[eDebate] Fwd: Coalition of the list-supporter

Ede Warner ewarner
Wed Jun 7 17:09:29 CDT 2006

>>> "Joe Patrice" <joepatrice at gmail.com> 6/6/2006 3:09:08 PM >>>
1) If the CP is saying that Malgor still applies but should not be
applied to soccer fields, that is a viable strategy in the abstract, I'm
just very skeptical that you'll find lit to support that.  Especially
considering that we have selected such foundational cases -- few people
are writing from the perspective of "tweaking" these standards.  People
who write the good lit on Gregg are generally not arguing for a middle
ground on the death penalty. 
This is the correct interpretation and there won't be any literature,
other than the aff cards that say "the application of a the Morrison
precedent in the case of soccer fields is bad...".  Remember, you said
that there wouldn't be any cards saying the decision should be
overruled, but would say that the precedent is bad in this area (that's
where the advantage comes from)...You see, even if the Morrison
precedent applied to some new area outside of the original case is the
problem, overruling the original case isn't the only way to solve that
problem.  The negative has the same latittude to overrule for different
reasons.  The c/p just says that the court should not have applied
Morrison to soccer fields which is always consistent with the aff
solvency evidence.  One still must win a net benefit to keeping Morrison
in place to win however.
BTW, I want to thank you for the way you have engaged me and say that
if at times I haven't shown you the same respect, I apologize.  
I also don't think the issue is going to be a second case.  The Aff is
Malgor and they'll claim soccer field advantages even though there isn't
a case about it yet and therefore no alternative decision to overrule,
or there was a lower court case (Posh Spice v. USA, 321 F.3d 543 (2d
Cir. 2004) that the Court declined to hear, thereby meaning the Supreme
Court is not overruling "its" decision if it overrules Posh, and the
lower court can't act on it unless the Supreme Court overrules Malgor.
[As an aside, appellate decisions that took some action solely on the
grounds that one of the list cases forces them to take that action are
ripe for impact scenarios] 

