[eDebate] a defense of cases over areas

Tripp Rebrovick trebrovick
Fri May 26 19:12:08 CDT 2006

I think Gabe's first argument here is especially worth considering. But, 
I think the problem is beyond just that there may be different grounds 
articuled by petitioners as opposed to the court, since there are 
differences with decisions on the Supreme Court itself, especially in 
the context of a plurality as opposed to a majority. A couple of cases 
come to mind:

Lawrence v Texas: The majority decided on roughly what would be due 
process grounds, or something or that sort. O'Connor's concurrence was 
based on equal protection. Although this case doesn't demonstrate the 
pluarality/majority distinction, it seems to me to demonstrate the 
potential confusion if the wording provides no direction for what part 
of the case has to be relevant to a certain area.

Hamdi v Rumsfeld: The plurality decided (what seems to be fairly weakly) 
simply that due process means Hamdi could challenge his detention. 
Souter and Ginsberg agreed with the outcome by thought that the AUMF 
didn't authorize detention. In /dissent/, Scalia said that Hamdi had to 
be released, but only because Congress hadn't invoked the suspension 
clause for habeas corpus. This example seems especially relevant, given 
this case's prominence both in current disputes (e.g. Hamdan) but also 
for any area that relates to executive power.

There are numerous other examples, but I think those two make it clear.

This may or may not be problematic in most cases, since most advantages 
would be outcome, not reasoning/process based. However, when it comes to 
debates about cases that would arguably be on the fringe of the topic, 
some guidance from the resolution might be helpful. It seems to me that 
if the affirmative can run a case based on a concurring opinion, a 
plurality (which doesn't create precedent), or a 
concurrence-in-result-but-not-grounds for a plurality/majority, then 
there won't be very good negative ground that is literature based (and 
isn't that what we want, even in conjuction with an aff bias?). From 
what I can tell, most law reviews are about majorities or decisions that 
have precedential value.

Right now we might think, "Oh, this is a silly problem; it won't be a 
big deal." It's easy to say now that a the requirement of a majority is 
"presumably" necessary, or that "Oh, no one would /actually /do that." 
C'mon, people: aren't these the types of problems that come to haunt us 
as everyone ends up complaining about them half-way through the year? 
I'll only offer one example (sorry, Jamie and Brad): we left "its" out 
of the China resolution. Yes, I understand that Jamie thinks that was on 
purpose; I have no evidence to the contrary. Regardless, small problems 
that we miss because they seem trivial somehow end up being quite a big 
deal later on.

I see an easy way out: The resolution can specify that the reversal of a 
holding must be on the grounds uphelf by a majority of the court. This 
seems to be the simplest solution. Yes, the wording might be a little 
awkward, but as much as I support aesthetically pleasing resolutions, 
I'm willing to sacrifice a little bit of beauty in order to gain a 
little bit of sanity next spring because we remembered explicitly to 
exclude a route for sneaky and unpredictable cases.

Hopefully this won't generate a lot of controversy -- it's just a minor 
flaw (albeit probably just a potential one) that can easily be fixed. 
Although the problem doesn't seem important now, I don't see too many 
reasons not to take the extra caution. Well, unless we want to allow 
affirmatives written about in only one law review that didn't even 
generate a response. If this is the case, well, then maybe I'm 
misinterpreting what everyone means when they say we need to help the aff.

My one cent,

(the objection may not be large enough to warrant two cents)

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