This post is taken directly from Tim's edebate post. Please leave your comments.

From: Timothy O'Donnell (todonnel@umw.edu)

Date: Fri Jun 09 2006 - 00:29:03 EDT

Dear friends,

Below and attached is a document which I sent to my colleagues on the CEDA topic committee last night. In it, I call for us to continue our deliberations for the purposes of attaching an addendum to the current list resolutions in order to produce resolutions which I believe achieve the original goals and purposes of this topic and this committee's efforts. In short, I think that we are close but additional work will solve some of the shortcomings (which have been amplified repeatedly in both this forum and on the topic blog).

To begin, I think its fair to say that this may be the most challenging topic any committee charged with drafting resolutions has ever faced. I also know that this committee has worked harder than any committee has in the past. Steve Mancuso has done more work than any of us should ever expect from a topic committee chair (for several years now in fact). Ryan Galloway and Gordon Stables wrote more than I could keep up with. And the rest of the committee, other generous members of the debate community (some of whom - like Stefan Bauschard and Tim Mahoney aren't even college debate coaches yet they write topic papers, host national tournaments, etc.) along with a cadre of sharp legal alums worked tirelessly for your benefit. Consequently, we should be very cautious about asking anyone to do more work. Its easy to forget in a game with a "limitless" amount of work that we all need to and should have lives outside of debate.

Therefore, it is with great reluctance that I asked the committee to consider additional work over the next few weeks for the express purpose of polishing the current resolutions.

Let me be clear: this is not a call to add resolutions to the ballot. While there were many excellent late breaking submissions from a wide variety of people, the committee simply could not consider all of them fully in the time that we had. That's an unfortunate, but good problem. If all future topic committee's could be so lucky.

I do not think (nor would I support) that we should have an open ended investigation into resolutional options from now until the ballot is due in early July. I honestly do believe that the resolutions that we have are on the brink of being excellent. Ede Warner's passionate edebate posts about the educational benefits of the list resolutions makes this abundantly clear (and I want to fully endorse his sentiments).

However, I do think that enough concern has been expressed about the specific wordings of the list resolutions, that some reconsideration (and additional work) is in order. The document that follows identifies my perspective on the flaws of the current list resolutions and offers the beginning of a solution.

Although I am the sole author, this document is the work product of several individuals with whom I've had conversations over the past several days. The most signifcant contributions came from Paul Skiermont and Scott Elliott (who sent extensive emails which they were happy for me to share in the larger forum of edebate) and Stefan Bauschard and Jim Lyle who contributed the majority of the evidence contained in the paper.

I am sending it to edebate at Gordon Stables' (the new topic committee chair starting last Friday at the close of the meeting) insistence. I know that he hopes to make any reconsideration of the list resolutions fully open and inclusive. Gordon will do an excellent job of ensuring that any committee action which results from my request for reconsideration is open, honest, and procedurally in order.

[As a side note, this document is important because it contextualizes some of Steve Mancuso's post from earlier today defending the list resolutions. Specifically, it is the source for part of the Skiermont position which Stever is responding to.]

Thanks for reading and all the best,

Tim

----

The List Topicality Debate:
“A Call to Finish our Work”

June 8, 2006

Tim O’Donnell, ADA Representative to the CEDA Topic Committee

THE PREAMBLE:

We worked hard in Kansas City.  We worked hard before we got to Kansas City.  In fact, I would venture to say that no topic committee in the history of either CEDA or the NDT has worked harder.  Steve, Ryan, and Gordon have, in my estimation, done more as individuals than most topic committees do collectively.  None of what I have to say in this document is directed at individual members of this committee.  I consider each of you friends and colleagues and I value your insights, perspectives, and opinions.  We are all responsible for what we produced, and I am still on board with the consensus model which we’ve used to produce resolutions this year. 

