The rant is courtesy of William Otis, in "A tale of truth in modern America," found in the Harvard Journal of Law and Public Policy, Winter 2003, pp. 235-37.
Some might think it odd to believe that a relationship of authentic trust can be built on a shared, if unspoken, understanding that authentic trust is impossible. And, of course, a good deal of the time there simply is no trust. Clients intuitively understand that a person who will dissemble for them might sooner or later dissemble to them. Readiness to cut a corner here and another there is not a character trait easily confined. The willingness to deceive, the temptation to call deceit by a more polite name, and the consequent ever-expanding seepage of dishonesty in the way we deal with one another, all have their own cancerous dynamic in the soul of a human being, of a profession, and of a nation. It is thus not mere circumspection that accounts for the fact that clients so often lie to their lawyers. On the contrary, clients wisely view lawyers with the suspicion we have earned by our penchant for excusing everything from willful blindness to soft-core perjury.
We feel the need to ponder the question before us today because we have long since abjured the simple man's answer to the question of what should be a lawyer's responsibility to the truth. The simple man's answer is, "Tell it." But that won't do for the more sophisticated among us, those who see, or say they see, the nuances and complexities of the world in general and the practice of law in particular. Ours are the precincts of more refined thinking. Only I suggest it is not refinement; it is equivocation impersonating refinement-or at least so I used to think. Increasingly, I think it's just dishonesty impersonating equivocation.
Showing posts with label LD. Show all posts
Showing posts with label LD. Show all posts
Thursday, November 21, 2013
a summary of attorney-client privilege, with quotes
Stephen A. Calhoun, in "Globalization's Erosion of the Attorney-Client Privilege and What U.S. Courts Can Do to Prevent It" (found in the Texas Law Review, Nov 2008, pp. 235-265), offers a decent summary of the rationale for attorney-client privilege.
The privilege is generally codified as a rule of evidence. Though the attorney-client privilege was originally conceived to cover communications between lawyers and individual clients, it is now clear that the privilege also covers certain communications with clients that are corporations or other entities.
The principal rationale for the attorney-client privilege in the United States is that privileged communication is needed for the "ascertainment of truth for the ends of justice." As stated by McCormick's famous evidence treatise, this utilitarian theory rests on three propositions:
The privilege is generally codified as a rule of evidence. Though the attorney-client privilege was originally conceived to cover communications between lawyers and individual clients, it is now clear that the privilege also covers certain communications with clients that are corporations or other entities.
The principal rationale for the attorney-client privilege in the United States is that privileged communication is needed for the "ascertainment of truth for the ends of justice." As stated by McCormick's famous evidence treatise, this utilitarian theory rests on three propositions:
First the law is complex and in order for members of the society to comply with it in the management of their affairs and the settlement of their disputes they require the assistance of expert lawyers. Second, lawyers are unable to discharge this function without the fullest possible knowledge of the facts of the client's situation. And last, the client cannot be expected to place the lawyer in full possession of the facts without the assurance that the lawyer cannot be compelled, over the client's objection, to reveal the confidences in court.Though this is the principal rationale for the privilege, it is bolstered by other theories. McCormick states that "[a]t the present time it seems most realistic to portray the attorney-client privilege as supported in part by its traditional utilitarian justification, and in part by the integral role it is perceived to play in the adversary system itself." The Supreme Court endorsed this rationale for the attorney-client privilege in Upjohn Co. v. United States:
Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.
Thursday, October 17, 2013
What is "Attorney-Client Privilege?"
The American Bar Association has some helpful information defining the rules and scope of attorney-client privilege. It also includes the relevant court cases for further / deeper study.
What is the privilege?
It's important to note that not every aspect of the case is protected by the privilege.
The ABA's definition of confidentiality can be found here.
What is the privilege?
Under principles of federal common law, the attorney-client privilege protects confidential communications by a client to an attorney made in order to obtain legal assistance from the attorney in his or her capacity as a legal adviser and the advice given by the lawyer in the course of representing the client. SeeUnited States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980); In re Benun, 339 Bankr. 115, 126 (Bankr. D.N.J. 2006); In re Universal Service Fund Telephone Billing Practices Litigation, 2005 WL 3725615 at *5 (D. Kan. July 26, 2005):What are its essential elements?
Under federal common law, the essential elements of the attorney-client privilege are: (1) where legal advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except if the protection be waived.
It's important to note that not every aspect of the case is protected by the privilege.
Privilege is a response to a request by the opposing counsel. It's similar to--but not the same as-- confidentiality, which is an ethical obligation on the attorney to keep interactions with her client "close to the vest."
Only the communications pertaining to advice, and not the underlying facts, are protected by the privilege. Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); Williams v. Sprint/United Management Co., 2006 WL 1867478 at *5 (D. Kan. July 1, 2006) ("The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing."); United States v. Keystone Sanitation Co., 885 F. Supp. 672, 675 (M.D. Pa. 1994) ("attorney billing statements and time records are protected by the attorney-client privilege only to the extent that they reveal litigation strategy and/or the nature of services performed."); Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962). As the Supreme Court explained in Upjohn: "The client cannot be compelled to answer the questions, ‘What did you say or write to the attorney?', but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication with his attorney." 449 U.S. at 396.
The ABA's definition of confidentiality can be found here.
Tuesday, October 15, 2013
LD textbook: free!
The link is here. A huge resource that goes into far more depth than we could ever hope to cover in practice. Enjoy!
Wednesday, October 19, 2011
how to debate without seeming like a jerk
Being aggressive is essential in a debate. You have to appear confident in your arguments and strong in your refutations. But what happens when your opponent lacks that same confidence?
A debater writes,
That said, here are some general things to do / watch for:
1. Pay attention to your opponent's experience level. If you can tell they're a rookie, ease up a bit. If they don't understand something, and ask for clarification in CX, provide it for them, even if it gives them an avenue to attack you. The judge will appreciate the fact that you're helping the educational purpose of the activity.
2. Use less combative language. Instead of saying "My opponent would justify slavery..." say, "If we affirm the resolution, we might justify slavery." The "we" makes it sound inclusive for all, making the same point while less pointedly attacking the other side. Don't say "evil" or "heinous" or "disastrous," which, in some arguments, will make *you* sound unreasonable or dogmatic, anyway.
3. If you must talk about your opponent, include specific phrasing to make them sound reasonable. After all, they're obligated to uphold that side of the resolution not for personal reasons, but because that's how it works. Say, "My opponent's choice of utilitarianism is well-intentioned, but flawed, since valuing the greater good over individual happiness can lead to persecution of a minority. I'm sure my opponent would agree that slavery is a dreadful consequence of such logic, so we must look to my criterion of individual rights in this round...."
4. Breathe deeply. Relax. Smile. If you seem uptight, you'll seem more jerk-ish.
5. Look at the judge. Furrowed brow? Stern gaze? It's probably a cue to back off.
6. Record yourself debating, either on video or audio. Listen to your vocal quality. Look at your body language, your gestures and posture, your facial expressions. Do they radiate confidence or arrogance?
Most important, persist in your willingness to ask about these things. Such honest self-appraisal will carry you far.
A debater writes,
At a recent tournament, I made my opponent cry because I crushed the criterion of utilitarianism with the slavery argument--saying that it leads to a tyranny of the majority, which would justify slavery. I was wondering if that was a bad thing, because my coach says, "Always be polite while debating, and if you are able to destroy your opponent's argument, destroy it politely." I attempted to be polite, yet the tears still came and my judge docked points because I was "rude." Any tips on how to "destroy" my opponent's arguments politely?That's a tough call--without being there, it's impossible to know what your tone of voice was, precisely what words you used, etc. And sometimes it's just not your fault. I had a competitor one time who, frustrated because she had never heard of a particular philosophy before, broke down during the round and ran out crying. Her opponent hadn't done anything wrong--he was unfailingly polite in his presentation.
That said, here are some general things to do / watch for:
1. Pay attention to your opponent's experience level. If you can tell they're a rookie, ease up a bit. If they don't understand something, and ask for clarification in CX, provide it for them, even if it gives them an avenue to attack you. The judge will appreciate the fact that you're helping the educational purpose of the activity.
2. Use less combative language. Instead of saying "My opponent would justify slavery..." say, "If we affirm the resolution, we might justify slavery." The "we" makes it sound inclusive for all, making the same point while less pointedly attacking the other side. Don't say "evil" or "heinous" or "disastrous," which, in some arguments, will make *you* sound unreasonable or dogmatic, anyway.