Sure they will, I concur.  But the negative can still grant cert to the
lower court case and reverse it.  Or if no case exists, that won't stop
a wiley negative from fiating one.  But that's another debate.  "We fiat
a SC decsion that the Morrison precedent should not be applied to soccer
2) Judgment is something else entirely.  In fact, we specifically
rejected judgment because it would limit teams to changing the outcome
for the parties and avoid discussing legal standards.  The decision to
use "decision" was to get at the discussion of legal standards while
having the Aff be hemmed in by the constraint that, at the end of the
day, your plan text would result in the named case going the other way,
for whatever reason.  Judgments are the documents, issued by the courts
that allow people to get their money.  Decisions are the (written or
unwritten) gathering of findings and holdings to support a result. 
I don't think I'm just saying "there are cards."  I'm saying "these are
the only cards."  I'm saying that the solvency advocates speak of the
decisions and the process as I am and I don't even foresee a scenario,
with these cases, where an alternative is borne out by the lit.  For
example, basing our interp just around the parties at issue means that
abortion generally would not be debated, merely the constitutionality of
consent laws in Pennsylvania and I think everyone envisions this case
area to involve a broader discussion of the scope of abortion rights. 
Brown versus Topeka Board of education made a judgement for one party. 
The decision, which you all are correct is broader than the judgement,
created a standard for similar future education cases.  No sense in the
Jefferson County Public School system trying to do what Topeka did, they
will lose, so they must comply.  But that decision didn't affect higher
education, or public transportation, or anything else.  Later decisions
about different content at different levels (lower courts, SC) might
apply the precedent for other areas of content.  That creates a body of
law over a precedent.  There is still a bright line here that can be
drawn.  Most of the literature, although perhaps not all is talking
about the later applications of the precedent.  I'm unsure why a bright
line shouldn't be drawn to the field from the initial decison before the
precedent is later applied?  That was the topic committee's intent, that
is what the literature reflects because that was the real world process
in how a Supreme Court decision becomes "landmark", i.e., has
precedental value across a large number of areas.  If the community runs
and wins the above counterplan we are discussing, it only proves my
point:  that the later precedents aren't "competitive" or germane to
what we are suppose to be debating.
I'm also not saying my interp is delimiting as a negative -- indeed I
willingly voted for this verb.  It is delimiting in a good way.  I would
enjoy a topic to overrule Morrison because debaters could spend a whole
year getting on top of what it would mean to alter the nature of federal
power and all the (unrelated to domestic violence) advantages and
disadvantages that could flow from that standard.  I'm saying that a
topic to overrule Morrison, Quirin, Casey, Gratz, Gregg, etc. is
delimited (not bad) AND now involves a debate on disparate areas of the
law and the combination is huge.  
As for application of standards being a process, that's not universally
true.  With issues like desegregation, the legislatures got crafty to
find ways to segregate without violating the specific standards of the
cases and that necessitated other cases making it to the Supreme Court. 
Thus, overruling Milliken means the Aff probably needs cards that
interdistrict busing would solve the advantages, which is very limited. 
In other cases, changing the standard will cause automatic changes. 
That's why I worry most about Casey, Morrison and Quirin because
overruling them (depending on the method applied) has the most room for
automatic application.  Milliken is relatively limited because of the
way it cannot definitely stretch far beyond its facts. 
On 6/6/06, Ede Warner <ewarner at louisville.edu> wrote: My overview now:
1) Understanding the easy negative counterplan
Here is where we disagree.  The "easy" c/p for me is this.  Our topic
says USSC must overrule Malgor vs. Hoe.  The judgement in Malgor was to
restrict Malgor from talking smack on edebate and created a precedent
that smack talking requires the ability to concede.  The affirmative OR
Malgor and says that in a later case resolved by the SC called Posh
Spice vs. USA, they applied the smack talking precedent to soccer fields
saying that you can't talk smack on soccer fields because the precedent
in Malgor applies.  They have two advantages: 1) Increase trash talking
on listserv goods; and 2) we increase talking smack on soccer fields
which stops incidents of violence because people verbally express
themselves instead of beating each other up." 
Negative's c/p:  We OR case Posh Spice on the grounds that the
precedent in case Malgor no longer applies.  So now we can talk smack on
soccer fields because the SC has ruled that the Malgor precedent isn't
applicable to soccer fields.  The aff now can only defend smack talking
on listserves and the negative is prepared to have that debate because
they only have a file ready to keep Malgor from ever talking trash
Agree. Disagree.  That's my point.
2) On Brown and what evidence counts on topicality
First, see my precedent versus decision discussion.  In the game of
debate, using overrule and decision together creates a check that you
have to overrule the judgement of the case and not a precedent of
standard in the case.  You keep arbitrarily choosing to not give
decision any meaning, which is consistent with the way it's talked about
in the law reviews, but not consistent with how it's talked about by the
Court when it renders judgements. 
Second,  what ever happened to topicality standards.  You just keep
saying, there are cards, there are cards.  Yes, but your interpretation,
by your own admission is delimiting, so why does it have to be preferred
by the community.  Especially, when there is a counter interpretation
that can limit your evidence to solvency where they belong.  Earlier you
said I was conflating topicality with advantages.  But your desire to
say, if legal experts say a precedent was overruled in a case, then it
proves topicality.  No it doesn't, it just proves that legal scholars
say a precedent or standard should be applied to a particular case. 
That interpretation unlimits our topic so why not debate and fight for a
different interpretation?  One that makes the topic look closer to what
we want it to look like.  Look, you keep saying the evidence dictates
the direction of the topic, which is generally true.  But to ignore the
reality that the legal scholars are mostly all talking about overruling
precedents and specific standards and the SC itself is very careful with
that distinction of what it means to overrule a prior decision, seems
arbitrary and illogical to me.  
For this community to accept the notion that we've are voting for
overruling the judgment, which keeps the topic limited, and seems
consistent with how the court works, seems unlikely given the desire to
just keep saying "a precedent is applied to many cases and if you change
the precedent in the first case, it automatically changes everything
else."  The Court has to revisit the everything else, it doesn't
magically change.  The court is revisiting the use of race in public
schools, which is occurring AFTER they have revisited the role of race
in busing, admissions, etc.  If your arguments about precedent are true,
then the first change in the role of race and education, should have
automatically changed all the other areas.  We know obviously that it
hasn't and that isn't how the courts work.  A precedent is created and
then slowly applied to new and different content areas.  So OR Morrison
doesn't immediately lead to gun control changes, even if Morrison was
used to stop gun control  Another gun control has to be heard and the
standard changed.  That is why the aff doesn't solve for gun control
simply by changing a precedent in Morrison, without explicitly applying
that precedent to the new area.  
Again, this has been a great discussion.  But people will have to
figure this out on their own, and we may just have to agree to disagree.
 It's all speculation in that debaters will choose where to take the
debaters and judges will create informal directions for the nature of
this discussion based on their interpretations of those debates.  I
think the groups of case lists competitively will play out very small. 
And consistent with my big and choice beliefs, I will vote for the
largest set of cases to create the most choice.  Clearly, others are
less likely to do so. 

