Académique Documents
Professionnel Documents
Culture Documents
November/December 2015
Lincoln-Douglas Brief
November/December 2015
The Evidence Standard
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Table of Contents
The Evidence Standard ............................................................................. 3
Table of Contents ........................................................................................ 4
Topic Analyses .......................................................................................... 19
Topic Analysis by Shania Hunt ............................................................................................. 20
Topic Analysis by Mitali Mathur .......................................................................................... 27
Alternative Argumentation by Martin Page ..................................................................... 35
Framework Analysis by Amy Geller .................................................. 46
Evidence for the Affirmative ................................................................ 53
Constitution AC ................................................................................................................................... 54
The government should adhere to the Constitution-the Constitution is an
expression of democratic governance and equality. .................................................... 56
The Constitution is philosophically grounded on consent of the governed. ........ 57
The Constitution provides for the best form of government. .................................... 58
Consent of the governed is the foundation of just government. ............................... 59
The Constitution's grounded on separation of powers--that's key to check
tyranny and ensure political cooperation. ....................................................................... 60
The Constitution is the fundamental law of the land--outweighs rule of law NCs.
......................................................................................................................................................... 61
The 6th Amendment supports jury nullification. .......................................................... 62
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Kappeler AC .......................................................................................................................................... 86
AC 1: When we focus on governmental responses to problems and question what
the government should do, we erase any question of what each and every single
one of us should do. This ensures that all of the harms of the status quo continue
while we shift blame to the state and insulate ourselves from personal action. 87
AC 3: Government action is nothing but a Band-Aid fix for issues. Political action
is used to quickly patch up violence in the status quo while re-entrenching the
violence of our minds that weaves into the fabric of our society and
consciousness. ............................................................................................................................ 89
AC 2:Refusal of the governmental action in the face of injustice is the first step
towards articulating a new emancipatory imagination, actually capable of
dealing with injustice. ............................................................................................................. 90
AC 4: Complacency with violence and injustice is the root of all violence and
injustice. By attempting to justify perpetrators decisions to commit violent acts,
future violent acts are justified. ........................................................................................... 91
AC 5: Thus, we should begin interrogations of violence and injustice with a local
refusal to endorse violence and injustice. ........................................................................ 92
AC 6: Jury nullification is one way for us to engage in a local refusal to endorse
violence. Jurors can vote no regardless of the evidence of the crime. .................... 93
AC 7: Figuring out how we as individuals are connected to violence and injustice
must come before any discussions of global transformation. ................................... 94
The aff is a prerequisite to anything else - questioning violence is key to
overcoming it. ............................................................................................................................ 95
Impact: The "What should the government do" mentality is grounded in a
misunderstanding of violence this focus on mega-spheres of political action
eclipses the important question of what should and can we do as simply
ourselves. This leads to the surrender of personal agency and the abdication of
all responsibility. ...................................................................................................................... 96
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Jurors have the power to nullify, but aren't always informed of that-jurors have a
right to be told-that ensures marijuana cases can't get prosecuted. .................... 125
Jury nullification leads to not guilty verdicts for people arrested for marijuana
possession-Doug Darrell proves. ....................................................................................... 126
Courts aren't informing juries of the right to nullify, but that must change-people
shouldn't become victims of the drug war. .................................................................... 127
Jury nullification in marijuana cases is key to making our laws fairer. ............... 128
Even if jury nullification has sometimes been used in racist way, that doesn't
justify opposing nullification in its entirety. ................................................................. 129
Arrest and incarceration rates for marijuana possession are unfairly high-jurors
concerned about racial bias will nullify. ......................................................................... 130
Jury nullification can be used to ensure justice in medical marijuana cases. .... 131
Jury nullification is symbolically important-it sends a message against unjust
marijuana laws. ....................................................................................................................... 132
Marijuana possession charges are unfair-we should inform juries of their right
to nullify. .................................................................................................................................... 133
Nullification ended prohibition of alcohol, and it'll end marijuana prohibition
too-growing number of Americans opposing marijuana arrests now. ................. 134
Jury nullification is key-we can't expect our leaders to change marijuana laws
without bottom-up pressure. .............................................................................................. 135
The war on drugs is an utter failure-too many people are getting arrested for
non-violent, low-level offenses-that destroys communities. ................................... 136
Increased jury nullification for marijuana charges makes eventual repeal of
marijuana prohibition inevitable. ..................................................................................... 137
Pluralism AC ...................................................................................................................................... 138
Jury nullification occurs when there are illegal acts that are morally blameless.
....................................................................................................................................................... 140
Obeying the law is a prima facie duty that can be overridden for the sake of
justice. ......................................................................................................................................... 141
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We have a prima facie duty to avoid unjustly harming people. .............................. 142
Since the defendant is morally blameless, juries have an obligation to vote not
guilty. ........................................................................................................................................... 143
The thesis of the aff is that jurors have a duty to nullify in the face of injustice
because it is prima facie wrong to cause unjust harm. .............................................. 144
Even if the aff violates the jury oath, breaking promises is permissible if doing so
avoids unjust harms. .............................................................................................................. 145
Promises based on unjust coercion aren't ethically binding. .................................. 146
It's permissible to break a promise to avoid unjust harm. ....................................... 147
The salient factors that justify breaking promises apply for jury nullification. 148
Jury nullification isn't lawless. ........................................................................................... 149
Jury nullification doesn't undermine rule of law or risk anarchy. ......................... 150
Unjust harms outweigh the necessity of uniform standards of law. ..................... 151
Even if uniformity in law matters, the juror should not make their decision
based on whether it promotes uniform standards of justice. .................................. 152
Even if jury null has been misused for racist purposes, jury null is ethical on
balance. ...................................................................................................................................... 153
Jury null is key to rectifying injustice; repealing unjust laws alone can't solve.
....................................................................................................................................................... 154
The idea that jury nullification places cognitive and emotional burdens on juries
is irrelevant--ignores our ethical duty to avoid unjust harm. ................................. 155
"You should change the law instead" is a non-sequitur; jury null and political
activism aren't mutually exclusive. .................................................................................. 156
The idea that jury nullification is unaccountable assumes legislation is more
accountable, but that's inaccurate. ................................................................................... 157
Juries are better capable of evaluating specific applications of the law than
general public opinion. ......................................................................................................... 158
The unanimity requirement means juries will uniquely check unjust
punishments. ............................................................................................................................ 159
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The ethical question of jury null is that of individual jurors' responsibilities, not
whether majority will is just. .............................................................................................. 160
Neg args about the desirability of jury null as public policy aren't relevant to aff
offense. ....................................................................................................................................... 161
The aff outweighs. We value the law because of justice. ........................................... 162
We cannot say jury nullification is unethical when juries are morally obligated
to nullify. .................................................................................................................................... 163
Biopower AC ....................................................................................................................................... 164
Jury Nullification relocates power from trials by exposing as lies what is taken as
true by the courts .................................................................................................................... 165
Particular Jury Nullifications are disruptive to relations of power, exposing their
nexus as lies .............................................................................................................................. 166
Moral Obligation for Jury Nullification to address Racial Oppression ................. 167
Selective Jury Nullification, such as in the face of injustice, is a moral obligation
....................................................................................................................................................... 168
Disproportionate Sentencing Guidelines, which are propped up by the
Punishment Regime, provide a unique moral justification for Nullification ..... 169
Compliance among Black Jurors with the symbolic and pacifying role assigned to
them can only be undermined with selective Nullification ...................................... 170
The apartheid of drug sentencing justifies Nullification. .......................................... 171
The Law assumes the potentiality of criminals in terms of their relation to the
group, nullification disrupts this process ....................................................................... 172
Racism is a form of biopower ............................................................................................. 173
Biopower requires divisions in race ................................................................................ 174
Legal system is unjust for queer and trans individuals, and particularly queer
and trans individuals of color ............................................................................................. 175
Jury Nullification solves queer and trans court injustice Legal system is unjust
for queer and trans individuals, and particularly queer and trans individuals of
color ............................................................................................................................................. 176
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Legal system is unjust for queer and trans individuals, and particularly queer
and trans individuals of color ............................................................................................. 177
Legal system is unjust for queer and trans individuals, and particularly queer
and trans individuals of color ............................................................................................. 178
Jury Nullification Solves- Prison Reformists ................................................................. 180
Jury Nullification Solves- Prison Abolitionists .............................................................. 181
Jury Nullification as a tool of Prison Abolition challenges structural racism,
undermines the criminalization of sexual and gender identities and reduces antqueer and anti-trans violence ............................................................................................ 182
A2 Let the Guilty Go ................................................................................................................ 183
Power's Drive To Manage And Order The World in Predictable Ways Does
Violence On A Planetary Scale And Ensures Planetary Destruction ...................... 184
Biopolitics in an attempt to secure life makes genocide and war inevitable. .... 186
Disciplinary power makes war inevitable in a world where ones subjectivity is
rendered to the state for the sake of protecting ones life and rights. .................. 187
Biopolitical Power Ensures The Right To Destroy Certain Forms Of Subjects ... 188
Biopolitics justifies the elimination of the other who threatens the sanctity and
biological purity of the society ........................................................................................... 189
Dehumanization outweighs nuclear war, environmental destruction and
genocide makes them all inevitable .............................................................................. 190
Evidence for the Negative ................................................................... 191
Capitalism Bad NC ........................................................................................................................... 192
NC 1: Jury Nullification gives the "common person" the false idea that they are
participating in democratic institutions and making important policy decisions.
....................................................................................................................................................... 193
NC 2: Despite the fact that everyone believes that democracy is the political
system that causes the least amount of injustice, existing democracies prove that
democracy only benefits the wealthy. ............................................................................. 194
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Link: Jury Nullification and other legal system measures reinforce systems of
capitalism. ................................................................................................................................. 195
NC 4: The alternative is to reject jury nullification as an instance of
neoliberalism. .......................................................................................................................... 196
Impact: Neoliberalism has led to an increase in incarceration rates through
jailing anyone who is not a member of the elite. This straight turns the aff. ..... 197
Impact: The pressures of the market will always come before and curtail rights
claims. This ensures that injustice will always be present in a neoliberal world.
....................................................................................................................................................... 198
Alt Solv: By rejecting the affirmatives position on jury nullification we create the
space for the struggle against capitalism to continue. ............................................... 199
Alt Solv: We must reject neoliberalism in every shape and form. .......................... 200
Specificity in movements against neoliberalism is bad because it allows the
elites to subvert and coopt the movement. .................................................................... 202
By claiming that neoliberalism is inevitable, we allow it to continue indefinitely
without challengers. .............................................................................................................. 203
Rule of Law NC ................................................................................................................................... 204
Jury nullification is arbitrary and undemocratic; no group of 12 people should
get to override the law. ......................................................................................................... 206
There is no guarantee that a jury will only nullify bad laws. ................................... 207
Jury nullification undermines the rule of law. .............................................................. 208
The Supreme Court says jury nullification is wrong. .................................................. 209
A federal judge agrees--jury nullification should not be encouraged by judges.
....................................................................................................................................................... 210
We should not defy the law in order to pursue alleged justice. .............................. 211
Jury nullification undermines the rule of law and the integrity of democratic
institutions. ............................................................................................................................... 212
Jury nullification undermines rule of law and faith in the criminal justice system.
....................................................................................................................................................... 213
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Jury nullification leads to unfair, racist application of the law. .............................. 214
Even if certain laws are unjust, we shouldn't have vigilante juries. ...................... 215
Juries have no right to ignore the law. ............................................................................. 216
Jury nullification will not result in more just outcomes. ........................................... 217
Jury nullification leads to arbitrary application of the law--unlike prosecutors,
juries have too limited information. ................................................................................ 218
Jury nullification is not democratically accountable. ................................................. 219
Jury nullification will not make the system more accountable. .............................. 220
The affirmative justifies executive clemency not nullification. .............................. 221
Juries are not democratically accountable. ................................................................... 222
Nietzsche K ......................................................................................................................................... 223
Jurors view nullification as a way to exercise power and control. ........................ 224
Nullification is viewed through he terms of power and control fixing the world
by taking power from the government and giving it to the people. ...................... 225
Jury Nullification is used as an expression of power. ................................................. 226
Juries use the power of nullification to shape the world through their decisions
historically proven in the Jim Crow south. ..................................................................... 227
Jurors think they have ultimate power because double jeopardy prevents reprosecution when in fact a single case cannot order the world. ............................. 228
The search for order in the world through an expression of power produces a
violent will to order in which chaos cant be eliminated breeding resentment.
