  Those are fair
advantages.  You will need files for all of those if you are the sort of
team that lives and dies on the policy flow (as I'm not I have no real worry
here, but some voters are and I think it's fair warning that they be
prepared)

c) This T interpretation is just way too limiting.  I've said it a couple of
times now but the Court rarely overrules (I'll defend the Brown overrule in
the second answer below) itself and when we look to history for an example
of how overrule would work, we find Brown and under your interp Brown is not
topical.  If the most noted Supreme Court "overrule" of the 20th Century is
not topical then the interpretation is way too limiting.

2) Smelko's paper made a more foundational argument...that the Court doesn't
use the word overrule.  Hardly ever.  When it does it's mostly confined to
lower court decisions specifically excluded by the resolution.  To rely on
the Court itself (as opposed to legal academics) for the definition of
overrule is therefore not going to get us far.

"I don't want to hear this argument again without some evidence, although
I'm sure that many law reviews that say it is an overrule."

OK.  "I don't want to hear this without evidence...excluding all the
evidence written by experts in the field that is out there."  The fact that
the legal academy calls this an overrule is the evidence I'd cite to but if
you're excluding it I can't.  If your interp prevails, I also cannot credit
most of the Affs reading solvency evidence for "overrule" from any law
reviews because they're assuming something else.  Since all the solvency
will be from law reviews (or books written by the legal academy) we're in a
pickle.  The standard of limiting Affs to the cards from the decision means
that only the dissents can guide Aff strategy and even then only if the
dissents weren't limited to procedural arguments.  I can only say that the
dissents are particularly binding -- especially on cases like Casey -- and
Aff T debaters would escape those bounds quickly.

Additionally, one of the reasons Brown is recognized universally (at least
as far as I can tell from reviewing the lit) as an overrule by legal experts
is that the case came to the Supreme Court on the specific issue of overrule
-- the District Court said "we cannot overrule Plessy only the Supreme Court
can" and the Supreme Court took the case to answer this very question and
did so.  It is more than just academics interpreting the effect of the
decision, but the procedural history of the case supports the interpretation
as an overrule.  And Smelko actually distinguished it from "reversed" not
"rejected" as I recall and he's totally right about that distinction.

We agree that the Aff has to be able to defend a world in which the specific
case is overruled.  I just wanted to say to those voters who think they will
have one expando called Morrison Case Neg all about domestic
violence...they're wrong because all these other impact scenarios flow in --
though it is true everyone is defending the overrule of the original
controversy and that provides some ground.

 "I don't have any problem with the mechanics of the court, just must
recognize that our game must create a replication that works for the game."

I sympathize but I think the replication we create is bound by evidence and
this is what that evidence says as I've found it.

DISCLAIMER -- Again, I am not per se against the multi-area topics.  I do
think though that every one of these resolutions functions in the way I've
described and therefore each additional "area" in the resolution multiplies
the research load.  Some like huge topics and will embrace this.  Others
will seek to limit this.  I will not impose my beliefs on that question upon
any of you.  I just want people to understand that, due to the nature of the
overrule mechanism, every case added to the list greatly expands the topic.

Joe

On 6/5/06, Ede Warner <ewarner at louisville.edu> wrote:
>
>  I will only answer your overview to reduce the volume of this:
>
>
> 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?
>
>  Right, the aff overrules the topical case.  But if they do so to gain an
> advantage from another case or a law review's claim that a standard in the
> area of the topical case will hurt another area (which btw is always done by
> referencing the application of the standard or precedent in future cases),
> that advantage is 1) easy to counterplan out; 2) probably not solvent if you
> only reverse the precedent in the topical case don't address; 3) arguably
> not topical (if it doesn't change the judgement of the topical case). You
> just keep asserting your "outweigh" argument but you ignore that the c/p
> will check this abuse.
>
>
> 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.
>
>  Smelko's paper on the topicblog answers all of this by explaining the
> process of decision making by the Courts.  Said your famed example is not an
> "overrule".  See the answer to Repko.  I feel a bit soiled by this
> revelation:  your banking on an obvious argument and the reality is your big
> bank position supports me?  We call that a link turn. I don't want to hear
> this argument again without some evidence, although I'm sure that many law
> reviews that say it is an overrule.  BUT THAT PROVES MY POINT:  THE BETTER
> STANDARD FOR OVERRULE DECISION IS HAVING CARDS FROM THE DECISION THAT
> EXPLAIN THE JUDGEMENT OF THE FACTS OF THE CASE and the plan must change that
> judgement.  Easy bright line, creates a more than reasonable amount of
> ground, even with a large number of cases.
>
>
> Smelko even makes the argument that the Supreme Court has a different
> standard for reversed vs overruled vs "rejected" as was the case in Brown vs
> a vs Plessy.
>
>
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