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

scottelliott at grandecom.net scottelliott
Tue Jun 6 15:11:59 CDT 2006


I misstated one thing: its Ms. Gratz, not Mr. Gratz.

Look Ede,

I too would love to see debates on AA. I would also like to see debates on porn
and hate speech. But what I do not like are debates in which affirmatives get
to run and hide away from the "intended" topic. That's all I am saying. The
list topics, as worded, allow affirmatives to run for cover. Every example I
have given has come from a court case. it's not like I am writing
hypotheticals.

You never answered the distinction I have made between a decsion and a judgment.
A judgment applies only to those particular persons in that particular case. A
decision is the basis of the judgment--and it also serves as precedent in other
cases. A critical distinction to understand if you are looking at the number of
potential affirmative case areas that can be gnerated from a topic. Making
"judgment" synonomous with "decision" would over limit the topic because you
would, literally, have only five cases and, literally, only a few people
affected by the plan. Only those affected by the judgment would benefit. For
example, in Bollinger, overturning the judgment would mean that Ms. Bollinger
and Mr.Hamacher are not entitled to relief under Title VII.
it is overturning the decision, because of its precedent, that allows one to
claim AA advantages on a societal level. (BTW, cute case idea, literally
overturn the decision as Ede has defined it, claim advantages only to ms. gratz
and then argue there are no societal impacts.)

Overturning the decision--i.e. the precendent--is where the real advantages stem
from. But, this begs the question of what "precedent" was established in
Bollinger.


If Bollinger is not, as a central area of concern about AA in college
admissions, then what is it about? I am sorry, I made an assumption that
Louisville, inventor and progenerator of the "Louisville Project" may have an
agenda to the extent that Louisville wants to discuss race and racsim in
college. Yeah. I really have stepped over the line and I apologize. I started
with one listed case-Gratz v. Bollinger, and pointed out what happens when one
looks at the Bollinger "decision" and what it means to overturn a "decision."
My main point is that what you may think Bollinger stands for, what many who
talk about Bollinger think it stands for IS NOT what Bollinger stands for when
lower courts cite it as precedent.

You keep hoping that the term "decision" is going to save you--i.e. prevent
teams from running away from the "heart of the topic." As I posted in my "Pepsi
Challenge," you are flat wrong. That not an insult. That is not a questioning of
your motives. That is just calling out a mistake. I gave you the paradigmatic
example of a case that was overturned--Plessy v. Ferguson. I explained very
carefully why your interpretation of the word "decision" as meaning "judgment"
is just flat wrong in the context of Supreme Court jurisprudence.

You say that I have no grounds to say that the court makes dozens of decsions
within each case. SureI do. havn't you ever seen a case where the underlying
case is affirmed in part and reversed in part. Each one of those points
functions as seperate decsions on seperate issues. it happens all the time. I
give you exhibit 1: the Gratz v. Bollinger decision syllabus itself:

This Court granted certiorari in both cases, even though the Sixth Circuit had
not yet rendered judgment in this one.

 [***267]  Held:

1. Petitioners have standing to seek declaratory and injunctive relief. The
Court rejects Justice Stevens' contention that, because Hamacher did not
actually apply for admission as a transfer student, his future injury claim is
at best conjectural or hypothetical rather than real and immediate. The "injury
in fact" necessary to establish standing in this type of case is the denial of
equal treatment resulting from the imposition of the barrier, not the ultimate
inability to obtain the benefit. Northeastern Fla. Chapter, Associated Gen.
Contractors of America v. Jacksonville, 508 U.S. 656, 666, 124 L. Ed. 2d 586,
113 S. Ct. 2297. In the face of such a barrier, to establish standing, a party
need only demonstrate that it is able and ready to perform and that a
discriminatory policy prevents it from doing so on an equal basis. Ibid. In
bringing his equal protection challenge against the University's use of race in
undergraduate admissions, Hamacher alleged that the University had denied him
the opportunity to compete for admission on an equal basis. Hamacher was denied
admission to the University as a freshman applicant even though an
underrepresented minority applicant with his qualifications would have been
admitted. After being denied admission, Hamacher demonstrated that he was "able
and ready" to apply as a transfer student should the University cease to use
race in undergraduate admissions. He therefore has standing to seek prospective
relief with respect to the University's continued use of race. Also rejected is
Justice Stevens' contention that such use in undergraduate transfer admissions
differs from the University's use of race in undergraduate freshman admissions,
so that Hamacher lacks standing to represent absent class members challenging
the latter. Each year the OUA produces a document setting forth guidelines for
those seeking admission to the LSA, including freshman and transfer applicants.
The transfer applicant guidelines specifically cross-reference factors and
qualifications considered in assessing freshman applicants. In fact, the
criteria used to determine whether a transfer applicant will contribute to
diversity are identical to those used to evaluate freshman applicants. The only
difference is that all underrepresented minority freshman applicants receive 20
points and "virtually" all who are minimally qualified are admitted, while
"generally" all minimally qualified minority transfer applicants are admitted
outright. While this difference might be relevant to a narrow tailoring
analysis, it clearly has no effect on petitioners' standing to challenge the
University's use of race in undergraduate admissions and its assertion that
diversity is a compelling state interest justifying its consideration of the
race of its undergraduate applicants. See General Telephone Co. of Southwest v.
Falcon, 457 U.S. 147, 159, 72 L. Ed. 2d 740, 102 S. Ct. 2364 ; Blum v. Yaretsky,
457 U.S. 991, 73 L. Ed. 2d 534, 102 S. Ct. 2777, distinguished. The District
Court's carefully considered decision to certify this class action is correct.
Cf. Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 57 L. Ed. 2d 351, 98 S.
Ct. 2454. Hamacher's personal stake, in view of both his past injury and the
potential injury he faced at the time of certification, demonstrates that he
may maintain the action.

