[eDebate] In Defense of the Topics and the Process

Timothy O'Donnell todonnel
Tue Jun 13 11:40:23 CDT 2006

I agree with Ryan Galloway on many of the things he says in ?In Defense of the Topics and the Process.?  In particular, I want to echo the following:  

1)	We do need to take seriously the electronic forums with which we affiliate.
2)	I desperately want us to do a legal topic and do it right.
3)	15 years is too long.
4)	The committee worked really, really hard.
5)	We should (all of us in this profession) go on vacation.   
6)	No cabal.  No hijacking.
7)	Topic committee reforms are needed.
8)	We need standards for community input.
9)	I can?t hit a 4-iron either (but I?d sure like to spend some time with Ryan on the golf course trying).

I do have a few thoughts about Ryan?s substantive comments:  

#1:  Rewriting the topics would replace ideological judgments with the work of the committee.

This is probably our area of greatest disagreement because I don?t believe that there is a distinction between ideology and the work of the committee.  Everything we do is ideological ? that?s not an indictment, but a fact.  It?s why we should want the committee to represent a diverse set of perspectives.  When I voted in favor of a ?legal only topic? for 06-07 (at last year?s topic meeting), I was making an ideological judgment.  Do I think smaller is better?  Yes.  Do I have a problem with a resolution that writes peoples plans.  It depends.  In this instance -- no.  Are those my dispositions about what makes for good debates.  Yes.  Are they ideological?  Sure.  However, arguments for large topics, short (elegant) resolutions, and affirmative flexibility are also ideological.  Consequently, deciding NOT to add specific holdings is just as ideological as deciding to add them.  

So, how do we get around the ideological road block?  Do both and let the voters decide.  If the topic committee moves forward and decides to do further work on specifying holdings for the cases on the list resolutions AND decides to put those on the ballot, they should be added as additional resolutions (not replacements).  To put it another way, I am not asking for us to ?rewrite? the resolutions.  Instead, I want us to replicate the existing resolutions and add specific holdings to the replicated list.  

There are a couple of reasons why I believe that this is a wise course of action.  First, it legitimizes everything we?ve done and demonstrates our responsiveness to the input we received.  We were deluged by information at the meeting.  We were specifically deluged with comments to think about this particular issue.  Consideration of such an approach to the list resolutions is one that didn?t make it in to the discussion.  This is not about adding ?new? resolutions.  Its about addressing something which we didn?t have time to address with respect to the current resolutions.  If I were to say, ?scrap the current slate and start over,? I think your criticism would be fair.  If I were to say, ?I move to consider one of the other proposals which we didn?t get to because I don?t like what we did,? you would also have a point.  I like the lists that we produced.  We did very good work.  We just didn?t get to this issue.  Simply put, its okay to do it now.

Second, its work that we?ll be doing anyway.  Every individual team will need to investigate each of the holdings regardless of the outcome of my call for the committee to do more work in this area.  Why not do this together?  Think of it as ?open source? debate work. Even if we end up not putting specific holdings on the ballot, this work would help members of the community make better decisions about how to rank the current resolutions.  Moreover, we would produce better debates (both substantive debates about the important social issues and better ?T? debates) at the start of the year.

#2:  There is no fatal flaw in "overrule a decision."

We agree in part.  We disagree in part.  To explain, I?d like to ask and answer three questions: Is there an alternative to ?overrule?? Should I have used the rhetoric of ?fatality?? Is it ?fatal??

Is there an alternative to ?overrule??  I want to be clear on this: there is consensus on the word overrule as a word that should be used in the resolution.  I am not saying we should eliminate it from the stem.  Could a stem with overrule be messy?  Reasonable people can and do disagree on this.  Will we have a lot of ?T? debates because of that?  I think that is obvious.  Will they be incredibly complex?  You bet.  But is that what we really want the bottom line for this topic to be?  A year of ?T? debates?  The reason why adding the holdings makes sense to me is that it creates meaning or context for the ambiguity of overrule.  

