Judges Ballots 2015
Northwestern – Alex Miles & Arjun Vellayappan (Aff) vs Michigan Ellis -Allen & Alex Pappas (Neg) - winner Northwestern
Items unrelated to the Decision
These ballots often begin with a shout-out. Some may find it odd that I chose to start with a student that was not one of the actual participants in the final round. But, having looked at countless cards that read “dml” at the end of the citation, I surmise (from afar) that Dustin Meyers-Levy was a huge contributor this season. He was present on that stage in his own way. And, I think the following anecdotes represent a lot of what’s great about the activity. I am hoping no one in Ann Arbor will mind that I start with DML… and a tiny moment at Culver’s.
The best there ever was.
To Both Programs
Maybe I’m just a dork about the NDT, but I believe there’s no good way to re-pay both schools for affording you the honor of judging the Final Round.
The short-version of the Decision
This gets unpacked in greater detail later, but I wanted to lead with a basic summary.
Thumb-nail sketch of the Aff:
The Affirmative has – in short – legalized prostitution (with some specific regulations that ultimately weren’t central in this round). For alums that did not watch this year’s topic unfold, it should be noted that this was a new Aff. And it had two novel twists:
The Aff argues that “important human rights issues are not always litigated in the federal courts”. While the US has signed International Human Rights Protocols, the Federal-State balance means several issues germane to true US compliance are handled (or fumbled) by State Courts.
Thumb-nail sketch of the Neg:
The Neg approach is savvy, but straightforward. The Neg counter-plan:
The 2NR has two offensive arguments. One is a disad about NATO. The other is a set of case turns that the Aff would actually hurt multilateralism (this wasn’t the signature offensive arg in the 2NR – it gets less attention in this ballot).
Thumb-nail sketch of the decision:
There are many pieces to the puzzle - but one of the nexus questions was well framed in the opening moments of the 2NR. Is federalism good or bad in this context ?...
But – at least as debated in this round - one of these events was more probable than the other. The Aff showed that spillover to complicating these National Security interests was unlikely – if not inevitable.
In the simplest terms… in the most convenient definitions, I concluded:
Why the risk of the disad is low
The Neg did many things well on this disad – sometimes cutting to the chase on a ballot can make it appear as though the judge has only seen one side of things.
Link and Spillover issues
When the round ended, I anticipated I’d read the Neg’s evidence and the disad would be a little more “perception-based”.
History disproves their link
Julian G. Ku 1, Distinguished Professor of Constitutional Law and Faculty Director of International Programs at Hofstra School of Law, “Customary International Law in State Courts,” 42 VA. J. INT'L L. 265, http://www.hofstra.edu/pdf/law_ku_customary_international.pdf
Plan doesn’t undermine treaty power
Martha F. Davis 6, Professor at Northeastern University School of Law and Co-Director of the PHRGE, THE SPIRIT OF OUR TIMES: STATE CONSTITUTIONS AND INTERNATIONAL HUMAN RIGHTS, N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 30:359, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=908283
Plan doesn’t undermine treaty power
Martha F. Davis 6, Professor at Northeastern University School of Law and Co-Director of the PHRGE, THE SPIRIT OF OUR TIMES: STATE CONSTITUTIONS AND INTERNATIONAL HUMAN RIGHTS, N.Y.U. REVIEW OF LAW & SOCIAL CHANGE [Vol. 30:359, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=908283
Even in a world of implicit clash, the 2NR answer to these spillover claims felt scant. I considered the following from the Neg:
The warrant for why “one voice” is important is significantly diminished if voices # 2 thru #51 will defer to federal interests when human rights cases stand to complicate National Security.
Yes and No. The Neg is correct – the Aff ev does endorse more active State Courts. But, more active human rights courts don’t have to ignore deference on National Security issues – much less ignore it when NATO soldiers are involved. Nearly all evidence in this round suggests courts will continue such deference.
Fair enough. It is true that these Aff deference cards assume the status quo. I gave the Neg something here – although I don’t think this “greenlighting” claim is rooted in much of their ev.
The Slaughter 2005 ev
This ev could be better – but I also felt the Neg could have done more here.
Which Impact has larger magnitude ?..
Magnitude and probability differ.
Thus, I exited the disad thinking that if the probability of the Aff wound-up being comparable, I would lean slightly Aff – due to magnitude.
Things I didn’t vote Aff on
I wouldn’t fault anyone for voting Aff on this, but I did not do so.
… as stated by both teams – and as deployed vs. the perm in the 2NR – the link isn’t solely about “today”. If the Aff causes broad enforcement of human rights, the disad can link not just to the immediate legalization of prostitution, but to what State Courts are doing with unrelated human rights law down the road.
The Aff’s implementation refrain
Another Aff refrain is:
I thought this Aff twist did some damage to the Neg strategy – but not absolute damage.
Does the c-plan solve the overpopulation/soil erosion adv ?..
… because I ultimately determined that the Aff was better for US credibility, I did grant the Aff a very small solvency deficit here. It was extremely marginal.
The Cplan and solving Multilateralism
On that Tuesday morning, I spent about 45 minutes on this question. While I do think the cplan gains some solvency, here were my concerns:
At times, the Aff has a simple – if not overly-simplistic - take on this cplan. They argue that the cplan can’t solve – as all Aff ev is about State Courts (cross-fertilization of legal reasoning, courts being assertive in filling implementation gaps, etc).
This misses the Neg twist – the cplan may not start with State Courts, but that doesn’t mean they’re never involved. There was a whole debate about The Supremacy Clause that I won’t rehash, but the Congress cplan does mean State Courts would enforce newly-legal prostitution. There’s no evidence that a legislative-led process would encourage State Courts to think about I-Law more generally… but I cut the Neg some slack here. The cplan creates a legislative standard that cites I-Law. Logically, judicial branches might well think about I-Law when enforcing.
