No “At Least” In the Resolution

[LQuinn]

Dear debate community,

I want to introduce a topic for discussion on CEDA forums. Samford has noticed there is no “at least” preceding “including a market-based instrument.” There is some discussion about the absence of an atleast making the “including” optional.

In fact, there is an entire legal canon of statutory construction regarding the presumption of the the nonexclusive include.

Presumption of Nonexclusive “Include”
The verb to include introduces examples, not an exhaustive list.The Eighth Circuit opinion referenced supra as an example of the general terms canon illustrates this canon as well. The statutory language “any property, including money” did not limit the meaning of property solely to money.22 On the other hand, language such as “consists of” or “comprises” indicates a group contains precisely that number or description.(https://www.law.georgetown.edu/wp-content/uploads/2018/12/A-Guide-to-Reading-Interpreting-and-Applying-Statutes-1.pdf)

We wanted to introduce a conversation opportunity for the community to discuss the issue instead of waiting for ad hoc judge decisions at the season opener. We are concerned the lack of an “at least” may open the flood gates to affs that explicitly do not defend MBI’s.

There is a world where the reason MBI’s alone won as the topic was because it was a smaller topic that had a single stable solvency mechanism (MBIs). The lack of an “at least” may circumvent the entire MBI debate and give way to very odd CP competition debates regarding PICs etc.

We also noticed other topics included the verbage “at least including” and the initial topic wording of MBI alone’s included “at least”. (The United States Federal Government should adopt a clean energy policy, at least including a market-based instrument, for decarbonization in the United States.) “At least including” was removed from the final topic verbage.

This is not an attempt to criticize the topic committee. They do wonderful work and we are indebted to their labor. We largely just wanted to initiate a discussion (yay CEDA Forums!) regarding this issue before waiting for the season opener for the community to arrive at a consensus. As we all know, pre-season summer work is the best time for research. Furthermore, we would be interested in potentially entertaining a “supplementary ballot” idea that would permit the community to vote on amending the topic by including “at least” if this mechanism exist. We largely just wanted to discuss the issue with the community writ large.

Warmest regards,
Samford Debate

• This topic was modified 9 months, 1 week ago by LQuinn.

[lundeeng]

This card unambiguously says “including” isn’t identical with comprises and “including ___” is not an exhaustive list. It doesn’t say “including” means the elements after are optional.

[LQuinn]

Hey Lundeen! I appreciate the reply. Like I said, the goal here is to parse through this issue now instead of dwelling on it in the future. I do not want this to be an issue. I would prefer there is community agreement that including here is a restrictive/mandatory sense.

I don’t agree that the statutory canon here unanimously states that the “,including” is mandatory. It introduces “examples.” Here is another court quote on “including”: We have earlier held, in analogous interpretation situations under this act, that terms like “include” are words of enlargement and not of limitation and that examples specified thereafter are merely illustrative. Fraser v. Robin Dee Day Camp, supra (44 N.J., at 485-486); Levitt & Sons, Inc. v. Division Against Discrimination, supra (31 N.J., at 526). (https://law.justia.com/cases/new-jersey/supreme-court/1969/54-n-j-113-0.html)

Again, my concern here is with the usage of the words “the verb introduces “examples” or “merely illustrative.” I’m not a proponent of these definitions nor arguments. My concern is I can definitely see other teams making these arguments. I largely just wanted to solicit community feedback on the issue to help frame potential debate arguments. Thank you for your response!

• This reply was modified 9 months, 1 week ago by LQuinn.

[nrothenb]

Hey Lee, thanks for bringing this to our attention.

I think the meat of your dilemma is less to do with the cards you have produced and more to do with the way our community interprets parameterizing the resolution, or the ability to write and defend a specific policy as opposed to the resolution proper as a debatable thesis proposition.