....................................................................................................................................................... 229
The addiction to security creates a self-fulfilling prophecy in which inability to
order the world becomes a threat to humanity. This redirects our perpetual
resentment against the unknown, which triggers inexplicable hatred for life. 232
Rejecting their ordering of the world is a prerequisite to reducing global
violence. ..................................................................................................................................... 233
Focus on body counts turns the AC. .................................................................................. 235
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The affirmative attempts to preserve stability and order, but neither are critical
to existence. That causes complicity with structural violence that renders lack of
order as dirt, disease, and undesirability. ...................................................................... 236
The AC is a contradiction - the attempt to eliminate suffering denies the intrinsic
relationship between suffering and a true affirmation of life. ................................ 237
The alternative is to embrace the eternal recurrence that is our life. Suffering is
a gateway to liberation from the delusion of order. Without suffering, our life
project becomes meaningless. ............................................................................................ 238
Jury Nullification puts too much power for too few. ................................................... 239
The alternative is to do nothing. This is an active choice of defenselessness and
disorder. This acceptance of the danger of being alive is necessary. .................... 240
The necessity for action and power leads to a fragmentary existence prefer the
alternatives refusal of the aff and its acceptance of incoherence, danger and
pain. ............................................................................................................................................. 241
The alternatives embracement of the status quo is the only way to affirm the
beauty of life. ............................................................................................................................ 244
The affirmatives rejection of insecurity drives them to a will to power in order
to create order, causes a lapse into nihilism. ................................................................ 246
Drug War Turns ............................................................................................................................... 248
Jury Nullification dooms the war on drugs. ................................................................... 249
Ending the war on drugs destroys marginalized communities - addiction. ....... 250
Less sentencing for non violent offenders has caused a rise in drug related
deathes. ...................................................................................................................................... 251
Lack of major legal punishment keeps the prices low and deaths high even
nonviolent dealers should be punished for the deaths they cause. ....................... 252
Nonviolent drug users is a false distinction most violent crimes are directly
motivated by drug addictions or sales. ............................................................................ 253
Lack of punishment for drug users would increase the crime rate. ...................... 254
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Incarceration and mandatory minimums for even nonviolent drug users are
empirically effective for reducing violent crime empirically reduced murders,
rapes robberies and assaults. ............................................................................................. 255
Statistically, empirically strong enforcement lowers crime rates. ........................ 256
Democracy NC ................................................................................................................................... 257
Widespread skepticism for nullification. ....................................................................... 258
Commitment to legal learning is the only way to prevent violence -
indeterminacy in the law justifies illegality in every context. ................................. 259
Giving up on legal institutions causes complacency. .................................................. 264
Us legitimacy is necessary for I-Law effectiveness. ..................................................... 266
International law is necessary to preventing nuclear war. ...................................... 267
Jury nullification allows jurors to lie and hang juries for prejudicial purposes.
....................................................................................................................................................... 268
Court legitimacy is necessary for the spread of Democracy. ................................... 269
Democracy is necessary to prevent war. ........................................................................ 270
Dont outright reject the law prejudicial use doesnt preclude the laws inherent
value. ........................................................................................................................................... 271
Not just theory were on the brink of a jury nullification crisis statistics prove
its already happening in the Bronx and DC. ................................................................... 272
A strong national judiciary is key to global cooperation. .......................................... 273
A strong democracy is necessary for free trade. .......................................................... 275
Empirically trade relationships are necessary for proliferation prevention. ... 276
Proliferation causes extinction. ......................................................................................... 277
Anthropocentrism NC ..................................................................................................................... 285
Epistemic practices must always be evaluated first because they involve the link
between knowledge and how that knowledge is obtained, thus precluding
knowledge itself. Individuals cannot evaluate their own epistemological
assumptions objectively because their objections would be influenced by their
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epistemic practices. Thus its the duty of the judge to evaluate our epistemic
practices. .................................................................................................................................... 286
Anthropocentric ordering drives the exclusion and dehumanization of
populations based on race, ethnicity and gender ........................................................ 288
Reject the Affs harmful anthropocentric assumptions at every turn to combat its
devastating effect on human power relations and vote affirmative to subscribe
to the philosophy of deep ecology. .................................................................................... 289
The view of nonhumans as things and property is grounded in historical legal
justifications. ............................................................................................................................ 291
Modern law continues the ancient legal tradition of nonhuman thinghood. ..... 292
While some non-humans have minor legal protections there is no way for a nonhuman to seek a legal remedy in the current legal system. ..................................... 293
There can be ways for non-humans to be recognized as legal persons. ............... 294
There is no reason granting legal personhood to non-humans would undermine
the law, that status has already been extended to corporations. ........................... 295
An Ethic of care solves for the anthropocentric criminal justice system. ............ 296
Legal personhood is a flexible concept and at times even fellow humans were
treated as things just as non-humans are today. .......................................................... 297
The Common Law Interpretation of Legal Personhood can Extend to non
humans. ...................................................................................................................................... 298
Extending the writ of de homine replegiando to non-humans solves. ................. 299
Writ de homine replegiando can be extended to non-humans and can free nonhumans from oppressive detention. ................................................................................ 300
Current Animal Rights Movements are Merely Animal Welfare Movements ..... 301
Nonhumans are currently classified as legal things ................................................... 302
Non-humans such as cetaceans, great apes, elephants and other species are not
protected under current welfare laws. ............................................................................ 303
Its not about granting human rights to non-humans but rather about
recognizing the rights that are entitled to other species. ......................................... 304
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The rights of nonhumans are in line with international law and failure to
recognize those rights undermines our own concepts of morality and justice. 305
Anthropocentrism insulates notions of dominant hierarchies, which can inflict
suffering on supposed inferior groups ............................................................................ 306
Anthropocentrism is a justification to dominate other humans ............................ 307
Anthropocentric thinking made Hurricane Katrina such a terrible disaster. ... 308
Intellectual rejection of anthropocentrism solves extinction ................................. 309
Challenging anthropocentrism allows for adoption of a new morality ................ 310
The Alt functions as an expansion of knowledge on human integration ............. 311
Failing to address the oppressive and dominating nature of humanities
relationship to nature promotes anthropocentrism .................................................. 312
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Lincoln-Douglas Brief
Topic Analyses
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violation of the Fugitive Slave Laws. Each case has a similar story: Juries believed that despite
the defendant being guilty, the unfair law was reason to give a non-guilty decision, as protest to
that legal standard.
As debaters, we often like to make arguments about the legal system having structural
inequalities through substantive laws (laws whose content controls what we can/cannot do) that
outweigh the protections that are given to every individual through procedural laws (laws that
establish how laws are applied and enforced). As part of the procedural due process, the
government attempts to make sure that every citizen is protected from the system through the
provision of procedural laws that protect the rights of individuals in the legal system. However,
even with these protections, there are still inherent inequalities. Every possible law that you
have thought to be racist, sexist, unfair, unjust, etc. is a potential scenario that this resolution
would likely address. Jury nullification allows jury members to take a stance against an unjust
law and actively defy it. This transfers their duty from evaluating just facts to evaluating both
facts and the merit of the law.
Next, its important to address the first phrase of the resolution: In the United States.
Its helpful to debaters that the topic is about one countrys specific legal and criminal justice
system rather than that of multiple countries. Then this leads into the next question how do we
define the U.S. criminal justice system? American Heritage Dictionary defines the criminal
justice system as, The system of law enforcement, the bar, the judiciary, corrections, and
probation that is directly involved in the apprehension, prosecution, defense, sentencing,
incarceration, and supervision of those suspected of or charged with criminal offenses,
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(American Heritage Dictionary).1 It is important that you evaluate all facets of this definition
when evaluating how you will debate this topic.
The next term is jury nullification which is probably the most crucial term in the
resolution. The Free dictionary defines jury nullification as, A sanctioned doctrine of trial
proceedings wherein members of a jury disregard either the evidence presented or the
instructions of the judge in order to reach a verdict based upon their own consciences. It
espouses the concept that jurors should be the judges of both law and fact, (The Free
Dictionary).2 Doug Linder similarly defined jury nullification as, when a jury returns a verdict
of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. In other
words, the jury in effect nullifies a law that it believes is either immoral or wrongly applied to
the defendant whose fate they are charged with deciding, (Linder).3
Juries hold the common belief that they have the power to jury nullification and this
resolution addresses whether or not they have the right to it. The traditional approach is that
jurors are triers of fact and the judge is a trier of law. However, this resolution asks whether or
not jurors should have this role. It is important to note that jury nullification tends to affect
criminal cases via civil cases most often. This is because the Fifth Amendment ensures that a
jury trial resulting in acquittal of a defendant is final, meaning an individual has a guaranteed
freedom from Double Jeopardy.
American Heritage Dictionary of the English Language, Fifth Edition. Copyright 2011 by Houghton
Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company.
All rights reserved.]
2 "Jury Nullification." TheFreeDictionary.com. N.p., n.d. Web. 14 Oct. 2015.
3 UMKC. "Jury Nullification: History, Questions and Answers about Nullification, Links." Jury
Nullification: History, Questions and Answers about Nullification, Links. UMKC, n.d. Web. 14 Oct.
2015.
1
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The next word in the resolution is ought. Ought is defined by Merriam Webster
Dictionary as, used to express an obligation, (Merriam-Webster).4 The definition of ought is
not usually contested, but rather used to indicate that the value is morality or to show that the
debate is about prescribing right action. When addressing the phrase, in the face of, American
Heritage Dictionary provides a synonym of when confronted with (American Heritage
Dictionary).5 Cambridge Dictionary also defines it as, when threatened by, which might be
preferable for your cases because it explains that jury nullification should be used when
threatened by injustice.6
The final phrase is perceived injustice. Perceived is defined by Dictionary.com as, to
become aware of, know, or identify by means of the senses, (Dictionary.com).7 Injustice is
defined by the same source as, the quality or fact of being unjust; inequity or an unjust or
unfair act; wrong, (Dictionary.com).8 Something to consider is that this could garner you
offense in two ways. First from whether or not jury nullification itself is right or wrong and
second from whether we should have the power to use jury nullification in certain cases that are
unjust.
There might be a few topicality violations in this resolution. Popular definitions for
topicality might be for jury nullification and perceived. Regardless, the topic is about
"Ought." Merriam-Webster. Merriam-Webster, n.d. Web. 21 Aug. 2014. <http://www.merriamwebster.com/dictionary/ought>.
5 The American Heritage Dictionary of Idioms by Christine Ammer. Copyright 2003, 1997 by The
Christine Ammer 1992 Trust. Published by Houghton Mifflin Harcourt Publishing Company. All rights
reserved.
6 Cambridge Dictionary of American Idioms Copyright Cambridge University Press 2003. Reproduced
with permission.
7 Dictionary.com Unabridged Based on the Random House Dictionary, Random House, Inc. 2015.
8 Ibid.
4
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whether or not people who are on juries should have the right to nullify decisions about certain
actions out of their own volition and thus actively disregard the law.
You should take this as the beginning of your research not all of it. Dive more into
definitions that contextualize what words mean in the context of this specific resolution. Now Ill
offer a few ideas for the affirmative and negative that you could look into for a possible case.
Affirmative
As the affirmative, you are defending a world where jury nullification is a good thing and
should be used in response to perceived injustice. There is a theoretical transference from having
jury nullification be a power to a right. I will offer up a few arguments that could help you start
thinking about how you would like to approach the topic. These ideas are meant to guide your
research and help spark your own, more unique ideas!
The first argument is to address specific injustices and champion social causes. These
could either be kritikal, plans, or just advantages to an Aff. You could argue that when juries are
faced with X injustice, they should nullify. The possibilities are endless, ranging from sexist laws
to racist laws. Paul D. Butler believes that African American jurors can and should use jury
nullification as a, sword to combat a racist criminal justice system (Butler).9 This has
commonly been done through Bronx juries, which were juries from the Bronx that were made
of minorities that would reconsider guilty verdicts based on either making a statement to focus
attention on racism in the criminal justice system and poor conduct towards minorities or
understanding from experience how the law and police force unfairly address minority groups in
Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale
L.J. 677 (1995); Nancy S. Marder, The Interplay of Race and False Claims of Jury Nullification, 32 U.
Mich. J.L. Reform 285 (1999).
9
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comparison to how they address and interact with white communities (Keneally).10 These same
types of arguments can be made under other social causes as well.
Another argument is about vigilantism. Jury nullification can be used to let off someone
who violate the law but had honorable motives. For example, in Detroit, a neighborhood that was
once safe and well kept became unsafe because of the presence crack house, where drug dealers
lived and sold illegal narcotics. After multiple police calls and nothing changing, two people in
the neighborhood burned the house down to rid the neighborhood of the focal point of
reoccurring violence. Though the two individuals were guilty of arson, the trail jury decided that
they shouldnt go to jail.11
A final argument could be that jury nullification is a way to critically engage with the
law. Critical legal studies scholar Duncan Kennedy argue that critical legal studies is aimed at,
change the existing system of social hierarchy, including its class, racial and gender dimensions,
in the direction of greater equality and greater participation in public and private government,
(Kennedy).12 Jury nullification could be an important tool in advancing such agendas.
Negative
As the negative, you will be defending some type of world that does not actively
encourage jury nullification. You do not have to defend that jury nullification will never be used
because it will happen regardless of whether its encouraged or not, as it has been in the past.
However, you can advance other, separate arguments. A few are listed below.
James M. Keneally 2010/11 Jury Nullification, Race, and The Wire Volume 55 NYLS Law Review
Ibid.
12 Duncan Kennedy The Critique of Rights in Critical Legal Studies
10
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First, you could argue that runaway juries might not suspend only bad laws. Different
people have different perspectives on the law. How certain juries will interpret those laws is
highly up to chance and variable (Silverman).13 Furthermore, a state government should not be
actively encouraging that laws democratically made on behalf of all citizens should be violated.
Put blankly, jurors have no right to be putting their own preferences over the preferences of the
entire country because it has a large impact on the rule of law (Chicago Tribune).14
Another argument that can be made into a case (or into just case turns) is that
championing certain causes will only harm those causes by polarizing a society and perpetuating
harmful stereotypes of those groups (Leipold).15
This topic allows you to argue a multitude of different philosophical, utilitarian, policymaking, and topicality arguments. The options are truly endless.
Good Luck!
Shania Hunt
About Shania Hunt
Shania Hunt debated for four years at Northland Christian School and was a team captain
for her junior and senior year. She reached elimination rounds of Grapevine, Greenhill,
Lexington, and the VBI tournament. She was a semifinalist at 2012 St Marks Tournament,
national runner up in Extemporaneous Debate at the 2013 NSDA nationals, champion of the
2013 Greenhill Classic and Cal Berkeley Round Robin, a finalist at Cal Berkeley Invitations, and
a Quarterfinalist at 2014 TOC. She was honored with a place on the USAs debate team and will
be debating in the fall at the WSDC world championships. She is currently to be attends UCLA.