The real question is whether this “State Court follow-on” grows contagious over time. Will the cplan’s process inculcate norms that encourage State Courts (or any actor) to fill implementation gaps outside the realm of sex work ?
It might – the 2NR is savvy and argues that the 1AR ev on “judicial cross-fertilization good” could spin Neg. Such fertilization would certainly be spurred by the Aff, but might also “catch-on” via the cplan’s reactive judicial enforcement.
That said, the card that most closely speaks to these solvency questions is the 1AR Davis ’14 ev (the next header is all about this card). This card spoke to the value of State Justices proactively advancing human rights without reliance upon legislative standards for their decisions.
Once again, the Aff advantage is about longer-term State-Level enforcement. The Neg effectively used this twist to help vs. the permutation. But, logically, the more the Neg says things like…:
…. the tougher it is to conclude there’s no solvency deficit.
The Davis ’14 card
This card was important. I spent a chunk of time here because I do think it could spin both ways.
Martha F. Davis 14, Professor at Northeastern University School of Law and Co-Director of the PHRGE, with Diego Iniguez-Lopez, Robert L. Carter Fellow at The Opportunity Agenda, and Juhu Thukral, Director of Law and Advocacy at The Opportunity Agenda, “Human Rights in State Courts 2014,” http://opportunityagenda.org/files/field_file/2014.2.06.HumanRightsinStateCourts.pdf
Neg Defense unrelated to the Cplan
The Multilateralism Case Turns
While deciding, I considered the following:
Remaining Case Defense
At this stage, the Aff has the following on their side:
… it’s not impossible that I could still vote Neg – but the unassessed Case Defense would need to very, very seriously reduce the probability of the Aff.
Great cards – but I think they get at a different Aff advantage than the one at hand. The question is not really one of modeling or the human rights benefits of committing to human rights norms.
This was extended in the very fleeting moments of the 2NR – maybe even after the timer. It was hard to assign it much weight. And, this is but one implementation gap (one that the Aff could even address in time) - overall the Aff seems a better approach for issues of this sort.
The largest reductions came here. The 1AC ev could be better on this. But, as the round progressed, the Aff read ev that State Courts will improve as they start to become more comfortable with I-Law. Many Neg indicts assumed a snapshot of today.
This does get at the solvency for the “laundry list” scenarios. But the Aff ev defending multilateralism is decent, if not of comparable quality.
Collectively, the combo of the cplan and case args does reduce the probability of the Aff.
If you (ustedes) have questions…
I am not ecstatic that this ballot made Scott Harris’ look concise.
Paul Elliott Johnson, University of Pittsburgh, email@example.com
Before I go into my decision, I just want to thank the teams for the opportunity to judge the debate, and also to commend everyone on remarkable debate careers. Arjun, I honestly think winning the Shirley four times might be the most impressive thing anyone in debate has ever done. Miles, I’m very impressed by your flexibility as a debater: few people go from waxing poetically about Wendy Brown to blowing up a technical counterplan. To Ellis and Pappas: what an odd circumstance! I judged you three times this year—and these were the only three times I judged you in college—and each time it was an incredibly high leverage debate against a top level opponent. I don’t know how often that happens, but you all were excellent every time. Pappas I thought you were very good in cx every time I saw you. I especially appreciated, Ellis, that you occasionally slow down for a second and try to tell the judges what is going on. That’s important.
I voted negative in this debate for the University of Michigan. The negative won some risk of a disad with a pretty substantial impact and I thought that most of the affirmative pirouettes in the debate to both win their case advantage and play link defense to the DA ultimately created what we professionals call a “hoisted on your own petard” type-situation. The quality of the aff debating in one area ultimately doomed them in another.
I think there were three key vectors to resolve in determining whether or not the disadvantage linked: 1) Questions of spillover i.e. are these regimes/areas (soft HR law and formal treaty commitments) distinct and does it make sense to think about them as such, 2) Some version of challenge is coming and these ad hoc challenges will trigger the link, and 3) the question of the permutation and its relationship to the link.
I did not understand the decision to talk about soil erosion in the 2AR. These are offshoots of the second part of the advantage the counterplan seems to pretty clearly solve and the 1AR dropped some D on it.
John Turner, Dartmouth
First, I would like to acknowledge the skill, effort, and dedication on display in one of the best debates I have judged in many years. Those of us judging and watching the 2015 NDT finals had the privilege of watching four historically talented and accomplished seniors leave the stage in style – as exemplars in synthesizing high quality research, technical acumen, and strategic decision-making. All of the judges agreed this was an exceptionally high quality as well as close debate.
Ultimately, I decided that the permutation avoids the vast majority of the link to the treaty power disadvantage while preserving a small net benefit in terms of US multilateral credibility and foreign policy leverage. Any residual link to the spillover effects of the plan doesn’t have enough of an internal link to the neg’s law of armed conflict and foreign policy interference impacts to outweigh increased US leverage/effectiveness that follows from increased compliance with treaty obligations in the health and labor areas of human rights.
I will start with the characterization and application of link arguments to the permutation because it shapes much of my evaluation and comparison of evidence for much of the remainder of the debate. The negative’s key link arguments to treaty powers are explained in terms of the different possible institutional arrangements for determining (and then implementing) US human rights treaty obligations. The 2NR’s characterization of the disadvantage as asking primarily whether the US should have a federal or sub-federal system for determining those obligations immediately raises the key question of what the permutation means for the relationship between international treaty obligations, state courts, and Congress. In the 2NR’s characterization, the permutation would be perceived, at best, as a “lucky day in court” for human rights (in the areas of health and workplace/labor) plaintiffs. Since the actions of the Congress and the state courts would be uncoordinated (the “not follow on” argument from the 2NR), the permutation would not resolve links related to state court encroachment on federal treaty powers. The 2NR phrasing of the either/or on judicial federalism references evidence from Powell. This evidence uses the language of “bypassing the fed” as part of a “revisionist theory” that violates the presumption that “one system – either federal or sub-federal has a predominant voice.” The Bradley evidence from the block uses similar language in arguing that the Supremacy clause allocates no responsibility to the states for determining human rights treaty obligations. Secondly, the 2NR frames the permutation as challenging the presumption that only prior signal/authorization from federal political branches permits state courts to act as a forum for complying with obligations (Wu and Christenson). In particular, expanded state court activity in the area will harm what the 2NR describes as the “right to violate.”