3. If you must talk about your opponent, include specific phrasing to make them sound reasonable. After all, they're obligated to uphold that side of the resolution not for personal reasons, but because that's how it works. Say, "My opponent's choice of utilitarianism is well-intentioned, but flawed, since valuing the greater good over individual happiness can lead to persecution of a minority. I'm sure my opponent would agree that slavery is a dreadful consequence of such logic, so we must look to my criterion of individual rights in this round...."
4. Breathe deeply. Relax. Smile. If you seem uptight, you'll seem more jerk-ish.
5. Look at the judge. Furrowed brow? Stern gaze? It's probably a cue to back off.
6. Record yourself debating, either on video or audio. Listen to your vocal quality. Look at your body language, your gestures and posture, your facial expressions. Do they radiate confidence or arrogance?
Most important, persist in your willingness to ask about these things. Such honest self-appraisal will carry you far.
how to earn more speaker points in Debate
Good, solid logic and reasons can carry you only so far in a debate. Your style matters.
Here are a few things you can do to increase your speaker points. (Have other ideas? Suggest 'em in the comments.)
1. Work on your prose.
Write your cases so they're elegant, not just functional. Learn some rhetorical devices and employ them (judiciously, of course). I particularly like anaphora and epistrophe, especially when allied with asyndeton and polysyndeton. Your case, at least on the Affirmative, is your first chance to shine. Don't waste it.
2. Work on your prosody.
The best speech is like music, with discernible rhythm and melody. Bust out of monotone, slow down a little, and emphasize the words that really count.
3. Introduce and conclude.
I know it's the fashion for some debaters to skip the "fluff" because, in their view, it wastes precious time, time that could be spent warranting or analyzing the resolution or dropping a second underview (yeah, I've seen it). However, don't underestimate the power of a snappy quote, or, heaven forfend, a poignant anecdote.
4. Be charming.
Simple things: eye contact, a smile. Don't ask your judge, "What's your paradigm?" Instead, ask what school they're from, or "What do you look for in a round?" or "Anything we should know before the round starts?" Sound like a human being, not Debate Robot 3000.
5. Be forceful, but not irritable.
Don't sound, or look, like a jerk.
6. Be gracious in defeat--and moreso in victory.
Say "Good round" when it was. On the other hand, don't say "Good round" if you thoroughly trashed your opponent. You will sound insincere and condescending. Thank the judge for judging instead, and don't speak unless your opponent wants to talk with you.
7. Have an organized approach.
Have a roadmap: "First I'll address my opponent's points, then rebuild my own." Line-by-line is safe for starters.
8. Be witty.
Pepper your thoughts with pithy quotes by folks like Mark Twain or Mae West. If you're good at telling jokes, use one as an analogy. (If you're not good at telling jokes, please, don't.)
9. Don't suck up to the judge.
Seriously. Don't compliment them (it'll ring hollow). Don't shake hands (it's awkward for some of us, and it spreads disease). Don't over-apologize for being late (it happens to everyone; it's usually extemp's fault).
10. Videotape yourself, and learn from the experience.
You'll be glad you did.
Here are a few things you can do to increase your speaker points. (Have other ideas? Suggest 'em in the comments.)
1. Work on your prose.
Write your cases so they're elegant, not just functional. Learn some rhetorical devices and employ them (judiciously, of course). I particularly like anaphora and epistrophe, especially when allied with asyndeton and polysyndeton. Your case, at least on the Affirmative, is your first chance to shine. Don't waste it.
2. Work on your prosody.
The best speech is like music, with discernible rhythm and melody. Bust out of monotone, slow down a little, and emphasize the words that really count.
3. Introduce and conclude.
I know it's the fashion for some debaters to skip the "fluff" because, in their view, it wastes precious time, time that could be spent warranting or analyzing the resolution or dropping a second underview (yeah, I've seen it). However, don't underestimate the power of a snappy quote, or, heaven forfend, a poignant anecdote.
4. Be charming.
Simple things: eye contact, a smile. Don't ask your judge, "What's your paradigm?" Instead, ask what school they're from, or "What do you look for in a round?" or "Anything we should know before the round starts?" Sound like a human being, not Debate Robot 3000.
5. Be forceful, but not irritable.
Don't sound, or look, like a jerk.
6. Be gracious in defeat--and moreso in victory.
Say "Good round" when it was. On the other hand, don't say "Good round" if you thoroughly trashed your opponent. You will sound insincere and condescending. Thank the judge for judging instead, and don't speak unless your opponent wants to talk with you.
7. Have an organized approach.
Have a roadmap: "First I'll address my opponent's points, then rebuild my own." Line-by-line is safe for starters.
8. Be witty.
Pepper your thoughts with pithy quotes by folks like Mark Twain or Mae West. If you're good at telling jokes, use one as an analogy. (If you're not good at telling jokes, please, don't.)
9. Don't suck up to the judge.
Seriously. Don't compliment them (it'll ring hollow). Don't shake hands (it's awkward for some of us, and it spreads disease). Don't over-apologize for being late (it happens to everyone; it's usually extemp's fault).
10. Videotape yourself, and learn from the experience.
You'll be glad you did.
how to write an LD case
Disclaimers: This is a work in progress. I am only one debate coach out of thousands nationwide. My word is not gospel; if you don't like my methods, suggest your own. Shared knowledge makes for better debate. Floss daily.
There are several parts of the process of writing an effective LD case. Their order may change depending on your experience and your thinking style. However, all of them come into play at some point.
Understanding the Resolution
This is where you always have to begin: by making sense of the resolution. Your experience level, though, dictates whether you can slide over the trip to the dictionary on your way to brainstorming, or whether you want to make a dictinoary vist the beginning of your brainstorming process.
Let's say you don't understand the resolution at all. Grab a dictionary--dictionary.com will do nicely, since it includes all kinds of definitions--and look up every important word. Or phrase, since some words shouldn't really be defined on their own.
I've made up a sample resolution for analysis.
Because...
Brainstorm reasons for and against the resolution. A value / criterion structure will arise out of the reasons. In other words, simply put "because..." at the end of the resolution, and think of every possible way to fill in the rest of the sentence. (At this point, if possible, it's wise to collaborate with a teammate, or check out an online resource for arguments you haven't considered.)
Draw a line down the center of a piece of paper--and on either side, write a "because..." for and against. Don't start with just an affirmative or negative position--instead, use both sides to shape your thinking.
Eventually, you might have 10-12 reasons for, say, the affirmative. What do you do with them? You have to choose either one that stands alone, strong enough to build a case around, or choose 2-3 that are united under a common value and criterion.
You have to ask, What are the big questions here? What are the assumptions underlying the resolution? Your primary questions, given this resolution, might include, What is the overall purpose of sport? Does sport have its own moral obligations, or does it fall under a larger moral system?
Where Values and Criteria Come In
The resolution contains important aims, ends, goals, or aspirations. Every "because..." promotes an implicit value, and points to a way to judge how that value can be achieved (criterion philosophy #1) or how to weigh that value against other values (criterion philosophy #2). (For my extended thoughts on criteria, see here.)
I find it useful to operate, as in other forms of persuasive writing, with a thesis at the center. Let's consider an example. If you have three reasons...
Now you have a value of morality and a criterion of virtuous competition. Since the resolution is framed in negative terms--"immoral" instead of "moral"--each subpoint will be a criterion violation. Hold on to that for now, as we talk about other potential values.
Morality. The word "immoral" gives us a strong hint that "doing the right thing" could very well be the most important aim of the resolution. "Virtue" or "Integrity" might be allied concepts here. (Health is an important aim, but since the resolution focuses on morality, health issues would have to relate to that.)
Human Dignity. Perhaps morality isn't the core value, but rather a means of protecting human dignity (and thus morality is the criterion). If drug use degrades humanity, it is immoral.
Societal Welfare Perhaps morality is a means to ensuring the good of society, and athletic drug use has effects beyond its users. This works well with a criterion of utilitarianism, ensuring the greatest good for the greatest possible number.
On the negative, we might have...
Victory. It could be argued that the goal of sport is to win; call this the "Vince Lombardi" value, after his famous admonition: "Winning isn't everything. It's the only thing."
Freedom. Athletes, it could be argued, should be free to ingest whatever substances they wish. (Freedom could also be a criterion to a value of morality--we would judge any given moral system as valid based on its respect, or lack of respect, for human freedom. This is known as libertarianism.)
Potential criteria under a value of morality:
Equality. Drugs might "level the playing field," and overcome natural inequalities such as differences in height or muscle mass. However, if everyone's doing drugs, the Aff might respond, those with natural advantages will still rise to to the top.
Entertainment. Perhaps the true role of sport is to entertain; this is either a negation of some grand moral purpose for sport, or in fact its major moral purpose: to provide joy to spectators and participants. Either way, perhaps drugs, by allowing athletes to perform at higher levels, increase the entertainment value of sport.