Steve Silverman 2/4/14 8 Jury Nullification Objections Rebutted
Chicago Tribune The dangers of jury nullification 1/27/14
15
Andrew D. Leipold, The Dangers of Race-Based Jury Nullification: A Response to Professor Butler, 44
UCLA L. Rev. 109, 112 (1996). ]
13
14
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I appreciate the diversity of styles in the debate community, but I think that for this topic
in particular, if you want to read a purely philosophical position, you should realize that you are
abstracting from reality. I think that for topics that are literally about the livelihoods of millions
of individuals, we should put them at the focal point of our discussions. Telling someone who
has faced injustices that their life is secondary to an abstract discussion is the reason the criminal
justice system continues to prey and devastate the lives of many. By failing to analyze real world
issues, debaters mirror the writers, enactors, and enforcers of unjust laws by turning a blind eye
to the consequences of such injustices. Therefore, I think that this topic has great ground for
critical arguments that analyze the nature of the criminal justice system and the laws that end up
subjugating many. I would urge everyone to view the topic through the lens of individuals
affected by jury nullification.
Topic Background
This topic has a lot of literature as issues surrounding jury nullification have been and
continue to be debated. Jury Nullification occurs when the defendant's guilt is clear beyond a
reasonable doubt, but the jury, based on its own sense of justice or fairness, decides to acquit.
The nullification doctrine recognizes this power to acquit against the evidence, even though
when a jury nullifies, it ignores the judge's legal instructions and vetoes a legislative definition of
culpable conduct.16 Jury nullification exists in the status quo, but many members of the jury
dont know they possess the power to let someone who is guilty, free to make a statement and
Andrew D Leipold 96 [Assistant Professor at the University of Illinois College of Law], "Rethinking
Jury Nullification," Virginia Law Review, Vol. 82, Number 2, March 1996, GU//MM
16
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declare that a law is immoral.17 Some examples of instances when jury nullification has been
used include sympathetic defendants, unpopular laws, or controversial government conduct.
I think the phrase perceived injustices helps frame what the debate is about. The
fundamental question is not whether or not jury nullification should exist, rather, its a question
of whether it should be a tool used in the face of perceived injustices. Debaters can get creative
by framing in what situations jury nullification should be used. I think the issue of
implementation is interesting. Given the wording, it is hard to pose a specific plan that would
implement a policy since the Criminal Justice System itself doesnt pass policies. Additionally,
jury nullification already exists, so the resolution is about when/why it ought to be used.
Therefore, I think that debaters can specify particular injustices in which jury nullification ought
to be used, but should not write plans phrased as the criminal justice system ought to implement
X policy.
Overall, I think that this topic is really interesting and focuses on real world issues. I
think debaters should focus on those issues and really analyze how they want to frame the
debate. Options to frame the debate and make cases can come from different definitions of
perceived injustices. Hopefully, this brief will help give you some ideas and examples of
potential cases that could be successful. But this brief should by no means be the extent of your
research, but it can be a good start!
James Joseph Duane 96 [Associate Professor at Regent Law School in Virginia Beach, Virginia], "Jury
Nullification: The Top Secret Constitutional Right," Litigation 6-60, 1996, GU//MM
17
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Affirmative
I think that there is a lot of interesting aff ground depending on how debaters view
perceived injustices. Here are a few positions that I can imagine being run:
Firstly, a stock aff. I think that stock affirmatives are often times just true because they
have the most literature and research behind them. On this topic, a stock aff would have
justifications for why we must act in the face of injustices and why jury nullification is a tool that
can remedy the harms of the status quo. There is evidence to support the claim that jurors should
act in their consciousness and that they have obligations to do whats in their ability to fight
injustices.
Secondly, a liberty or checks on state power aff. One of the more prominent cases for
jury nullification revolves around the idea of nullifying laws that allow for government
oppression. Juries themselves were created to be a check on governmental power. The
framework that can be with this kind of philosophical aff can differ, including a Republicanism
framework, a checks on state power framework, or a liberty based framework. There are
different variations of this case. You can advocate for jury nullification as a check on state
power. You can advocate for juries to nullify political motivated convictions. You can advocate
for jury nullification to mitigate coercion and promote freedom of individuals.
Thirdly, a util aff. I think that there are multiple advantage areas to draw from, so stacked
affirmatives can be quite strategic. Here are a few examples of some advantages you can read:
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1) Federalism Advantage. Jury nullification can be used to protect people who would be
convicted under federal law, but not state law.18 You would frame the injustices to be the
harms of disrespecting the principles of federalism.
2) Democracy Advantage. You could read reasons why jury nullification contributes
towards upholding democracy. This is because by nullifying unjust laws, juries have a
voice within/against the government and fulfill their role by contributing to the civic.
3) Poverty Advantage. You can read arguments about why current laws are antagonistic
towards the poor, which often leads to incarceration due to small infractions of the law.
Jury nullification would minimize excessive criminalization.
This is a limited list, but it can be a starting point for writing a util aff.
Fourthly, more critical affirmatives. I think that this topic offers great critical ground and
that debaters should talk about the people who will be directly impacted by jury nullification.
Here are a few examples of approaches you can take towards writing a more critical aff:
1) Racism Aff. This aff can criticize the nature of laws that disproportionately
affect minority populations and keep undesirable populations locked up behind bars.
There is a lot of historical evidence to verify that jury nullification helped directly
challenge slavery and fugitive slave laws. 19 You can argue that jury nullification helps
directly contest racism and mass incarceration in the status quo because it decreases
Aaron McKnight 14 [Prosecutor at Orem City; Brigham Young University; Previously worked in the
US Attorney's Office, District of Utah], "Jory Nullification as a Tool to Balance the Demands of Law and
Justice," Brigham Young University Law Review, Volume 2013, Issue 4, Article 9, January 27, 2014,
GU//MM
19 Paul Butler 03 [BA at Yale University; JD at Harvard University; Professor of Law at George
Washington University], By Any Means Necessary: Using Violence and Subversion to Change Unjust
Law, UCLA Law Review, February 2003, GU//MM
18
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incarceration of individuals harmed by racist laws. I think that this can be very powerful
as it has tangible and direct impacts.
2) Drug Aff. There is plenty of evidence to support the fact that marijuana laws unjustly
subjugate and target many minorities. Jury nullification would help decrease
incarceration due to unjust and racially motivated drug laws.
3) Battered Women Aff. There are multiple cases where victims of domestic violence
have killed their batterers. Juries are left with the choice to convict the woman of
homicide or nullify the law. You can read a powerful narrative of survivorship and
moving on after domestic violence instead of being an incarcerated victim.
I think that these critical affirmatives are very powerful and could be very strategic.
There are a wide variety of affirmatives that can be run on this topic and I hope you find
one or multiple affirmatives you are comfortable with.
Negative
There are also a multitude of approaches you can take to negate this topic regardless of
what style of debater you are.
Negative Cases
I think that there are a few negative cases that can be run on this topic. Firstly, you could
read a case about respecting the rights of the victims. Jury nullification occurs in situations where
there is enough evidence to prove someone guilty of violating a law. You could argue that jury
nullification disregards the victims. I think that this could be a pretty stock argument that could
be persuasive. It could be run with a framework about respecting rights (especially victims) or
one about retributivism. Another twist on this kind of negative could be one that focuses more on
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issues of fairness and justice. Secondly, a legitimacy NC about why the use of jury nullification
harms the perception of the criminal justice system. The framing could be about why it is
important to maintain the rule of law and respect institutions. The offense in this type of negative
could include reasons why jury nullification decreases citizen trust in the system since laws are
just disregarded.
Alternative Argumentation
I think that there could be some advantage counterplans depending on specific
affirmatives. For example, against a drug aff, there could be a counterplan to end the war on
drugs. There could be a rehabilitation/reform counterplan against an aff that discusses
decreasing retributivism. I think the best counterplans will adapt to what the affirmatives are.
Another type of counterplan that could be run is an agent counterplan. There is certainly some
literature arguing that prosecutors, not juries, should be the ones to make discretionary decisions,
especially given that they are given more information than jurors.
The disad ground seems to be lacking a lot of uniqueness given that jury nullification
exists in the status quo. Therefore, I would caution you when you find a disad link. Perhaps a
few linear disads could work such as a trust in the system DA (any increase in the use of/public
stance in favor of jury nullification will decrease trust in the system).
I think one of the most common critiques on this topic will be of the entire criminal
justice system. You can argue that the criminal justice system is inherently oppressive and
should be obliterated all together or majorly reformed. You can incorporate other links about
how jury nullification masks the real struggle against what you consider to be the root cause of
oppression. I think that this could be an interesting way to engage an aff that is more focused on
working within the system.
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Overall Thoughts
I think that this topic is very interesting and there are a variety of approaches to it.
Regardless of what kind of debater you are or what circuit you debate on, you can find a way to
debate this topic. Keep looking for specific links to the topic and keep in mind the bigger picture.
Good luck!
Mitali Mathur
About Mitali Mathur
Mitali competed in LD for 4 years at Greenhill School with success on the local, state,
and national level. She qualified to the Texas Forensics Association debate tournament three
times, placing third her junior and senior year. Over her debate career, she cleared at national
tournaments including St. Marks, Grapevine, Meadows, Glenbrooks, Isidore Newman, and
Emory. She also qualified to the TOC her junior and senior year. Mitali was honored to be a
member of the USA Debate Team, through which she placed second in the Harvard Westlake
Tournament and Holy Cross Tournament, won the Blake Tournament, and the team placed 10th
in the world at the World Schools Debating Championship held in Singapore. She is excited to
be attending the School of Foreign Service at Georgetown University starting this fall.
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Resolved: In the United States criminal justice system, jury nullification ought to be used in
the face of perceived injustice.
November-December provides plenty of opportunities for LD Debaters to run alternative
positions at national, regional, and local tournaments. Given the increasingly progressive nature
of TOC-bid tournaments, depending on how you utilize mutual judge preferences (MJP), there
will likely be plenty of rounds at large tournaments where these positions are welcome.
Ultimately, the best strategy on any topic involves preparing a diverse array of traditional,
theory-heavy, and critical positions to ensure you are in the best position to adapt to any judge or
judge panel. This topic analysis will address how common critical positions function on this
topic and then discuss some counterplan ideas. Each section will include some specific
strategies, and at the end I will briefly discuss how to effectively utilize mutual judge preferences
for alternative argumentation.
First, I would like to offer a few tournament-specific notes. For tournaments that use
Tabroom.com, judges are often posted before preferences/strikes open, so be sure to review these
well in advance as you begin preparing so that you know generally what type of judge pool
youll be facing. If there isnt a specific Judges tab on the tournaments website, you can see a
list of judges under the Live Updates tab, usually. For the three bid tournaments in the
Northeast (Scarsdale, Ridge, Princeton), expect a progressive judge pool that is open to kritiks
and other alternative forms of argumentation. Expect a more traditional judge pool at Alta
(Utah) in November, though the early judge list does include some progressive judges who are
open to critical and policy-type argumentation. The same can be said for Blue Key (Florida), the
first bid tournament on the topic. For these tournaments, it is perfectly acceptable to discuss
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positions. However, at these tournaments, these issues should be discussed in negative cases
with framework and standards and affirmative cases that may have oppression-focused
frameworks but also have a standard and an advocacy text that invites a discussion of the whole
resolution. For larger tournaments like Glenbrooks and Apple Valley, expect a judge pool
diverse enough that you can use MJP to generally get judges who are open to your preferred
style, but remember that competition at these tournaments is fierce and you will never always get
the judges you want. Therefore, a diverse preparation strategy is necessary for these larger
tournaments.
Critical PositionsAffirmative
For so many topics, critical literature functions better on the negative than it does on the
affirmative. For this one, that is not necessarily the case insofar as jury nullification may be one
way to solve issues of systematic oppression in the justice system. Women, non-heterosexual or
non-cisgendered persons, and racial and ethnic minorities all suffer in one way or another by the
hand of the United States Justice System, and critical affirmatives with an advocacy or plan text
could be a powerful and strategic way of discussing these issues.
A race-based critical approach seems like the most obvious one here given just how much
black Americans suffer in the United States criminal justice system. There are numerous critical
frameworks and a plethora of critical literature on the oppression of black people, particularly in
the criminal justice system. A cursory look at the National Association for the Advancement of
Colored People (NAACP) Criminal Justice fact sheet offers plenty of statistics: nearly 50% of
Americas incarcerated population is black and a disproportionate amount of black Americans
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"Criminal Justice Fact Sheet." National Association for the Advancement of Colored People. Web. 12
Oct. 2015. http://www.naacp.org/pages/criminal-justice-fact-sheet
21 Wilderson, Frank B. The Prison Slave as Hegemonys Silent Scandal, p.22. Social Justice Journal.
Web. 12 Oct. 2015. http://www.socialjusticejournal.org/archive/92_30_2/92_04Wilderson.pdf. This
article gives an excellent sample of Wildersons thought, which offers the philosophical, framework-level
underpinning for many black oppression cases and kritiks.