I found the aff description of the permutation providing a shield from those 2NR link arguments more persuasive because the rhetoric of 1AC evidence supports the distinction between the ruling made by the plan (and its spillover effects) and law of armed conflict. Most importantly, the aff’s appropriation of the “unified voice” phrasing of the negative link argument fits with the state courts acting in response to federal signal on the area. It is hard to reconcile the 2NR’s characterizations of the permutation as a lucky/random/ad hoc approach to human rights obligations with the aff’s evidence that treaty obligations in the area of (human) right to health have traditionally been left to state courts (Davis – 1AC and later cards). In the language of this evidence, “the Supremacy clause requires state courts to consider transnational authority” to avoid an “implementation gap.” Furthermore, this is an area “reserved” to the states for assuring compliance. Thus, the strongly worded objection from Bradley that the Supremacy clause doesn’t provide any role to the states to determine the scope of compliance doesn’t appear to apply to an area where there are already signals from the political branches that the state courts need to step up activity in ensuring compliance. Rather than raising issues of mootness, the permutation ensures that the state courts aid in having the US speak with “one voice” in the area of health (and larger human rights). There is some chance that this supports the 2AR claim that the counterplan represents a more ad hoc approach than the permutation.
However, the net benefit to the permutation, increased activity by the state courts to ensure compliance (and therefore, multilateral credibility/leverage), raises the issue that the 2NR extends on the disadvantage flow: does the spillover of the state courts’ newfound willingness to act generate a link precluded by the counterplan’s limitation to Congressional assertion of a new model in prostitution? Similarly, the 2NR references the durability of fiat changing the resolution of any challenges to state court (assertion of) authority to magnify this link. A different Bradley card is the best negative evidence on this issue, explaining that human rights treaty obligations are vague, overlapping and thus would require substantial litigation to determine with any precision. However, the 2AR (and earlier cross-ex exchanges) make the threshold for the spillover link arguments very high. In large part because the aff’s interpretation of these areas as “compliance gaps” rather than new rights that encourage state judicial activity that interferes with federal responsibilities, the spillover will be in areas where the states need to remedy flaws in human rights implementation (Kuhner). This is unlikely to create areas of substantial conflict/difficult overlap because as Ku describes, 50 state interpretations of US customary obligations are not that likely given that the federal courts have not split substantially over similar issues (contra Wilkinson). The aff’s argument that these are not new obligations also shapes my reading of the negative’s other spillover link evidence (Sloss) because, in these areas, the state courts would not be changing from a non-self executing to self-executing model (in the case of the permutation especially, given that the counterplan may be added implementing legislation beyond TVPA for the US Palermo obligations – but this is an issue raised mostly in the cross-ex rather than the final rebuttals).
Though the negative wins that there will be an increase in litigation in state courts to determine US obligations, the internal link between that litigation and the impact areas raised by the negative is highly questionable. The distinction between the law of armed conflict, international humanitarian law, and international human rights treaties establishes a difficult burden for the negative. The negative evidence about the proclivity of state courts to venture into these areas does not respond to the aff’s cross-ex/evidence that the courts consider LOAC to be an area of “lex specialis” “outside of treaty body jurisdiction” (Melish). Even if the negative has a “judicial federalism bad” disadvantage (2NR), the impact examples all require interference in LOAC or other military issues that seem incredibly unlikely to be the subject of state court intervention. As the aff set up early in cross-ex and thoroughout the debate, it is highly improbable that the negative link evidence about the Bond and Holland decisions (Corn & Brenner-Beck) describes the spillover effects generated by the plan/permutation. There are uniqueness issues with any residual link (and DA turns/accesses case impact claims), especially without a good answer to the aff’s Slaughter evidence that courts are increasingly influenced by international norms without citing them.
I have spent the vast majority of this ballot explaining link and internal link issues because they influence my determination that the 2AR’s “low risk should be no risk or bad decisions result” fits the circumstances better than the “sufficiency versus necessary” lens provided by the 2NR. I can’t explain a chain of events that produces changes in international norms important for NATO’s choices vis-à-vis Russia, but I can imagine increased US relevance in multilateral forums. Overpopulation plays no role in this impact calculus because there the sufficiency frame holds. The 2NR case arguments are persuasive as regards human rights treaty compliance (Posner, Somin) but don’t address the connection between compliance and foreign policy credibility with allies particularly well (Davis & Melish). The continued application of Parrish as a turns case claim also fails in the face of distinctions made in that article between extraterritorial issues and other areas of human rights adjudication (Parrish 2AC). Substantial inroads against the case aren’t sufficient to overcome severe link and internal link problems. The negative emphasis on human rights treaties as a mechanism for norm dispersal rather than compliance as an instrument for improving multilateral credibility (and the inability to make too many arguments about the importance of multilateralism given their NATO internal link) means there is a small solvency differential.
As I hope is evident, all of these issues are decided on small margins given the quality of debating and evidence involved. All of the judges spent a long time deciding. In my case, going back and forth in assessing the residual DA link from the aff’s spillover claim versus a much reduced human rights internal link to multilateralism consumed a great deal of time. Careful reading of evidence in an area of law this complex being presented by debaters of this skill level should produce no less.
Thank you for the opportunity to judge such an exciting, interesting, and difficult debate.