Ultimately, I think many of us were guided by our memories of what worked 15 years ago.  I believe that’s what drove Ross Smith’s idea for the topic which Steve so eloquently recounted at the beginning of our deliberations.  However, times have changed.  Debate has changed.  What worked then, will no longer work.  We can still have the wonderful substantive debates which so many remember, but we need to provide the “opportunity” for those debates to happen.

THE PROBLEM:

I am now convinced that "overrule" and "decision" are fatal flaws in the current resolutions.  Together, they mean virtually nothing.  I like Paul Skiermont's formulation of the problem the best (sent to me with permission to redistribute): 

> > > Begin Quote

There are two problems with the overrule topic as currently drafted:

1) Each case on the list has several "decisions" (or, holdings).  The affirmative can overrule any one of those decisions and be topical.  That means, in essence, that the topic is: "Resolved: the Supreme Court should overrule something." Ede's argument on edebate that "overrule decision" provides a check is wrong.  Each case has several decisions.  Also, even if the negative has a viable T argument, history shows that has very little to do with the actual contours of a topic because good teams can run to the corners of the topic and skillfully defeat topicality. 

2) Requiring the affirmative to overrule creates a pretty devastating generic negative cp attack to establish the rule of law that the affirmative seeks to establish, but do so without EXPLICITLY overruling a prior case, net benefit being explicit overrules are bad (legitimacy, etc.)

> > > End Quote

This perspective is not unique.  Lindsay Harrison made this argument persuasively in her post to the blog during the topic meeting.  Others wrote it on the blog during the meeting.  And, over the past several days, Scott Elliott’s posts to edebate offers ample demonstration of the significant problems that will plague the topic if we do nothing.  I know there was some significant sentiment not to do further work after last week, but I do believe that if we took some time over the next couple of weeks, we could produce a ballot that a) represents what we really thought we were producing and b) would produce the kind of topic that so many desire. 

THE ORIGIN OF THE PROBLEM AND FURTHER EXPLANATION:

Many of the topic committee members acknowledged that there was at least a substantial risk that requiring the affirmative to overrule one of these decisions would not put much of a restraint on the affirmative or even force them to address many of the key issues that we aimed to debate when we carefully composed the various list topics.

We relied on two positions to address this concern.

First, we relied on the equivocation of “decision” with “judgment. “ This is problematic for two reasons:

1) “Decision” is a term with no fixed legal meaning

BLACK’S LAW DICTIONARY:

Decision: "A popular rather than technical or legal word; a comprehensive term having no fixed, legal meaning."

2) Decision can also be understood to be the holding of the court:

Barron's Dictionary of Legal Terms

Overrule: “To overturn or make void the holding (decision); generally accomplished in a different or subsequent case, when a court renders a decision that is substantially opposite the decision made in a prior case.”

(Note: It appears that this could be a good negative T card because it says overrule requires a “substantial” change in the decision, but this cards defines a “decision” as the holding).

Moreover, even if the negative wins that a decision is the judgment, this is still problematic because it doesn’t reverse the legal precedent established by the case.  For example, Elliott made this clear and even argued that a “cute” case would be to overrule the judgment in the affirmative action case, giving one party a victory that would benefit that specific party, but have no legal impact on any legal precedent established by the holdings and precedent in the case.  If one of the small resolutions wins, that literally means there are four affirmatives with advantages about a handful of people.  If the court DAs easily outweigh this they do every time….

Second, we relied on the negative being able to counterplan out apparently unrelated issues.  This is not an option for the negative if the decision includes (or is) the holding because the affirmative can overrule anything they can identify as the holding in any decision.  There is no other core holding that they must also overrule that gives the negative a link to the DA they’ll try to argue proves the counterplan net-beneficial.  You could argue that this proves why the negative’s definition of “decision=judgment” should be accepted instead of the “decision=holding” definition, but “decision=judgment” produces a very bad topic as well for the reasons just discussed.

Elliott also made it very clear that if you overrule a case on one point of law that doesn’t overrule the whole thing or other points of law – there is no link at all to the potential net-benefit.

