[eDebate] Topic Discussion - Areas vs. Cases

debate at ou.edu debate
Sun May 21 18:51:31 CDT 2006

I have been reading the blog -- here is a key discussion I would like to open up here.

I know that the debate between listing areas or focusing on specific cases can go both ways.  The key issues, is can we offer a fair amount of both options.

I think there could be a good discussion here on the issues.

This is from the Blog


  Some meta questions
Some things we might want to try to figure out before going to far:

1) Trying to figure out what it means to "overrule" or "overturn" whatever a "decision" or "precedent" is seems incredibly important. From what I remember, this wasn't a terribly critical part of debates on the privacy topic, but as Ryan discusses in his origina paper, decisions have multiple holdings, and it doesn't make sense to either a) force the aff to overturn them all or b) let them overturn a holding that really isn't that important to the area or the overall decision. On this year's HS topic, some people ran "overturn Korematsu," and we frequently won on a CP to not overturn the Court's holding/precedent that strict scrutinty should apply to racial classifications. Once we even ran on the don't overturn "we have jurisdiction over this." I think this wording will need to be more sophisticated than the privacy topic wording. No one will want to literally overturn and entire decision.

2) What is precisely is a precedent? Is it any holding of the court? Is it any part of the decision? Could it be the footnotes? It seems that any part could be precedential to the extent that it has the potential to be (partially) relied on in a subsequent case. Part of the goal it seems is to overturn "big" precedents, but arguably any decision in any areas is precedential...so...If we were to say "overturn a precedent" what would we really be saying?

3) What direction are we leaning in in terms of listing either areas or cases? Regardless as to which is chosen, the following seem important:

A) Should the areas/cases be related?
B) Is diversity/difference best protected by creating a topic that lists disparte/diverse areas/cases/precedents even if that would generally spread preparation
C) Are some precedents/decisions/areas so worthy of debate that they should be included on multiple (or all) resolutions even if that discloses part of the topic in advance of the end of July?



   Further thoughts on Stefan's meta questions
I also am very concerned about what "overturn/overrule" means. Supreme Court decisions rarely actually "overturn/overrule" previous decisions. One might say, "but the literature recognizes that Court decisions often functionally 'overturn/overrule' previous decisions, so debaters can march forward on that." But the problem is that when the Supreme Court engages in its stare decisis dance, it renders decisions that cannot be lightly "overturned/overruled." The Korematsu example encapsulates the difficulty -- rather than set a low bar for internment, the Court holds that strict scrutiny is the standard, and contorts the fact pattern to jusitfy internment under the standard.

This also raises the problem of "progeny." Many times, the literature focuses less on individual decisions than the line of jurisprudence spawned from a decision. For example (and not because it necessarily should be in the topic), how can one address Roe without considering Casey? Can you overturn one without overturning the other? What impact does overturning one have vis a vis the other?

For this reason I'm musing that we may want to consider focusing the topic around legal concepts rather than cases. Requiring the Court to strike down a standard or overruling "a decision that upheld X" might control this problem.

Joe Patrice

posted by Joe Patrice at 5/09/2006 05:09:00 PM ?  0 comments   

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