James Herndon, Emory University
Congratulations to both teams on fantastic years, and amazing debate careers.
The NDT books won’t show it, but Michigan AP won the 2015 National Debate Tournament.
There is little to no solvency deficit to the counterplan.
The largest point of controversy centers on the solvency deficit question for the counterplan. The aff arguments against it were the following:
First, absent state action, we won’t fill gaps in current human rights treaties.
Important human rights issues are not always litigated in the federal courts, however. Federal constitutional protections tend not to include the economic, social, and cultural rights that are an integral part of the international human rights system. State courts, by contrast, often consider such protections and, in interpreting state law, have the independence to recognize a broader range of rights. In addition, state courts may be called on to interpret and apply international treaties, including human rights treaties.¶ Recognizing this important aspect of the implementation of human rights law in the U.S., this¶ report details the ways in which state courts have considered and interpreted this body of law. ¶ The report is intended for public interest lawyers, state court litigators, and judges, and also for¶ state and municipal policymakers interested in integrating compliance with international human¶ rights law into their domestic policies.17¶ State courts can draw upon a number of arguments to support their use of international human¶ rights principles in decision-making. Under Article VI, Section 2 of the U.S. Constitution,¶ treaties are the “supreme Law of the Land,” binding on the “Judges in every State.”18 The United¶ States has signed and ratified the International Covenant on Civil and Political Rights (ICCPR),¶ the International Convention on the Elimination of All Forms of Racial Discrimination, and the¶ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,¶ and is therefore bound by these treaties. Provisions of the UDHR have been recognized as¶ customary international law.19¶ Implementation of these treaties and their principles is the responsibility of federal, state, and¶ local government.20 Under the federal system, states are primarily responsible for regulating many areas of substantive law, including criminal, family, and social welfare law. The¶ reservations the U.S. Senate issued when it ratified the treaties make clear that states are responsible for implementing international human rights law in these areas.21 Thus, state court incorporation of human rights principles is crucial to ensuring the United States’ human rights implementation and compliance.¶
This card clearly establishes the need for state court activism as well as a lack of it in the status quo. The most strongly worded card is a good part of the 2ar and is the Davis 06 evidence:
If states fail to implement international treaty provisions that address areas traditionally reserved to them, the United States cannot, as a practical matter, achieve compliance with the treaty provisions to which it is party.¶ Notably, the United States’ treaty obligations may go beyond treaties’ substantive focus and may also incorporate their enforcement procedures.12 For example, both the International Covenant on Civil and Political Rights (ICCPR) and the Convention for the Elimination of All Forms of Racial Discrimination (CERD) require the availability of judicial remedies for violations.13 Under federal jurisdictional constraints, however, judicial remedies will sometimes be available only in state courts. This might be true, for example, of cases shielded from federal judicial review under the Pennhurst doctrine, which bars federal court adjudication of state law claims for injunctive relief against the state.14 Likewise, even if plaintiffs are pressing human rights claims that implicate federal obligations under international law, the federal courts may eschew cases arising in the family law or criminal law contexts, at least in the first instance.15 In such situations, unless there is state court participation in the procedural as well as substantive implementation of human rights standards, the United States will fall short of fulfilling its treaty obligations.16
I was shocked at the quality of these cards. My initial read through and comparison to the 2ar made me think that I would decide there was a substantial solvency deficit to the counterplan. The Rooney card was by far and away the best card on the question of the solvency deficit though – and was extended at length by the 2nr. Couple of important components of that card. First, Court involvement isn’t all that effective – deciding individual cases would take time and would be limited to the facts. So, a particular decision – in this case on prostitution – wouldn’t influence other possible decisions. Second, it cites a reluctance of allies to give credence to court decision which creates a credibility gap in how likely the government writ large would be to follow and comply with those decisions. Finally, it prodicts congressional action as likely to send an international signal of the value of IHRL treaty law as well as likely to motivate others to act to create judicial precedents that support the commitment.
The neg had two other arguments on the flow that neither the evidence nor the 2ar/1ar answered for framing the solvency deficit. First, the lack of unified voice on future court rulings. The aff extends the very long Davis 14 piece of evidence to say that, “as international human rights principles become more integrated into state law, courts will define rights more broadly.” The problem is that this seems to be a direct effect of the Rooney evidence and the function of the counterplan. Both cite the same ruling and establish the same court precedent. While this argument gave me a good bit of pause. I didn’t understand why state courts doing the plan was necessary to build up that position over time. Additionally, the Wilkinson 04 piece of evidence was extended and explained as an indict of both the courts likelihood to adopt the approach we would want them to:
A third set of problems concerns the methodology with which judges approach foreign sources. Which countries should judges consider, and which issues should judges address in a comparative context? The decision as to the number and type of countries to consider in comparative law decision-making is a complex one. It is particularly troublesome when approaching social issues because of the broad diversity of social practices throughout the world.
As well as continuing to maintain the gaps in international law by picking and choosing countries and laws that best suit their agenda:
Should judges be able simply to highlight examples from those countries that bolster their arguments and yet ignore other nations whose practices contradict their claim? The number and diversity of nations make this dilemma all the more acute. Judges have not sought to consider these questions in a systematic way. To date, the foreign sources that have been cited come largely from Europe. Obviously, our historical connections with our European friends may make reliance on European cases more appealing. But American citizens come from all corners of the globe. I worry that judges will appear to indulge an unfortunate Eurocentrism by overlooking the practices of Asian, Middle Eastern, African, and Latin American states. Moreover, the Court's piecemeal approach has done little to illuminate why the experiences of some European countries have been chosen and others omitted.
So, ultimately, while in theory court activism would help bolster the incorporation – I have no reason to believe that that incorporation is more likely by state court initiated momentum OR that it would be uniform enough to appease allies and international groups about our commitment to IHRL.