The negative has to have a topicality argument to reign in the affirmative that is grounded in the wording of the resolution.  So far, there are a couple “interpretations of the topic:”

1) “overrule decision = overrule judgment” – This is a terrible topic.  We don’t debate precedent.  The aff can’t even if they want to.  Specifying reasons may even be extra-T!  Law is made by studying the new precedent…there is none to study after this interpretation.

2) “overrule decision = overrule holding” –  A)  The aff can say anything.  As Skiermont says above, this means the resolution says “SCOTUS should overrule something.”  Elliott contends that Casey is a way to overrule anything.  Plus, as Ken Strange said at the meeting, holdings are often hard to identify, which means endless T debates. 

A third potential interpretation…

3) “overrule” means you have to overrule it “all.”  In this scenario, the negative wins every time on the PIC to not reverse the court’s holding that it has jurisdiction.  This IS precedential – SCOTUS said it had jurisdiction over GITMO and that is precedential.  Elliott has identified a ton of other good PICs.  And this is early June.

A fourth potential interpretation….

4) The aff has to debate the heart of the issue. Perhaps a K of omission extended as a T argument. OK, but what’s the core?  Strict Scrutinty is the important reference for Korematsu now, not the internment of Japanese Americans. 

THE SOLUTION:

The solution is as clear now as it was last week, although we now have the time to implement it in a prudent way.  Here is one attempt by Elliott (sent to me with permission to redistribute): 

> > > Begin Quote

The United States Supreme Court should overrule one or more of the following its precedents:

Planned Parenthood v. Casey, 505 U.S. 833 (1992), to the extent that it holds there is a Constitutional protection of the woman's decision to terminate her pregnancy derived from the Due Process Clause of the Fourteenth Amendment;

Ex parte Quirin, 317 U.S. 1 (1942), to the extent that it holds one who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such;

U.S. v. Morrison, 529 U.S. 598 (2000) to the extent that it holds Gender-motivated crimes of violence are not economic activity;

Milliken v. Bradley, 433 U.S. 267(1974, to the extent that in fashioning and effectuating school desegregation decrees, the decree must indeed be remedial in nature;

Gratz v. Bollinger, 539 U.S. 244(2003, to the extent that all racial classifications in education reviewable under the Equal Protection Clause must be strictly scrutinized;

City of Boerne v. Flores, 521 U.S. 507 (1997), to the extent that Congress can only enact legislation enforcing the constitutional right to the free exercise of religion that is preventive or remedial;

Terry v. Ohio, 392 U.S. 1 (1968), to the extent that the permissible intrusion of a person is bounded by the justification for the detention;

Gregg v. Georgia, 428 U.S. 153 (1976), to the extent that the punishment of death does not invariably violate the United States Constitution.

> > > End Quote

Commenting on this list, Skiermont says:

> > > Begin Quote

The "new" [i.e. Elliott’s] topic that lists holdings is better in my mind (especially in dealing with problem (1) above).  Brian [Prestes] is correct, though, that the "to the extent" language is awkward and should be revised.  You should use the actual language of the holdings from the cases.  Also, I would use "holdings" instead of "precedents" in the stem (since the list will really be a recitation of holdings).

Alternatively, to address problems (1) and (2), the topic could be worded - "Resolved: That the United States Supreme Court should establish one or more of the following holdings: (and then list holdings that are the opposite of the holdings you want to debate from the list).

> > > End Quote

So what am I proposing?  Scott produced his list in about 45 minutes.  If we each did a couple of hours of additional work, we could knock this out. 

There are two options (and probably others).  Either we A) follow Skiermont’s advice and rewrite the list resolutions to specify holdings or B) we keep the overrule language and write the holdings in for each list per Elliott’s attempt listed above.  Option B probably has three advantages: 1) The topic was described as an “overrule” topic – so we preserve the voters intent.  2) We preserve what some think is the “great” generic “overrule” ground.  3) Skiermont’s plan seems closer to “writing people’s plans” (i.e. you plan needs to hold “x”).  Elliott’s draft allow you to “overrule” however you want, as long as you overrule “x” holding. 

