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

scottelliott at grandecom.net scottelliott
Tue Jun 6 11:30:43 CDT 2006

Ede, I do get your arguments. I really do. You WANT the topics to focus on a
particular issue. I want a back massage from Christina Applegate. What we want
and what we get are two totally seperate entities. You want the debate to be
about AA in collges. Fine. Then craft a resolution that forces us to debate AA
in schools. You WANT to debate the "judgment" of the S.Ct. regarding AA in
schools. I want it for you. I'd love that debate. I did National moot Court
when Bollinger came down and we were debating the U. of Texas, 5th Circuit case
addressing Bollinger. So, I'm with ya man. But the resolution, as worded, does
not get you where you want.

I think just about everyone is going to have to defer to a legal definitions of
the terms "overrule" and "decision" on this topic. Why? because, call me crazy,
this is a legal topic, the cases are legal cases, your solvency advocates are,
90% of the time, going to be law professors, and the other 10% of the time they
are going to be lawyers or judges writing opinions.

I already dealt with the term "overrule." It means to render a previous court's
precedent on a a particular issue of law moot, or as having no more precedential
power. "Decision," as I implied in my "Fox" example, is NOT the same a judgment.
A court, especially the S.Ct. makes more than a dozen decisions within a
case--all of which create precedent. Bollinger is a perfect example. When I
read Bollinger, I saw your decision on AA in colleges. But I also saw their
decision regarding standing to sue, government contracts, strict scrutiny
tests, judical review. Each one of these areas are fundamental and necessary to
the overall judgment of the court. Any "decision" on any one of these legal
issues, would have made the judgment of the court remarkably different. If you
wanted to focus on the judgment in Bollinger, then why in the hell didn't you
simply use the word "judgment" in the resolution, rather than forcing everybody
to jump through hoops?

When you read how courts "overturn" "decisions" they invariably say words to the
effect of, "We overturn the decision in Bollinger to the extent that it prevents
prison officials from segregating prisoners based on race."
They don't say we overturn the judgment in Gratz v. Bollinger.

Furthermore, your use of the term "judgment" illustrates a fundamental
mistunderstanding of what the term "judgment" means  within the judicial
system. A "judgment" is a particualr outcome for a particualr enitity in a
particualr case. It has
ZERO precedential value. Thus, under your interpretation that we can only
overturn the judgment, the Affirmative plan would be overlimited to overturning
the particular judgment affecting the University of Michigan's undergraduate
admissions program. No precedental value. Little or no applicability to other
schools, meaning, no real affirmative advantage. Additionally, one can overturn
a judgment for infinite reasons while maintaining precedent. I have had
judgments overturned on procedural grounds, on statutory grounds, etc., But the
underlying opinions are maintained. Alternatively, the courts (all of the time)
rule that the judgment is correct, but the reasons for the judgment were wrong
or misapplied. Thus, trying to default to overturning the court's "judgment" is
(1) not what the resoltuion says and (2) even if it did, would not get you where
you want.

BTW. Every example I have given over the past two days is based on the "content"
of the Bollinger case. So, again, your HOPE for a debate on AA is not met the
test of reality.

You have yet to explain how your c-plans to test the "germaneness" of the
affirmative advantages for cases like prison segragation, would somehow not
apply to AA in collges? Maybe I really am dense, but I don't see how one c-plan
on prisons could not be easily re-written to c-plan out you AA in collges
advantages. I don't see how a c-plan would force the Aff. to debate AA in
colleges at all. In fact, the central and/or major decision, judgment, ruling,
whatever you want to call it, in Bollinger was very clear--Government programs
and policies that use race as a factor are subject to strict scrutiny. I run my
Plan to Overturn this portion of the decision because it is too broad and
results in prison riots is middle of the road topical. Just because you don't
like my advantage and just because I don't say jack about AA in colleges, does
not mean a c-plan checks my "abuse." I for the life of me don't see ANY
extratopical planks in my plan.

And, if you don't allow me to specify in what way the case would be overturned,
then I and any other affirmative will have an impossible burden of having to
overturn all the issues within a case, making me vulnerable to a million
different PIC's. Such as:

PIC: Overturn the Decision in Bollinger except for the portions of the decision
that uphold the Courts' right under the Constitution to perfrom judicial review.
Net benefit: SOP, Judical Review checks tyranny of the majority.

PIC: Overturn the Decision in Bollinger except for its test to determine
standing. Advantage: Court clog from lawsuits by persons with no real standing.

PIC du jour: (Call it Scott's LOL PIC) Overturn the JUDGMENT in Bollinger.
net benefit: Overturning a decsion does NOT affect the parties in the original
lawsuit. In other words, the real Mr./Mrs. Bollinger, the real University of
Michigan and the real Mr. Gratz will not benefit at all from the overturning of
the Bollinger decsion. Only by overturning the JUDGMENT in Bollinger, do we
really solve for those parties real harms. LOL. Mutually exclusive-overturning
the decsion in Bollinger set bad precedent on X issue. Overturning decsions
harms Court cred. You can overturn a jugment without losing cred, but you lose
cred when you overturn a decision. Doh!

Well, y'all have fun and y'all get what you deserve if you vote for this form of
list topic.


Quoting Ede Warner <ewarner at louisville.edu>:

> 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)
> >
> > 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.
> >

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