Second, the neg frames the counterplan as being sufficient to access the internal link of the Melish card even if state court involvement is also sufficient. I felt compelled – by both sides – to read the Melish evidence and establish the threshold for commitment to IHRL. Here is the card:
This card clearly says that the US needs to make meeting our treaty obligations a larger priority and we need to be in compliance if we want to move multilat forward. I agree it is a great card. I also agree with the 2n’s discussion of the Rooney card [included above] as being sufficient to accomplish the same attack on hypocrisy that this card calls for. There is nothing about this card that says the states must be the actors for it; and, it makes little logical sense to assert that the commitment of congress and the push to get the states to do it wouldn’t accomplish the same thing.
Second, the aff goes for a precedent is necessary argument. I don’t know why this doesn’t boil down to another reason why courts are necessary because precedent is just what courts do. But, the neg is clearly establishing congress’ ability to get the ball rolling. It’s also indicted by the Wilkerson card and some cards on case.
Third, the permutation. As a quick aside, I do feel like this is the place where the 2ar had the highest likelihood of winning the debate. A fact that continued to bother me about the strategy is that the link to the disad is based on a solvency deficit existing. The disad assumes state courts get active and involved [more on that later] and the solvency deficit assumes that the counterplan leaves them less involved. The lack of discussion of how to weigh this, who benefits from this, and most importantly, how this impacted the permutation, were why this debate was so difficult to decide.
On the permutation the aff made two arguments; the perm shields the link and it lowers the risk enough to justify aff on presumption. The problem with this is that while I thought the 1ar handled the theoretical components of the permutation, the 2ar did not extend a lot of answers to the perm wall from the block that was well extended in the 2nr. Those included:
Congressional Approval First - Wu 7 – independent enforcement is avoided because the courts wait on the signal from the Senate. And, Christensen 97, which had the phrase that I thought most framed my reading of the permutation:
In an era of world civil society, however, programs encouraging federal judges to use the sources of customary international law (which include writings of academics as well as state practice and decisions of international tribunals) as formal authority for U.S. law, which binds all judges under the supremacy clause of the Constitution without approval first by the appropriate political branches, is likely to encounter profound resistance. More valuable would be a judicial architecture for making decisions in each phase of transnational civil litigation involving foreign and domestic parties whose interests are determined from their international scope and perspectives. 145 Even more important would be a critical analysis of some of the more obvious biases in judicial presumptions and attitudes about the use of international law and treaty interpretation in practical decision-making. 146. 146
It was very difficult for me to ignore the phrase “without approval first by political branches.” [I guess it begs the question of my interpretation of fiat. Does the perm have a unified voice, or is it the courts acting independently but at the same time? I’m not sure there is any right or wrong answer to this]. Even if I have a very aff biased – “all together at the same time” – interpretation of fiat it still links to that Christensen card because it isn’t waiting to implement. So, that too begs the question of the strength of the link of the disad.
So, for the counterplan – I have a difficult time assigning a solvency deficit that I could explain to the negative. While I understand that state court activism would send a strong signal that would fill the gap in our commitment to international human rights law, the act of congress in the plan does the same – if not a superior – signal. Plus, there were some internal link questions on the case that also minimized that risk.
The Case Debate
I believe that any aff ballot would have to center around the impact calculus done on the multi-lateralism impact. If there was any criticism of an otherwise amazing 2nr, it would be the lack of impact defense extended on that flow. However, the problem of leveling that as a criticism is that it ignores several high quality internal link presses extended and warranted by the 2nr. While I’m not sure that any of them reach to the level of “taking out” the advantage. They all function as shields against a possible solvency deficit to the counterplan. I had four distinct arguments extended.
First, the Posner evidence that establishes the difficulty in interpreting human rights law. My favorite of these cards was the 2nc Posner card:
Second, the Moravcsik card is a strong indict of the authors forwarding the value of U.S. human rights. This is extended in the 2nc as an “even-if” statement that filling the gaps of human rights law in the US wouldn’t do anything for multilateral norms. This card could be better on the question of the HR spillover. But, I don’t really have an answer to the indict of HR norms authors. The aff’s answer is largely the “they fail because treaties are ratified not implemented.” I’m not really sure how that answers the neg’s evidence or gets to the heart of the value of multi-lateralism. If the US does, what is the mechanism for forcing other countries that don’t want to – more on that with the next answer.
Third, McGinnis & Somis 07. This is the phrase that stands out the most in my memory. “democratic states won’t model non-compliance and authoritarian ones won’t model anything.” This was a general indict of the effectiveness of multilateralism. To me, it is a major hole in the way the 2ar frames multi-lateralism as a possible solution for all the world’s problems and does impact calc.
Fourth, the US will continue to be violators of lots of other treaties for lots of other reasons. The aff’s response to this is the spillover claim. Basically, empowering the state courts would lead them to act on all of these issues*
Finally, most of the arguments on the solvency deficit on the counterplan were also applicable to the questions of the solvency internal link for the aff – so if states don’t implement well, if they don’t fill the gaps, and congress does [all counterplan questions] – it is hard to imagine a re-invigorated multilateralism. There were a couple of aff cards – largely the 1ac evidence – but they are also explained and discussed on the counterplan question. Most of the 2ar was excellent on why states are important and why multilateralism is important. The gap between those two claims is the place where the neg had four compelling arguments to establish a sizable solvency gap between the plan and the multi-laterlism impact.
[* as a lengthy aside, relevant for the disad later, this is both the best possible answer to one solvency question for the aff, but also the link to the otherwise intellectually gap laden LOAC disad. If the state courts are going to be activist on questions like gitmo and torture – examples that the neg gave – then it stands to reason that they would be activist in questioning other military based questions. If there is a solvency deficit to the counterplan then there is a link to the disad – and vice-versa. I struggled with this individual question for at least 45 minutes of the decision – and afterwards heard that several other judges did as well. I evaluated the debate from the perspective of the 2ar, that the aff would cause state court activism into other treaties – as I think the neg agrees with that interpretation.]
