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

Ede Warner ewarner
Tue Jun 6 13:30:12 CDT 2006

I said I'd engage you until you became insulting, a point you reached
about two emails ago.  I'm making arguments for a defense of decision. 
Where is your definition of decision that says a court makes dozens of
decisions in one case?  If you can't prove that, you have no argument. 
I say that a case makes a dozen precedents or standards or rulings but
one judgement, and that is distinct from decision.  The TOPIC ONLY MAKES
SENSE under my interpretation.  It doesn't say Overrule one or more of
the decisions in US v Morrison.
You have no idea what I want.  You presume you know me and my views
about the word.  You don't know shit about me.  I would like to debate
the list of cases that have been chosen.  I think it would be great to
have this community discuss AA and busing.  However, I'd be just fine
with discussions of hate speech and obscenity.  
Good teams have good tight defensible strategies.  But I don't suspect
you know a lot about that.  Having a lot of literature about something
in an area does not mean that there isn't a better, more discreet, more
rationale, and more beneficial, to not use that literature to determine
topicality.  But perhaps it does and I'll concede that folks will
attempt to use that literature to meet their needs, irregardless of
standards for that literature.  
Since you now are implying that I'm misleading the community, let me
back off and say, "community do what you think is right and correct." 
If that's voting for first amendment, please do that.  Please do not
vote for a case listing based on my apparently misleading words.  I
don't want that on my conscience, nor do I want Elliott's stereotype
that I can't be objective about race issues to be further clouded by his
decision to assess my intentions.

>>> <scottelliott at grandecom.net> 6/6/2006 12:30 PM >>>

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
schools. I want it for you. I'd love that debate. I did National moot
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
precedent on a a particular issue of law moot, or as having no more
power. "Decision," as I implied in my "Fox" example, is NOT the same a
A court, especially the S.Ct. makes more than a dozen decisions within
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
decision regarding standing to sue, government contracts, strict
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
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
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
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
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
overturn the judgment, the Affirmative plan would be overlimited to
the particular judgment affecting the University of Michigan's
admissions program. No precedental value. Little or no applicability to
schools, meaning, no real affirmative advantage. Additionally, one can
a judgment for infinite reasons while maintaining precedent. I have
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
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
affirmative advantages for cases like prison segragation, would somehow
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
advantages. I don't see how a c-plan would force the Aff. to debate AA
colleges at all. In fact, the central and/or major decision, judgment,
whatever you want to call it, in Bollinger was very clear--Government
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
results in prison riots is middle of the road topical. Just because you
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
extratopical planks in my plan.

And, if you don't allow me to specify in what way the case would be
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
different PIC's. Such as:

PIC: Overturn the Decision in Bollinger except for the portions of the
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
standing. Advantage: Court clog from lawsuits by persons with no real