>>> "Joe Patrice" <joepatrice at gmail.com> 6/6/2006 11:34 AM >>>

I added the overview at the end of my last email in the hopes it could
be used to check the length, so I'm glad it worked.
1 --
a) I don't think it's easy to CP out.  In my previous posts, I asked
specifically how this could be done.  Overruling the core legal standard
would affect all the cases.  Overruling purely on factual grounds is
unlikely to find support in the lit (I've not yet found any for the
small case list cases...I haven't expanded out yet) which is
overwhelmingly focused on overruling (or criticizing) legal standards. 
Likewise, I'm wary of the distinguish CP having either lit or a net
benefit because the judicial activism links I've seen come off of the
action whether it is tagged "overrule" or not.  Overruling the core
standard solely in one case is even less likely to have lit support
because it's not how the legal system routinely works so no one writes
about it.  Congressional jurisdictional limits, Amendment, and/or
Con-Con would work but these process CPs mean they aren't really CPing
out of the additional advantages but attacking the agent and we were
talking about CPing out of advantages in this discussion.  You say I'm
ignoring that CPs will check abuse, but I've outlined in more than one
post that all the CPs that I've heard proposed to support this argument,
by either you or others, either have no perm defense, no literature
support or both. 
b) It is solvent because the evidence says Morrison checks federal
power in a specific way...Morrison's check is bad for x,y,z reasons. 
Those are fair advantages.  You will need files for all of those if you
are the sort of team that lives and dies on the policy flow (as I'm not
I have no real worry here, but some voters are and I think it's fair
warning that they be prepared) 
c) This T interpretation is just way too limiting.  I've said it a
couple of times now but the Court rarely overrules (I'll defend the
Brown overrule in the second answer below) itself and when we look to
history for an example of how overrule would work, we find Brown and
under your interp Brown is not topical.  If the most noted Supreme Court
"overrule" of the 20th Century is not topical then the interpretation is
way too limiting. 
2) Smelko's paper made a more foundational argument...that the Court
doesn't use the word overrule.  Hardly ever.  When it does it's mostly
confined to lower court decisions specifically excluded by the
resolution.  To rely on the Court itself (as opposed to legal academics)
for the definition of overrule is therefore not going to get us far. 
"I don't want to hear this argument again without some evidence,
although I'm sure that many law reviews that say it is an overrule."
OK.  "I don't want to hear this without evidence...excluding all the
evidence written by experts in the field that is out there."  The fact
that the legal academy calls this an overrule is the evidence I'd cite
to but if you're excluding it I can't.  If your interp prevails, I also
cannot credit most of the Affs reading solvency evidence for "overrule"
from any law reviews because they're assuming something else.  Since all
the solvency will be from law reviews (or books written by the legal
academy) we're in a pickle.  The standard of limiting Affs to the cards
from the decision means that only the dissents can guide Aff strategy
and even then only if the dissents weren't limited to procedural
arguments.  I can only say that the dissents are particularly binding --
especially on cases like Casey -- and Aff T debaters would escape those
bounds quickly. 
Additionally, one of the reasons Brown is recognized universally (at
least as far as I can tell from reviewing the lit) as an overrule by
legal experts is that the case came to the Supreme Court on the specific
issue of overrule -- the District Court said "we cannot overrule Plessy
only the Supreme Court can" and the Supreme Court took the case to
answer this very question and did so.  It is more than just academics
interpreting the effect of the decision, but the procedural history of
the case supports the interpretation as an overrule.  And Smelko
actually distinguished it from "reversed" not "rejected" as I recall and
he's totally right about that distinction. 
We agree that the Aff has to be able to defend a world in which the
specific case is overruled.  I just wanted to say to those voters who
think they will have one expando called Morrison Case Neg all about
domestic violence...they're wrong because all these other impact
scenarios flow in -- though it is true everyone is defending the
overrule of the original controversy and that provides some ground. 
"I don't have any problem with the mechanics of the court, just must
recognize that our game must create a replication that works for the
I sympathize but I think the replication we create is bound by evidence
and this is what that evidence says as I've found it.
DISCLAIMER -- Again, I am not per se against the multi-area topics.  I
do think though that every one of these resolutions functions in the way
I've described and therefore each additional "area" in the resolution
multiplies the research load.  Some like huge topics and will embrace
this.  Others will seek to limit this.  I will not impose my beliefs on
that question upon any of you.  I just want people to understand that,
due to the nature of the overrule mechanism, every case added to the
list greatly expands the topic. 