While I’m not sure how any of them resolved it, the existence of these other internal links to the advantage, namely that authoritarian states don’t care, while having to give the aff this spillover internal link in order to access their advantage made me more likely to assign “a risk of the disad.” Because, if I agree with the 2ar that the aff solves “a spillover to other treaties,” then it stands to follow that would include the LOAC decisions.
The aff pushes back on the disad with four category of arguments. While I didn’t find any of them particularly compelling, they did function to decrease the risk of the disad quite a bit. In particular, the argument about the internal link. Those four arguments are below.
First, IHRL is dying now, so the disad impact can’t turn the case. The answer the aff is making to the turns case argument presumes that the neg is forwarding an argument about the status quo solving the case. Instead, the argument is quite clearly a link/impact makes it impossible for the aff to solve. The parrish 13 cards are an important framing question for the aff because they answer the only possible solvency deficit the aff could win and apply it to state courts. I’ll quote a few lines from those two cards at length here:
And then, the first one at more length:
Both of these cards are based on a reading of the aff that the 2ar seems to agree with. State courts would become individually active in filling gaps. The neg’s use of an interpretation of fiat isn’t really answered. Yes, the plan is a one time 50 states agree decision. But, the future gap-filling is single state courts acting in ways that are likely to be varied and troublesome for other states and international actors. If the neg made a mistake by not having any clear multilateralism defense warrants extended, this was the mistake of the 1ar and 2ar in this debate and ultimately a framing issue for the disad that made it easier for me to start with “no solvency deficit” while evaluating the disad.
Second, no internal link because LOAC and IHRL are distinct – and State courts are just as likely to protect. I wrote a lengthy aside above about the role of the link vis-à-vis the solvency question for the plan vs the counterplan. What are the “other gaps to be filled”? The neg’s suggestion that things like torture decision and detention rulings would thump the aff are answered by the 2ar with a spillover warrant. Yet, the most compelling answer to the disad is a “no spillover” warrant. I wish either side would have debated more on this issue. Instead, it just sort of sat there in my head. When I say that this debate was incredibly close, it is what I do to resolve this particular defining issue that establishes the difficulty in deciding this debate. I could see a ballot that says “well, if there is a link then there is a solvency deficit, so I vote aff.” My problem with that ballot is that I think it ignores some other solvency defense and link spin arguments that the neg is making in the debate.
There is an internal link between the plan’s state court activism and our LOAC agreements. Though academically I’m not comfortable saying I believe that to be true, for the purposes of evaluating this debate, the neg won that there was a risk of some spillover. First, some great aff evidence, Ku ’11 may have won the NDT:
Both this card, and the Davis card read later, establish my concern about the solvency to the aff vs the link to the disad. If it is true that state courts are deferential to the executive and will not be “rogue” with their interpretations, then I’m not sure what the gap filling mechanism is that the 2ar is talking about for a spillover. I do believe that state courts are likely to rule in favor of the executive though, just based on this reading of the Ku evidence. So, the link is not one where I am concerned about the state courts destroying our LOAC agreements and telling the executive how to fight wars. But, the neg link level was slightly more diverse than just, “courts will create precedents that constrain the executive.”
The neg link spin included a fiat argument about the absolute and unified position taking of the state courts. The 2nr spun that this would be perceived by allies as a “durable fiated challenge by the states to supercede federal authority.” While I get that the Ku evidence speaks to the likely role of the states, the negative continually spoke about the role of the plan in our allies eyes for interpreting the outcome of the plan.
Additionally, the 1nr and 2nr talk about the Corn evidence as proof that these types of challenges are already present in state courts which means they would be likely to hear them. While the aff’s evidence does speak to the likely deference of the state courts, it is compelling that they would be more likely to be pro-international law post plan
Third, state court rulings are inevitable – they just aren’t cited. The Slaughter card extended on this is just an interesting FYI for the purposes of evaluating this debate. It just says state courts are citing international law but not in a compelling or forceful way so it isn’t establishing precedent or influencing things. This seem to either be a take-out to the aff and the disad or a take-out to neither – I’m not sure how it could be evaluated either way. The neg’s spin that the fiat of the plan is unique in that it sends a signal never before seen isn’t handled well, if at all, by the affirmative.
Fourth, there are several impact defense arguments extended by the 2ar. I’ll go through each of these – though I think the most warranted extension is the no escalation argument.
The problem with all of these impact cards, and the 2nr is right on this point, is that it ignores the internal link being a Russian aggression in response to increased US legal ambiguity. So, the cards about the US being unwilling to get involved as well as the evidence that NATO isn’t needed anymore, don’t really respond to the internal link from 15 about Russia taking the first aggressive step against NATO. Additionally, the Kupchan 13 card is just as good as the best aff card and speaks to the value of NATO for international perception.
All this discussion of the impact is enough to say that I think it is large, but it probably didn’t need to be. After slogging through the cards and looking back at my flow, I actually think the risk of the disad is larger overall than it was when I voted neg after finals. I voted neg because the counterplan solved and there were answers to any solvency deficit that I could create extended and warranted in the 2nr. But, the size of the disad was substantial.
Concluding non RFD based thoughts:
1. One of the closest debates I’ve ever judged. It took me a while because so much of the evidence read by both sides was great. I’ve had the opportunity to judge all four of these debaters numerous times over the last 7 years of my life. Every single round was a pleasure.
2. If there is a lesson to be learned from them it is to read longer better cards in debate. It wins rounds. As I read through evidence again in the laborious task of writing this ballot, I’m impressed with the quality of evidence and the highlighting of cards. Read longer better more highlighted evidence.
