[eDebate] Topic Discussion - Areas vs. Cases

Steve Mancuso mancussp
Sun May 21 19:27:36 CDT 2006

Jackie has hit on an extremely important and timely issue regarding the 
work of the topic committee - namely whether we should write 
resolutions with lists of USSC cases and/or lists of areas.   I can't 
speak for the entire committee on this but my own opinion right now is 
that we should look into both.

The "cases" approach would generate resolutions roughly like this:  the 
USSC should overrule one or more of the following:  Gratz v. Bollinger 
(affirmative action), Boerne v. Flores (religious freedom), etc.

The "areas" approach would generate resolutions roughly like this: the 
USSC should overrule at least one precedent in one or more of these 
areas:  affirmative action, religious freedom etc.

[Please note these wordings are only meant to demonstrate briefly the 
issue involved here.  They do not reflect a committee choice on agent, 
verb, "precedent" vs. "decision" etc.]

Obviously the list of cases provides more predictability and focus on 
controversial issues, the list of areas allows more affirmative 
flexibility. The committee has been focused recently on the cases 
approach, which is reflected in wording papers linked on the cedatopic 
blog.  I expect several more to be posted there in the next couple of 
days.   We are, however, about to turn our attention from "cases" to 

It would be very helpful to us to get a sense of what you (the 
community) think of the relatively merits of these options - and if you 
have specific suggestions, please offer them.  Now is a great time for 
you to have input into the process.  You can offer any ideas or 
comments you have to edebate, to our blog (I'll open up a thread for 
this discussion there right now) or directly to me or other members of 
the committee.

Thanks to Jackie for bringing this up.  I want to remind you that our 
blog is at: cedatopic.blogspot.com

Steve Mancuso

On May 21, 2006, at 7:51 PM, debate at ou.edu wrote:

> 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
> Peace
> --------------------
>   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?
> Stefan
> --------------------
>    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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