[eDebate] more meeting notes

Kuswa, Kevin kkuswa
Wed May 31 19:13:34 CDT 2006

slusher, maybe something like
r: that two or more currently relevant US Supreme Court decisions limiting equal protection should be overruled.
i really wish i had more time to help, teaching a couple summer classes right now.
sounds pretty good--thanks for the work,


From: edebate-bounces at ndtceda.com on behalf of Eric M. Slusher
Sent: Wed 5/31/2006 7:18 PM
To: edebate at ndtceda.com
Subject: [eDebate] more meeting notes

More stuff...as you can tell I did poorly in school because my note taking abilities are poor.

Hopefully someone smart, like Brad Hall, and not Malcolm will take over tomorrow.

Afternoon session

We will discuss the SC cases. 

Galloway -

US v. Morrison (VAWA strike-down) Galloway's paper is under the "topic papers' menu on the cedatopic blog.

Summery of the case:  http://www.oyez.org/oyez/resource/case/1261/

Aff would overrule the Court's strike-down of the VAWA's civil remedy provision. (Morrison)

Impact areas:

Access to gender issues

Access to federalism issues.  Morrison extended the Lopez precedent ? proved the Court was taking Lopez seriously.

A civil remedy for domestic violence "solves" the harm.
International impacts ? upholds the CEDAW, ICCPR ? federal civil cause of action upholds treaty oblig.

Overrule would be in a "liberal" direction.
Relevant test ? "substantial effects" test from Lopez ? as it relates to interstate commerce.
Overrule would allow for future federal statues along the same lines.  This addresses the issue of the alternate actor counterplan (congress cp for instance).  Congress can't enact federal causes of action/civil remedies like VAWA because Morrison invalidates them all (in theory). 

Galloway concludes it should be included in topic.  LOTS of lit.  Good aff case vs. potential neg.  Is a good case if the concern is neg bias.  Gives a lot of good ground to the aff.  Maybe too much?????

Stefan says the neg could argue that future or other civil remedies like in the VAWA could be disad ground.  The case would weaken Lopez, etc.


Kelo vs. City of New London (eminent domain)

Case summery at : http://www.oyez.org/oyez/resource/case/1799/

Economics and race intersect  - O'Conner's dissent illustrates the concern that the economically powerful will take advantage of the economically weak. 

Doesn't neatly fit into the liberal or conservative categories (esp given that O'Conner and Thomas agreed in their opposition.)

Test ? fairly limited ? how far can you go in terms of a replacement test.  O'Conner and Thomas offer their ideas in their dissents.

Cons ? the case is very recent so there's not as much lit.  And there's a legislative backlash so congressional overturn is possible.  But that's not too likely anymore (they've cooled off a bit).

Overrule would probably require a return to the previous precedent - Midkiff   - restrict deference to legislature in terms of the scope of "public use."  However, the aff could take their pick on how far back on the jurisprudence they would want to go in terms of re-establishing a test. O'Conner favored Midkiff in her dissent.  Thomas prefers an even more restrictive view.

Good politics link perhaps.  Environment neg args. 


Milliken vs. Bradley (School deseg)

Summery at : http://www.oyez.org/oyez/resource/case/248/

There are some that argue that Brown vs. Topeka BofE has failed.  Our schools are defacto resegregated now.  Part of the reason is a series of cases in the 70's that weakened Brown.  Federal courts could force deseg ? often via busing.

In Milliken Court ruled that federal judges could not impose interdistrict busing as a way to force deseg.  This weakened Brown and many argue that Milliken wrecks desegregation efforts.

Aff would overrule Milliken.

Race advantages. 
International signaling, cred, etc.

Interesting neg ground ? critical and policy.

erwin chemerinsky, for instance, argues for the abolishment of private schools ? forces the public schools in the cities to become "cathedrals of education"

States cp
Increased funding for inner-city schools cp

There are other cases that weaken Brown.  Mancuso talked to Chemerinsky and he said if we could only pick one ? Milliken is the one to pick.  If the topic didn't have a case listed but dealt with deseg as an area there'd be about 5-6 cases ? so it's a limited area.

If it's just Milliken the other cases could be neg solvency args.  Maybe the plan would clarify the holding in such a way as to bypass those neg args.

Overrule would be a liberal move.