3. I want to revisit the HS Poverty Topic TOC finals for a second. Westminster destroyed St. Marks. Miles read some of the worst highlighted and un-warranted de-dev evidence I have ever read. The world needs to never forget this fact. I am obliged to never let Miles forget it.
4. Let’s increase comprehensibility in debates. The counterplans read in the 1nc that were rapid fire and I couldn’t tell the difference between them was terrible. I don’t want to judge and exist in an activity where I have to read a doc to figure out what the negative position are. I learned what the counterplan were during the 2ac road-map.
5. I call for a return of respect during rounds and in strategizing. The rise in strategic decisions that obfuscate communication as the a priori calculus during the NDT were awful. Debate is a communicative activity. It is two people communicating to a judge why they should win the debate. The only way that works is if teams communicate. Any and all attempts to deny the other team information for strategic purposes is a dis-service to the activity. We have norms for communicating because all we really are is a community with speech times, a resolution, and norms. If those norms are thrown out on the final day of competition for competition sakes then we are doing it wrong. I thought about listing examples, but instead I’ll just stop with the norm. Communicate well.
6. What an amazing topic.
Seth Gannon, Georgetown.
Thanks to the University of Iowa for a great NDT.
My favorite part of these ballots comes before the decision, in saying thank you. If I run long here, please take it as a measure of my admiration for a number of people.
First, Ellis Allen. His speeches flow themselves. No one’s debating is as effortlessly enjoyable: smart but clear, smooth but substantive, funny but never distracting, infused throughout with one-of-a-kind easygoing personality. Is anyone surprised that Ellis gave a homerun thank you speech? Of course not. Put him in a 2NC or a wedding toast or an address to Congress, and he’ll be the best you’ve heard.
My judging has matured alongside Ellis’s debating (if not so quickly). I judged very little while in college, but I have film-perfect memories of a very young Ellis Allen in elim after elim of the Wake Forest Early Bird. Not too often you find yourself talking about the cross-ex skills of a high school sophomore seven years later, but Ellis was a rare event.
And on the other side of a remarkable career, Ellis is in his second NDT final round as I judge my first. Thank you, buddy. Watching you has been the better deal a million times over, and along the way—when you have certainly disagreed with me or just been debating at a level above my judging—your carefree charm has never slipped. You are the ultimate class act, and judging your last debate, heartbreaking as it was, is as great an honor as I can remember.
Second, Alex Pappas. If Ellis was known to me, Alex these last two or three years was a revelation. He strikes me as the debater every coach wants, a debater who proves all the coaching maxims true: someone smart who knows he needs to work hard anyway, someone driven whose competitive fire never spills into unpleasantness, someone whose technical mastery displays a wonderful, earnest person behind it. I saw online that Alex’s lab students, on the eve of his final NDT, compiled a long document on what he means to them. That’s special, and no surprise.
There is nothing less enjoyable in debate than deciding the NDT fates of teams who truly deserve to win. If we remember Michigan AP any differently on the basis of one night, one debate, one argument, or one ballot, we have missed the point entirely. There is no meaningful sense in which Alex and Ellis are not champions.
Third, Northwestern MV. They put statistics to shame. They have been so consistent and demonstrated such dedication and personal brilliance that, in their different ways, I feel they were each somehow underrated. The strongest praise I can offer is the same I have for Michigan: had this debate gone the other way, I would think of them just the same.
Fourth, Miranda Ehrlich, whose 2AR in the semis was the most fun I had all week. I’m sure it will be just as good on video, but in that room, in that moment, it was electrifying—a tour de force of a last speech in what ended up being her last debate. Of course Miranda is a stand-in here for so many remarkable seniors: Cody, Jack & Quinn, Marquis, Erica & Maddie (Go Deacs), Osa, Kyle, the Anna-Michael-Brad triumvirate, and others. What an amazing collection of people.
Finally, John Fritch. I have attended ten of his NDTs as Director, and I haven’t seen an NDT without him. The two are synonymous in my mind. Since graduating college, it has been an even greater pleasure to learn that the voice of the pairings is one of the best people around—hilarious, self-effacing, generous beyond reason. No one tells better war stories. Thank you, Dr. Fritch, for everything.
I vote affirmative for Northwestern.
Heavily influencing my decision is my understanding from the CX to the 2AR (and in the aff’s Davis evidence) of the aff’s thesis and the action of the plan. My summary:
There are currently gaps in U.S. treaty compliance because federalism places many areas of law, particularly police power, under state control, and—making law under those powers reserved to them—many states fail to comply with the international obligations of the United States.
The plan establishes state judicial precedents that state law must comply with U.S. commitments under international law. In other words, the plan has states, by way of their courts, bring themselves into compliance with international human rights law.
Although the Congress counterplan’s solvency deficit for the multilateralism advantage is small, it is measurable, and I conclude there is no link to the treaty power disad – particularly no link to the NATO impact.
The Treaty Powers Disad
Does the plan give states the power to challenge or violate Status of Forces Agreements critical to NATO? I conclude it doesn’t.
The aff’s characterization of the neg’s cards, that they describe a Bond v. Holland-style federalism challenge, not state incorporation of international obligations, I find accurate.
I read the neg’s Brunner-Beck evidence (the link to the disad’s NATO impact) many times. It says, as I understand it, that when a Status of Forces Agreement impinges on state powers, the states might challenge that agreement on federalism grounds and undermine the NATO alliance. Interference with powers reserved to the states “could very easily trigger federalism concerns”; state refusal to defer jurisdiction “would … force the U.S. to breach its international obligations”; enforcement of status agreements is “dependent on … state court recognition of … the Supremacy Clause.” Similarly, the Corn evidence mentioned in the 2NR describes a “resurgence of federalism concerns” as a threat to the federal treaty power.
Read against the plan, the aff’s consistent explanation, and the Davis evidence to which the aff points me, I see the plan as almost the opposite: rather than challenging “international sources of obligation” (Davis’s words), state courts bring their governments into line with them.