Should I have used the rhetoric of ?fatality??  Perhaps.  Perhaps not.  I used the term twice in my position paper to the committee.  In retrospect, I?ll concede that the first was unfortunate hyperbole which stemmed from the second.  The second was designed to direct the reader to the interim topic paper?s discussion of the word overrule in general and Michael Gottlieb?s assessment specifically (which I cited explicitly at the meeting on more than one occasion).  To be clear, I do not think that Gottlieb was saying that overrule is ?fatal.?  

However, when words like ?fatal? are used in the same sentence as the crucial word in the resolution (even to deny a link) it gives me pause.  This is especially so when new information comes into conflict with something I believe. To put my thought process another way, my recollection of the simplicity and elegance of the word overrule from 15 years ago was not squaring with what I was learning about it in the run up to and during our time in Kansas City.  Perhaps I should have focused more on this before the meeting, but my energy was spent trying to hash out the area of religious freedom.  My concerns grew throughout our three days of meetings.  In my view, the word was crucial, yet problematic.  On Friday morning I asked that a discussion of specifying the holding be put on the agenda (the record reflects that).  As Friday went on, an increasing drum beat of comments poured into the blog which said two things: 1) overrule is not as clear as we might think and 2) a solution might be to work on specifying the holding that accesses the issue you want to have debated.  We never really got to this discussion (despite going a couple of hours past our allotted time).  We had a lot to do and we did as much as we could in the time that we had.

Is it fatal (if fatal means I would vote against it if I were the single decision maker for the University of Mary Washington ? which I am not because that?s up to Adrienne and the debaters)?  No.  I don?t think so.  I think I prefer the current lists over the First Amendment because I would like to see us have debates over the substantive issues represented by those resolutions.  We spent the majority of our time crafting those lists.  We did an excellent job.  However, it could be ?fatal? if voters decide to eschew the lists and vote for the First Amendment because they think it offers relief from overrule (which it does not in my view).  

#3:  The consensus of legal opinion is not in favor of those who oppose the topic.  

Side note: Ryan and I may differ about the substance and procedure of the can of worms I?ve opened up, but there is one thing I hope we agree on: ?How cool is it that we are hearing from so many alums??  Shoot, it?s a virtual reunion!  

Anyway, a more substantive point: I believe that reasonable people can disagree about whether or not the new passages from legal alums proves they are not in favor of those who oppose the topic. There are three points here which relate to other chunks of this debate:

1)	The privacy topic/empirical evidence doesn?t apply.  What conclusions can we draw from 1991 that speak to present circumstances?  This is a very important point.  Its one that Steve Mancuso also raises in ?Defense of Case List Resolutions.?  It?s also a warrant in three of the cards (Tushnet, Zive, Dunbar) that say it will work now.  In contrast to Ryan and Steve, I think debate has changed substantially over the past 15 years.  This is something that Tushnet even alludes to when she says ?though that was before the critical turn.?  Although I don?t have the K credentials to wade in on this (insert smile), I do think that the advent of electronic research is a specific practice that has changed the affirmative that makes the experience of the privacy topic irrelevant.  For example, how long would it have taken to find a card like the one from Scalia?s dissent in Lawrence back in 1991 (before most people could keyword search every supreme court opinion)?  A lot longer.  Our threshold for what counts as ?good? evidence and what counts as a ?good? affirmative has changed. Cards and affirmatives are much easier to find these days.  Another significant difference between 1991 and 2006 is that the two resolutions in question are fundamentally different.  The privacy topic was an ?areas topic? which required the affirmative to overrule a decision ?recognizing a fundamental right to privacy.?  It didn?t matter then whether a decision had multiple decisions (or a decision had multiple holdings which were decisions unto themselves) because the affirmative had to overrule a decision (whatever it was) that increased or decreased privacy.  The point is there are differences between now and then.  The assertion that there is empirical evidence that indicates that 06-07 will turn out the same way is not persuasive in my view.