Consequentialism (and one form, Utilitarianism) vs. Deontology. For how these theories play out, see here.
The basic structure of an LD case
So you have some definitions of key terms, and good reasons allied under a value and criterion structure, as expressed in a thesis based on the resolution. What then? It's time to organize your ideas into a case. The following structure is strongly encouraged.
1. Introduction. Some sort of snappy quote.
2. The resolution. Cited exactly as worded.
3. Any necessary definitions. Be sure to provide sources if your definitions are controversial or counterintuitive.
4. Any resolutional analysis. Only if you need to clarify some important aspect of the resolution that helps explain the format or framework of your case.
5. Your thesis.
6. Your value.
7. Your criterion.
8. Your contentions, in order. Any applicable evidence must be properly sourced and cited.
9. Your conclusion. It works well to call back to the introduction.
Each part of the case will be numbered below in the sample.
Michel de Montaigne once said, "There are some defeats more triumphant than victories." I agree, and [1] affirm the resolution, Resolved: It is immoral to use performance-enhancing drugs in an attempt to gain athletic advantage. [2]
For clarity in the round, I offer the following definitions: "Immoral" is defined as violating principles of right conduct. "Performance-enhancing drugs" are chemicals or substances ingested to boost speed, metabolism, muscle mass, or some other biological feature relevant to "athletic advantage," which is defined as benefit or gain in the context of a sport. An example of athletic advantage might be the ability to throw a discus ten feet further, or to run a mile thirty seconds faster. [3]
Also, I offer an important resolutional analysis: the resolution, since it includes the word "attempt," does not require the affirmative to show that the drugs in question provide an actual, measurable advantage. Instead, the affirmative must show that the act of taking the drug in hopes of gaining advantage is itself immoral. [4]
My thesis: It is immoral to use performance-enhancing drugs in an attempt to gain athletic advantage, because it defeats the virtuous aims of competition. [5] Sport has many forms of worth, but its greatest benefit to its participants is the development of their character. Thus, my value is morality,[6] and my criterion is the virtuous competition. [7] Sport without a moral framework is just exercise.
Contention One: Drug use destroys fair play. [8]
One of the fundamental aspects of competition is fairness, the idea of a "level playing field." Inherent to virtuous competition is playing within the rules and abiding by referees' decisions, ensuring that both sides have, at least in theory, an equal chance of success. Although natural gifts--height, muscle mass, endurance--are inequitably distributed, there are virtuous ways to overcome the odds--and this is key--that are inherent in the competitive activity. Practice, determination, effort, on the field and in the gym. Drug use turns sport into a competition among chemists, and, mostly, a battle of bank accounts.
Contention Two: Drug use puts winning before character.
The old saw, "It's not whether you win or lose, but how you play the game," is a central axiom of virtuous competition. Drug users, by relying on chemical cocktails to improve their performance, in essence are fixing their eyes on winning above all. This has multiple effects: it makes them more likely to cheat in other instances--tripping an opponent when the ref isn't watching, knowing that the win matters above all. It could lead to boorish or selfish or even self-absorbed, limelight-hogging play. Instead of playing for the spiritual, emotional, or even physical benefits, winning becomes the only motive, and all else is sacrificed.
Contention Three: Drug use is a lazy, cheap route to success.
The most important virtue of competition comes from the challenge. By reducing the natural barrier to success, the drug abuser has to work less to achieve the same results. This not only negatively affects the individual, but harms teammates, who will be more likely to take the lazy route, and even harms society, as youth, who look up to role models, decide to imitate their indolence.
As we have seen, the aim of sport is not exercise, or fun, or even eternal glory, but the development of moral character.[9] Performance enhancing drugs, by corrupting fair play, by promoting winning above character, and by shorting the challenge, destroy the virtuous aims of competition, and thus their use is immoral. For these reasons you must vote affirmative. I now stand open for cross-examination.
(Should this or something like it ever become an actual LD topic, you might consider reading this debunking of steroids stats. Also potentially of interest: a libertarian debates in favor of PEDs.)
There are several parts of the process of writing an effective LD case. Their order may change depending on your experience and your thinking style. However, all of them come into play at some point.
Understanding the Resolution
This is where you always have to begin: by making sense of the resolution. Your experience level, though, dictates whether you can slide over the trip to the dictionary on your way to brainstorming, or whether you want to make a dictinoary vist the beginning of your brainstorming process.
Let's say you don't understand the resolution at all. Grab a dictionary--dictionary.com will do nicely, since it includes all kinds of definitions--and look up every important word. Or phrase, since some words shouldn't really be defined on their own.
I've made up a sample resolution for analysis.
Resolved: It is immoral to use performance-enhancing drugs in an attempt to gain athletic advantage."Immoral," "performance-enhancing drugs," and "athletic advantage" are crucial here. "Attempt" is included to maintain a reasonable burden of proof, so the Aff doesn't have to show that the drugs in question are successful.
Because...
Brainstorm reasons for and against the resolution. A value / criterion structure will arise out of the reasons. In other words, simply put "because..." at the end of the resolution, and think of every possible way to fill in the rest of the sentence. (At this point, if possible, it's wise to collaborate with a teammate, or check out an online resource for arguments you haven't considered.)
Draw a line down the center of a piece of paper--and on either side, write a "because..." for and against. Don't start with just an affirmative or negative position--instead, use both sides to shape your thinking.
Eventually, you might have 10-12 reasons for, say, the affirmative. What do you do with them? You have to choose either one that stands alone, strong enough to build a case around, or choose 2-3 that are united under a common value and criterion.
You have to ask, What are the big questions here? What are the assumptions underlying the resolution? Your primary questions, given this resolution, might include, What is the overall purpose of sport? Does sport have its own moral obligations, or does it fall under a larger moral system?
Where Values and Criteria Come In
The resolution contains important aims, ends, goals, or aspirations. Every "because..." promotes an implicit value, and points to a way to judge how that value can be achieved (criterion philosophy #1) or how to weigh that value against other values (criterion philosophy #2). (For my extended thoughts on criteria, see here.)
I find it useful to operate, as in other forms of persuasive writing, with a thesis at the center. Let's consider an example. If you have three reasons...
1. Drug use destroys fair play.All of these could be subpoints under an overarching thesis, "It is immoral to use performance-enhancing drugs in an attempt to gain athletic advantage, because it defeats the virtuous aims of competition."
2. Drug use puts winning before character.
3. Drug use is a lazy, cheap route to success.
Now you have a value of morality and a criterion of virtuous competition. Since the resolution is framed in negative terms--"immoral" instead of "moral"--each subpoint will be a criterion violation. Hold on to that for now, as we talk about other potential values.
Morality. The word "immoral" gives us a strong hint that "doing the right thing" could very well be the most important aim of the resolution. "Virtue" or "Integrity" might be allied concepts here. (Health is an important aim, but since the resolution focuses on morality, health issues would have to relate to that.)
Human Dignity. Perhaps morality isn't the core value, but rather a means of protecting human dignity (and thus morality is the criterion). If drug use degrades humanity, it is immoral.
Societal Welfare Perhaps morality is a means to ensuring the good of society, and athletic drug use has effects beyond its users. This works well with a criterion of utilitarianism, ensuring the greatest good for the greatest possible number.
On the negative, we might have...
Victory. It could be argued that the goal of sport is to win; call this the "Vince Lombardi" value, after his famous admonition: "Winning isn't everything. It's the only thing."
Freedom. Athletes, it could be argued, should be free to ingest whatever substances they wish. (Freedom could also be a criterion to a value of morality--we would judge any given moral system as valid based on its respect, or lack of respect, for human freedom. This is known as libertarianism.)
Potential criteria under a value of morality:
Equality. Drugs might "level the playing field," and overcome natural inequalities such as differences in height or muscle mass. However, if everyone's doing drugs, the Aff might respond, those with natural advantages will still rise to to the top.
Entertainment. Perhaps the true role of sport is to entertain; this is either a negation of some grand moral purpose for sport, or in fact its major moral purpose: to provide joy to spectators and participants. Either way, perhaps drugs, by allowing athletes to perform at higher levels, increase the entertainment value of sport.
Consequentialism (and one form, Utilitarianism) vs. Deontology. For how these theories play out, see here.
The basic structure of an LD case
So you have some definitions of key terms, and good reasons allied under a value and criterion structure, as expressed in a thesis based on the resolution. What then? It's time to organize your ideas into a case. The following structure is strongly encouraged.
