[eDebate] Fwd: Coalition of the list-supporter

Joe Patrice joepatrice
Wed Jun 7 18:06:42 CDT 2006

I have never perceived our exchange as anything but collegial, so don't

CP: Regarding this CP the only way to solve through the Courts is if (a) the
controlling legal standard is overruled (Aff's arg) or (b) the controlling
legal standard stays in place, but the Court says, the controlling standard
shouldn't apply to soccer fields but should continue to apply to the
facts of the prior case (Neg CP).  That is fair, but requires, in the case
of, say Morrison, arguing that keeping the VAWA struck down is good and
finding a CP solvency advocate that says "federal power should be curtailed
but factually there is something unique about Aff's advantages and therefore
the standard shouldn't apply here."  My worries are 1) that will be hard to
find (though appellate briefs might provide some reasons...but they won't be
written as cards which could make them less than compelling in round) and 2)
that still makes the topic very big because the debaters will need to cut
their "why Morrison should stand but shouldn't be applied to abortion
clinics" ev and the "why Morrison should stand but shouldn't be applied to
gun control" ev.  I completely agree that the Neg can procedurally fiat an
overrule of the lower court case or even create a test case (I give a lot of
latitude to fiat because I'm from the school that fait just means "the actor
should" do something and doesn't dictate "bottom of docket" or any such
nonsense), but I think the Neg still needs solvency for whatever they fiat
and a CP to recognize a factual distinction will need an advocate.  My
contention is that the literature is not going to yield a lot of "Morrison
good...but not here" cards.  I also think there will be disadvantages to the
idea of the Court creating unwarranted exceptions to established standards.

Later applications: I think the precedential effects of these decisions are
the heart of the topic.  I think having a legal topic and focusing on the
Supreme Court requires a sensitivity to the aspect of that agent that
separates it from the routine of debating the Congress/President.  Debaters
will be approaching this topic, as will their evidence, with an eye toward
"how should the Court respond, bearing in mind that the Court's decisions go
far beyond the outcome of any one case."  The unique quality of the law and
courts is that unlike the Congress/President, they cannot make a limited
decision, and unrelated parties in unrelated contexts will be bound by the
Court's action.  I think that is a good debate to have, I think it is
germane to the debate over using a Court actor to initiate change, and
moreover I think it is what the solvency evidence will talk about.  Thus, I
think this brightine would deny the purpose of a Courts topic.

On 6/7/06, Ede Warner <ewarner at louisville.edu> wrote:
>  >>> "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 fields."
> 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.
> Joe
> 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 again.
> >
> > 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 game."
> >
> > I sympathize but I think the replication we create is bound by evidence
> > and this is what that evidence says as I've found it.
> >
> > DISCLAIMER -- Again, I am not per se against the multi-area topics.  I
> > do think though that every one of these resolutions functions in the way
> > I've described and therefore each additional "area" in the resolution
> > multiplies the research load.  Some like huge topics and will embrace this.
> > Others will seek to limit this.  I will not impose my beliefs on that
> > question upon any of you.  I just want people to understand that, due to the
> > nature of the overrule mechanism, every case added to the list greatly
> > expands the topic.
> >
> > Joe
> >
> > On 6/5/06, Ede Warner <ewarner at louisville.edu > wrote:
> > >
> > >  I will only answer your overview to reduce the volume of this:
> > >
> > >
> > > 1) I don't think people will be overruling another case...they will
> > > just overrule the main case and access unrelated advantages -- This means X
> > > case good is always stable Neg ground, but can it outweigh every unrelated
> > > advantage that can flow from a case?
> > >
> > >  Right, the aff overrules the topical case.  But if they do so to gain
> > > an advantage from another case or a law review's claim that a standard in
> > > the area of the topical case will hurt another area (which btw is always
> > > done by referencing the application of the standard or precedent in future
> > > cases), that advantage is 1) easy to counterplan out; 2) probably not
> > > solvent if you only reverse the precedent in the topical case don't address;
> > > 3) arguably not topical (if it doesn't change the judgement of the topical
> > > case). You just keep asserting your "outweigh" argument but you ignore that
> > > the c/p will check this abuse.
> > >
> > >
> > > 2) We cannot ignore the mechanics of the Court.  The evidence we read
> > > will presume the normal functioning of the Court, and while I don't advocate
> > > process args, the core of this topic is the advantages and disadvantages of
> > > Court action as opposed to legislative/executive action and we need to be
> > > mindful of the impacts of precedent.  This is debateable of course but it
> > > means each "case" is really an entire area.
> > >
> > >  Smelko's paper on the topicblog answers all of this by explaining the
> > > process of decision making by the Courts.  Said your famed example is not an
> > > "overrule".  See the answer to Repko.  I feel a bit soiled by this
> > > revelation:  your banking on an obvious argument and the reality is your big
> > > bank position supports me?  We call that a link turn. I don't want to hear
> > > this argument again without some evidence, although I'm sure that many law
> > > reviews that say it is an overrule.  BUT THAT PROVES MY POINT:  THE BETTER
> > > EXPLAIN THE JUDGEMENT OF THE FACTS OF THE CASE and the plan must change that
> > > judgement.  Easy bright line, creates a more than reasonable amount of
> > > ground, even with a large number of cases.
> > >
> > >
> > > Smelko even makes the argument that the Supreme Court has a different
> > > standard for reversed vs overruled vs "rejected" as was the case in Brown vs
> > > a vs Plessy.
> > >
> > >
> >
> >
> >
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