Vs. congress cp you could argue that as long as the stigma of the decision stays on the books the majority won't see the benefits of integration (Mancuso says there is a law rev on this)

Mancuso concludes it's a good area.  Really gets us into Brown and it's history ? good lit there, especially new lit that analyzes the history.


Executive Authority ? a number of cases.

2 landmark cases ?

Youngstown ? limited executive's authority.

US. v. Curtiss Wright ? could legislature delegate authority in forpol to executive? 

But, what really concerned with is executive authority in war on terror.  A series of cases tests balance between Curtiss-Wright and Youngstown.

3 big terrorism cases in 04? Rasul, Hamdi and Padilla.

Dealing with any of them creates a substantial problem ? bidirectional or just a jurisdiction issue (Padilla)

SC legitimated the executive's authority (for instance, can detain w/out charge if labeled as an enemy combatant)  But establish a degree of legal review (habeas corpus for instance) This could be bidirectional.

Ex parte Quirin ? cited extensively by the executive to justify their authority to detain and deny.

Overrule Quirin would restrict executive authority.

Hamdan is coming up ? but unlikely to be much change in ways that would hurt us if the topic was overrule Quirin. 

Overruling Curtiss-Wright is very broad ? access a ton of prez power issues.  Lit doesn't really support it either.

Overruling Quirin gets us into enemy combatants and detention authority straightaway.  Limited to just that.

Mancuso asks about how Hamdan (a decision coming up) would be effected if we included Quirin in the topic and/or visa versa.  Quirin is so much bigger.  If Hamdan loses we're fine including Quirin.

Stefan asks if there really is lit saying Quirin should be overturned rather than just lit talking about how the administration is mis-using the precedent in their legal arguments.  Stables says his supplemental paper has some ev support for the overrule.  The question is what constitutes an overrule.

Stefan wonders how far the aff really has to go in terms of "overrule."

Religious Freedom

Tim O'Donnell & Jim Lyle

We considered several cases....

Lemon v. Kurtzman


Great debates about alternative tests.  But overrule Lemon doesn't do it.

Employment Division vs. Smith


RFRA enacted by congress to prevent interference with religious activities.  Court tried to overrule the Court in Smith.

City of Boerne vs. Flores came in response...


Commentators think the new Court will lean towards protection of religious freedom.  We doubt there are many good affs.

Boerne might be the best access point.  As a specific case rather than "religious freedom" as an area, which could be hundreds of cases.  But there are arguments for doing an area.

Mancuso wants to make a pitch for Boerne in the sense that it would be a good 14th amendment, SoP, Court v. Congress access point.

Tim thinks there isn't much downside to including Boerne in a list of cases topic.  We've never debated religious freedom before. 

Strange thinks it might be better as an area rather than a case.  Free exercise vs. Establishment issue.  Tension between the two makes for a good debate issue.

Vik Keenan thinks there may be some ways to get into the debate over Islamic veils, scarves that cover the face like the issue that's been raised in Florida.

Picking one case might be too limited ? so as an area it could get in to some of the broader issues.

Galloway thinks these cases are possibly the least vulnerable to the congress counterplan given the history of Smith and Boerne vis-?-vis the RFRA.  Galloway hates negs that game fiat against cases like these.  So, your congress cp has got no chance against a Boerne aff if Galloway is judging.  But he's okay if the neg runs a Court stripping cp ? but still thinks the aff will probably win.

Aff Action

Malcolm Gordon

Bakke is the "landmark" case re: racial quotas.


Gratz and Grutter ? the companion cases concerning the Univ. of Michigan's admissions program.



SC held that diversity is valuable but you can't have racial quotas.

If the aff overruled Gratz it would defacto allow quotas and schools would have no reason to fear lawsuits.
Overruling Grutter could hurt affirmative action.  Grutter sided on the side of the school.

Brad Hall was asked what the effect of Gratz and Grutter has been since 2003. In light of the seeming contradiction.  His research shows that Aff Action programs are on the decline.  Schools are having difficulty drafting programs that are in compliance with Gratz and fear lawsuits.

Hall thinks a neg could just have the government clarify the rulings.  The reason aff action is on decline is because of lack of clarity...nothing unique about the rulings.

Mancuso thinks that if the topic wants to do Affirmative Action then Gratz is the way to do it and the aff gets Aff Action/quotas good.