1. Introduction. Some sort of snappy quote.
2. The resolution. Cited exactly as worded.
3. Any necessary definitions. Be sure to provide sources if your definitions are controversial or counterintuitive.
4. Any resolutional analysis. Only if you need to clarify some important aspect of the resolution that helps explain the format or framework of your case.
5. Your thesis.
6. Your value.
7. Your criterion.
8. Your contentions, in order. Any applicable evidence must be properly sourced and cited.
9. Your conclusion. It works well to call back to the introduction.
Each part of the case will be numbered below in the sample.
Michel de Montaigne once said, "There are some defeats more triumphant than victories." I agree, and [1] affirm the resolution, Resolved: It is immoral to use performance-enhancing drugs in an attempt to gain athletic advantage. [2]
For clarity in the round, I offer the following definitions: "Immoral" is defined as violating principles of right conduct. "Performance-enhancing drugs" are chemicals or substances ingested to boost speed, metabolism, muscle mass, or some other biological feature relevant to "athletic advantage," which is defined as benefit or gain in the context of a sport. An example of athletic advantage might be the ability to throw a discus ten feet further, or to run a mile thirty seconds faster. [3]
Also, I offer an important resolutional analysis: the resolution, since it includes the word "attempt," does not require the affirmative to show that the drugs in question provide an actual, measurable advantage. Instead, the affirmative must show that the act of taking the drug in hopes of gaining advantage is itself immoral. [4]
My thesis: It is immoral to use performance-enhancing drugs in an attempt to gain athletic advantage, because it defeats the virtuous aims of competition. [5] Sport has many forms of worth, but its greatest benefit to its participants is the development of their character. Thus, my value is morality,[6] and my criterion is the virtuous competition. [7] Sport without a moral framework is just exercise.
Contention One: Drug use destroys fair play. [8]
One of the fundamental aspects of competition is fairness, the idea of a "level playing field." Inherent to virtuous competition is playing within the rules and abiding by referees' decisions, ensuring that both sides have, at least in theory, an equal chance of success. Although natural gifts--height, muscle mass, endurance--are inequitably distributed, there are virtuous ways to overcome the odds--and this is key--that are inherent in the competitive activity. Practice, determination, effort, on the field and in the gym. Drug use turns sport into a competition among chemists, and, mostly, a battle of bank accounts.
Contention Two: Drug use puts winning before character.
The old saw, "It's not whether you win or lose, but how you play the game," is a central axiom of virtuous competition. Drug users, by relying on chemical cocktails to improve their performance, in essence are fixing their eyes on winning above all. This has multiple effects: it makes them more likely to cheat in other instances--tripping an opponent when the ref isn't watching, knowing that the win matters above all. It could lead to boorish or selfish or even self-absorbed, limelight-hogging play. Instead of playing for the spiritual, emotional, or even physical benefits, winning becomes the only motive, and all else is sacrificed.
Contention Three: Drug use is a lazy, cheap route to success.
The most important virtue of competition comes from the challenge. By reducing the natural barrier to success, the drug abuser has to work less to achieve the same results. This not only negatively affects the individual, but harms teammates, who will be more likely to take the lazy route, and even harms society, as youth, who look up to role models, decide to imitate their indolence.
As we have seen, the aim of sport is not exercise, or fun, or even eternal glory, but the development of moral character.[9] Performance enhancing drugs, by corrupting fair play, by promoting winning above character, and by shorting the challenge, destroy the virtuous aims of competition, and thus their use is immoral. For these reasons you must vote affirmative. I now stand open for cross-examination.
(Should this or something like it ever become an actual LD topic, you might consider reading this debunking of steroids stats. Also potentially of interest: a libertarian debates in favor of PEDs.)
Tuesday, December 15, 2009
what are economic sanctions?
Robert P. O'Quinn of the Heritage Foundation offers a backgrounder on economic sanctions. Very useful for those trying to understand what sanctions are--and aren't.
Friday, November 20, 2009
an interesting graphic about vaccination
From the World Health Organization: how many deaths from vaccine-preventable diseases, worldwide, in 2002?
Thursday, October 29, 2009
six ways to take down an argument
Your opponent has made a claim, likely supported with evidence. How do you rebut it? Here are six basic strategies.
(Note: there's not one right way to approach any given claim. You might use 1 or 2 of these tactics--some work well in combination--but you'll never have time to use all six on 1 argument. Nor would you want to, because you'd be more likely to contradict yourself or seem uncertain.)
Insignificance
Your opponent's argument, even if true, is unimportant because...
*Its impact is statistically small
*Its benefit is too difficult to measure or define
*It is outweighed by other more salient or important factors or causes
Irrelevance
Your opponent's argument, even if true, is unimportant because...
*It is off-topic (or "nonresolutional")
*It solves a different problem
*It is a distraction or "red herring" (a logical fallacy)
Inconsistency
Your opponent's argument, even if true, contradicts one of their other arguments.
Doubt
Your opponent's claim lacks evidence or warrant, because...
*It has no empirical support (facts, statistics, research)
*Its evidence is not related to the claim
*The evidence offered is insufficient or incorrect
*If nothing else, it doesn't square with common sense
Denial
Your opponent's argument is factually or logically incorrect.
Retort
Your opponent's argument is true--and is actually a point for your side!
(Note: there's not one right way to approach any given claim. You might use 1 or 2 of these tactics--some work well in combination--but you'll never have time to use all six on 1 argument. Nor would you want to, because you'd be more likely to contradict yourself or seem uncertain.)
Insignificance
Your opponent's argument, even if true, is unimportant because...
*Its impact is statistically small
*Its benefit is too difficult to measure or define
*It is outweighed by other more salient or important factors or causes
Irrelevance
Your opponent's argument, even if true, is unimportant because...
*It is off-topic (or "nonresolutional")
*It solves a different problem
*It is a distraction or "red herring" (a logical fallacy)
Inconsistency
Your opponent's argument, even if true, contradicts one of their other arguments.
Doubt
Your opponent's claim lacks evidence or warrant, because...
*It has no empirical support (facts, statistics, research)
*Its evidence is not related to the claim
*The evidence offered is insufficient or incorrect
*If nothing else, it doesn't square with common sense
Denial
Your opponent's argument is factually or logically incorrect.
Retort
Your opponent's argument is true--and is actually a point for your side!
Tuesday, October 20, 2009
Black's Law definitions for the current resolutions
Black's Law Dictionary (8th edition) is one of the premier sources for credible definitions, since it's geared at the legal community and edited by legal scholars.
I've posted a couple potentially useful definitions for the November (or Nov/Dec) resolutions. (If you find a good one elsewhere, post it in the comments!)
For the LD resolution:
Public health: 1. The health of the community at large. 2. The healthful or sanitary condition of the general body of people or the community en masse; especially, the methods of maintaining the health of the community, as by preventive medicine and organized care for the sick.
Compulsory: Mandated by legal process or by statute.
And for the PuFo resolution:
Threat: 1. A communicated intent to inflict harm or loss on another or on another's property. 2. An indication of an approaching menace. 3. A person or thing that might well cause harm. (#3 is probably the most grammatically justifiable.)
I've posted a couple potentially useful definitions for the November (or Nov/Dec) resolutions. (If you find a good one elsewhere, post it in the comments!)
For the LD resolution:
Public health: 1. The health of the community at large. 2. The healthful or sanitary condition of the general body of people or the community en masse; especially, the methods of maintaining the health of the community, as by preventive medicine and organized care for the sick.
Compulsory: Mandated by legal process or by statute.
And for the PuFo resolution:
Threat: 1. A communicated intent to inflict harm or loss on another or on another's property. 2. An indication of an approaching menace. 3. A person or thing that might well cause harm. (#3 is probably the most grammatically justifiable.)
Thursday, October 8, 2009
debate: topics for study
Student Congress--soon to be called Congressional Debate--in the state of Washington uses this legislative packet (pdf) through December.
The November-December LD resolution is:
The November Public Forum topic is:
The November-December LD resolution is:
Resolved: Public health concerns justify compulsory immunization.It's covered on my personal blog here, with more to come. Feel free to post your cases on this blog so others may view them.
The November Public Forum topic is:
Resolved: Failed nations are a greater threat to the United States than stable nations.A basic introduction to Public Forum debate is available here (pdf).
Tuesday, January 13, 2009
How does the ICC relate to the current Palestinian/Israel conflict?