22 Ibid., p.25.
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Layer ACs like this to ensure you have multiple ways to garner offense. For instance,
you could read a short narrative at the top of the AC, read a race-based oppression framework
with a role of the ballot that offers you ways to garner offense on the pre-fiat level by promoting
discourse on oppressed people and post-fiat level through the actual policy of jury nullification,
and offer an advocacy text with impact/advantage-level offense after that. Throughout the case,
you can sprinkle analytic and carded theory and topicality spikes, like Berubes argument (in the
context of ableism, but nonetheless relevant) that all equal participation (read: oppressed voices
in the debate space) is a prerequisite to debates about participatory parity (read: fairness voter).23
This strategy allows you to garner offense on the post-fiat contention level, the framework,
which may include some cards that offer pre-fiat offense through the discussion of oppression or
racism they offer, and the narrative. Of course, it is always possible to discuss these issues in a
more traditional context, with a value of justice and a standard/value criterion of minimizing
oppression, but this would likely require framework evidence less specific to race and avoiding
pre-fiat arguments.
While race-based affirmatives may be the most common on this topic, there are more
options for micro-political Ks on the affirmative. For instance, Eric Grollman of the University
of Virginia writes, The National Transgender Discrimination survey notes that trans people are
more likely to interact with law enforcement and/or enter the criminal justice system, partially
because of employment discrimination, many transgender people turn to sex work, selling as
well as using drugs, or other parts of the underground economy.24 Furthermore, a quick Google
search reveals systematic problems of abuse of women in womens prisons, turning up search
Berube, Michael. "Citizenship and Disability." Alternet. 2 May 2003. Web.
http://www.alternet.org/story/15809/citizenship_and_disability.
24 Grollman, Eric. "Transgender People And The Criminal Justice System." 30 June 2014. Web.
http://egrollman.com/2014/06/30/trans-criminal-justice/.
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widespread sexual assault allegations at the Julia Tutwiler womens prison in Alabama, which
the Department of Justice took steps to fix only this may.25 These surely could be perceived
injustices for juries considering nullification and therefore, fair ground for affirmatives.
Discussing these real-world issues in the context of feminist or queer theory literature on the
framework level (with a role of the ballot/standard of reducing female oppression or reducing
trans oppression) could offer the opportunity to argue that jury nullification can keep women
away from harmful prison conditions and trans people from being convicted because of the
structural discrimination they face. I cant emphasize enough: it is possible, and in front of
traditional judges, even advisable, to address these problems facing black, female, and trans
Americans in the context of a broader, philosophical framework centered on reducing
oppression. This whole-resolutional approach, however, may be less complex and thus too easy
for negative debaters to respond to at more progressive tournaments.
Critical PositionsNegative
Many negative debaters prefer to combine strategies, by running a counterplan (CP) with
a topicality shell, or a kritik and a counter plan, etc., etc. This topic throws a wrench into the
counterplan-with-something-else negative strategy because it is very difficult to find
competitive counterplans on such a specific topic. Initially, you may think that abolishing
private prisons could be a valid counterplan. But at least on the surface, this CP would not be
Cox, John. "Justice Department Acts to End Sexual Assault at Women's Prison in Alabama."
Washington Post. The Washington Post, 28 May 2015. Web.
<https://www.washingtonpost.com/world/national-security/justice-department-acts-to-end-sexual-assaultat-womens-prison-in-alabama/2015/05/28/f72e1fcc-055c-11e5-8bda-c7b4e9a8f7ac_story.html>.
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injustice. Surely we can use jury nullification and abolish private prisons. Im sure there are
ways to make CPs like this competitive on a textual or political capital level, but in short, CPs on
this topic will be incredibly susceptible to perms. That being said, there are some CPs that
discuss alternative legal means to the same ends as jury nullification that could be strategic. I
will address these a bit later on.
All this is to say that Ks are likely more strategic for this topic because they can move to
the left of affirmatives while still competing with them. Why am I talking about competition in
relation to Ks? Because Ks, and particularly their alternatives, can be susceptible to perms as
well as de-links as well. Above, I discussed how the affirmative can argue critically that jury
nullification can mitigate some of the harms of the justice system (maybe). The negative can
simply critique the justice system entirely.
The most obvious, strong link for a lot of negative Ks is: The affirmative, by working
within the United States criminal justice system as stipulated by the resolution, endorses that
system which [oppresses and dehumanizes x group] or [perpetuates x harm]. This could
alternatively function as a criticism of those terms in the resolution, but the link story of Ks of
the resolution is generally less compelling because the Aff can much more easily perm an
alternative or de-link from a K that the affirmative performance or advocacy does not explicitly
link to. Other good links will be specific to certain affirmatives: if you start with the
aforementioned link and are running a race-based K, and the affirmative reads a Kant AC, you
can extemporaneously add a performative link saying the affirmative bites in by utilizing the
philosophy of a known racist. Since the resolution contains the word ought, if the affirmative
uses this word without critically interrogating it, this could be a link to a K based on Dr. Tommy
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Cohen, Michael. "How For-profit Prisons Have Become the Biggest Lobby No One Is Talking about."
Washington Post. The Washington Post, 28 Apr. 2015.
<https://www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profit-prisons-have-becomethe-biggest-lobby-no-one-is-talking-about/>.
30 Pelaez, Vicky. "The Prison Industry in the United States: Big Business or a New Form of Slavery?"
Global Research. 31 Mar. 2014. Web. <http://www.globalresearch.ca/the-prison-industry-in-the-unitedstates-big-business-or-a-new-form-of-slavery/8289>.
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Keep in mind that negative Ks work best with links to the specific affirmative case you
are hitting. This shields you against generic perm arguments by giving you an automatic
disadvantage to the perm through the affirmatives perpetuation of some negative impact.
Furthermore, it allows you to make cross-applications from the impacts in the K to the aff, giving
you some turns to the affirmative right off the batthis is especially valuable if you lack affspecific responses.
Counterplans
As I wrote before, I do not think there is extensive, competitive counterplan ground on
this topic, unless the counterplan has a critical bend to it. For instance, a counterplan calling for
the abolition of private prisons as an alternative to the aforementioned capitalism K might work,
but the competition may have to rely on the discursive realm: the CP does not endorse the United
States criminal justice system while the affirmative does, etc. Therefore, this CP would likely
require pre-fiat advantages related to this as well to ensure competition with the affirmative.
Even then, just because this CP would be appended to a K with links and impacts that function as
turns on the affirmative, those impacts would not necessarily function as disadvantages to a perm
of this CP alt insofar as the CP could function independently of the K. Of course, there are
plenty of ways to make a CP competitive without actually competing: multiple layers of theory
arguments in the competition section or competing through net benefits are all options. That
said, I have never found these particularly compelling and thus advocate for a K strategy that
involves pre- and post-fiat alternatives as opposed to non-topical counterplans for this topic.
That said, there are more directly topical counterplan options. Kerr argues in the
Washington Post that the functions of jury nullificationwhether to convict in a case of guilt
where there is perceived injustice in the law or some other realmought to be the prosecutors
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motivated and build their careers on convictions, but combined with turns on jury nullification
read against the affirmative, this could be a viable counterplan strategy. Furthermore, its surely
competitive in that advocating that prosecutors ought not bring certain cases to trial
fundamentally shifts the burden of preserving justice away from the jury and changes the actor
from those who dont know the law professionally to those who do. If your advantages are
specific to the expertise of prosecutors, the change in actor surely makes the CP competitive.
Given how short the 1AR is, if you are confident you can win that the CP is competitive, youll
likely garner solid offense off of this counterplan.
Closing Thoughts
Please also remember that topicality is also a valid alternative strategythe operative
words to look at for good T ideas are in the face of perceived injustice. The various definitions
of justice and injustice could allow negative debaters to run topicality shells arguing that
affirmatives are not topical because they dont apply to/specify situations of perceived injustice.
This could be an interesting T strategy, which those of us who judge regularly would love to see
far more than the standard theory and T that leaves us filling out ballots angrily and shaking our
heads.
Remember that if you are focused on alternative argumentationin particular, if you
want to read Ks most roundsyou should not be thinking of the preference or strike sheet before
the tournament as a list of good or bad judges. If youre a K debater or prefer to run policy
arguments but hate theory, think about the progressive judges who are biased towards theory
Kerr, Orin. "The Problem with Jury Nullification." Washington Post. The Washington Post, 10 Aug.
2015. Web. <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/10/the-problemwith-jury-nullification/>. This post also links to some other articles on jury nullification.
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Lincoln-Douglas Brief
Frameworks
Topic Anlyses
November/December 2015
Resolved: In the United States criminal justice system, jury nullification ought to be used in
the face of perceived injustice.
Affirmative Frameworks:
1. Complicity
The value is morality as prescribed by the word ought in the resolution. Get evidence that
says that achieving morality entails active action by citizens. Additionally, find some
evidence that talks about bystanderism and how being a bystander in the face of injustice is
equivalent to participating in the immoral action. Therefore, the standard is avoiding moral
culpability.
A. Strategy:
This framework is strategic because it gets down to the crux of the conflict of the
resolution: what should happen when jurors are confronted with a case where they
perceive injustice? This position would argue that doing nothing and prosecuting the
defendant makes the jurors complicit in the injustice. This is an interesting case idea
because it takes a stance from a distinct perspective of the resolution in the sense that it
goes one step further in assigning guilt to what the jurors do in the negative world.
B. Ideas to answer:
The jurors didnt do anything. Thats the point. A jurors job is to take a passive approach
and just sit back and listen to the facts of the case. Why does culpability matter? Make
responses that show the distinction between taking an immoral action and not acting.
There are definitely legitimate reasons as to why people dont intervene in certain
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Topic Anlyses
November/December 2015
situations. Brainstorm those reasons and take down culpability. Also, jurors would be
more culpable if they nullify because the defendant would get off free when they
committed a crime.
2. Checks
The value is a just state. Look for evidence that says that since peoples interests often
conflict, justice requires a fair method to resolve these needs. Look for cards in the literature
of author Thomas Christiano. Checks let us evaluate the legitimacy of the CJS. They also
provide a way for citizens to dissent against the state and keep it legitimate. People need to
have a say over the laws that govern them. Thus the standard is maintaining democratic
checks on state power.
A. Strategy:
So this framework might be considered stock, but dont let that deter you because if it is
well developed it is very strategic. A checks FW is always useful because it could be
used to preclude most other FWs which always creates an entire layer of responses and
extensions to compare to the neg. This case would be run to say that nullifying a
perceived injustice is a check on the legitimacy of the CJS because the jury acts for the
interests of the common citizen, and gives voice to unjust laws in the society.
B. How to answer:
If jurors now have the power to disregard guilt and protest laws, it is not longer a check,
but a dangerous power hungry task. What is a check? Use your FW to conceptualize what
a check is and how we determine and measure that. Explain how the reasons checks are
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Topic Anlyses
November/December 2015
good are for external goods (aka your neg standard). If done correctly, you have the
opportunity to co-opt their framework.
Negative Frameworks:
1. Obligations:
The value is Justice defined as giving each his or her due. Being a juror is part of a legal duty
required by living in the US. Jurors enter into a contract where they must set aside prior
biases and focus on achieving justice in a specific case. Jurors must abstract themselves from
their experiences. You should find a card that explains the obligations that jurors have, the
importance of the contract they oblige to, and the tenets of the relationship between the juror
and the criminal justice system (CJS). You should also find evidence about the significance
of going into the job with a clean slate of mind. From there, you can argue that jurors have
the fundamental legal burden to judge the case to the best of their ability and search for guilt
or innocence. The standard they are upheld to is one which prescribes that they uphold civic
obligations, which means taking actions consistent with prescribed legal obligations.
A. Strategy:
This framework would be used to set up a position that explains how jurors have an
obligation to the current case. Since upon entering their civic obligation they are required
to try to be objective and only evaluate the evidence in the case, letting their perceived
injustice and personal opinions get in the way of determining the guilt of the defendant
would be unjust and against their legal duty. This is strategic because it centers the debate
around the peoples role as jurors and citizens that have obligations to the state. This is
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Topic Anlyses
November/December 2015
also good specific framework to use because it is specific to the criminal justice system,
as a genetic Answer to burdens framework would be unresponsive.
B. How to Answer:
A good way to answer this framework would be to take the approach that the debater is
fundamentally misunderstanding the question of the resolution. It is not about whether or
not the juror should try to perceive injustices with the laws/cases, but when they do, what
actions they should take in that situation. It is important to note how jurors do not have a
burden to the case they are deciding but that their role entails a burden to the entire CJS at
large. Therefore, they would definitely have the obligation to act on an injustice. Answers
like this one that are specifically about legal system and bettering the CJS on a higher
level would be a smart move.
2. Social Contract
The value morality is prescribed by the word ought in the resolution. People enter into a
contract with the state where they agree to follow the law in order to receive protection in
return. You should look into philosophers like John Locke to find a card about the social
contract. When people become jurors, they become state actors and act in the interest of the
government and CJS, not just themselves. Evidence to illustrate this fact would also be
helpful. Thus, the standard is upholding the social contract.
A. Strategy:
This framework would be run to set up an advocacy that focuses on the relationship
between the defendant and the state. This is strategic because many Affs will be about the
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jury or the CJS but the defendant also plays a critical role in the context of the resolution.
S/he broke a law, broke the social contract, and deserves retribution. So regardless of any
perceived injustice, the current laws of the society dictate that the defendant is guilty. The
jurors work for the state in this instance, so they must be devoted to protecting the laws.
B. How to Answer:
Whip out those social contract blocks! Attack the first layer by arguing that the social
contract is illegitimate/doesnt exist. Make specific answers to the juror-state relationship.
Why are the jurors now all of a sudden magically an actor of the state? Arent they still
regular people? One main argument is that the social contract was created to keep the
state just and provide citizens with a check. If there is an unjust law, the contract is
already broken, so affirming wouldnt violate.
