[eDebate] topic thoughts - replies to various posts
Tue Jun 13 21:46:14 CDT 2006
Posting this for my husband, Tom O'Gorman...not just because he's my "unpaid
hired gun" but also because I agree with everything he says below.
"Caveat, I haven?t done much research on this topic ? I am mainly focused on
studying for the Maryland Bar ? so most of this is based off of my barely
remembered law school knowledge relating to the topic. Also I have never
debated a court?s topic (15 years is way to long) so if I have na?ve
impressions of how these debates will play out I apologize.
Nonetheless, I don?t think we should change the topic ballot, mainly for the
reasons that Ryan Galloway gave, and I especially don?t think that we should
make an ADA only change not only because of the NDT eligibility issue (and
sometimes debaters that are mostly JV try for the NDT I don?t want to cut
them out), but also because it might limit attendance at our tournaments by
non-traditional ADA schools who cut their plan for the CEDA topic. I don?t
think the current topic is bad. Here are my thoughts. (I?ll generally be
using Morrison as my example because I remember it from Raich)
1. Overrule decision means a holding in the topic
2. Distinguish CP checks against tangential affs
3. Distinguish CP shouldn?t be a problem to core affs
4. Specifying the holding would be too wordy or over limit
5. Some starting thoughts on better ways to make a change if we do
1. I think it?s pretty clear that the topic has to mean something like
overrule a holding. As the Manc pointed out earlier it would be pretty
ridiculous to change the actual judgment ? many of those people are dead,
and clearly they have moved on. Likewise it has to mean just one (or more,
but not all) the holdings otherwise you would be overruling ridiculous
things like jurisdiction and standing ? if you did that the court can?t even
address the rest of the holdings anyways. So its pretty clearly gotta be a
holding. And this is what we want ? it?s what all the literature supports.
2. I agree completely with Ede Warner that the CP will check hugely against
affs that claim tangential advantages. If you run a Morrison aff that
claims a benefit off of being able to keep current gun control laws I would
run a Distinguish CP; having the court hold that guns are an economic
activity and that Congress can regulate an economic activity if it has a
substantial effect on interstate commerce. Then I would claim federalism
net benefits off of Morrison preventing the Feds from regulating
non-economic activity. If you run overrule Morrison insofar as it makes gun
control laws unconstitutional you should lose on T as guns aren?t mentioned
in the Morrison decision, that?s an application of it, you can claim it as
an advantage and not a plan. I think teams will win the interpretation that
you have to be able to point to your holding as actually in the overturned
3. On the other hand the Distinguish CP should be toothless against core
affs. I may be making some assumptions as to how these debates will play
out, but here is how I think it should work. We run a plan;
S.Ct. in the next appropriate case will rule that ?under the interstate
Commerce clause Congress may regulate non-economic conduct that in the
aggregate has a substantial effect on interstate commerce?; thereby
overruling the decision in U.S. v. Morrison that Congress may not regulate
non-economic conduct based solely on that conduct's aggregate effect on
interstate commerce (see U.S. v. Morrison 529 U.S. 598, *617).
And we claim net benefits off allowing Congress to regulate non-economic
activity broadly, and specifically benefits off of Congress ability to
regulate violence against women. You then run a Distinguish CP (I don?t
know the wording for the reasons below). Our answers off the top of my
a. Ground Spec ? what are the grounds for your distinction, the reasons
given for a decision are key to its application as precedent and without
giving us what the distinction is we can?t see how it will be applied.
Which is all of the solvency
b. PICs bad ? you change a word this is the most abusive CP ever
c. Perm ? Say distinguish in the overruling decision & don?t say the word
overrule in the decision.
i. Our plan text is obviously not the text of the S.Ct. opinion
ii. You can impliedly overrule so we are still Topical
?If a decision is not a recent one, and especially if it seems to be very
poor, it should not be relied upon without ascertaining whether it may not
have been expressly or impliedly overruled by some subsequent one; that is ,
whether the court may not have laid down a contrary principle in a latter
case.? Frank Hall Childs, Where and How to Find the Law 94 (1922). from
Black?s Law Dictionary (1999)
iii. Our interpretation of T is good;
1. its overrule, not expressly overrule
2. you keep all of your ground with a factual overrule except for this
incredibly abusive pic.
d. Solvency Deficit ? insofar as your distinguishment isn?t there in future
cases old rule still in effect and still bad. Even more risk if you don?t
answer our ground spec arg because you have no way of saying how often this
e. Any Overrule good stuff we may have
The reason the distinguish CP should work against tangential affs and suck
against core affs is that actual distinguishing is based on a fact change;
distinguish ?[t]o not a significant factual, procedural, or legal difference
in (an earlier case), usu. To minimize the case?s precedential effect or to
show that it is inapplicable? Black?s Law Dictionary (1999). This means
you can limit the scope of the holding with the CP so it doesn?t apply to
new things, but you can?t simply erase it.