The United Nations, along with most of the world, has condemned Israel's assault on Gaza. A recent article in The Guardian discusses the possibility of the issue being brought before the International Criminal Court (ICC) as a war crimes case. Unfortunately, the issue falls under the jurisdiction of the International Court of Justice (ICJ) rather than the ICC, because neither side has signed the Rome statute of the ICC. This could be an argument for why the United States ought to join the court: with US support, the ICC could hear the case if the UN security council were to refer it to the court (which would be impossible right now due to the US's veto power on the council and its completely pro-Israel stance). This is definitely an issue of war crimes and crimes against humanity. 900 Palestinians have died, humanitarian aid has been cut off, and Israel is firing white phosphorous in Gaza. Because of the apparent powerlessness of the UN, ICJ, and ICC, there's nothing to stop this. Could the ICC do something if it had US support? Maybe not, but it would at least have the same power as a tribunal, so it might be able to at least stop some of the violence. Instead we have to stand by and watch as hundreds of people are killed and the perpetrators go unpunished until a tribunal is held after the fact. If nothing else, the ICC's status as a permanent court would enable it to take action faster than an ad hoc tribunal. But it can't, because (among other reasons) the US won't back it up. Meanwhile, innocent people are being killed every day.
Sunday, December 7, 2008
ICC aff case
Aff case
I affirm Resolved: The United States ought to submit to the jurisdiction of an international court designed to prosecute crimes against humanity.
Resolutional Analysis: The resolution refers to an unspecified international court. To bring clarity to the debate, we should assume that this international court refers to the current International Criminal Court (ICC). The resolution refers to the ICC because it is already contextualized by the words United States, putting it in a real-world scenario, and because it makes the debate relevant, as the United States has chosen not to join the ICC.
Definitions:
Ought: Used to express obligation, advisability, natural expectation, or logical consequence
Submit: To yield to governance or authority
Jurisdiction: The power, right, or authority to interpret and apply the law
International: Active, known, or reaching beyond national boundaries
Crimes against Humanity: M. Cherif Bassiouni, a United Nations war crimes expert and professor of Law at DePaul University College of Law in Chicago, defines crimes against humanity as follows:
(1) they refer to specific acts of violence against persons irrespective of whether the person is a national or non-national and irrespective of whether these acts are committed in time of war or time of peace, and
(2) these acts must be the product of persecution against an identifiable group of persons irrespective of the make-up of that group or the purpose of the persecution. Such a policy can also be manifested by the “widespread or systematic” conduct of the perpetrators, which results in the commission of the specific crimes contained in the definition.
As Bassiouni explains, this definition consists of the definitions common to eleven international texts defining crimes against humanity, including the statute of the ICC.
Value: Justice - each their due
Because the United States assumes that people are due life, liberty, and the pursuit of happiness, then our primary value must be justice, in order to ensure that people receive those dues.
Criterion: Protection of Human Rights
Because the primary goal of the United States is to ensure that justice is maintained, and each receives their due, we are obligated to act to protect the human rights that people are due. Therefore we must help prosecute those who are guilty of crimes against humanity because they violated those rights.
Contention 1: The ICC is an acceptable substitute for United States Criminal Court
a) The ICC's rules are very similar to those of the United States, and could be considered constitutional if altered only slightly. Furthermore, the United States helped create some of the statutes of the ICC. For example, in an article titled "The Constitutionality of the Rome Statue of the International Criminal Court," found in the Spring 2008 Journal of Criminal Law and Criminology, David Scheffer and Ashley Cox explain:
[T]he United States actively participated in further negotiations on the Rules of Procedure and Evidence and the Elements of Crime for the ICC. Both of these documents, upon which the U.S. delegation had insisted in Rome and to which the delegation had made major contributions, such as preparing the first draft of the Elements of Crimes and leading negotiations thereafter, were adopted by consensus, joined by the United States, in June 2000.
b) Bassiouni's definition of crimes against humanity includes the statutes of the ICC, as well as statutes from past tribunals on the same subject, some of which the United States has participated in, such as the International Criminal Tribunal for the former Yugoslavia. If the court's definition coincides with definitions employed by the United States in the past, then the court is clearly an acceptable standard of justice when it comes to punishing crimes against humanity.
Contention 2: The United States is obligated to join the court, both on a moral level and by the constitution
a) The constitution advocates the enforcement of justice by the United States in international matters. Once again, from Scheffer and Cox:
The Constitution is a document of enumerated powers, and there is a very powerful one that often goes unnoticed. Article I, Section 8, Clause 10 of the Constitution grants Congress the power to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Particularly with respect to atrocity crimes, it would be an entirely logical and warranted exercise of such constitutional power to create, in concert with other governments, an international criminal court that defines, prosecutes, and punishes such incontrovertible "Offences against the Law of Nations," namely, atrocity crimes, and to legislate that such an international court's judgments and sentences be given effect in the United States to the same extent as they are recognized by and enforced in other State Parties to the Rome Statute.
Additionally, there are crimes punishable by the ICC that are not present in United States law, and would therefore go unpunished under the United States system. Many international crimes are currently undefined in US law, and some of these include crimes against humanity, which represents a violation of human rights if ignored.
b) The ICC would provide accountability that the United States needs in order to legitimately act on a world scale
The jurisdiction of the United States does not extend beyond our own territories. We fully recognize the sovereignty of other governments in the world. However, the United States frequently takes action in other countries in the world by trying to overthrow governments. We cannot be allowed to act on other countries without being subject to the jurisdiction of other countries. For example, consider the World Court case Nicaragua v. United States in 1986. The court ruled that the United States had supported the contra rebels and mined Nicaragua's harbors, which represented a violation of international law. However, the United States refused to recognize the legitimacy of the world court in the case, and didn't comply with the verdict. Because the United States acted against another country, and supported rebels who violated human rights, we had violated our own value of justice. However, we refused to submit to the court, and thus justice was never achieved. The ICC and the World Court are separate organizations, but the point remains the same: for the United States to act in a just manner on a global scale necessitates its being under the jurisdiction of a world court.
I now stand open for cross-examination.
Blocks:
Neg argument: An international court could be composed of just China and Russia, or include nations hostile to the United States, so we obviously shouldn't join.
Aff response: The resolution is contextualized by the United States, and so there's no reason to look to a hypothetical court rather than the one that currently exists. And the ICC as it currently exists contains 108 countries, many of which are allies with the United States, and none of which are hostile towards it. (Card if needed, from Scheffer and Cox: As of October 1, 2008, there will be 108 State Parties to the Rome Statute. These include almost every major ally of the United States, many nations that are considered friends, and none that are characterized as evil, Communist, or adversarial. They consist of all but one of the European Union nations, Canada, Mexico, most of Latin America and the Caribbean, a majority of African countries, and sixteen Asia-Pacific nations, including Australia, Japan, and the Republic of Korea.)
Neg argument: Joining the court would violate US national Sovereignty
Aff response: The ICC is limited in its jurisdiction to prosecuting crimes that the country in question is unable or unwilling to do so. Provided that the United States modifies our its own laws to cover international crimes against humanity, and provided that the United States follows its own principles of justice and prosecutes people accordingly, then the ICC will have no grounds for overriding the United States.
Monday, December 1, 2008
the January / February LD resolution is available
I've started my usual analysis, linking, and discussion here. (Oh, and novices--don't worry. You won't debate it until January. Only Open debates this resolution at Auburn-Riverside.)
Thursday, November 20, 2008
first aff case
this is my current aff case, and its also the first one I've ever done. It's only a skeleton of a case at this point, but i would really like some advice on how to add to it. i have some ideas, but I'd like to see what other people think as well.
society: an organized group of persons associated together for religious, benevolent, cultural, scientific, political, patriotic, or other purposes.
My third contention is that democracies risk the temptation to disenfranchise dissenters, becoming intolerant and denying freedom.
Felons express often express dissent through their crimes. Knowing this, then if we disenfranchise felons, then this could lead to the conclusion that we should disenfranchise all dissenters. Felons are often dissenters, so if we disenfranchise some of them, then we are not far from disenfranchising all of them.
by the way, I'm probably going to update this as i go, so please check back and continue to comment.
Aff Case
"injustice anywhere is a threat to justice everywhere." because I agree with Dr. Martin Luther King, I stand resolved that in in a democratic society, felons ought to retain the right to vote.
For clarity, I offer the following definitions:
democratic: pertaining to or of the nature of democracy or a democracy.
society: an organized group of persons associated together for religious, benevolent, cultural, scientific, political, patriotic, or other purposes.
felon: a person who has committed a felony.
ought: used to express propriety, appropriateness, etc.
retain: to continue to use, practice, etc.
right: that which is due to anyone by just claim, legal guarantees, moral principles, etc.
vote: to express or signify will or choice in a matter, as by casting a ballot
vote: to express or signify will or choice in a matter, as by casting a ballot
My value is freedom.
