[eDebate] Defense of Case List Resolutions

cleary at ou.edu cleary
Thu Jun 8 16:07:27 CDT 2006

I agree with Mancuso on this one (it happens rarely).  The vast majority of debates will be debates about the central issues of the cases proposed.  T will check sneaky AFFs (and if the guy from OU believes T checks, surely we're onto something).

Additionally, even if there is some risk of a large topic with a list resolution, it surely is better than the debates we'll have defending curtailing free speech rights on the AFF with the area topic (which stannard pointed out a few days ago).

With that in mind, if we are going to choose a list topic (something I recognize is still up in the air), I think resolution #4 (the biggest one) is preferable to the others.  The only case you lose is Booksellers, and it allows for a diverse group of cases, including what anyone supporting resolutions 1-3 or 5-7 would want, while ensuring that people who want to talk about the death penalty or affirmative action for example, don't lose their cases by picking one of the short resolutions. 


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The NEG would have a great chance to limit affirmative strategies using 
topicality or other theory arguments.  The definition of ?decision? 
isn?t that much of a problem.

The evidence was overwhelming at the meeting that the ?decision? was 
the bottom line outcome of the case ? the statement of who won or lost. 
  It was easy to differentiate from holding ? the holdings are the 
reasoning for the decision.  So, there really aren?t several 
?decisions? in each case because they can easily be distinguished from 

On the other hand there are some contextual examples of 
?overrule?decision? that meant the affirmative has to change a specific 
holding leading up to the decision.  I have no fear of that 
interpretation (see below).  In fact I hope for it.

Sure there are other definitions the AFF could try.  But the negative 
would have an easy time defending the superiority of any of these 
interpretations.  If the affirmative adopted a rationale in their plan 
that would not change the outcome of the previous court case they would 
stand a great chance to lose on T.

The affirmative would want to affect the legal precedent so they could 
have solvency.  My bottom line expectation is that the affirmative will 
take one of the lines of reasoning that lead to the outcome in one of 
the decisions and reverse it.

Does this mean that someone can say ?one of the holdings of the Casey 
decision was that Pennsylvania was part of the US, and that?s wrong 
because we took Pennsylvania from the Native Americans.  We should 
overrule Casey on the grounds that??  Perhaps.  But counterplans can 
deal pretty effectively with that.

The ?cute? judgment-only affirmative is really just ?easy to beat.?

BTW, this is really one of the worst arguments against the topic slate.

What possible advantage is there to helping exclusively the losing 
party ? now?  The (dead) governor Casey?  The (dead) governor Milliken. 
  I?ll bet Terry himself is dead.  I?m confident the loser in Gregg is 
dead, that was the point of the case.  The losers in Quirin have been 
dead longer than Strange has been coaching debate.  At least Lee 
Bollinger is alive, but what could he possibly personally get out of 
winning Gratz?  I?d take that negative debate any time.  We?d be 

If the entire need for re-writing the resolutions hinges on this ? and 
is some ways it does ? then it?s pretty weak.  If the judgment-only AFF 
isn?t a big threat then the NEG can argue it?s not topical or extra 
topical to overrule on holdings not in the extant case.

If my above arguments are correct, then the resolution is no longer 
?the SC should overrule something? as Skiermont suggests, but rather 
?the SC should OR an effective specific legal precedent of one of the 
4-8 decisions.?

This is, more or less, what we are looking for, I think.  I?ll address 
more about the breadth of the overrule grounds next.

Further, I disagree with Skiermont?s assertion that ?good teams can run 
to the corners of the topic and skillfully defeat topicality.?  If 
someone who has actively been involved in college debate in the 21st 
century wants to provide a few examples of this, I?d be happy to know 
them.  Granted there have been some successful teams using ?critical? 
interpretations of the topic.  Surely no one is na?ve enough to believe 
we can prevent that with any wording.

The effective affirmative breadth these topics are constrained.

First, by literature.

All along I never thought there was ?one affirmative? for each case.  I 
assumed there would be multiple.   To me the basic idea for the 
affirmative on the case list resolutions has always been that there are 
a few ways that any of these decisions can be overruled ? and supported 
in the literature.

Are there several ways that the affirmative could overrule a decision?  
  Surely.  Although the limit of having to find solvency advocates 
should not be underestimated.

No matter what interpretation of ?decision? you like, they all create a 
directionality in outcome.  No one has really alleged that the list 
resolutions are bidirectional with respect to the central outcome (more 
desegregation, more affirmative action, less executive authority, less 
federalism etc.) except for Casey, and even there the NEG has some 
basis to argue that OR the ?undue burden? test to liberalize Casey 
wouldn?t OR the decision.

So there is still a basic implied directionality ? like the requirement 
of reduced 1A protection in the ?areas? resolution.

Second, it is limited by Counterplans.

I don?t want to be too tough on Paul Skeirmont, because his second 
?problem? really answers the first one and isn?t, in and of itself, 
really a big ?problem?.

Quoting: ?Requiring the affirmative to overrule creates a pretty 
devastating generic negative CP attack to establish the rule of law 
that the affirmative seeks to establish, but do so without explicitly 
overrule a prior case, net benefit being explicit overrule are bad 
(legitimacy etc.).?


This shouldn?t be a revelation to anyone.  The topic committee 
discussed exactly how this debate would play out and check extraneous 
affirmative advantages.  I?ll explain later why this doesn?t restrict 
too much AFF ground.