On 6/5/06, Ede Warner <ewarner at louisville.edu > wrote: I will only
answer your overview to reduce the volume of this:

1) I don't think people will be overruling another case...they will
just overrule the main case and access unrelated advantages -- This
means X case good is always stable Neg ground, but can it outweigh every
unrelated advantage that can flow from a case?  

Right, the aff overrules the topical case.  But if they do so to gain
an advantage from another case or a law review's claim that a standard
in the area of the topical case will hurt another area (which btw is
always done by referencing the application of the standard or precedent
in future cases), that advantage is 1) easy to counterplan out; 2)
probably not solvent if you only reverse the precedent in the topical
case don't address; 3) arguably not topical (if it doesn't change the
judgement of the topical case). You just keep asserting your "outweigh"
argument but you ignore that the c/p will check this abuse. 

2) We cannot ignore the mechanics of the Court.  The evidence we read
will presume the normal functioning of the Court, and while I don't
advocate process args, the core of this topic is the advantages and
disadvantages of Court action as opposed to legislative/executive action
and we need to be mindful of the impacts of precedent.  This is
debateable of course but it means each "case" is really an entire area.


Smelko's paper on the topicblog answers all of this by explaining the
process of decision making by the Courts.  Said your famed example is
not an "overrule".  See the answer to Repko.  I feel a bit soiled by
this revelation:  your banking on an obvious argument and the reality is
your big bank position supports me?  We call that a link turn. I don't
want to hear this argument again without some evidence, although I'm
sure that many law reviews that say it is an overrule.  BUT THAT PROVES
and the plan must change that judgement.  Easy bright line, creates a
more than reasonable amount of ground, even with a large number of

Smelko even makes the argument that the Supreme Court has a different
standard for reversed vs overruled vs "rejected" as was the case in
Brown vs a vs Plessy.  


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