As I said earlier, a democratic society is defined as government by the people; a form of government in which the supreme power is vested in the people. Therefore, freedom is the most important value in a democratic society because the if the people are free, then they will have the ability to exercise the power to choose the leaders and laws of the society. If the people's freedom is taken away, then the society will no longer be democratic because the people will no longer be in control. Also, people must have the freedom to choose who they are, live where they want, and say what they want. If people have these, then they will be significantly happier and more fulfilled than people in a more oppressive form of government, such as a dictatorship.
My criterion is tolerance.
As I said earlier, a democratic society is defined as government by the people; a form of government in which the supreme power is vested in the people. Therefore, freedom is the most important value in a democratic society because the if the people are free, then they will have the ability to exercise the power to choose the leaders and laws of the society. If the people's freedom is taken away, then the society will no longer be democratic because the people will no longer be in control. Also, people must have the freedom to choose who they are, live where they want, and say what they want. If people have these, then they will be significantly happier and more fulfilled than people in a more oppressive form of government, such as a dictatorship.
My criterion is tolerance.
Justice Oliver Wendell Jones called a free society a "marketplace of ideas". To ensure freedom, the government must not suppress any of the ideas and remain tolerant of them, thus ensuring freedom. Therefore, tolerance is my main criterion because if we do not accept others' right to express their ideas, their freedom is suppressed, and this can cause them to harbor resentment towards the government and possibly act out in violent means. Furthermore, Democracy, as a form of government, allows laws to be changed to fit the needs of the populace. No laws in a democracy are completely absolute. Furthermore, democracy values deliberation over certainty. Monarchs are certain; democrats know that their truths are practical and provisional rather than absolute. So, tolerance is a critical aspect of all of these things. We tolerate dissenting points-of-view because we are humble enough to know that ours might change in the flow of democracy.
My first contention is that to ensure freedom, democracy depends on leaders taking into account the interests of all citizens.
As Tom Christiano writes in the Stanford Encyclopedia of Philosophy,
"Strategically, democracy has an advantage because it forces decision-makers to take into account the interests, rights and opinions of most people in society. Since democracy gives some political power to each, more people are taken into account than under aristocracy or monarchy. The most forceful contemporary statement of this instrumental argument is provided by Amartya Sen, who argues, for example, that “no substantial famine has ever occurred in any independent country with a democratic form of government and a relatively free press” (Sen 1999, 152). The basis of this argument is that politicians in a multiparty democracy with free elections and a free press have incentives to respond to the expressions of needs of the poor."
If we deny a group of people their ability to participate in the democratic process, then politicians will not need to consider their needs. This will allow their concerns to go unnoticed, and they will not be able to correct problems in their part of society. The ability to recognize and remedy problems is an important part of our society. If we disenfranchise a certain group of people, then our society will be less capable to diagnose and correct problems within.
My second contention is that to ensure freedom, felons' voices must be included in the democratic process.
“Perhaps the most obvious consequence of felon disenfranchisement is that, if felons cannot vote, the political process may not adequately reflect their interests.” As a group, felons have a unique set of concerns, in particular relating to their ex-convict status.”- Stanford Criminal Justice Center.
If felons have a unique set of concerns, then we should include those concerns in the democratic process. looking back on Tom christianos quote from earlier, democracy has an advantage because it forces decision-makers to take into account the interests, rights and opinions of most people in society. If felons are denied the right to vote, then the decision-makers will not have to take into account the interests, rights and opinions of felons. Under these circumstances, not only can horrible things occur to them unchecked, but they have no way of changing their conditions.
My first contention is that to ensure freedom, democracy depends on leaders taking into account the interests of all citizens.
As Tom Christiano writes in the Stanford Encyclopedia of Philosophy,
"Strategically, democracy has an advantage because it forces decision-makers to take into account the interests, rights and opinions of most people in society. Since democracy gives some political power to each, more people are taken into account than under aristocracy or monarchy. The most forceful contemporary statement of this instrumental argument is provided by Amartya Sen, who argues, for example, that “no substantial famine has ever occurred in any independent country with a democratic form of government and a relatively free press” (Sen 1999, 152). The basis of this argument is that politicians in a multiparty democracy with free elections and a free press have incentives to respond to the expressions of needs of the poor."
If we deny a group of people their ability to participate in the democratic process, then politicians will not need to consider their needs. This will allow their concerns to go unnoticed, and they will not be able to correct problems in their part of society. The ability to recognize and remedy problems is an important part of our society. If we disenfranchise a certain group of people, then our society will be less capable to diagnose and correct problems within.
My second contention is that to ensure freedom, felons' voices must be included in the democratic process.
“Perhaps the most obvious consequence of felon disenfranchisement is that, if felons cannot vote, the political process may not adequately reflect their interests.” As a group, felons have a unique set of concerns, in particular relating to their ex-convict status.”- Stanford Criminal Justice Center.
If felons have a unique set of concerns, then we should include those concerns in the democratic process. looking back on Tom christianos quote from earlier, democracy has an advantage because it forces decision-makers to take into account the interests, rights and opinions of most people in society. If felons are denied the right to vote, then the decision-makers will not have to take into account the interests, rights and opinions of felons. Under these circumstances, not only can horrible things occur to them unchecked, but they have no way of changing their conditions.
My third contention is that democracies risk the temptation to disenfranchise dissenters, becoming intolerant and denying freedom.
Felons express often express dissent through their crimes. Knowing this, then if we disenfranchise felons, then this could lead to the conclusion that we should disenfranchise all dissenters. Felons are often dissenters, so if we disenfranchise some of them, then we are not far from disenfranchising all of them.
by the way, I'm probably going to update this as i go, so please check back and continue to comment.
Tuesday, November 11, 2008
Aff Case Rough Draft
Aff Case
I affirm Resolved: In a democratic society, felons ought to retain the right to vote.
For clarity, I offer the following definitions:
-Democratic: See democracy: government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.
-Society: a community, nation, or broad grouping of people having common traditions, institutions, and collective activities and interests
-Felon: Someone who has committed a felony
-Ought: Used to express duty or moral obligation
-Retain: To keep
My value for this round is Moral Pluralism (also known as value pluralism or ethical pluralism)
Societies, by definition, have common beliefs and institutions. When it comes to morality, some societies may use moral absolutism, the concept that actions are either moral or immoral regardless of circumstances. However a democratic society grants supreme power to the people equally, so the fundamental ideal of the society must be that one person's beliefs cannot be suppressed simply because they conflict with the beliefs of others, or else the society would cease to be democratic. This would appear to call for a philosophy of moral relativism, which states that no set of morals can be judged to be superior or "correct" because all morals are subjective. However, the problem with moral relativism is that it fails to draw a line for what can be allowed. There are some actions, such as unprovoked murder, that are almost universally condemned by a democratic society and interfere with the functioning of the society. Absolutism and relativism both go too far in opposite directions, leading to undemocratic societies. For a society to remain democratic, a middle ground is needed: moral pluralism, which states that morality is subjective and cannot be rationally evaluated, but also acknowledges that there are limits imposed on the differences which can be allowed.
The obvious problem with looking to moral pluralism as the supreme value of a democratic society is the question of where we should draw the line. At what point does something cross the threshold and become something that cannot be allowed, even under moral pluralism? To establish that line, we must look to a criterion of Mill's Harm Principle. In Chapter 1 of On Liberty, John Stuart Mills explains "that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." This is how we can draw the line for moral pluralism; as long as an action does not violate the liberty of another member of the society, that action cannot be restricted, because doing so would be applying an absolute moral standard. In the case of voting, denying the right to vote would only be acceptable if the action of voting would actually harm the liberty of other members of society. This is not the case; voting is about expression, and we currently deny the right to vote simply on the basis of what the felon in question has done. This is unacceptable under moral pluralism.
Contention 1: Felons cannot be disenfranchised due to immorality
In "Liberal and Republican Arguments Against the Disenfranchisement of Felons," found in the Winter 2005 edition of Criminal Justice Ethics, Jeffrey Reiman points our that one of the main reasons for disenfranchisement in the United States is "preserving the purity of the ballot box, that is, protecting the electoral process from morally unsuitable voters."
Reiman elaborates by citing an argument by Christopher Manfredi, who states that we are limiting "the political participation of individuals who have manifestly demonstrated that their character is predominantly self-regarding, present-oriented, and impulsive. In short, disenfranchisement is reasonable because criminal offenders are in general less empathetic and more impulsive than other citizens."
As Reiman points out, the assumption that all felons have immoral characteristics simply because many of them display them when committing crimes isn't a valid argument.
More importantly, disenfranchisement for these reasons represents a lack of tolerance, because a person who is less empathetic shouldn't be punished for that. If we refuse to tolerate a lack of empathy because it is immoral, we've reverted to moral absolutism and an undemocratic society.