 [***268]  2. Because the University's use of race in its current freshman
admissions policy is not narrowly tailored to achieve respondents' asserted
interest in diversity, the policy violates the Equal Protection Clause. For the
reasons set forth in Grutter v Bollinger, post, at 156 L Ed 2d 304, 123 S Ct
2325, 539 U.S. 306, the Court has today rejected petitioners' argument that
diversity cannot constitute a compelling state interest. However, the Court
finds that the University's current policy, which automatically distributes 20
points, or one-fifth of the points needed to guarantee admission, to every
single "underrepresented minority" applicant solely because of race, is not
narrowly tailored to achieve educational diversity. In Bakke, Justice Powell
explained his view that it would be permissible for a university to employ an
admissions program in which "race or ethnic background may be deemed a 'plus'
in a particular applicant's file." 438 US at 317, 57 L Ed 2d 750, 98 S Ct 2733.
He emphasized, however, the importance of considering each particular applicant
as an individual, assessing all of the qualities that individual possesses, and
in turn, evaluating that individual's ability to contribute to the unique
setting of higher education. The admissions program Justice Powell described
did not contemplate that any single characteristic automatically ensured a
specific and identifiable contribution to a university's diversity. See id., at
315, 57 L Ed 2d 750, 98 S Ct 2733. The current LSA policy does not provide the
individualized consideration Justice Powell contemplated. The only
consideration that accompanies the 20-point automatic distribution to all
applicants from underrepresented minorities is a factual review to determine
whether an individual is a member of one of these minority groups. Moreover,
unlike Justice Powell's example, where the race of a "particular black
applicant" could be considered without being decisive, see id., at 317, 57 L Ed
2d 750, 98 S Ct 2733, the LSA's 20-point distribution has the effect of making
"the factor of race . . . decisive" for virtually every minimally qualified
underrepresented minority applicant, ibid. The fact that the LSA has created
the possibility of an applicant's file being flagged for individualized
consideration only emphasizes the flaws of the University's system as a whole
when compared to that described by Justice Powell. The record does not reveal
precisely how many applications are flagged, but it is undisputed that such
consideration is the exception and not the rule in the LSA's program. Also,
this individualized review is only provided after admissions counselors
automatically distribute the University's version of a "plus" that makes race a
decisive factor for virtually every minimally qualified underrepresented
minority applicant. The Court rejects respondents' contention that the volume
of applications and the presentation of applicant information make it
impractical for the LSA to use the admissions system upheld today in Grutter.
The fact that the implementation of a program capable of providing
individualized consideration might present administrative challenges does not
render constitutional an otherwise problematic system. See, e.g., Richmond v.
J. A. Croson Co., 488 U.S. 469, 508, 102 L. Ed. 2d 854, 109 S. Ct. 706. Nothing
in Justice Powell's Bakke opinion signaled that a university may employ whatever
 [***269]  means it desires to achieve diversity without regard to the limits
imposed by strict scrutiny.

3. Because the University's use of race in its current freshman admissions
policy violates the Equal Protection Clause, it also violates Title VI and ?
1981. See, e.g., Alexander v. Sandoval, 532 U.S. 275, 281, 149 L. Ed. 2d 517,
121 S. Ct. 1511; General Building Contractors Assn. v. Pennsylvania, 458 U.S.
375, 389-390, 73 L. Ed. 2d 835, 102 S. Ct. 3141. Accordingly, the Court
reverses that portion of the District Court's decision granting respondents
summary judgment with respect to liability.

I am not saying that you are letting race blind you on what is or is not within
the topic. I am not saying you are misleading people to foster some race
agenda. Even if you were, i wouldn't really care. All I am saying is that it is
misleading to state that the terms "decision" and "overrule" really function to
limit the scope of the areas to be debated. I am saying that you are ignoring
how S.Ct. "decisions" are used by the courts to fashion new law. The only part
of the "decision" that has any impact is the precedent that is established.
And, the only way to know what precedent has really been established is to look
at how the lower courts are using and citing to the case in question.

When one looks at how the lower courts are using Bollinger, they are using it in
ways that many people would not think. It does not mean those areas are "not
topical," it just means that there are a lot more areas within the topic than
people origianlly anticpated. That's why I think the area's topic is more
predictable. You don't have to get into convoluted T debates on the areas topic
because a specific direction has been designated. No need for a "clever" defense
strategy, forcing the judge to wade through the minutiae of judicial
decsion-making theory to determine whether a decision is a judgment and what
exactly a judgment means.

You say "Good teams have good tight defensible strategies.  But I don't suspect
 you know a lot about that."

I agree that good teams will have tight strategies. But I think I know a little
bit about debate strategies. In fact, I'll be more than willing to bet you on
either proposition:

(1) If the list topics are chosen, a large number of cases will be run by good
varsity teams that will never address the issues that are at the "heart" of
those chosen topics. You list what the core or heart of each case listed is, in
your opinion. And, at the end of the year, we will take the Wake caselist or
similar list, compare the Aff cases to the "heart" of the court case and we
will see who is right.

(2) I will bet that with the list topic chosen, negative teams will dominate the
debates with agent of action c-plans ranging from Con-Con, Congressional Const.
Amendment, Distinguish rather than overturn, overturn judgment rather than
decision, and PICs such as "overturn the decision in Bollinger except for its
holding on the issue of standing.


Scott






Quoting Ede Warner <ewarner at louisville.edu>:

> 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
> 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.
>
> Scott
>
>
>
>
>
> 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)
> > > 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.
> > >
> >
> >
> >
> >
> >
> >
>
>
>
>
>
>








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