3. Semi-critical Negative
The value is morality prescribed by ought in the resolution. Get evidence saying that there
are multiple cultures and conceptions of the good. Then find a card that says since society
has many groups, we need to respect the differences in opinions they may possess rather than
marginalizing certain groups. Thus the standard is respecting value pluralism. Prefer this
standard because the CJS was created to adjudicate a fair judgment to all.
A. Strategy:
This framework would be used if you want to run something more on the critical side.
For example, this would be used in a case criticizing the western ideals of the CJS. It
would say that the problem is that the jury has the power to dictate which laws are good
and which laws are bad, which allows people who conform with the western ideas off the
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hook but punishes people with different views just because they are seen as different in
the eyes of the jurors. The fact that these decisions have to be unanimous also puts
pressure on those in the jury with eastern ideals and opens the door to domination.
B. How to Answer:
In answering a more critical case, you probably dont want to argue that their FW is
bad. Using an argument that pluralism is bad might be considered wrong. Instead, try
to hone in on a comparison of your FW and their FW and how yours precludes and better
respects pluralism. If you dont like K debate, dump on the FW. If you do like K debate
and have prep for this type of contention, re-conceptualize their FW by extending key
parts of yours and then make many responses on the contention level.
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Lincoln-Douglas Brief
Constitution AC
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Constitution AC
This aff is particularly strategic because this is a legal topic. There are surprisingly great
cards about how jury nullification is a right under the US Constitution. This is an aff that you
should definitely prepare because its something that can be executed very strategically.
The case itself is possible to turn, but the literature about it appears pretty aff biased.
Thatll help you out on the contention debate for sure. In addition, even if someone does read
case turns, so long as youre deep in the lit youll be able to easily combat that. I never
understood why people rushed to read cases that were literally impossible to turn, or resorted to
theory when people read lots of cards against them. You can very easily engage people straightup, and clash, if youre know what youre talking about when youre reading a case about the
Constitution. With any case you write, you need to know all of the ins and outs of the position,
anticipate potential negative strategies, and continue to innovate as the topic progresses.
--Rule utilitarianism: Utilitarianism is the correct moral theory, but we better go about
maximizing utility through codified rules than case-by-case calculations. The Constitution is a
utility-maximizing rule because following the Constitution, in general, tends to lead to good
consequences. This enables you to make disads about specific scenarios irrelevant; those DAs
prove that following the Constitution in this singular instance would be bad, but the warrants for
rule util prove that its too difficult for us to judge the specific circumstances in which we should
break rules. So, we should absolutely commit to the Constitution in all circumstances.
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--Kantianism: We have an obligation to honor our promises in all cases. This conclusion results
from the Categorical Imperative, that our principles for action (maxims) must be universal
(capable of being willed by all similarly situated rational agents). The US government promised
to follow the Constitution, politicians swear to follow it by oath, etc.
--Agent-relative obligations: The actor of the resolution is judges, because theyre the ones that
have to notify juries that they have the power to nullify, in the world of the aff. Judges have an
obligation to follow the Constitution, and morality is agent-relative.
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The Constitution is the fundamental law of the land-outweighs rule of law NCs.
Meese, Edwin. "The Meaning Of The Constitution." Heritage Foundation. October 08, 2015.
<http://www.heritage.org/research/reports/2009/09/the-meaning-of-the-constitution>.
The Constitution is our most fundamental law. It is, in its own words, "the supreme Law of
the Land." Its translation into the legal rules under which we live occurs through the actions of
all government entities, federal and state. The entity we know as "constitutional law" is the
creation not only of the decisions of the Supreme Court, but also of the various Congresses and
of the President. Yet it is the court system, particularly the decisions of the Supreme Court, that
most observers identify as providing the basic corpus of "constitutional law." This body of law,
this judicial handiwork, is, in a fundamental way, unique in our scheme, for the Court is charged
routinely, day in and day out, with the awesome task of addressing some of the most basic and
most enduring political questions that face our nation. The answers the Court gives are very
important to the stability of the law so necessary for good government. But as constitutional
historian Charles Warren once noted, what is most important to remember is that "however the
Court may interpret the provisions of the Constitution, it is still the Constitution which is the law,
not the decisions of the Court."[2] By this, of course, Warren did not mean that a constitutional
decision by the Supreme Court lacks the character of binding law. He meant that the Constitution
remains the Constitution and that observers of the Court may fairly consider whether a particular
Supreme Court decision was right or wrong. There remains in the country a vibrant and healthy
debate among the members of the Supreme Court, as articulated in its opinions, and between the
Court and academics, politicians, columnists and commentators, and the people generally, on
whether the Court has correctly understood and applied the fundamental law of the Constitution.
We have seen throughout our history that when the Supreme Court greatly misconstrues the
Constitution, generations of mischief may follow. The result is that, of its own accord or through
the mechanism of the appointment process, the Supreme Court may come to revisit some of its
doctrines and try, once again, to adjust its pronouncements to the commands of the Constitution.
This recognition of the distinction between constitutional law and the Constitution itself
produces the conclusion that constitutional decisions, including those of the Supreme Court, need
not be seen as the last words in constitutional construction. A correlative point is that
constitutional interpretation is not the business of courts alone but is also, and properly, the
business of all branches of government. Each of the three coordinate branches of government
created and empowered by the Constitution--the executive and legislative no less than the
judicial--has a duty to interpret the Constitution in the performance of its official functions. In
fact, every official takes a solemn oath precisely to that effect. Chief Justice John Marshall, in
Marbury v. Madison (1803), noted that the Constitution is a limitation on judicial power as well
as on that of the executive and legislative branches. He reiterated that view in McCullough v.
Maryland (1819) when he cautioned judges never to forget it is a constitution they are
expounding.The Constitution--the original document of 1787 plus its amendments--is and must
be understood to be the standard against which all laws, policies, and interpretations should
be measured. It is our fundamental law because it represents the settled and deliberate will
of the people, against which the actions of government officials must be squared. In the end,
the continued success and viability of our democratic Republic depends on our fidelity to,
and the faithful exposition and interpretation of, this Constitution, our great charter of
liberty.
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2. "Nullification instructions encourage the jury to violate the law." Some courts have reasoned
that a nullification instruction would permit, if not encourage, the jurors to disregard or
break the law. One court even held that it is proper to affirmatively instruct the jurors that they
would "violate the law" if they engaged in nullification or if they violated any of the judge's
instructions on the law. United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988). Another
has reasoned that "anarchy would result from instructing the jury that it may ignore the
requirements of the law." Powell, 955 F.2d at 1213. Such assertions are baseless. Contrary to
the widespread myth popular among judges, there is no "law" that requires juries to
convict every man shown to be technically guilty beyond a reasonable doubt. "The power of
the courts to punish jurors for corrupt and incorrect verdicts," Dougherty, 473 F.2d at 1130, that
darling of the Star Chamber's nursery, was banished from the pages of Anglo-American law
centuries ago. Today, at its very core, our system of justice is unflinchingly committed to the
liberty of criminal juries to "err upon the side of mercy," Jackson, 443 U.S. at 317, or to
"refuse to convict even though the evidence supported the charge." Gregg, 428 US. at 199
n.50. Any system that restricted such liberty "would be totally alien to our notions of criminal
justice." Id. In this respect, nullification is every bit as lawful as leniency extended by the
prosecutor, or the judge, or the governor. Id.
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Nor does any "law" forbid a jury from pardoning a man who violated an unjust statute,
even if an acquittal requires them to ignore the court's instructions on the law. The Constitution
does no such thing; it actually protects the jury's right to acquit based on their sense of
justice. The penal code does not criminalize such conduct, and would be clearly
unconstitutional if it did. Not even the Bible imposes any such rule. See Deuteronomy 16:20
("Follow justice and justice alone"). If there is any such "law," it is true only in the narrow
sense of illegitimate case law made up by judges acting well beyond the scope of their
lawful authority. Judges who tell each other that "nullification is illegal" are more than vaguely
reminiscent of the judge who once told a criminal defendant: "Rule Forty-Two. All persons more
than a mile high to leave the court! It's the oldest rule in the book." Lewis Carroll, Alice's
Adventures in Wonderland 256 (Bramhall House 1960). As the defendant adroitly responded:
"Then it ought to be Number One"or it ought to be, at the very least, written down in the
Constitution, or the penal code, or somewhere besides judicial opinions.
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Jury nullification is supported by the Sixth AmendmentFifth Circuit Court of Appeals agrees.
Wolverton, Joe. "Appeals Court Supports Sixth Amendment, Jury Nullification." The New
American. October 14, 1996. Web. October 09, 2015.
<http://www.thenewamerican.com/usnews/constitution/item/18318-appeals-courtsupports-sixth-amendment-jury-nullification>.
On appeal, the Fifth Circuit Court of Appeals didnt approve of the lower court judges
disregard of the defendants Sixth Amendment right to have a jury decide his guilt or
innocence. Judge Jerry Smith, writing for the majority in the case of U.S. v. Juan
Salazar, held: Salazars confession did not deprive him of his right to have a
jury determine his guilt. The Sixth Amendment permits a jury to disregard a defendants
confession and still find him not guilty. This conclusion does not depend on when the
confession occurs on the stand or pre-trial or how much the defendant confesses to one
element or to every crime. A defendants confession merely amounts to more, albeit compelling,
evidence against him. But no amount of compelling evidence can override the right to have a
jury determine his guilt. Upon learning of the circuit courts ruling, the Fully Informed Jury
Association wrote last week, "Without mentioning it by name, the Fifth Circuit has in effect
re-affirmed jurors right to judge the law as well as the facts of the case and to exercise jury
nullification when they deem it appropriate by delivering a Not Guilty verdict even in the
face of overwhelming evidence that the defendant has broken the law."
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Strategy Guide
This affirmative is based on Kappelers local refusal of violence. Included in
violence is injustice. Violence is just used as a catch-all term in this case. Kappelers
arguments, and the AC, reframe the way that we as a society, especially the world of the
debate, understand how violence happens. Traditionally, violence is viewed very top
down. There are large internal link chains that predicate violence, there are conditions in
society that allow violence, and the government is responsible for creating and fixing
most of these conditions. Kappeler argues that we need to look at violence differently.
Instead of looing at systems and over-arching mechanisms that allow violence to happen,
we need to look at the fact that each individual person makes the conscious decision to
commit violent acts. This also means that the best and only way to stop violent actions is
by taking individual responsibility for them and using individual mechanisms of change.
Your arguments is that jury nullification is the best way to solve for injustice because it
focuses on individual action.
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major decisions are made. Which is why many of those not yet entirely disillusioned
with politics tend to engage in a form of mental deputy politics, in the style of What
would I do if I were the general, the prime minister, the president, the foreign minister or
the minister of defence? Since we seem to regard their mega spheres of action as the
only worthwhile and truly effective ones, and since our political analyses tend to dwell
there first of all, any question of what I would do if I were indeed myself tends to peter
out in the comparative insignificance of having what is perceived as virtually no
possibilities: what I could do seems petty and futile. For my own action
I obviously desire the range of action of a general, a prime minister, or a General
Secretary of the UN finding expression in ever more prevalent formulations like I
want to stop this war, I want military intervention, I want to stop this backlash, or
I want a moral revolution.7 We are this war, however, even if we do not command
the troops or participate in socalled peace talks, namely as Drakuli~ says, in our
non-comprehension: our willed refusal to feel responsible for our own thinking and
for working out our own understanding, preferring innocently to drift along the
ideological current of prefabricated arguments or less than innocently taking
advantage of the advantages these offer. And we are the war in our unconscious
cruelty towards you, our tolerance of the fact that you have a yellow form for refugees
and I dont our readiness, in other words, to build identities, one for ourselves and one
for refugees, one of our own and one for the others. We share in the responsibility for
this war and its violence in the way we let them grow inside us, that is, in the way we
shape our feelings, our relationships, our values according to the structures and the
values of war and violence.
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ourselves and one for refugees, one of our own and one for the others. We share in
the responsibility for this
Feminist critique, as well as other political critiques, has analysed the preconditions of
violence, the unequal power relations which enable it to take place. However, under the
pressure of mainstream science and a sociological perspective which increasingly
dominates our thinking, it is becoming standard to argue as if it were these power relations
which cause the violence. Underlying is a behaviourist model which prefers to see human
action as the exclusive product of circumstances, ignoring the personal decision of the agent
to act, implying in turn that circumstances virtually dictate certain forms of
behaviour. Even though we would probably not underwrite these propositions in their crass
form, there is nevertheless a growing tendency, not just in social science, to explain violent
behavior by its circumstances. (Compare the question, Does pornography cause violence?) The
circumstances identified may differ according to the politics of the explainers, but the method of
explanation remains the same. While consideration of mitigating circumstances has its
rightful place in a court of law trying (and defending) an offender, this does
not automatically make it an adequate or sufficient practice for political analysis. It begs the
question, in particular, What is considered to be part of the circumstances (and by whom)?