Contention 2: Voting does not give a felon the opportunity to harm society
Voting is a way for an individual to express his or her opinion. Felons are imprisoned because they have committed crimes that are harmful to society, and so we are suppressing their freedom and being intolerant, but we are doing it to protect innocent people in society from them, and thus we are acting in the interests of the society. However, denying them the right to vote is no longer acting in the interests of society. Voting on issues and for candidates doesn't give felons the opportunity to cause harm to society. They are only given the right to vote on issues that everyone else could also vote for. Therefore the only justification for denying them the right to vote would be if they would vote for a candidate who would harm society, in which case under the Harm Principle all non-felons who would vote for that candidate should also be disenfranchised. The felon is already serving a separate sentence for their crimes, and the right to vote is not directly related to their crime, and the deprivation of it is not necessary for maintaining the democratic society. Therefore, in a democratic society, felons must retain the right to vote or else the government has become intolerant, leading to moral absolutism, which leads to an undemocratic society.
Contention 3: Denying felons the right to vote is a form of suppressing dissent
a) Felons represent a certain portion of society. They have all been imprisoned by society, and therefore may have knowledge or interests that other citizens lack. For example, an ordinary person might vote against any sort of resolution to increase funding to prisons, because they would consider it a waste of their own tax dollars. On the other hand, a felon who has experienced firsthand the poor living conditions of a prison would understand that such a measure is necessary to avoid mistreating felons. Society relies on the expression of opinions of all groups, and may end up mistreating certain groups, even felons, if they are not adequately represented. This would undermine the foundation of a democratic society by harming the liberty of felons and violating the Harm Principle.
b) Felons can often be primarily members of a particular minority or demographic. For example, in the United States, an average of 49% of felons are African-American. This means that African Americans have less representation in the electoral system. This could harm the interests of African-Americans in general because of the reduced voting power. So in the end, denying felons the franchise will do more harm than good.
Block: If felons' votes are capable of harming society, then logically Vermont should be a stinking hellhole. It is not, so granting felons the franchise does not automatically doom society.
I affirm Resolved: In a democratic society, felons ought to retain the right to vote.
For clarity, I offer the following definitions:
-Democratic: See democracy: government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.
-Society: a community, nation, or broad grouping of people having common traditions, institutions, and collective activities and interests
-Felon: Someone who has committed a felony
-Ought: Used to express duty or moral obligation
-Retain: To keep
My value for this round is Moral Pluralism (also known as value pluralism or ethical pluralism)
Societies, by definition, have common beliefs and institutions. When it comes to morality, some societies may use moral absolutism, the concept that actions are either moral or immoral regardless of circumstances. However a democratic society grants supreme power to the people equally, so the fundamental ideal of the society must be that one person's beliefs cannot be suppressed simply because they conflict with the beliefs of others, or else the society would cease to be democratic. This would appear to call for a philosophy of moral relativism, which states that no set of morals can be judged to be superior or "correct" because all morals are subjective. However, the problem with moral relativism is that it fails to draw a line for what can be allowed. There are some actions, such as unprovoked murder, that are almost universally condemned by a democratic society and interfere with the functioning of the society. Absolutism and relativism both go too far in opposite directions, leading to undemocratic societies. For a society to remain democratic, a middle ground is needed: moral pluralism, which states that morality is subjective and cannot be rationally evaluated, but also acknowledges that there are limits imposed on the differences which can be allowed.
The obvious problem with looking to moral pluralism as the supreme value of a democratic society is the question of where we should draw the line. At what point does something cross the threshold and become something that cannot be allowed, even under moral pluralism? To establish that line, we must look to a criterion of Mill's Harm Principle. In Chapter 1 of On Liberty, John Stuart Mills explains "that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." This is how we can draw the line for moral pluralism; as long as an action does not violate the liberty of another member of the society, that action cannot be restricted, because doing so would be applying an absolute moral standard. In the case of voting, denying the right to vote would only be acceptable if the action of voting would actually harm the liberty of other members of society. This is not the case; voting is about expression, and we currently deny the right to vote simply on the basis of what the felon in question has done. This is unacceptable under moral pluralism.
Contention 1: Felons cannot be disenfranchised due to immorality
In "Liberal and Republican Arguments Against the Disenfranchisement of Felons," found in the Winter 2005 edition of Criminal Justice Ethics, Jeffrey Reiman points our that one of the main reasons for disenfranchisement in the United States is "preserving the purity of the ballot box, that is, protecting the electoral process from morally unsuitable voters."
Reiman elaborates by citing an argument by Christopher Manfredi, who states that we are limiting "the political participation of individuals who have manifestly demonstrated that their character is predominantly self-regarding, present-oriented, and impulsive. In short, disenfranchisement is reasonable because criminal offenders are in general less empathetic and more impulsive than other citizens."
As Reiman points out, the assumption that all felons have immoral characteristics simply because many of them display them when committing crimes isn't a valid argument.
More importantly, disenfranchisement for these reasons represents a lack of tolerance, because a person who is less empathetic shouldn't be punished for that. If we refuse to tolerate a lack of empathy because it is immoral, we've reverted to moral absolutism and an undemocratic society.
Contention 2: Voting does not give a felon the opportunity to harm society
Voting is a way for an individual to express his or her opinion. Felons are imprisoned because they have committed crimes that are harmful to society, and so we are suppressing their freedom and being intolerant, but we are doing it to protect innocent people in society from them, and thus we are acting in the interests of the society. However, denying them the right to vote is no longer acting in the interests of society. Voting on issues and for candidates doesn't give felons the opportunity to cause harm to society. They are only given the right to vote on issues that everyone else could also vote for. Therefore the only justification for denying them the right to vote would be if they would vote for a candidate who would harm society, in which case under the Harm Principle all non-felons who would vote for that candidate should also be disenfranchised. The felon is already serving a separate sentence for their crimes, and the right to vote is not directly related to their crime, and the deprivation of it is not necessary for maintaining the democratic society. Therefore, in a democratic society, felons must retain the right to vote or else the government has become intolerant, leading to moral absolutism, which leads to an undemocratic society.
Contention 3: Denying felons the right to vote is a form of suppressing dissent
a) Felons represent a certain portion of society. They have all been imprisoned by society, and therefore may have knowledge or interests that other citizens lack. For example, an ordinary person might vote against any sort of resolution to increase funding to prisons, because they would consider it a waste of their own tax dollars. On the other hand, a felon who has experienced firsthand the poor living conditions of a prison would understand that such a measure is necessary to avoid mistreating felons. Society relies on the expression of opinions of all groups, and may end up mistreating certain groups, even felons, if they are not adequately represented. This would undermine the foundation of a democratic society by harming the liberty of felons and violating the Harm Principle.
b) Felons can often be primarily members of a particular minority or demographic. For example, in the United States, an average of 49% of felons are African-American. This means that African Americans have less representation in the electoral system. This could harm the interests of African-Americans in general because of the reduced voting power. So in the end, denying felons the franchise will do more harm than good.
Block: If felons' votes are capable of harming society, then logically Vermont should be a stinking hellhole. It is not, so granting felons the franchise does not automatically doom society.
some useful quotes about the limitations of democracy
Anthony Arblaster, Democracy [Second Edition], 1994, U. of Minn. Press, defines democracy as popular sovereignty.
[C]learly it cannot be a democratic act for the people to vote away their own power and their own rights.... For democracy to exist, power must remain with the people. If they freely abdicate that power, what they consent to may have popular support, but it is not democracy.... So, in effect, popular sovereignty must be inalienable. [p.88]Do we have reasonable grounds for excluding persons from the demos? Robert A. Dahl, Democracy, Liberty, and Equality, 1986, Norwegian Univ. Press, argues that we do (an argument that would ground a negative case).
The assumption that there is a necessary connection between democracy and freedom is surely correct, even if we take some of the narrower definitions of democracy. For example, even if the essence of democracy is taken to be the process of choosing between elites competing to govern, the very business of choosing can hardly be confined to the visit to the polling booth.... Choice, however limited in scope, implies freedom...