If lack of clarity is the only thing the lit suggests is causing a decline in aff action programs then overrule Gratz seems to be the best access point.  Both cases agree that diversity is valuable ? the only question is how to go about achieving it.  In this sense Gratz and Grutter are not incompatible.

Stefan wonders why the topic wouldn't just be overrule Bakke.  Bakke is less clear cut.

Galloway wants to know if we want to broaden this to just aff action in schools ? what about Adarand ? minority contracts, etc.  Basically, Gratz only deals with education.  Malcolm says there isn't much in the way of spillover ev about aff action in education spilling over to other areas.

Malcolm concludes there is no downside to including Gratz.


Ed Lee ? paper is on the blog

Roe or PP v. Casey

In Roe the SC concluded that there are some areas where personal interests overwhelm state interests.  Court developed a trimester system.  State interest weighed more heavily in 3rd trimester.

You could overrule Roe ? would force aff to defend the denial of access to abortions.  Bidirectionality risk in terms of trimester system ? for instance, expand access throughout the term of pregnancy ? treat first and third trimester the same.  Ed doesn't think it's viable as an aff.  Aff would have to say restrictions on access are good for whatever reason.

Casey is explicitly bidirectional.  Court struck down spousal notification but upheld waiting periods and parental notification. Many suggest the Court were in-line with Roe.  In their mind Casey "locked-in" Roe.  Some suggest that you can't overrule Roe without overruling Casey.  HOWEVER, there is a substantial body of lit where people are critical of Casey ? restrictive provisions violate the spirit of Roe, etc.

Summery of Casey:  http://www.oyez.org/oyez/resource/case/306/

Mancuso thinks a bidirectional abortion area in a list or something would be a good idea.  May not alleviate the concerns raised with including abortion.  But the topic would still be directional in terms of mechanism.  To include casey or roe we might be saying the aff could run one of either kind of case on abortion.  Malcolm agrees.  Ed thinks there are uniqueness issues though.  Neg has to do research both ways, etc. 

Strange doesn't think any aff can argue elimination of 3rd trimester abortions is an overrule of Roe because a ban on 3rd trimester abortions was the status quo before Roe.  The effect of Roe was basically to allow earlier term abortions but keep restrictions on late-term abortions in place.

Ed thinks the lit on Casey is so broad that the bidirectionality concern is more problematic.  Goes further than the need to have cards on both sides.

Mancuso wonders if the resolution that includes abortion could be made smaller in terms of other cases in the list to alleviate this concern.

Matt Moore wonders if there truly are that many cases.  Strange says if there's only one bidirectional case in the list it won't be that bad.  Harrison's remedy from the blog is noted by the committee.

TC decides to put off the bidirectionality discussion until they get into the front end of the topic.  And by TC I mean Malcolm, who is not really adding anything useful to the discussion anyway.

No one was present at the meeting to object to the inclusion of an abortion area in the topic.

School Drug Testing


BofE v. Earls

Summery at http://www.oyez.org/oyez/resource/case/1493/

"special needs" exception to probable cause/reasonable suspicion.

Court began their "assault" on student rights in TLO.  But TLO still required reasonable suspicion (not probable cause, the standard was lowered).

In Vernonia School District v. Acton the issue before the Court was mandatory testing of athletes without suspicion.  Court said they were okay because there were conditions ? you don't have to play football, it's a safety issue, etc.

In Earls the Court held that this could apply to ALL extra-curriculars.  This precedent is so broad it could apply to ALL students as a condition of attending school.


Privacy, dignity, extra-curriculars keep kids off the streets (yay debate).
Schools should teach democratic values by examples.

Could broaden it to say that rights are a pre-condition to learning.  Drug testing scares the marginal kids away from extra-curriculars.

States CP works ? State constitutions sometimes have more broad privacy provisions.

Privacy isn't something we've dealt with in other areas.  Mancuso thinks it's pretty good aff ground.  He says the law revs are overwhelmingly aff.

Stefan says the neg can say that randomness doesn't stigmatize or distinguish students from one another in terms of a suspected class.  Vik Keenan says suspicion is less effective and teachers and administrators don't use it.

Capital Punishment


Gregg v. Georgia

Summery at : http://www.oyez.org/oyez/resource/case/469/

30th anniversary of the decision is coming up so the lit is heating up.