Thus in the case of sexual offenders, there is a routine search on the part of the tabloid press
or the professionals of violence for experiences of violence in the offenders own past, an
understanding which is rapidly solidifying in the scientific model of a cycle of violence. That
is, the relevant factors are sought in the distant past and in other contexts of action, while a
crucial factor in the present context is ignored, namely the agents decision to act as he did. Even
politically oppositional groups are not immune to this mainstream sociologizing. Some left
groups have tried to explain men s sexual violence as the result of class oppression, while some
Black theoreticians have explained the violence of Black men as the result of racist
oppression. The ostensible aim of these arguments may be to draw attention to the
pervasive and structural violence of classism and racism, yet they not only fail to combat
such inequality, they actively contribute to it. Although such oppression is a very real part
of an agents life context, these explanations ignore the fact that not everyone
experiencing the same oppression uses violence, that is, that these circumstances do not
cause violent behavior. They overlook, in other words, that the perpetrator has decided to
violate, even if this decision was made in circumstances of limited choice. To overlook
this decision, however, is itself a political decision, serving particular interests. In the first
instance it serves to exonerate the perpetrators, whose responsibility is thus transferred to
circumstances and a history for which other people (who remain beyond reach) are
responsible. Moreover, it helps to stigmatize all those living in poverty and oppression;
because they are obvious victims of violence and oppression, they are held to be potential
perpetrators themselves. This slanders all the women who have experienced sexual violence,
yet do not use violence against others, and libels those experiencing racist and class oppression,
yet do not necessarily act out violence. Far from supporting those oppressed by classist,
racist or sexist oppression, it sells out these entire groups in the interest of exonerating
individual members. It is a version of collective victim-blaming, of stigmatizing entire social
strata as potential hotbeds of violence, which rests on and perpetuates the mainstream
division of society into socalled marginal groups the classic clienteles of social work
and care politics (and of police repression) and an implied centre to which all the
speakers, explainers, researchers and carers themselves belong, and which we are to
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assume to be a zone of non-violence. Explaining peoples violent behavior by their
circumstances also has the advantage of implying that the solution lies in a change of
circumstances. Thus it has become fashionable among socially minded politicians and
intellectuals in Germany to argue that the rising neo-Nazi violence of young people (men),
especially in former East Germany, needs to be countered by combating poverty and
unemployment in these areas. Likewise anti-racist groups like the Anti-Racist Alliance of
the Anti-Nazi League in Britain argue that the causes of racism, like poverty and
unemployment, should be tackled and that it is problems like unemployment and bad
housing which lead to racism.2 Besides being no explanation at all of why (white) poverty
and unemployment should lead specifically to racist violence (and what would explain
middle- and upper-class racism), it is more than questionable to combat poverty only (but
precisely) when and where violence is exercised. It not only legitimates the violence (by
explaining it), but constitutes an incentive to violence, confirming that social problems
will be taken seriously when and where they attract attention by means of violencejust
as the most unrly children in schools (mostly boys) tend to get more attention from teachers
than well-behaved and quiet children (mostly girls). Thus if German neo-Nazi youths and
youth groups, since their murderous assaults on refugees and migrants in Hoyerswerda,
Rostock, Dresden etc., are treated to special youth projects and social care measures (to the
tune of DM 20 million per year), including educative trips to Morocco and Israel3, this is
an unmistakable signal to society that racist violence does indeed pay off.
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the perpetrator has decided to violate, even if this decision was made in circumstances of
limited choice) To overlook this decision, however, is itself a political decision, serving
particular interests. In the first instance it serves to. exonerate the perpetrators,
whose responsibility is thus transferr~d to circumstances and a history for which other
people (who remain beyond reach) are responsible. Moreover, it helps to stigmatize all
those living 111 poverty and oppression; because they are obvious victims of vlOlenc~ and
oppression, they are held to be potential perpetrators themselves This slanders ail the
women who have experienced sexual VIOlence, yet do not use violence against others, and
libels those experiencing racist and class oppression, yet do not necessarily act out violence.
Far from supporting those oppressed by classist, racist or sexist oppresSlOn, itsells out
these entire groups in the interest of exonerating individual mernbers. It is a version of
collective victim-blaming, of stigmatlzmg entire social strata. as potential hotbeds of violence,
which rests on and perpetuates the mainstream division of society into so-called marginal groups
- the classic clienteles of social work and care politics (and of police repression) - and an implied
'centre' to which all the speakers, explainers, researchers and carers themselves belong, and
which we are to assume to be a zone of nonviolence. Explaining people's violent behaviour by their circumstances also has the
advantage of implying that the 'solution' lies in a change of circumstances. Thus it has
become fashionable among socially minded politicians and intellectuals in Germany to
argue that the rising neo- Nazi violence of young people (men), especially in former East
Germany, needs to be countered by combating poverty and unemployment in these
areas. Likewise anti-racist groups like the Anti- Racist Alliance or the Anti-Nazi League in
Britain argue that 'the causes of racism, like poverty and unemployment, should be tackled' and
that it is 'problems like unemployment and bad housing which lead to racism'. 2 Besides being
no explanation at all of why (white) poverty and unemployment should lead specifically to
racist viole~ce (and what would explain middle- and upper-class racism), it is more' than
questionable to combat poverty only (but precisely) when and ~here ~iol~nce is
exercised. It not. only legitimates the violence (by expla111ll1g It), but const~tutes an
incentive to violence, confirming that social problems will be taken seriously when and
where 'they' attract attention by means of violence - just as the most unruly children In
schools (mostly boys) tend to get more attention from teachers than well-behaved an'd
quiet children (mostly girls). Thus if German neo-Nazi youths and youth groups, since their
murderous assaults on refugees and migrants in Hoyerswerda, Rostock, Dresden ete., are treated
to special youth projects and social care measures (to the tune of DM 20 million per year),
including 'educative' trips to Morocco and Israel.:' this is an unmistakable signal to society that
racist violence does indeed 'payoff'.
*Ellipses from original source
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actions. However, the scientific representation of the consequences of action as mere states
of affairsas factual effectsserves to evade such responsibility as effectively as once did
mythological representations of destiny as preordained. For if we detach the act from the
person acting and regard its consequences as an effect, personal responsibility is no longer
an issue. On the contrary, this effect now calls for the scientific investigation of its cause.
The cause, as we have already seen and shall see again and again, is never found in the
responsibility of consciously acting people, but in an array of correlating factors and
contributing circumstances which make identifying any personal responsibility virtually
impossible. What is of advantage to the ruling interests of society, however, also has its
attraction for individuals, who thus similarly seek to evade their personal responsibility by means
of a scientific representation of their own actions as the effect of a most complicated set of
causes.
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activism. Much has been made in the literature of the daunting freerider problem, which
allegedly impedes collective mobilization by making it irrational for any individual to
expend time and energy pursuing collective goods that s/he would receive in any case if
the movement or revolution succeeded. Many objections have been raised regarding the
nature of and predictions that derive from the free-rider problem. For example, a
good many critics of the perspective have argued that the formulation is too narrowly
economistic in its identification of the selective incentives that are held to overcome the
free-rider problem. This may be true, but, in our view, there is a more basic problem
with the formulation of both the free-rider dilemma and its hypothesized solution.
Quite simply, the formulation ignores the power of emotions to shape both the assessment
of potential gains and costs involved in any line of action the individual might take and
perhaps to motivate action directly quite apart from any instrumental calculus of risks and
rewards. Intense fear can motivate action, even in the face of extreme risks and
seemingly no hope for payoff. Take, for example, the little known case of gentile wives
who took to the streets in Nazi Germany to protest the detention and threatened
internment of their Jewish husbands. Given the extraordinary risks they ran in
challenging such a brutal regime and the seeming hopelessness of their plight to
say nothing of the presumed rationalist appeal of the free-rider stance it is not at
all clear how one can understand this movement without invoking the power of
emotions to trump or, at the very least, shape rational calculus.
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Their solution does not have the ability to solve and will
actually further perpetuate the harms of the status quo.
Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 1988.
Web. October 12, 2015.
<https://books.google.com/books/about/The_Will_to_Violence.html?id=Fjm8QgAACA
AJ>.
Resistance to violence however cannot consist of violence. Violence may change the
direction of violence, invert the roles of violator and victim, but it necessarily affirms
the principle of violence, whatever else it may achieve. And it adds new victims to
the world victims of our own making, not to mention more violent perpetrators,
whose ranks we have decided to join. While in extremity and under the threat of our
lives we may not have any means other than violence to secure our survival, most of
us most of the time are not in such situations, though we glibly speak of
survival. Instead, we would have ample opportunity in situations of no such threat to
challenge the legitimacy of violence and to practise alternatives above all by deciding
not to use violence ourselves.
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nullification making nationwide marijuana legalization inevitable. This is the aff you want to
read if you want to read a utilitarian aff that draws from multiple extinction scenarios. There was
an entire college policy debate topic about legalization (2014-15), where one of the topic areas
was marijuana; there were so many extinction scenarios on that topic about legalizing pot that
youd be able to utilize similar literature.
The plan text would be: The United States criminal justice system should notify juries in
trials about non-violent marijuana possession that they have the right to nullify.
You could also make a racism argument about how arrests/sentencing for marijuana
possession are biased against black people. Theres lots of literature on this as well. Youd have
to prepare, though, for arguments about why the affs reformism (the aff proposing some small
change to the system that doesnt resolve larger, structural questions of racism) is valid and
necessary. We need incremental changes to the law that make things better than they were
yesterday; otherwise well get nowhere.
Extinction scenarios you could pursue with an aff about marijuana:
--Cartels: Mexican drug cartels thrive off of marijuana sales to US consumers. Legalization
destroys this black market, making the cartels too weak to carry out the violence theyd
perpetuated throughout Mexico. The impact is Mexican instability which would be bad for a
variety of reasons.
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--Federalism: Legalizing marijuana gives more power to the states, providing an essential check
against an all-powerful federal government that tells states like Colorado and Washington what
to do. This will inspire states to pursue innovative policy reforms on other issues. Federalism is
the best governmental model and solves a variety of impacts.
--Economy: Legalization of marijuana will create a new, booming industry that will majorly
grow the economy. In addition, with the tax revenue wed get from a legal market, we could put
more funding into stuff like education and infrastructure which are vital to a healthy economy.
Of course, for all three of those you would get to nuclear war or some environmental problem.
The cards exist, and these debates are fun.
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Pluralism AC
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Pluralism AC
Strategy Guide
This aff provides a unique take on the framework debate; it also encourages people to engage
heavily in the stock topic debate. Ethical pluralism is the view that we have a variety of duties
that stem from our personal relationships but cannot be reducible to a single theory of what
morality demands. The stringency of our duties is contextual to circumstance; we must use our
intuitive reasoning as mature moral reasoners to determine which duties win out. Pluralism is
concerned with prima facie duties, or duties that hold true in most circumstances but not all,
whereas other moral theories are concerned with absolute moral duties that hold true in all
circumstances. For example, utilitarianism says that we are always obligated in every
circumstance to maximize happiness, ensuring the greatest good for the greatest number of
people. Deontology says that we are always obligated in every circumstance to never tell lies,
keep all of our promises, and not kill people.
We have duties both to avoid unjustly harming people and to uphold the rule of law. So, the rule
of law NC is partially correct; their framework is right that the rule of law is ethically significant,
but its wrong in assuming that the rule of law is therefore the only salient ethical consideration
for this topic. While both justice and the rule of law are important, we should analyze the
specifics of jury nullification to determine which wins out.
Jury nullification is preferable, on this view, because our obligation to avoid unjustly harming
defendants is pretty strong when you think intuitively about criminal justice. The Huemer cards
are great at explaining this.
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This aff changes up the weighing debate a little bit; no longer can you claim that one impact
automatically and always precedes some other, or that certain impacts matter to zero degree
under your framework. Youd have to weigh in a more intuitive manner; for example, yes,
morally speaking we should try to avoid human extinction, but the chance of jury nullification of
all things causing human extinction is less than .0001% or yes, morally speaking it would be
wrong that jury nullification is democratically unaccountablebut its actually not, and holds
judges and prosecutors accountable for unjustly sentencing people who dont deserve to go to
jail
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Jury nullification occurs when there are illegal acts that are
morally blameless.
Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.
October 09, 2015. <http://philpapers.org/archive/HUETDT.pdf>.
The kind of jury nullification with which I am concerned occurs when a defendant is
prosecuted for an act that was illegal but morally blameless. Almost everyone admits that
there are such acts. During World War II, some German citizens illegally hid Jews to protect
them from persecution by the Nazis. In the pre-Civil War era, some Americans illegally helped
slaves to escape from their masters via the Underground Railway. During the 1960s, some
Americans illegally burned their draft cards in protest of the Vietnam War. All of these
actions were not only blameless but positively praiseworthy.
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Even if jury null has been misused for racist purposes, jury
null is ethical on balance.
Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.
October 09, 2015. <http://philpapers.org/archive/HUETDT.pdf>.
Not all instances of jury nullification are as salutary as the case of John Peter Zenger. During
Americas more racist past, southern juries, out of sympathy for the defendants, sometimes
voted to acquit those guilty of hate crimes. It is impossible to say how many cases of jury
nullification involve this sort of abuse of the jurys power and how many involve morally
reasonable exercises of the jurys power. There is room for concern as to whether jury
nullification is on the whole a force for good or a force for evil.20 But while this concern might
provide a reason for designing institutions that render jury nullification less common, it is
difficult to see how it could provide a reason for an individual jury or jury member not to
nullify the law. Suppose you are on a jury in a trial in which the defendant is accused of
violating an unjust law, and you are considering a nullification vote. Your motivation is not
racist, and you know that it isnt. You know that your motivation is the injustice of the law.
It is difficult to see how the fact that some racist juries have voted to acquit defendants who
should have been punished negates the very strong reason that you have, in this case, to
acquit the defendant. The fact that others have done A for bad reasons does not make it
wrong for one to do A for good reasons. Consider again the example of the gang of hoodlums.