Ultimately, I think Skiermont’s direction may be optimal, but I’d settle for the path of least resistance and implement Elliott’s solution.  To ignore both and remain wedded to the status quo is the most disastrous.

We have the time to investigate the holdings for each of the list cases.  And while I understand the desire not to spend another second on what is a relatively thankless task, I think we need to.  The love, dedication, and commitment which drives us to work on the committee in the first place are what should motivate us now.  A little additional effort could produce a substantial benefit. 

CONCLUDING SUMMARY THOUGHTS (and some new arguments):

1)    The problem: either the aff gets to do anything or they get to do nothing.  A year of topicality debates means we’ve failed to do our job.  The “fatal” flaw (to channel Michael Gottlieb’s quotation from Ryan’s original paper) isn’t the words “overrule” and “decision.”  The problem is that “overrule…decision” is either way too broad or way to narrow (if it means anything at all). 

2)    The consensus of legal experts have weighed in against the resolutions we have drafted.  There has been no substantive response to their criticisms.  Ede Warner has done more to defend these resolutions than we have.  I agree with his motivations.  I want our students to engage the substantive issues posed by the list topics.  Ultimately, however, we’ve dealt him and others who expected (and voted for) the court’s topic which Steve described in his edebate post a losing hand. 

3)    This is not a revolution or a call to open the ballot to considering any and all options.  This is an attempt to get us back to where I think we wanted to be and where a substantial portion of community sentiment resides.  People want to debate the substantive merits of the cases on the list.  We just aren’t there yet.

4)    The “T” debates are already lopsided.  Whether we intended to do this or not, the blog and edebate have combined to produce devastating “T” cards for the affirmative.  Imagine a set of 2AC blocks that cite the following:

a.    Michael Gottlieb, SCOTUS law clerk and practicing attorney
b.    Lindsay Harrison, law lecturer
c.    Scott Elliot, practicing attorney
d.    Paul Skiermont, practicing attorney
e.    Josh Zive, practicing attorney
f.    Anjali Vats, 3L

APPENDIX:  T CARDS

Here are a bunch of additional T cards which I’ve received from Stefan Bauschard and Jim Lyle.  “Time is of the essence” here, so I’ll let the cards stand on their own, rather than integrate them above. 

___ Lawrence proves the plan doesn’t have to overrule an entire decision’s holdings

Justice Scalia, 2k3
[Dissenting Opinion, LAWRENCE ET AL. v. TEXAS, CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, No. 02–102. Argued March 26, 2003—Decided June 26, 2003, http://a257.g.akamaitech.net/7/257/2422/26jun20031200/www.supremecourtus.gov/opinions/02pdf/02-102.pdf]\
Bowers held, first, that criminal prohibitions of homo-sexual sodomy are not subject to heightened scrutiny because they do not implicate a “fundamental right” under the Due Process Clause, 478 U. S., at 191–194. Noting that “[p]roscriptions against that conduct have ancient roots,” id., at 192, that “[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,” ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homo-sexual sodomy was not “‘deeply rooted in this Nation’s history and tradition,’” id., at 192.  The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a “fundamen-tal right” or a “fundamental liberty interest,” nor does it subject the Texas statute to strict scrutiny. Instead, hav-ing failed to establish that the right to homosexual sodomy is “‘deeply rooted in this Nation’s history and tradition,’” the Court concludes that the application of Texas’s statute to petitioners’ conduct fails the rational-basis test, and overrules Bowers’ holding to the contrary, see id., at 196. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and pri-vate life of the individual.” Ante, at 18. I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers’ conclusion that homosexual sodomy is not a “fundamental right”—even though, as I have said, the Court does not have the boldness to reverse that conclusion.