If we adopt the more expansive definition of democracy... the case is even stronger. Democracy as popular power... should be seen as a continuous process of interaction between government and society, with a maximum involvement of the people in public decision-making at every level. [pp. 91-92]
[I]f we look to the people to play a more positive role, freely voicing their demands and hopes, their fears and grievances, as well as introducing ideas and initiating policies, plainly this can only happen in an atmosphere of the greatest freedom and openness, free from any taint of intimidatory anxiety or apprehension as to the possible consequences of speaking out. [p. 92]
Locke and Rousseau accepted, and Mill defended, the principle that a demos might properly exclude large numbers of adults who are subject to the laws made by the demos. Thus the attempt to ground "participatory democracy" on Mill and his predecessors is fatally flawed. Participation indeed. But only for the qualified! [p. 211][more to come]
Citizenship depends on contingent judgments, not categorical rights. And the contingent judgments need not lead to universal inclusion.... That we cannot get around the principle of competence in deciding on the inclusiveness of the demos is decisively demonstrated by the exclusion of children.... Children therefore furnish us with a clear violation of the principle that a government must rest on the consent of the governed, or that no one should be subject to a law not of one's own choosing, or subject to a law made by an association not of one's own choosing. [pp. 212-214]
Thursday, November 6, 2008
Felon franchise neg second draft
Neg Case
I negate the resolution.
I accept my opponent's definitions (with the exception of:)
-Democratic: Adjective of the noun democracy, defined as: government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system
-Society: a highly structured system of human organization for large-scale community living that normally furnishes protection, continuity, security, and a national identity for its members
-Felon: a person who has committed a felony
-Ought: used to express propriety, appropriateness, etc
-Retain: to keep possession of
(this means that we are talking about felons who are currently serving time in prison, because denying the right to vote while in prison, even if it is restored upon release, violates the definition of retain)
My value for this round is Societal Welfare.
This is the paramount value when talking about a democratic society. In a democratic society, supreme power is in the end vested in the people, not a ruling class. So the welfare of those people, of society as a whole, is very important for ensuring that the society continues to function and remains democratic.
To ensure the welfare of society, we must look to a criterion of the Social Contract.
Under the social contract, members of a society give up certain rights in exchenge for protection of other rights. In a state of nature, there would be no guarenteed rights, because anyone would have the freedom to act as the choose on anyone else. The purpose of the social contract is to maintain the functionality if the society, and thereby ensure the protection of the basic rights of the ctizens. If the social contract is threatened, the safety of society as a whole becomes compromised. Therefore, in order to act in the interests of its citizens and thier welfare, a society must act in defense of its own social contract.
Contention 1: Disenfranchisement is justified on the part of the state
a) The function of voting is to decide laws, or to elect representatives who will create laws. Thus when a felon commits a crime, they have not only violated the social contract, but have broken the very laws that they helped to create. At this point, the state is justified in taking away their right to vote, because otherwise the felons would be helping to create laws that they have shown they will not follow. The best explanation of this in terms of the social contract would be Rawl's concept of duty of fair play. In Moral Problems: A Coursebook, Micheal Palmer explains that duty of fair play means that "if it is socially necessary that everyone behave in a certain way, then it is unfair to the rest if someone gains an advantage by acting otherwise." The rules of society are at the core of the social contract, and must be maintained for the contract, and by extension, the society, to continue to function. Allowing someone who would willingly violate those rules to help decide or alter the rules would be risking harm to the social contract, and thereby risking the rights of all of society.
b) The right to vote is not an inherent right, such as life or liberty. The right to vote is a state-given right, because without the state voting would not exist. As Jason Kuznicki, a political scientist at the Cato Institute, writes,
This means that because of the nature of the social contract, the state is fully justified in disenfranchising felons because they were given the franchise with the understanding that they would follow their own rules.
Contention 2: If given the franchise, felons would be capable of influencing our legal system in potentially harmful ways
a) Felons would automatically vote for a candidate who promised to release them, even if he candidate would potentially be harmful to society. If the candidate had insufficient respect for the social contract and the laws of the society, then many people would choose not to vote for him or her, ensuring that they don't get elected and harm the society. Felons, on the other hand, who have less respect for the law, would not feel the need to vote against the candidate. Also, felons could have a negative impact on initiatives on the ballot. Would we want a sex offender to be able to vote on an initiative to decrease the time sex offenders must spend in prison? Would they make a rational choice that would help society, or would they simply vote in their own self-interest?
b) Felons are capable of influencing election results. Often times, felons can be the swing vote. For example, consider the Washington State gubernatorial election in 2004. Christine Gregoire won the election by a margin of 133 votes. The republican party filed suit, claiming that many of the votes were cast illegally. In court, they provided evidence that well over 1000 votes had been illegally cast in Washington, many of which were cast by felons. The election results were not overturned because the republicans were unable to prove which way the felons voted. But the point stands that the number of felons can be greater than the margin of victory, thus making felons the swing vote.
I negate the resolution.
I accept my opponent's definitions (with the exception of:)
-Democratic: Adjective of the noun democracy, defined as: government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system
-Society: a highly structured system of human organization for large-scale community living that normally furnishes protection, continuity, security, and a national identity for its members
-Felon: a person who has committed a felony
-Ought: used to express propriety, appropriateness, etc
-Retain: to keep possession of
(this means that we are talking about felons who are currently serving time in prison, because denying the right to vote while in prison, even if it is restored upon release, violates the definition of retain)
My value for this round is Societal Welfare.
This is the paramount value when talking about a democratic society. In a democratic society, supreme power is in the end vested in the people, not a ruling class. So the welfare of those people, of society as a whole, is very important for ensuring that the society continues to function and remains democratic.
To ensure the welfare of society, we must look to a criterion of the Social Contract.
Under the social contract, members of a society give up certain rights in exchenge for protection of other rights. In a state of nature, there would be no guarenteed rights, because anyone would have the freedom to act as the choose on anyone else. The purpose of the social contract is to maintain the functionality if the society, and thereby ensure the protection of the basic rights of the ctizens. If the social contract is threatened, the safety of society as a whole becomes compromised. Therefore, in order to act in the interests of its citizens and thier welfare, a society must act in defense of its own social contract.
Contention 1: Disenfranchisement is justified on the part of the state
a) The function of voting is to decide laws, or to elect representatives who will create laws. Thus when a felon commits a crime, they have not only violated the social contract, but have broken the very laws that they helped to create. At this point, the state is justified in taking away their right to vote, because otherwise the felons would be helping to create laws that they have shown they will not follow. The best explanation of this in terms of the social contract would be Rawl's concept of duty of fair play. In Moral Problems: A Coursebook, Micheal Palmer explains that duty of fair play means that "if it is socially necessary that everyone behave in a certain way, then it is unfair to the rest if someone gains an advantage by acting otherwise." The rules of society are at the core of the social contract, and must be maintained for the contract, and by extension, the society, to continue to function. Allowing someone who would willingly violate those rules to help decide or alter the rules would be risking harm to the social contract, and thereby risking the rights of all of society.
b) The right to vote is not an inherent right, such as life or liberty. The right to vote is a state-given right, because without the state voting would not exist. As Jason Kuznicki, a political scientist at the Cato Institute, writes,
"Voting is a government-created right; you don’t have a right to vote in the state of nature. The social contract creates voting. By entering into society, you surrender a distinctly limited number of your natural rights, for instance the right to extract restitution forcibly from those who have wronged you. In compensation for giving these up, the state gives you some other rights (like voting, and trial by jury). All the other rights not clearly mentioned in the deal are yours to keep, at least in theory."
This means that because of the nature of the social contract, the state is fully justified in disenfranchising felons because they were given the franchise with the understanding that they would follow their own rules.
Contention 2: If given the franchise, felons would be capable of influencing our legal system in potentially harmful ways
a) Felons would automatically vote for a candidate who promised to release them, even if he candidate would potentially be harmful to society. If the candidate had insufficient respect for the social contract and the laws of the society, then many people would choose not to vote for him or her, ensuring that they don't get elected and harm the society. Felons, on the other hand, who have less respect for the law, would not feel the need to vote against the candidate. Also, felons could have a negative impact on initiatives on the ballot. Would we want a sex offender to be able to vote on an initiative to decrease the time sex offenders must spend in prison? Would they make a rational choice that would help society, or would they simply vote in their own self-interest?
b) Felons are capable of influencing election results. Often times, felons can be the swing vote. For example, consider the Washington State gubernatorial election in 2004. Christine Gregoire won the election by a margin of 133 votes. The republican party filed suit, claiming that many of the votes were cast illegally. In court, they provided evidence that well over 1000 votes had been illegally cast in Washington, many of which were cast by felons. The election results were not overturned because the republicans were unable to prove which way the felons voted. But the point stands that the number of felons can be greater than the margin of victory, thus making felons the swing vote.
the Universal Declaration of Human Rights
Always useful in LD, the Universal Declaration of Human Rights provides for a much more universal standard of rights, than, say, the Bill of Rights to the U.S. Constitution. You can use rhetoric from the Declaration to argue that, as a whole, people in democratic societies agree that the values contained in it are good.
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