If I was a business, for example, and I said that I will accept “established forms of payment, including cryptocurrency” then no customer would ever suspect that they would not be able to pay with cryptocurrency, even though including in this context doesn’t say One “must” pay with cryptocurrency. Instead, the statement implies that the establishment is obligated to accept cryptocurrency (because the establishment has specified that they consider cryptocurrency to be an example of established forms of payment).

If that statement of accepting payment was a policy debate resolution, then teams would probably specify that they will accept a version of accepted forms of payment (e.g. credit card) and not others (e.g. money order) so as to garner advantages and avoid disadvantages. But if that specification does not include ” cryptocurrency ” One has to wonder to what extent that plan is an “example” of the resolution (in the same way we can imagine a situation where our owner of the restaurant was trying to encourage others to copy his or her payment scheme, they would probably not be happy if the other restaurants around them “agreed” but ultimately did not accept cryptocurrency).

Another way to put this is if one was writing paper for a class and defended the thesis statement that “The United States Federal Government should adopt a clean energy policy for decarbonization in the United States, including a market-based instrument” it would strike me as quite strange and improper if the author of that paper indicated that they were not going to defend a market-based instrument (in fact, one could easily imagine a critique of that paper saying something to the effect of: I agree with everything you are saying, but actually think we ought to exclude a market-based instrument)

I think what your post is getting at is we write resolutions sometimes now not just describing the action of an agent, but in terms of restricting the actions of the team interpreting the resolution. This is I see it is the point of “at least” as you were describing it. Here meaning a direction to the affirmative team, Rather than a direction to the United States federal government. But this is less a problem with the way the resolution is worded and more the problem with the way our community interprets plan focused debate.

• This reply was modified 9 months, 1 week ago by nrothenb.

[LQuinn]

Hey Nathan! Thanks for the reply. Yay CEDA forums!

Like I said, I don’t have a dog in this fight. I just enjoy having these conversations now instead of the season opener. I don’t really want to entertain these debates in September.

I’ll be honest, I think your crypto example flows the other way. If a company says “established forms of payment, including crypto” then that means I do not have to pay with crypto. That’s my concern…. that its optional. The company would have to say “established forms of payment, at least including crypto” to mandate crypto. So I’m concerned your example demonstrates how “,including” is optional and not mandatory.

I agree it strikes one as odd that we could circumvent MBI debates!

Furthermore, there are also broader grammatical questions about the comma before including. “You should use a comma before including if you’re using the word including to introduce a non-restrictive clause or phrase. If the phrase beginning with including is essential for the meaning of the sentence, you shouldn’t use a comma.” (https://prowritingaid.com/comma-before-including). If we really wanted to make MBI’s essential, then there would never be a comma in the first place.

Hope you’re doing well and having a great summer! Thanks for the reply.

[lundeeng]

The full context of the paragraph you are quoting from is helpful:
The permissible affirmative action is not fully defined. The section only says “including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, or restoration to membership, in any respondent labor organization” obviously referring to discrimination in employment “or extending full and equal accommodations, advantages, facilities and privileges to all persons” undoubtedly referring, in great generality, to affirmative action in cases of unlawful discrimination in housing and places of public accommodation. We have earlier held, in analogous interpretation situations under this act, that terms like “include” are words of enlargement and not of *127 limitation and that examples specified thereafter are merely illustrative. Fraser v. Robin Dee Day Camp, supra (44 N.J., at 485-486); Levitt & Sons, Inc. v. Division Against Discrimination, supra (31 N.J., at 526). This is especially so here where the word “including” is followed by the phrase “but not limited to”.

I think you are relying on “examples” and “merely illustrative” to do very heavy lifting here.

Your cards say that including is a term of enlargement and that we shouldn’t interpret the elements after including as an exhaustive list. In the context of the 2nd card, there was a section of legislation that said “affirmative action, including….” Included within the set “affirmative action” hiring, reinstatement, or upgrading of employees. In this context, those are “merely illustrative” “examples” that do not SOLELY define the meaning because affirmative action policies may include more than hiring, *but they certainly still do include hiring.*

In the context of the resolution, I have seen no compelling evidence that “USFG should adopt a CEP including MBI” should be interpreted as a CEP with no MBI.