4. I just don?t see how you are going to fix this problem by writing out all
the holdings into the resolution. To use Morrison as an example these are
the following holdings which I would expect on a core Morrison case under
the current topic slate (paraphrased);
a. Under the Commerce Clause Congress can regulate; 1) the channels of
interstate commerce, 2) in instrumentalities of interstate commerce &
persons or things in interstate commerce, 3) activities that have a
substantial effect on interstate commerce
b. The court makes its own determination of whether the conduct regulated
has a substantial effect on interstate commerce rather than reviewing
Congress?s determination to see if Congress had a rational basis
c. Congress may not regulate, under the substantial effects on interstate
commerce basis, non-economic activity which only in the aggregate has a
substantial effect on interstate commerce.
d. Congress may not regulate against private, as opposed to state,
discrimination under the 14th Amendment section 5 enforcement power.
e. The remedy of civil suits against individual people who committed gender
motivated crimes is not directed against state action within the meaning of
the 14th Amendment section 5 enforcement power.
I don?t see how you write all those in, and writing them in for up to 8
cases seems a nightmare. Yet I?m not worried about debating them as they
will all create a federalism link (although some less than others), and if
you specify one (which I think you should have to, I am not generally a fan
of the specs, but grounds spec seems critical for an overrule topic) I can
CP with the other. If you don?t keep all of them I think you may cut out
many great solvency advocates who focus on changing holding b. as opposed to
c., or d. And with Morrison the difference between the interstate commerce
clause issue and the 14th amendment issue is quite dramatic, I imagine there
where would be similar issues in other cases.
As to the other concerns about more tangential affs, e.g. overturn a
standing holding, I don?t expect to see many because I doubt there are great
solvency advocates or impacts if other people have reasons to think there
are I could change my mind.
5. If we do decide to make a change I think there has to be a better way to
do it through modifying a stem instead of listing out everything. I have a
couple of ideas.
a. Overrule a decision other than one relating to jurisdiction,
justiciability, or procedure ? prevents silly standing affs if that?s your
b. Overrule the rule of law first established by the Supreme Court in case
X; prohibits overrule of any holding from a previous decision cited as
precedent in this decision; this would limit out a lot of things like
overruling the categories of interstate commerce or the state action
doctrine (a. and d. in my Morrison example), or that classifications based
on race get strict scrutiny even if they favor minorities (established in
Aderand applied in Gratz) and leave you with the central holdings. I am
afraid it would over limit some as it would prevent people from making
radical changes to solve the core problem of the case area, but I would
rather it that specifying the holding. I also haven?t done the research to
see if all of the holdings people expect to debate were in fact first
established in the named cases.
Anyways, thanking you for taking the time to read my somewhat long thoughts.
I love debate, legal topics, and the ADA which is my home and only want
the best debates for everyone this year.
Tom O?Gorman, CUA alum
Husband of the Director of USNA Debate"
>From: "James Lyle" <jrlyle at gmail.com>
>To: edebate at ndtceda.com
>Subject: Re: [eDebate] topic thoughts - replies to various posts
>Date: Tue, 13 Jun 2006 20:02:36 -0400
>There are several answers to the concern about NDT-eligible rounds:
>1. Irrelevant to novice/jv debate. Novice/JV debate is as important, if
>2. This is an important question for ADA schools to ask themselves, not
>the CEDA topic committee should use this as a reason to not allow a
>3. Catholic solves - run "separate tournaments" - ADA = n/jv, open = CEDA.
>4. ADA teams can go to CEDA tournaments.
>5. Not sure many non-ADA schools are bringing debaters to ADA tournaments
>get them into the NDT. Yes, some do, but not many.
>I think the concern instead would be for ADA schools that would like to go
>to the NDT. This section of the NDT bylaws indicate that it must be the
>NDT topic and only those rounds count:
>b. Eligible teams: To submit for the bid allocation process, a team must
>have paid their NDT subscription fee and have either (1) a minimum of 18
>intercollegiate preliminary rounds on the fall CEDA topic or its NDT topic
>either both as individuals or as a team of varsity or open debate in at
>least three tournaments, each consisting of a minimum of 6 preliminary
>with at least 6 teams from at least four different schools in varsity or
>division, or (2) one member of the team with a minimum of 32
>preliminary rounds on the fall CEDA topic or its NDT topic parallel in at
>four tournaments, each consisting of a minimum of six preliminary rounds,
>with at least six teams from at least four different schools in varsity or
>division (i.e., if one member of the team has at least 32 rounds satisfying
>the above requirements, no minimum number of rounds is required of the
>partner in order for the team to be eligible for the bid allocation
>My worry is that teams would avoid tournaments if those rounds would not
>count towards NDT requirements for bid allocation and second round bids.
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