Suppose that you are just about to lie to the gang, when it occurs to you that many people have
lied for bad reasons. In fact, surely there have been more cases of corrupt lying in human history
than there have of morally justified lying. It would be absurd to suggest that this historical fact
somehow negates the reason that you have for lying in this case, or that you are morally bound to
always tell the truth merely because more lies have been harmful than have been beneficial.
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Biopower AC
Strategy Guide
This is a fairly straight forward critical affirmative. Basically you will be
critiquing various forms of power relations present in the criminal justice system that
subjugate different portions of the population such as minority and transgendered persons
this can be established using the Butler. The argument will also critique the idea of the
criminal justice system as whole using the idea of criminality as a way to separate various
groups of people from society. Multiple authors in this file support the idea of jury
nullification as a form of active resistance to these biopolitical power relations due to
nullifications message of rejecting what were thought to be accepted norms. The file
contains both deontological reasons and utilitarian justifications, such as genocide
prevention, to use jury nullification as to reject biopower.
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Punishment involved, for instance, the literal sacrifice of the body of the
condemned. Foucault argues that this notion of violence as spectacle and symbolic
sacrifice is no longer characteristic of modern societies, in which power operates in a
quiet, methodical, regulative fashion. Modern societies, by contrast, are characterised by an
entirely different register and technology of power one in which the symbolic power of
the sovereign to take life has been supplanted by a power that operates at the level of
population and whose principle is to secure life. This modern technology of power is no
less bloody, according to Foucault having produced unprecedented genocides and
holocausts. However, its symbolic order is non-violent. That is to say, it is based on the
principle of the preservation, rather than the sacrifice, of life.
ritualised.
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disciplinary power binds the individual to the nation, and in so doing helps to
preserve the integrity of the nation itself. 23 One instrument for this integration, but by no
means the only one, is the linking of the nation conceptually with the preservation of the
individual's rights and freedoms. Through the notion of the private autonomous individual
the state is able to mobilize the masses in the service of its own protection and preservation.
allegiance,
24 Here is precisely where the discourse of rights and freedoms is brought into play and the nation becomes an enunciative modality for the
emergence of political subjects. In fact, as we shall see in the next section, much of modern political identity is informed by reference to a
national identity, either positively or negatively. 25 Moreover, this identity is structured and animated by the discourse of threat that we saw take
shape in Enlightenment political philosophy.
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OF
Consider again the contrastive terms in which it is possible to view bio- politics and
sovereignty. The final chapter in the first volume of the History of Sexuality that contrasts
sovereignty and biopolitics is titled "Right of Death and Power over Life." The initial terms
of the contrast between the two registers of government is thus between one that could
employ power to put subjects to death, even if this right to kill was conditioned by the
defense of the sovereign, and one that was concerned with the fostering of life.
Never- theless, each part of the contrast can be further broken down. The right of death can
also be understood as "the right to take life or let live"; the power over life as the power
"to foster life or disallow it." Sovereign power is a power i distinguishes between political
life (bios) and mere existence or bare life (zoe). Bare life is included in the constitution of
sovereign power by its very exclusion from political life. In contrast, biopolitics might be
thought to include zoe in bios: stripped down mere existence becomes a matter of political
reality. Thus, the contrast between biopolitics and sovereignty is not one of a power of life
versus a power of death but concerns the way the different forms of power treat
matters of life and death and entail different conceptions of life. Thus, biopolitics
reinscribes the earlier right of death and power over life and places it within a new and
different form that attempts to include what had earlier been sacred and taboo, bare
life, in political existence. It is no longer so much the right of the sovereign to put to
death their enemies but to disqualify the lifethe mere existenceof those who are a
threat to the life of the population, to disallow those deemed "unworthy of life," those
whose bare life is not worth living.
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This
means-ends dispute is at the core of Montagu and Matson's treatise on the
dehumanization of humanity. They warn: "its destructive toll is already greater than
that of any war, plague, famine, or natural calamity on record -- and its potential
danger to the quality of life and the fabric of civilized society is beyond calculation.
For that reason this sickness of the soul might well be called the Fifth Horseman of the
Apocalypse.... Behind the genocide of the holocaust lay a dehumanized thought; beneath the
super than the current ones, humans would never be able to escape their treatment as means to an always further and distant end.
menticide of deviants and dissidents... in the cuckoo's next of America, lies a dehumanized image of man... (Montagu & Matson, 1983, p.
xi-xii). While it may never be possible to quantify the impact dehumanizing ethics may have had on humanity, it is safe to conclude the
foundations of humanness offer great opportunities which would be foregone. When we calculate the actual losses and the virtual benefits,
Dehumanization is
nuclear war, environmental apocalypse, and international genocide. When people
become things, they become dispensable. When people are dispensable, any and every
atrocity can be justified. Once justified, they seem to be inevitable for every epoch has
evil and dehumanization is evil's most powerful weapon.
we approach a nearly inestimable value greater than any tools which we can currently use to measure it.
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Lincoln-Douglas Brief
Capitalism Bad NC
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Capitalism Bad NC
Strategy Guide
This is your standard neolib/capitalism kritik. The most important thing to win in
this debate is the link. If you win the link, even if you dont win the alternative, you can
make a lot of straight turns to the aff, which should allow you to win the round. The link
in this case is that things like jury nullification help mask capitalist abuses by allowing
people to feel like they are making a difference against injustice and participating in
democratic institutions but really these democratic principles are really tools of the
capitalist state. The alternative is a complete rejection of neoliberalism as evidenced by a
rejection of jury nullification. Now even if you dont win the alt if the aff fails to beat
back even one of the turns its pretty easy negative ballot.
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these moments and viewing it as the "silver bullet" that causes all change.They are all
wrong.
It is the dialectical motion across all of these moments that really counts even as there is
uneven development in that motion. When capitalism itself undergoes one of its phases of
renewal, it does so precisely by co-evolving all moments, obviously not without tensions,
struggles, fights, and contradictions. But consider how these seven moments
were configured around 1970 before the neoliberal surge and consider how they look now,
and you will see they have all changed in ways that re-define the operative characteristics
of capitalism viewed as a non-Hegelian totality. An anti-capitalist political movement can
start anywhere (in labor processes, around mental conceptions, in the relation to nature, in
social relations, in the design of revolutionary technologies and organizational forms, out of
daily life, or through attempts to reform institutional and administrative
structures including the reconfiguration of state powers). The trick is to keep the
political movement moving from one moment to another in mutually reinforcing
ways. This was how capitalism arose out of feudalism and this is how something radically
different called communism, socialism, or whatever must arise out of capitalism. Previous
attempts to create a communist or socialist alternative fatally failed to keep the dialectic
between the different moments in motion and failed to embrace the unpredictabilities and
uncertainties in the dialectical movement between them. Capitalism has survived precisely
by keeping the dialectical movement between the moments going and constructively
embracing the inevitable tensions, including crises.
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Rule of Law NC
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Rule of Law NC
Strategy Guide
This NC is the most stock negative argument. Its an argument that, when youre
negative, you should definitely consider being well-prepared to defend. When youre aff, you
should make sure that your block to this NC is absolutely great, because this NC will be the most
popular.
Stock cases are stock for a reason; theyre prevalent in the literature and make a pretty
decent argument. Jury nullification requires juries to avoid the facts of the case, to avoid the
question of legality, and instead judge by conscience. If juries did this, we would never have a
consistent and stable set of rules for people to follow since whether people were punished for
breaking those rules would be highly contingent on the subjective opinions of juries.
You should definitely couple this NC with a counterplan about prosecutorial discretion.
You could argue that its better for prosecutors to decide whether they should go on with
prosecuting, rather than for juries to decide that someones not guilty when they actually broke
a law, not only in terms of the affs impacts but your own, rule of law.
An argument thats pretty devastating against this NC is that its ridiculous for us to say
that certain unjust laws should be accepted by individuals on juries just because, well, its the
law. Some laws are just too unjust for us to, with a clean conscience, sentence someone because
of them; an unjust law is no law at all.
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To hedge against this argument, you should be winning turns about how jury nullification
leads to unjust outcomes. There, you could sayeven if they win that unjust laws shouldnt be
followed, jury nullification actually results in just laws being undermined, so their impact
analysis about unjust laws doesnt justify an aff ballot
In addition, you should argue that your NC is about the importance of maintaining
consistent and non-arbitrary rules of conduct, codified within a legal system; lots of injustice is
both against current law AND treats people arbitrarily. You should also say that the solution to
their arguments is not that juries should nullify, but that jurors should join social movements that
push for repeal of these unjust laws.
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Jury nullification leads to arbitrary application of the law-unlike prosecutors, juries have too limited information.
Kerr, Orin. "The Problem With Jury Nullification." The Washington Post. October 08, 2015.
Web. October 09, 2015. <https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/08/10/the-problem-with-jury-nullification/>.
First, prosecutors know the facts needed to make decisions in the name of justice while
juries generally dont. Prosecutors are supposed to make a decision to prosecute after
learning things like the suspects criminal record, the full scope of his conduct (including
the inadmissible parts), how much a prosecution might deter future crimes, and what the
punishment might be if the suspect is convicted. Prosecutors can get the facts and make a call.
We might disagree with a prosecutors decision, of course. But the prosecutor at least has access
to the information needed to make the decision. Jurors usually dont have that information.
Jurors are not told what they would need to know to decide what is just. We keep such
information away from jurors to help ensure a fair trial and preserve other values in the
criminal justice system. The jurors normally dont know about the defendants criminal record
and past bad acts, as we dont want the jury to just assume that someone who has done bad
things before is probably guilty this time, too. Jurors arent told of the inadmissible evidence,
such as evidence excluded under the Fourth, Fifth, and Sixth Amendment, to encourage
compliance with those provisions of the Constitution. And we dont explain to jurors why a
particular prosecution is thought to further the purposes of punishment because, among other
reasons, doing so would take a lot of time and distract jurors from the question of guilt or
innocence. In that system, encouraging jury nullification is a recipe for arbitrariness instead
of informed judgment.
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Nietzsche K
Strategy Guide
This is a traditional critical negative. The argument is focusing on the power relation
between jurors and with society as a whole. Jurors view nullification as source of power
through which they attempt to order the world in a "just" way and strive for a
minimization of immoral and unjust practices. These attempts to express power and
create order are meaningless because we are all powerless and disorder is inevitable.
Their strive to create order creates both a fear of the unknown and the other as the
unknown is what causes disorder in the world we attempt to exert power over. The strive
to create order also causes a lapse into nihilism (general Nietzsche argument about
resentment and sufferings inevitability). The alternative is to essentially reject the
affirmative and embrace life as it is. There is an inevitability to ordering within the world
and only by accepting it can we actually avoid nihilism and disorder. This can be run
against many cases but may be very effective against cases that directly address the
various power relations within the criminal justice system.
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inescapably comprised of both order and disorder, however, the promise of control through
Socratic reason is only possible by creating a 'Real World' of eternal and meaningful forms, in
opposition to an 'Apparent World' of transitory physical existence. Suffering and contingency
is contained within the Apparent World, disparaged, devalued, and ignored in relation to the
ideal order of the Real World. Essential to the Socratic Will to Truth, then, is the fundamental
contradiction between the experience of Dionysian suffering in the Apparent World and the
idealised order of the Real World. According to Nietzsche, this dichotomised model led to the
emergence of a uniquely 'modern understanding of life which could only view suffering as
the result of the imperfection of the Apparent World. This outlook created a modern notion of
responsibility in which the Dionysian elements of life could be understood only as a
phenomenon for which someone, or something, is to blame. Nietzsche terms this
philosophically-induced condition ressentiment and argues that it signalled a potential crisis of
the Will to Truth by exposing the central contradiction of the Socratic resolution. This
contradiction, however, was resolved historically through the aggressive universalisation of the
Socratic ideal by Christianity. According to Nietzsche, ascetic Christianity exacerbated the
Socratic dichotomisation by employing the Apparent World as the responsible agent against
which the ressentiment of life could be turned. Blame for suffering fell on individuals within the
Apparent World, precisely because they did not live up to God, the Truth, and the Real World.
As Nietzsche wrote, '1 suffer: someone must be to blame for it' thinks every sickly sheep. But his
shepherd, the ascetic priest tells him: 'Quite so my sheep! someone must be to blame for it: but
you yourself are this someone, you alone are to blame for yourself,you alone are to blame for
yourself 'This is brazen and false enough: but one thing is achieved by it, the direction of
ressentiment is altered." Faced with the collapse of the Socratic resolution and the prospect of
meaninglessness, once again, 'one was in peril, one had only one choice: either to perish, or be
absurdly rational...'12 The genius of the ascetic ideal was that it preserved the meaning of the
Socratic Will to Power as Will to Truth by extrapolating ad absurdium the Socratic division
through the redirection of ressentiment against the Apparent World! Through this redirection, the
Real World was transformed from a transcendental world of philosophical escape into a model
towards which the Apparent World actively aspired, always blaming its
contradictory experiences on its own imperfect knowledge and action. This subtle
transformation of the relationship between the dichotomised worlds creates the Will to Order as
the defining characteristic of the modern Will to Truth. Unable to accept the Dionysian suffering
inherent in the Apparent World, the ascetic ressentiment desperately searches for 'the hypnotic
sense of nothingness, the repose of deepest sleep, in short absence of suffering".n According to
the ascetic model, however, this escape is possible only when the Apparent World perfectly
duplicates the Real World. The Will to Order, then, is the aggressive need increasingly to order
the Apparent World in line with the precepts of the moral Truth of the Real World. The
ressentiment of the Will to Order, therefore, generates two interrelated reactions. First,
ressentiment engenders a need actively to mould the Apparent World in accordance with the
dictates of the ideal, Apollonian Real World. In order to achieve this, however, the ascetic ideal
also asserts that a 'truer', more complete knowledge of the Real World must be established,
creating an ever-increasing Will to Truth. This self-perpetuating movement creates an
interpretative structure within which everything must be understood and ordered in
relation to the ascetic Truth of the Real World. As Nietzsche suggests, [t]he ascetic ideal has
a goalthis goal is so universal that all other interests of human existence seem, when compared
with it, petty and narrow; it interprets epochs, nations, and men inexorably with a view to this
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one goal; it permits no other interpretation, no other goal; it rejects, denies, affirms and sanctions
solely from the point of view of its interpretation.14 The very structure of the Will to Truth
ensures that theoretical investigation must be increasingly ordered, comprehensive, more True,
and closer to the perfection of the ideal. At the same time, this understanding of intellectual
theory ensures that it creates practices which attempt to impose increasing order in the Apparent
World. With this critical transformation, the Will to Order becomes the fundamental
philosophical principle of modernity.