If the resolution said “USFG should increase affirmative action, including hiring policies,” I don’t think your card says an affirmative action policy adopted wouldn’t apply to hiring. It just says that is the non-exhaustive floor, as the TC intended.

[nrothenb]

I agree it means you don’t have to pay with crypto, but it means if you *do* pay with cryptocurrency the establishment must accept it

Another way of putting my point re: the restaurant and it’s relevance to how we interpret plan focused debate is to suggest that basically you are saying that the resolution is a policy, and the affirmative team is a customer to that policy (getting to pick and choose how they will “meet” the policy by picking their most advantageous payment, and then defending their most desirable payment scheme). What I’m trying to suggest, instead, is that the affirmative is actually the restaurant.

[LQuinn]

These are great responses Lundeen and Nathan! I really do appreciate them. Like I said, my goal here is to just discuss this now instead of in September to gauge what other peoples thoughts were regarding the matter. I’m not taking a stance one way or the other and was just curious why “at least” was removed and the potential ambiguity posed by this issue. Thank ya’ll for your input! I don’t want this to be a thing.

[Stras]

I don’t know that I’d be too concerned about this, but it’s an interesting discussion.

I agree that “include” is non-exhaustive. But words aren’t read in isolation. Words are read as part of an entire sentence. Here, I don’t think the alternative interpretation makes a lot of sense.

The concern requires plucking “…, including” away from the rest of the sentence. Here, the sentence orbits around “should.” If I said, “you should go to the store, including a Wal-Mart,” I wouldn’t think that you had followed my directions if you only went to Costco. The “should” in the sentence makes all parts of the sentence obligatory.

The concern would make more sense given a different sentence structure. If I said, “you [c]ould go to the store, including a Wal-Mart,” you should feel free to shop at Costco.

The concern is less, well, concerning when limits and ground enter the picture. I don’t think teams will win arguing that they can do whatever they want with clean energy.

The originally cited case is off-point because the phrasing included “any.” Change the resolution to “Resolved: The United States Federal Government should adopt a[ny] clean energy policy for decarbonization in the United States, including a market-based instrument,” and then my thinking would change.

Finally, I agree that removing a comma would make it unambiguous. I think that change would be better than adding “at least.”

[jpoapst]

I agree with Stras’ thoughts here. “Including” is a modifier whose mandate for action requires the context of the original phrase. If the original phrase is a subjective/optional concept (options for, ideas, a word requiring a list of identifiable included concepts), the word “including” operates like “e.g.”
Including is modified by should adopt a clean energy policy, where including specifies a component of the policy mandate.

While I agree there are definitions of including that open this up to a topicality debate, I cannot imagine an affirmative team who is able to win that debate. The resolution without a floor would allow any “clean energy policy.” Based on the definition evidence from the topic committee weekend, that term means pretty much anything. It also opens the door to non-domestic actions. I would be confident in a win as a 2N going for T in the 2NR against a 1AC without the floor.

Also yay forums! Thanks for starting the convo, Lee.

[LQuinn]

Thank you so much for the responses Stras and Jackie! I 100% normatively agree with your assessment of the situation in regards to concerns why this interpretation of the topic is silly. I wanted to have the discussion with the community to ponder the situation with other members of the community in a non-competitive format.

I don’t think this is an existential flaw/serious issue with the topic. It was just something we were parsing through last night when analyzing the topic and I wanted to use this space as an opportunity to ping-pong the issue with other members of the community. I’m not trying to defend any of these positions, rather just wanted to see where other people of the community landed on these things. There was sufficient concern of potential latent ambiguity of the lack of a qualification on included and the usage of the comma to (at least for me) generate a desire to ask other members of the community. We wanted to see what others may have thought on this situation rather than just wait for September!

Thank you Lundeen, Nathan, Stras, and Jackie for your feedback! It definitely helps frame argument generation at this stage of our research. We are grateful for your input!

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