But you can?t have it both ways.  You can?t believe the overrule 
formulation allows too much AFF creativity and believe that the 
?distinguish, don?t overrule? CP slays the AFF ground.  One or the 
other, not both.

I do believe it is ?just right? ? that the CP checks the advantages 
that are not germane to the extant case, but do check the extraneous 
advantages coming from OR some other decision.

On the privacy topic, some people overruled Bowers on privacy grounds, 
some used equal protection and some didn?t specify.  But that?s about 
it.  When teams tried to stray from those few rationales they were 
beaten by counterplans.

If the affirmative tried one of these bank shots ? overrule one holding 
in Lopez to try to overrule Casey ? not only would the NEG have a great 
T argument if the legal reasoning didn?t change the outcome of Casey 
(see above), but they could easily CP with the same Lopez holding 
reversal and distinguish from Casey/Morrison/Milliken etc. so they 
capture the extraneous advantage, but still link DA?s to the reversal 
of the list case.

Do you really think judges are going to let AFF?s ?overrule? in a way 
that wouldn?t have reversed the outcome of one of the decisions on the 
list?  I for one, don?t.

Ex.  Plan - Overrule Casey by overruling Lopez decision.  Advantage: 
rid guns from school areas.  Counterplan - Overrule Lopez, distinguish 
it from Casey.  Advantage: solves guns from school areas, doesn?t 
restrict abortion rights.  Abortion rights good.

Another Ex.:  Plan - Overrule Casey by overruling Hudson v. Palmer. 
Advantage: prison conditions.   Counterplan: fix the prisons, Overrule 
Hudson, distinguish from Casey.

It is trivially easy for the negative to get the debate focused back on 
the core arguments of the case at issue.

Third, it?s limited by incentives for Good Mainstream Affirmative Ground

We?ve chosen really good, interesting, compelling affirmative cases to 
overrule.  They each have really excellent, easy-to-find affirmatives.  
That?s not an accident.

In the run-up to the summer meeting the TC deliberately focused on 
landmark cases where there would be compelling affirmatives ? giving 
incentives for people to run mainstream versions.  I think we succeeded 
in that.

My debaters who attended every minute of the topic meetings were really 
excited that there seemed to be good affirmatives (unlike last year).  
We argued on the way home about which was best, but we never said ? 
?gee, how can we avoid the Morrison debate by overruling a decision on 
something else? or ?ugh, I hate to be stuck advocating less school 

Every year people look at the wordings and say ?the AFF can run X, Y 
and Z and never debate what the topic intends.  Every year.  Last year 
some thought we?d never hear a debate about IPR, China-Taiwan war, 
Tibet, Labor Camps, Proliferation, etc.  But even on the China topic 
the VAST majority of debates took place in the way the committee 
anticipated.  They do every year.  This year ? even with the current 
wordings ? I?m confident that again a large majority of rounds will be 
roughly what we expect.

Fourth, history can be a Guide for the Affirmative

We?ve debated resolutions about overruling decisions.  The vast 
majority of those debates went down the way we expected.  The 
strategies that have been suggested as slayers of this year?s topic 
were considered on the Privacy Topic.   They just lost.

Teams ran weird ?overrule Bowers? cases, and were beaten by 
counterplans.  Teams ran ?distinguish, don?t overrule? counterplans and 
lost all the time.  More on that below.

The ?things are different now? argument applies more to the negative 
than affirmative.  I?d appreciate if someone would go into more detail 
if they think this is really an important claim.  What specific 
practices are different on the affirmative today that would make the 
experience of the Privacy Topic irrelevant?

OK ? those are my arguments about the topic wording and the AFF.  Now I 
want to address the wording and the too-easy NEG ground claim.

2.	The ?Distinguish, Don?t Overrule? Counterplan won?t Win Every Round

This CP is not a revolutionary new strategy just thought of recently by 
a clever alum.  People ran this ? all the time ? on the Privacy and CIC 
topics.  The good affirmative teams beat it every time.

AFF: ?In Bowers the Supreme Court shouted ?faggot? at gays and lesbians 
and must be taken off the books.?  ?Overruling Bowers would increase 
the legitimacy of the Court.?

AFF: ?In Korematsu the decision ?lies around like a loaded gun? and 
must be taken off the books.?  In fact there was a law review article 
arguing we should leave it on the books to remind us, and it lost all 
the time.

Granted, neither Bowers nor Korematsu are on our lists.  But I?m sure 
that good AFF research will be able to find similar cards and arguments 
on these landmark cases that we chose.  The selection of landmark cases 
with good AFF?s was central to this.

It is relatively easy to build AFF strategies around ?overrule good?.

BUT ? this CP still is a potent weapon (along with Congress and State 
Constitutions) against extraneous bank-shot overrule AFFs.  These 
arguments of symbolism (?shouting faggot? and ?loaded guns?) apply only 
to directly overruling the listed cases, not an indirect overruling.


I don?t believe these topics will debate out as ?ginormous.?  There are 
meaningful limits to effective affirmative ground (although the 
wordings might not limit bad affirmatives, they rarely do).  The 
affirmatives will be directional and predictable in outcome.  There is 
not literature to support the bank shots in most cases.  Even if there 
is, the CP solves them pretty well.  The AFF?s are desirable and most 
of our students will want to run them straight up.

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