Put another way, the plan brings states into compliance with obligations established by the federal treaty power. It does not claim increased powers for the states nor use those powers to challenge those obligations. As Davis describes it, the “Supremacy Clause requires state courts to consider transnational authority.”
I believe the 1AR and 2AR, in saying the neg’s cards describe the federalism issues in Bond v. Holland, and the 2NR, in saying this is a “federalism bad disad,” are both correct. The plan, however, makes the states more deferential to U.S. treaty commitments, and as challenged by the 2AR, I can’t explain why it would spill over to challenge national security agreements.
The other card the 2NR mentions is Powell. Unfortunately, another constant aff refrain—“the plan is about compliance for ratified treaties, not new ones”—fits this card (describing rogue state incorporation of CEDAW) to a T. In the cases we’re discussing, the federal government, using its treaty power, has decided that international human rights law is to be implemented. I believe Davis—and the plan—are operating in the “traditional constitutional” model Powell describes.
Finally, I look at the neg Neuman card, which says that judicial implementation of international human rights treaties interrupts “Congress’s ultimate control over … implementing—or breaching—a treaty.” This seems like a separate concern, or at a minimum doesn’t help me clarify the link to this disad.
Even interpreting Powell, Nueman, and the neg’s link explanation more generously, however (the plan does necessitate state interpretation of international law and allows states to enforce “flavor of the week” human rights), I fail to connect these link arguments to breaching NATO Status of Forces Agreements.
The Multilateralism Advantage and Congress Counterplan
By legalizing prostitution, I believe the counterplan solves the family planning portions of the case outright.
The aff’s other advantage is about achieving U.S. leadership in multilateral settings. Gaps in U.S. implementation of human rights treaties invite charges of hypocrisy, and the plan brings us into greater compliance. The 2NR focuses on the ultimate inefficacy of international human rights law, and I believe the neg is way ahead here. Unfortunately, I understand the plan’s human rights compliance as a means to accomplish other multilateral goals—concerning climate change, disease, and so on.
Undeniably, the Congress counterplan solves a lot of this multilateral goodwill. As the neg’s Rooney card has it, the counterplan “would provide the international community with a long-awaited answer as to whether the U.S. agrees that international … laws are applicable[.]” And the 2NC makes this debate very close by reminding me that the threshold for solvency is the aff’s Melish card (the multilateralism internal link), not the aff’s state courts solvency evidence.
Unfortunately, I believe the two are interrelated. Melish links U.S. hypocrisy to the “procedures” of human rights treaties and ties “compliance by the U.S. with rights treaty procedures” to legitimacy. While I believe the counterplan sends a strong signal of compliance on prostitution, I am concerned after reading the 1AC and 1AR Davis evidence that state courts will frequently encounter questions governed by international human rights law and that—without a state legal precedent guiding and encouraging their decisions—gaps in compliance will result.
In saying the plan is better, I am hardly convinced that, in one hundred possible futures, it will always be necessary or the counterplan insufficient. But on the debating and evidence, I am simply more concerned about state compliance with international human rights law after the counterplan than I am about state challenges to Status of Forces Agreements after the plan.
SOME THOUGHTS DURING THE DEBATE
A few years ago Will Repko wrote a final round ballot that chronicled his thoughts through the debate. I learned a lot from it. This year he asked if I would join him in doing it again. I said I would love to, and only in retrospect do I realize how uninteresting my prep time thoughts really are:
- Quite honestly judging this round is the most stressful thing I’ve done in debate since…
- Three of these debaters are in their second NDT final round, all on opposite sides. The fourth has won two Copeland Awards. Stressful as it is, this is a tremendous honor.
- Using CX time for prep: I have no problem with this – I just wish I had known.
- The terrifying thing about a new aff is that 1NC decisions made in a five-minute window of CX and prep time will reverberate hours from now as the judges decide. The 2NC gives them some flexibility, but in practice the neg sets their path right now.
- As the 1NC ends, I have no idea which CP does what, but in a debate of this quality, it’s most important just to enter them into the record. Neither side will let the debate go much farther without teaching me. I know what the CPs do collectively: they test the various components of the plan—state, judicial, etc. Even at this level, debate is so much about fundamentals.
- Northwestern used way more 2AC prep than I realized. Wouldn’t you love to know what required it? Rebuttal prep is worthless if you don’t have the arguments you need in the 2AC.
- 2AC CX. Pappas: “Those are states key arguments – why state courts?” Again, fundamentals. A great moment.
- These are the most entertaining thank you speeches I can remember. Miles had the biggest crowd-pleaser, but I didn’t see Ellis’s Rajesh joke coming at all. Brilliant stuff. If not for pumping myself up to flow and get this right, I would be having a great time.
- Most debaters “sound like debaters.” They use the same phrases for the same arguments. Ellis is so much fun minute-to-minute because he’s always saying something different, even on familiar arguments: “2NC strategy is based on mishaps,” “practical checks” on conditionality, a “wreck of treaties,” and on and on.
- After the constructives, I have no idea who is going to win – I love the anticipation. After being tired all day, I’m so wide awake. Flowing a great debate is serious fun, and deciding it is fascinating. It’s the “someone loses” part that I’m just not tough enough for.
- A senior 1N’s last speech usually slips by unnoticed – love this applause for Alex.
- The 2NR might be the toughest speech in debate, but the 1AR always feels like a turning point: the first opportunity to explain the 2AC answers and the only opportunity to answer a pile of neg block material. After 15 minutes from a neg team at the height of its powers, this is a big, big speech.
- I love how big debates narrow down. It’s a game with tremendous elegance.
- The final round of the NDT, starting at 11pm after four days of other debates, does not always showcase the remarkable abilities of the four debaters on stage. This is not one of those times.
Thank you for the opportunity to judge a debate befitting your remarkable careers.