PIC du jour: (Call it Scott's LOL PIC) Overturn the JUDGMENT in
net benefit: Overturning a decsion does NOT affect the parties in the
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
the decsion in Bollinger set bad precedent on X issue. Overturning
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
> 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
> refer) deals with the judgment, then the topic stays limited. If we
> overrule any one precedent or standard and not the judgement, we
> 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
> 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
> nicely to limit the VIABLE literature base and consquently the scope
> the topic.
> You see, topicality is about interpretations, not definitions.  The
> same "bad" overrule definition becomes quite good when combined with
> "bad" definition of decision to make quite a strong interpretation. 
> interpretation is supported by the courts itself as demonstrated in
> Smelko's paper on overrule.  The topic doesn't say overrule
> or standards, it says overrule the decision. There is a qualitative
> difference that is quite defensible for the negative.  The judgement
> the case must be reversed.  And that interpretation is good because
> creates the best brightline for our community, in terms of
> and competitive value, the two values we care about in most
> 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
> 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
> 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
> the advantage and the debate will be decided by the original
> 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
> in fairness I'm going to vote for the largest list possible to give
> many people as possible the chance to find a case that is important
> 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
> 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
> theories
> to face the stark truth of reality. As for Cites. I could go back.
> 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,
> 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.
> judicial
> decision is said to be overruled when a later decsion, rendered by
> same
> court or by a superor court in the same system, expresses a judgment
> the
> same question of law directly opposite to that which was before
> thereby
> depriving the earlier opinion as all authority as a precedent."
> Now, for many of you voters, this defintion should make you
> vote for
> the areas topic without me having to spell out all of the
> 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
> advantages. Second, this defintion includes every case I cited
> yesterday. Cases
> get overturned on specific precedents all of the time. let me give
> an
> example of what the real courts say when they really "overturn" a
> 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
> Fox had
> been overturned. I went back to find the case that "overturned" Fox.
> 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
> have
> required a specific issue for each specific element of negligence.
> now
> expressly overrule those cases that arose before the 1973 revision
> Rule
> [**42]  277 and which followed the mandate of Fox v. Dallas Hotel
> 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
> and
> disapprove are: Barclay v. C.C. Pitts Sand & Gravel Co., 387 S.W.2d
> (Tex.
> 1965); Kainer v. Walker, 377 S.W.2d 613 (Tex. 1964); Agnew v.
> 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.
> 135
> S.W.2d 79 (1940); Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W.
> (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""
> 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
> by the
> TC.
> Next,
> You are ignoring the FACT that the "precedents" of Gratz are the
> 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,
> can
> still cite Plessy versus Ferguson on key points of law that are
> very
> valid. You see, the only way you get to your "Affirmative Action"
> is if
> the resolution specified something to the effect of "Overturn Gratz
> 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
> 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
> have
> been "overturned" on other grounds. So, I can say with a straight
> 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
> almost
> all of Gratz. So, even if I, for some strange reason, have to
> 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
> then I
> would say (a) that is not required by the resolution and (b) this
> force
> the Affirmative to destroy the U.S. Judiciary. Why? Because, the
> principle in Gratz is that the USSCT has the right to interpret the
> Constitution. Your "must overturn all" would be an absurd burden on
> Aff.
> If your position is (2) must overturn the primary precedent
> in
> Gratz, then I'd say (a) the resolution does not require it and (b)
> the hell
> gets to decide what the major or primary precedent in Gratz is? (c)
> say that
> the real lower courts are the primary determiner of what the "major
> 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
> in the
> courts arguing Bollinger regarding "standing to sue in a class
>  or
> "strict scrutiny for all government contracts" are going to accept
> 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,
> 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
> 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
> 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
> But they
> also say Gratz stands for ABCDEFG and H. So, the advatages do stem
> gratz.
> (3) Ede makes a fundamental misstep when he states, "you can
> 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
> Gratz
> "straight up," on the Affirmative Action issue. Under your paradigm,
> c-plan
> overturn the other Bollinger case, or distinguish, or modify, or
> the
> other Bollinger case to suck up your case advantages. All i have to
> 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
> 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
> what the
> "major outcome" of a case really means. Example--Marbury vs.
> The true
> focus of the orginal decision in that case was whether a person
> 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.
> 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
> 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
> 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
> 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
> is what
> the real world courts are using Gratz to justify. Not my fault the
> did not
> put the right qualifiers on the resolution, you should have voted
> 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
> have
> > to defend affirmative action if you topically overrule Gratz,
> is
> > no way around it.  That's what we call predictable negative
> 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
> > 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
> > standard
> > of review we adopted in Turner [v. Safley, 482 U.S. 78, 96 L. Ed.
> > 64, 107 S.
> > Ct. 2254 (1987),] applies to all circumstances in which the needs
> > 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
> of
> > officials experienced in running this Nation's prisons. There is
> good
> > reason
> > for such deference in this case. California oversees roughly
> > 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
> > 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
> > 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
> > issues when
> > they decided to list Bollinger. So, now my plan overturns
> 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
> > 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
> > The prisons advantage is no longer relevant and the aff must
> 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
> 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
> in
> > the context of outcomes and not process.  In other words, if I
> a
> > standard in how Gratz gets evaluated but still decide it doesn't
> justify
> > an increase in affirmative action protection, I've got an
> > 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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