Affs would overrule the Court's decision. 

New issues:

Phrase "overrule Gregg" turns up a lot.  Reasonable amount of ev about the effect of an overrule.
The Court hears a lot of capital punishment cases.  Kansas v. Marsh is being decided for instance.
It will stay inherent despite state moretoriums, etc.
International cooperation issue, particularly in GWOT.  Allies won't extradict to US, etc.
Treaty obligations, etc.

Clearly a liberal direction.

Checking the blog to address issues....

Does not seem to be bidirectional.  Stefan agrees.  Wants to know about neg args.  Stables worries that the debate community doesn't deal well with the "real world" arguments for the death penalty (justice, etc.)  Could make being neg really tough.  Terrorism might be the best place for neg ground.

Kathryn Rubino thinks teams might recycle their cases from the treaties topic.  Stables says the difference is debate over the legal rationale for the overrule.  And says the Terrorism issue is really pronounced ? a timely issue, etc.

Strange asks why the Court?  Stables says he hasn't seen much in favor of the Court actor/action vis-?-vis the Congress cp.



American Booksellers Assoc. v. Hudnut ? galloway's paper is on the blog under "Hudnut"

Indianapolis statute defined pornography" as a practice that discriminates against women. Court summarily affirmed the circuit court.  Not a decision to look at.  But there's plenty of law rev lit.  It allows access to a core question about the relationship between pornography and the subordination of women.  Galloway concludes it is a good case to consider.

Neg ground is a spirited defense of the 1st Amendment.  There is a cyberspace dimension to this issue.

Vs. Alternate agent cp ? SC struck down a statute ? if Congress tried to enact pornography regulation the SC would strike it down.  Galloway votes aff against the Congress counterplan in cases like this...see above.

The SC uses the 1st Amendment as a weapon against decency laws.

Bottom line ? strong 1st Amendment issue.  Galloway thinks the neg is decent.  But McKinnon and Dworkin write good cards for why the Indianapolis statute is good.

Miller v. California

This is the test involved in this.  Hudnut affirmed the essential test in Miller (Prurient interest). 

As long as Hudnut follows the Miller test the statute cannot survive.  The Miller test is something we could include in a test rez.  Both Miller and Hudnet could be stand-alone cases in a list of cases.

Overrule would be pro-gov't, anti-individual rights.  Don't think it's bidirectionality.  Not really a federalism issue in the lit.  The question is whether the gov't should regulate pornography because of the harm it creates for women.

Rubino has studied the case and agrees with Galloway that it is a good case and area to consider.  Well meaning liberals and feminists on both sides so it's balanced within the area.

Rubino and Galloway both like Hudnut better than Miller. 

Maffie wonders about PICs.  (Ed Lee jokingly refers to the soft-core PIC)  A Hudnut case could basically ban all pornography.  Galloway thinks the debate is really about 1st Amendment vs. gov't regs.

Mancuso points out that overruling Hudnut doesn't put new ordinances in place ? they would need ev that localities would pass bans in the wake of the case.  So those PICs don't compete.  Rubino says PICs don't get the best aff advantage ev. 

Strange suggests that the result of the case might only deal with HOW the gov't regulates pornography not whether it regulates it.  Neg could simply say gender-specific rules are bad and avoid a debate over whether porn is harmful to women.  Galloway says the aff would still be okay.

Right to Die

Matt Moore

Courts have already upheld a right to refuse medical treatment.  Question is why not phsycian-assited suicide.  SC upheld death with dignity act in Oregon.  Court wants the states to decide.  Can't rule on it until it is a law.  Court says there isn't a RIGHT to phsycian-assisted suicide so bans are okay.

Cruzan vs. Dir. Of the Mo. Dept. of Health

Summery at : http://www.oyez.org/oyez/resource/case/91/

Washington v. Glucksberg ? upheld Washington's ban on physician assisted suicide.

Summery at : http://www.oyez.org/oyez/resource/case/843/

Very divisive issue.  Plenty of lit in favor of Physician-assisted suicide.  Paper on the blog by Cram-Helwich.

Huge federalism issue.  Moore's concern is that the states cp is unbeatable.  Not enough lit that defends the Court action. 