2)	None of these say investigating the holdings is misguided.  The real test of what the legal alums think is this: which would they prefer ? a resolution which specified holdings or one without.  If given the choice, how would they vote?  In addition, these passages only say that the word overrule means its going to be either ?bigger than it might seem on first glance? (Gottlieb) or it won?t because good T debaters will solve.  In the end, this means a lot of ?T? debates for which the negative will be on ?ambiguous? ground.  Writing specific holdings solves that ambiguity.  

3)	The Dunbar evidence says that the affirmative would have to do something ?radical.?  Specifying the holdings does this.  Believing that overrule means to change the legal reasoning that would have resulted in the other party winning does less than this.  Does anyone even know if when the Supreme Court overrules a prior decision the parties are affected in any way?  Does it mean "the party that won last time would have to lose? (Ryan attributed to Mancuso and Strange).

#4: Revisiting the topic process is worse than staying with the one we have now.  

There are five issues here:

1)	Should we adopt Scott Elliott?s formulation as written?  No.  I think even Scott thinks that it was nothing more than an illustrative example.  The criticisms of that example are not a reason to not do more work.  I am suggesting that we investigate. It won?t be easy.  Nothing about this topic has been easy.  Ryan?s analysis of those words proves its doable.

2)	Does doing more work mean we have to put our conclusions on the ballot?  No.  We could proceed down this path and conclude that there is too much risk and uncertainty and that we are therefore uncomfortable with putting them on the ballot.  In addition, since I would support adding ? not replacing ? the larger community would have the entire month of July to vet the added words and make a decision about which list they want and whether they want a list with holdings or without.  In summary, the risk of producing something worse is overstated.

3)	Despite the less than ideal conditions of not all being in the same room, could we do this and be successful?  Maybe.  Maybe not.  It?s possible.  That?s why I think its worth trying.  More people could be involved in the vetting process because it would take place over a longer period of time.  2.5 days is pretty short.  

4)	Should we limit affirmative flexibility/write people?s plans?  Saying no is just as ideological as saying yes.  That?s why we should have two different slates of identical list resolutions.  

5)	Was what we had in Kansas City ?ideal? with distinct ?advantages??  I agree, it can?t be replicated in terms of a webcam.  The webcam was unique.  Did it produce tangible benefits over every other topic committee meeting?  I don?t know for sure, but I will say that that the present discussion initiated by me would never have occurred if so many people had not commented in real time that we need to think about ?overrule? and ?specify the holdings.?  The openness brought us to this point.  But, you can?t say we shouldn?t proceed since we can?t have a webcast of future deliberations (because the feedback is good) if you don?t fully consider/respond to the challenges/questions/input that the webcam generated.  Ryan mentions other things which made KC unique and are therefore warrants not to proceed further:  

Ryan says: ?Everyone had all of their documents prepared for the meeting.?  I say: Where were the documents which spoke to the present issue of the complexities of overrule and the wisdom of specifying the holdings?  As far as I know there was the Smelko paper which said use overrule rather than overturn, etc. and the discussion in the Interim topic paper and a quick response on the blog.  Everything else was delivered orally.  

Ryan says: ?we could engage in a back and fourth dialogue on arguments and counter-arguments: not wait for emails and overly focus on particular wording choices as opposed to overall intent.?  I say: Don?t we want to focus on this stage of the process to focus on particular wording choices as opposed to overall intent?  

Ryan says: ?Email is a bad forum for dialogue??  I say: Sometimes.  Given what our goal would be at this point, some combination of email, a blog, and a wiki (something future topic committees should consider when it comes to wording) might be well suited to the task at hand.  Its public, it allows for reflection, and it forces precision. 

Ryan says: ?Many members are away from their computers,? ?schedules,? and ?vacations? ? essentially we all have other things in our lives besides the topic committee.  I say: I agree.  I can?t answer this argument.  I couldn?t answer it at the meeting when Ken suggested 

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