___ Overruling a holding is topical (holding = decision)
Justice Stevens 92
[Majority Opinion, Quill Corp. v. North Dakota (91-0194), 504 U.S. 298 (1992)., http://www.law.cornell.edu/supct/html/91-0194.ZO.html]
Comparable reasoning justifies the imposition of the collection duty on a mail order house that is engaged in continuous and widespread solicitation of business within a State. Such a corporation clearly has "fair warning that [its] activity may subject [it] to the jurisdiction of a foreign sovereign." Shaffer v. Heitner, 433 U. S., at 218 (Stevens, J., concurring in judgment). In "modern commercial life" it matters little that such solicitation is accomplished by a deluge of catalogs rather than a phalanx of drummers: the requirements of due process are met irrespective of a corporation's lack of physical presence in the taxing State. Thus, to the extent that our decisions have indicated that the Due Process Clause requires physical presence in a State for the imposition of duty to collect a use tax, we overrule those holdings as superseded by developments in the law of due process.

___ The Court only has to overrule part of a decision
Rhenquist, 90
[Majority Opinion, Payne v. Tennessee (90-5721), 501 U.S. 808 (1991), http://www.law.cornell.edu/supct/html/90-5721.ZO.html]
Applying these general principles, the Court has during the past 20 Terms overruled in whole or in part 33 of its pre- vious constitutional decisions. [n.1]  Booth and Gathers were de- cided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions. They have been questioned by members of the Court in later decisions, and have defied consistent application by the lower courts. See Gathers, 490 U. S., at 813 (O'Connor, J., dis- senting); Mills v. Maryland, 486 U.S. 367, 395-396 (1988) (Rehnquist, C. J., dissenting). See also State v. Huertas, 51 Ohio St. 3d 22, 33, 553 N. E. 2d 1058, 1070 (1990) ("The fact that the majority and two dissenters in this case all inter- pret the opinions and footnotes in Booth and Gathers differently demonstrates the uncertainty of the law in this area") (Moyer, C. J., concurring). Reconsidering these de- cisions now, we conclude for the reasons heretofore stated, that they were wrongly decided and should be, and now are, overruled. [n.2]  We accordingly affirm the judgment of the Supreme Court of Tennessee.

DIFFERENCE BETWEEN OVERRULE RESULT AND METHODOLOGY – CAN OVERRULE ONE AND NOT THE OTHER

UNIVERSITY OF CHICAGO LEGAL FORM, 2004
In this way, Lawrence's recognition of a privacy right founded upon a modern social consensus that includes same-sex intimacy within the understanding of family affirms Bowers's constitutional methodology even as it  overrules Bowers's  result

OVERRULING A PART DOESN’T MEAN OVERRULING EVERYTHING
Cardozo Women's Law Journal, Winter, 2004
Justice Scalia notes, that the  Lawrence  majority "does not  overrule Bowers'
holding that homosexual sodomy is not a "fundamental right.'"    n29

“EXPLICIT” OVERRULE MAY MEAN OVERRULE EVERYTHING
37 Creighton L. Rev. 653, *701   
The  Lawrence  Court did not explicitly  overrule Bowers because the Lawrence  Court failed to explicitly state there was a fundamental right to engage in homosexual [*702] sodomy.    n543 Furthermore, the Court did not even implicitly overrule Bowers because the Court did not subject the Texas statute to strict ...

LAWRENCE DIDN’T ‘DIASVOW” ALL OF BOWERS
[*514] More dramatically, the Court in  Lawrence  went out of its way not
merely to  overrule,  but entirely to disavow, its 1986 decision in  Bowers  v.
Hardwick, which had upheld the constitutionality of Georgia's criminal sodomy
statute against a due process attack

LAWRENCE OVERRULES BOWERS

SOUTH TEXAS LAW REVIEW, Winter 2004
The import of Lawrence v. Texas in relation to judicial bias cannot be fully grasped without examining the holding of  Bowers  v. Hardwick, the case Lawrence overrules.

Timothy M. O'Donnell
Director of Debate and Associate Professor of Speech
University of Mary Washington
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todonnel@umw.edu
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