It's also bidirectional.  Overrule Glucksberg to say there isn't a right to die ? should not be left up to the states, etc.

Moore doubts it's any good as an area because of counterplans.

Does anyone have ideas about any other areas?  Tim wants to look into the Court's recent ruling on whistle blowers.  Will be researched tonight.

Stefan suggests Terry or other 4th Amendment cases.  What about Miranda?  Chemerinsky said Miranda isn't a good area.  Virginia v. Black ? a new cross-burning case ? another 1st Amendment case.  Galloway wants to look into Ashcroft v. ACLU ? another statute strike down on 1st Amendment grounds.

Galloway wants to know what community would think about a topic that called for the aff to restrict 1st Amendment "rights."  Mancuso asks what would be included besides pornography and hate speech.

Maybe Adarand....not much else to work on in terms of cases.


School deseg
Abortion ? one direction or the other.
Religious freedom area that focused on tension between establishment vs. free exercise.
1st Amendment ? reduce free speech ? gets porn and hate speech in.

Mancuso says his sense is that areas might be too large based on what people are saying.  Some of these areas might be limited enough.  Don't have to decide on the areas vs. listed cases tonight, but need to get in to it.

Let's take a first whack at verb and agent.

Verb 1st ? OVERRULE

Stand alone question of what the verb should be and how does it interact with an object like "decision" or "holding" or "precedent"  etc.  Mancuso's standard (affirmed by Strange) is that after the aff the side that lost the first time around has to be the winner after the plan.  Stables thinks an object isn't necessary. 

Are there any arguments for overturn or reverse????  Overrule is acceptable to all.  Patrice says it works.  Overturn could work too, but overrule works.  Stables says the number of times the Court has used the term overrule more often than overturn.  But their subject is not consistent.  So we're not going to find a silver-bullet solution to our problem.  Stables thinks you can debate T using the words of the Court itself, which is nice.

Mancuso senses there is consensus on using overrule.  Stables doesn't want to open Pandora's box about a topic that doesn't have the supreme court overrule something.

Stefan and Strange point out that the more important issue is the object of the overrule (i.e. decision, precedent, holding, judgment, etc.) rather than the term overrule itself.

Mancuso says we should step back and discuss the agent.    He assumed we'd do a USSC agent.  Galloway voices the arguments made by some others that the USSC doesn't overrule themselves often. If it were a constitutional issue it might be make sense.  If not, then legislative overrule makes more sense.

If topic is USFG then there will be a T debate every time the aff uses the legislature to overrule.  Galloway would rather resolve this by just using a USSC actor in conjunction with overrule.

We're set with USSC actor and overrule as the verb.

Question now is the object....

Stables and Galloway worked on this a bit. 

Decision and holding are the two primary ones we're considering.  Some definitions off of findlaw were read ? they're on the blog.

Judgment is the formal document that said you won ? Patrice says it's a bad term to use.

Holding ? referenced in SC decisions.  In some cases there are two or more holdings.  Aff could do all and the neg could do just one, etc.  We could say "at least one holding."  Strange says that the reasoning is included in the holding.  So the holding takes the reasoning in the opinion or the basis for the decision ? the pronouncement of law supported by reasoning, etc.

For example ? Roe said that restrictions are unconsititutional.  The "holding" would be that personal interests exceed state interests. 

Strange says when you put overrule with decision it would statisfy the T test about the loser becoming the winner.  That isn't true with holding.

Patrice explains that holdings are the legal conclusions reached.  Not always a line that says, "here is our holding" ? sometimes westlaw puts those in, etc.  You have to scour for them sometimes...like, "we hold that the texas statute..." 

Mancuso proposes....

"overrule at least one majority holding and the decision"

Strange thinks decision without holding is fine.  Stefan wonders if this means the aff has to overrule all the holdings.  Strange says no.  Patrice says there is lit for grounds not ever part of the decision.  Davis says it's all good as long as the aff makes it opposite at the end of the day.  Lets the aff specify.

You can overrule a holding without overruling a decision.  Consensus seems to be developing that holdings shouldn't be in the topic.

Galloway reads some definitions of holding and decision to clarify the point.

Stables thinks overrule a decision gives the aff more latitude.  More flex.  Good or bad...just a reality.

No final decision tonight ? someone will work on it overnight.

Taking a break.

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