[eDebate] Fwd: Law and T

Charles Olney olneyce
Thu Jun 14 14:01:24 CDT 2007

---------- Forwarded message ----------
From: David Marks <dgm2109 at columbia.edu>
Date: Jun 14, 2007 2:55 PM
Subject: Law and T
To: Charles Olney <olneyce at gmail.com>

Hey Charles, can you post this to edebate for me?
Thanks, David

Preface: I rarely ever post to edebate, but summer provides me with
significantly more free time than I've ever had before, so I've
actually followed this topicality discussion for once.

Now the topic: this whole "law" thing people randomly reference.

Analogies to law are useful only if they reflect law's complexity, and
more specifically, flexibility. Most people say "this is the law" or
"rule of law" as expressions of strict rules. The vast majority of
law, however, is not simple strict rules written by legislatures, nor
is it based on "natural law." Instead, law is closer to an attempt to
provide general, socially created rules guiding necessary judgments
amid a socially created and complex world. Law never reaches
perfection - it just strives to do the best it can to create, as
Charles and others put it before, a community that can be both
inclusive, fair and functioning even if inevitably at cost to some.
And in this sense, topicality is "law" - not just an analogy.

All laws have penalties, but there are two crucial caveats. First, not
all laws get enforced. In fact, they are not expected to all be
enforced. A prosecutor and even a cop is expected to exercise
discretion in deciding whether application of a formal penalty is the
best solution to the problem. I can quote from scholars in my Criminal
Law textbook if you want to disagree. Often laws are formulated best
when they would be manifestly unjust in extreme situations, but there
is an understanding (with the word "reasonable," as I'll get to below)
that the law should not be applied in those situations. This is often
why courts are less willing to overthrow law on face instead of as

The point of the first caveat is that you can and often should
disagree with the law and argue that the law should not be enforced
because it is not important in this instance. It's not always so
important to apply the law rigidly. You can argue that debate would
not be so harmed if the topicality penalty were not applied in a
particular instance.

Second, not all penalties are equal. You don't have to be an economist
to believe that sometimes it is ok to break the law. You can believe
that law expresses social disapproval and still think that the cost of
following the law outweighs the cost of social disapproval. Breaking
one law is not the same as breaking all laws. Being a child molester
is not the same as stealing a purse, or white collar crime. There are
different social consequences and different formal legal consequences,
both of which are considered in legal sentencing.

The point of the second caveat is that you can and often should not
obey the law, even if you recognize the law is generally a good thing.
You can argue that debate requires more minority participation and
that outweighs the cost of breaking the law. The distinction between
"topicality is a legal rule" and "topicality is a disad, and you weigh
the impact against the impact of not voting on it" lacks a substantive

To analogize differently, topicality is probably closer to civil law
than criminal law. Civil law can have some social stigma implications,
but nothing close to jail-time required by criminal law. Civil law can
have huge economic repurcussions, but nothing close to the death
penalty. Topicality is closer to civil law insofar as most of the
community would brand those who physically or verbally or emotionally
assault other people in a debate as fundamentally worse than those who
don't run a topical aff. The branding effect of topicality is far less
severe than if you were to physically attack your opponents on a
regular basis. And only one probably warrants complete removal from

Tournament invitations do not often say, "if an affirmative does not
argue the topic, and this is the ONLY way to argue the topic, the
affirmative must lose." Most laws use terms like "reasonable." There
is a reason for this, and that same reason applies to debate. An
affirmative should only lose if its interpretation of debate is
unreasonable relative to a reasonable interpretation of debate the
negative can offer. One factor that may play into reasonability is if
there is something the negative interpretation would require that
would be so horrible as to convince the judge that it would be
unreasonable to force the affirmative to do.

This standard, I believe, is the only one that actually makes Massey's
arguments make sense. Massey says the affirmative must "have
"educational" reasons why they are not topical." I also agree that
education here blurs with fairness. Meaningful diversity is a good
example where "education key to fairness" or "fairness key to
education" tags are too simplistic, since diversity claims challenge
the separation between education and fairness as well as their
substantive meanings. Nonetheless, a presumption that an affirmative
must not be unreasonable is a powerful way to leave the debate up to
the debaters: force a presumption that people come prepared to debate
a common topic, but allow the debaters to argue about what that topic
permits, and whether their particular situation justifies the costs of
abandoning the topic. Debaters can argue about how strict the standard
should be for finding what counts as "reasonable" - the point of the
term is to enable structured debate over complex social issues that
can't and shouldn't be minutely prescribed with the simplistic swipe
of a pen.

Now I'm sure someone is going to say "reasonability" is sexist or some
such thing. The best literature on this is correct that
"reasonability" standards have been abused because they judge
reasonability from the standpoint of the privileged. But, I believe
debate can powerfully use "reasonability," as civil rights lawyers
working day to day for oppressed people have in front of my eyes, as a
focused weapon to challenge acceptable norms and conventions. The term
itself is a great example of "where there is power there is

My second-to-last point is that this whole "start your own league"
argument is anti-educational. I do believe that people don't want to
join debate because it is exclusive but I also know people want to
leave because others ignore the topic. Either way, there is
significant value in arguing about the rules are, as others have said.
I for one did not leave debate with that much substantive knowledge
(and yes, I did cut at least a couple more cards than "but you
answered Death Cult, not Jumanji"). Instead, I got a valuable ability
to think critically and strategically. That ability was fostered
importantly both by in-depth research challenges as well as others'
challenges to what I considered normal and acceptable.

To that end, my final point. Can we please make the discussions here
more professional, with fewer random one-liners and ad homs insulting
others? That would be great.

David Marks

And I just can't help believing
Though believing sees me cursed
--Johnny Boy
"You Are the Generation That Bought More Shoes and You Get What You Deserve"

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