*Ellipsis from source
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energetic in continually stating and reinstating its force. But is there a way out? Is there no
possibility of agency and choice? Is this not the key normative problem I raised at the outset, of
how the modern ontologies of war efface agency, causality and responsibility from decision
making; the responsibility that comes with having choices and making decisions, with exercising
power? (In this I am much closer to Connolly than Foucault, in Connolly's insistence that, even
in the face of the anonymous power of discourse to produce and limit subjects, selves remain
capable of agency and thus incur responsibilities.88) There seems no point in following
Heidegger in seeking a more 'primal truth' of being -- that is to reinstate ontology and obscure its
worldly manifestations and consequences from critique. However we can, while refusing
Heidegger's unworldly 89 nostalgia, appreciate that he was searching for a way out of the
modern system of calculation; that he was searching for a 'questioning', 'free relationship' to
technology that would not be immediately recaptured by the strategic, calculating vision of
enframing. Yet his path out is somewhat chimerical -- his faith in 'art' and the older Greek
attitudes of 'responsibility and indebtedness' offer us valuable clues to the kind of sensibility
needed, but little more. When we consider the problem of policy, the force of this analysis
suggests that choiceand agency can be all too often limited; they can remain
confined (sometimes quite wilfully) within the overarching strategic and security paradigms. Or,
more hopefully, policy choices could aim to bring into being a more enduringly inclusive,
cosmopolitan and peaceful logic of the political. But this cannot be done without seizing
alternatives from outside the space of enframing and utilitarian strategic thought, by being aware
of its presence and weight and activating a very different concept of existence, security and
action.90 This would seem to hinge upon 'questioning' as such -- on the questions we put to
the real and our efforts to create and act into it. Do security and strategic policies seek to exploit
and direct humans as material, as energy, or do they seek to protect and enlarge human dignity
and autonomy? Do they seek to impose by force an unjust status quo (as in Palestine), or to
remove one injustice only to replace it with others (the U.S. in Iraq or Afghanistan), or do so at
an unacceptable human, economic, and environmental price? Do we see our actions within an
instrumental, amoral framework (of 'interests') and a linear chain of causes and effects (the idea
of force), or do we see them as folding into a complex interplay of languages, norms, events and
consequences which are less predictable and controllable?91 And most fundamentally: Are we
seeking to coerce or persuade? Are less violent and more sustainable choices available? Will our
actions perpetuate or help to end the global rule of insecurity and violence? Will our thought?
*Ellipsis from source
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its object anyone's interest. (In this respect, I look at the other's good as deceptive, since if I will
that good it's to find my own, unless I identify it as my own. Entirety exists within me as
exuberance. Only in empty longing, only in an unlucky desire to be consumed simply by the
desire to burn with desire, is entirety wholly what it is. In this respect, entirety is also longing for
laughter, longing for pleasure, holiness, or death. Entirety lacks further tasks to fulfill.) 7 You
have to experience a problem like this to understand how strange it really is. It's easy to argue its
meaning by saying, Infinite tasks are imposed on us. Precisely in the present. That much is
obvious and undeniable. Still, it is at least equally true that human entirety or totality (the
inevitable term) is making its initial appearance now. For two reasons. The first, negative, is that
specialization is everywhere, and emphasized alarmingly. The second is that in our time
overwhelming tasks nonetheless appear within their exact limits. In earlier times the horizon
couldn't be discerned. The object of seriousness was first defined as the good of the city,
although the city was confused with the gods. The object thereafter became the salvation of the
soul. In both cases the goal of action, on the one hand, was some limited and comprehensible
end, and on the other, a totality defined as inaccessible in this world (transcendent). Action in
modern conditions has precise ends that are completely adequate to the possible, and human
totality no longer has a mythic aspect. Seen as accessible in all that surrounds us, totality
becomes the fulfillment of tasks as they are defined materially. So that totality is remote, and the
tasks that subordinate our minds also fragment them. Totality, however, is still
discernible. A totality like this, necessarily aborted by our work, is nonetheless offered by that
very work. Not as a goal, since the goal is to change the world and give it human dimensions.
But as the inevitable result. As change comes about, humanity-attached-to-the-task-ofchanging-the-world, which is only a single and fragmentary aspect of humanity, will itself
be changed to humanity-as-entirety. For humanity this result seems remote, but defined tasks
describe it: It doesn't transcend us like the gods (the sacred city), nor is it like the soul's afterlife;
it is in the immanence of "humanityattached " We can put off thinking about it till later,
though it's still contiguous to us. If human beings can't yet be consciously aware of it in their
common existence, what separates them from this notion isn't that they are human instead of
divine, nor the fact of not being dead: It's the duties of a particular moment. Similarly, a man in
combat must only think (provisionally) of driving back the enemy. To be sure, situations of calm
during even the most violent wars give rise to peacetime interests. Still, such matters
immediately appear minor. The toughest minds will join in these moments of relaxation as they
seek a way to put aside their seriousness. In some sense they're wrong to do so. Since isn't
seriousness essentially why blood flows? And that's inevitable. For how could seriousness not be
the same as blood? How could a free life, a life unconstrained by combat, a life disengaged from
the necessities of action and no longer fragmented--how could such a life not appear frivolous?
In a world released from the gods and from any interest in salvation, even "tragedy" seems a
distraction, a moment of relaxation within the context of goals shaped by activity alone. More
than one advantage accrues when human "reason for being" comes in the back way. So the total
person is first disclosed in immanence in areas of life that are lived frivolously. A life like this--a
frivolous life--can't be taken seriously. Even if it is deeply tragic. And that is its liberating
prospect--it acquires the worst simplicity and nakedness. Without any guile I'm saying, I feel
grateful to those whose serious attitudes and life lived at the edge of death define me as an empty
human being and dreamer (there are moments when I'm on their side). Fundamentally, an entire
human being is simply a being in whom transcendence is abolished, from whom there's no
separating anything now. An entire human being is partly a clown, partly God, partly crazy
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and is transparence. 8 If I want to realize totality in my consciousness, I have to relate myself
to an immense, ludicrous, and painful convulsion of all of humanity. This
impulse moves toward all meanings. It's true: sensible action (action proceeding toward some
single meaning) goes beyond such incoherence, but that is exactly what gives humanity in my
time (as well as in the past) its fragmentary aspect. If for a single moment I forget that meaning,
will I see Shakespeare's tragical/ridiculous sum total of eccentricities, his lies, pain, and laughter;
the awareness of an immanent totality becomes clear to me-- but as laceration. Existence as
entirety remains beyond any one meaning-and it is the conscious presence of humanness in the
world inasmuch as this is nonmeaning, having nothing to do other than be what it is, no longer
able to go beyond itself or give itself some kind of meaning through action.
*Ellipsis from Source
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Nietzsche, the doctrine of eternal recurrence stands opposed to the Day of Judgment, when
eternal bliss and damnation will be handed down from on high.[lxxiv]Have I been understood?
Dionysus against the Crucified[lxxv] The Wiederkunft or Second Coming of the spirit of
great health, the overhuman, redeems mankind from two millennia of enslavement under the
yoke of vengefulness and bad conscience. With the crucifixion of Jesus of Nazareth, God was
paying himself back. God was the only one able to redeem man from what, to znew
affirmative praxis through his incorporation of the eternal recurrence of the same. Mans
redemption ceases to be beyond his grasp and that is why Nietzsche holds the Dionysian ideal of
the eternal recurrence to be antithetical to the Day of Judgement: when man emerges as truly
sovereign he becomes entitled to judge for himself.[lxxvii] The Dionysian philosopher flatly
repudiates the loathsome desire for times end. The eternal recurrence of the same becomes
synonymous with the innocence of becoming.[lxxviii] Each time our life repeats itself just as it
was a thousand times before. But with each repetition we are different; each time we have
incorporated the lessons of the previous recurrence, but have forgotten it in our innocence. This
in turn affects the repetition of the same. Everything is the same and yet we have changed, which
provokes everything to thus be renewed and invested with a novelty which had been absent
hitherto. Upon the arrival of the final figuration of the overhuman the condemnation of man and
existence itself will be banished once and for all the overhuman will partake in his own
redemption and thereby become the meaning of the earth.[lxxix] Only now does the final
metamorphosis proclaimed by Zarathustra take hold: the lion becomes a child.[lxxx] The
overman, guardian of the sacred Yes, wills his own will in the creation of new values so as to
emerge a circulus vitiosus deus;[11] what Nietzsche calls elsewhere the Roman Caesar with
Christs soul.[lxxxi] Error, falsehood, delusion, the passions etc are not to be blindly swept
aside they are the stuff of knowledge and the well-spring of human civilization. The efforts of
instrumental reason to placate and deprive nature of its abundance and vivacity are a road to
nowhere, a veritable cul-de-sac. Its advocacy of an anthropomorphic and lopsided vision acts as
merely another mask for the insatiable striving of the human organism as it assimilates alien
forces in the quest for stable and secure conditions for the production and reproduction of
life. Human beings however are moving apace toward self-destruction as they continue to
live in thraldom to resentiment and bad conscience. Nietzsche admonishes us to cultivate
counterdispositions in order to undercut the malign drives and habits responsible for the
preponderance of those values which hasten and ensure the degeneration of the most vital and
life-affirming instincts.[lxxxii] These cultural configurations must be defanged and set upon a
new course. Nietzsche sees the doctrine of the eternal recurrence of the same as this possibility.
It is to endow the earth with a new centre of gravity, breaking it out of its aimless stupor and
select the composition of future (over)humanity. This task is not for the faint of heart. He tells us
that we must first deracinate from each one of our souls every trace of compassion and pity
before we will be able to proceed. It seems, almost despite himself Nietzsche has transposed an
incarnation of the Day of Judgement into the immanent flow of time. Damnation is stripped of
the eternal those not up to the challenge are instead assured their extinction while those free
spirits who manage to incorporate the eternal recurrence will steer the course along which future
generations will continue to develop and build: Future history: more and more this thought will
be victorious and those who do not believe in it must ultimately die out in accordance with
their nature! Only those who consider their existence to be capable of eternal repetition will
remain: with such ones, though, a state is possible which no utopian has yet reached![lxxxiii]
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reader: "Look, isn't our need for knowledge precisely this need for the familiar, the will to
uncover everything strange, unusual, and questionable, something that no longer disturbs us? Is it
not the instinct of fear that bids us to know? And is the jubilation of those who obtain knowledge
not the jubilation over the restoration of a sense of security?" 37 The fear of the unknown and
the desire for certainty combine to produce a domesticated life, in which causality and
rationality become the highest sign of a sovereign self, the surest protection against
contingent forces. The fear of fate assures a belief that everything reasonable is true, and
everything true, reasonable. In short, the security imperative produces, and is sustained by,
the strategies of knowledge which seek to explain it. Nietzsche elucidates the nature of this
generative relationship in The Twilight of the Idols The causal instinct is thus conditional
upon, and excited by, the feeling of fear. The "why?" shall, if at all possible, not give the cause
for its own sake so much as for a particular kind of cause --a cause that is comforting, liberating
and relieving... That which is new and strange and has not been experienced before, is excluded
as a cause. Thus one not only searches for some kind of explanation, to serve as a cause, but for a
particularly selected and preferred kind of explanation--that which most quickly and frequently
abolished the feeling of the strange, new and hitherto unexperienced: the most habitual
explanations. 38 A safe life requires safe truths. The strange and the alien remain unexamined,
the unknown becomes identified as evil, and evil provokes hostility--recycling the desire for
security. The "influence of timidity," as Nietzsche puts it, creates a people who are willing
to subordinate affirmative values to the "necessities" of security: "they fear change,
transitoriness: this expresses a straitened soul, full of mistrust and evil experiences." 39
The unknowable which cannot be contained by force or explained by reason is relegated to
the off-world. "Trust," the "good," and other common values come to rely upon an
"artificial strength": "the feeling of security such as the Christian possesses; he feels strong
in being able to trust, to be patient and composed: he owes this artificial strength to the
illusion of being protected by a god." 40 For Nietzsche, of course, only a false sense of
security can come from false gods: "Morality and religion belong altogether to the
psychology of error : in every single case, cause and effect are confused; or truth is
confused with the effects of believing something to be true; or a state of consciousness is
confused with its causes." 41
*Ellipsis from source
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most likely be one of the most popular affirmatives on the topic. These cards should be
paired with other strategies like the Democracy NC or the Rule of Law NC as well as a
topicality or theory violation. While most of the cards are only mildly offensive and by
the end of most round will probably be defensive in nature they will help you
strategically weigh between an affirmative that has many potential problems or a negative
that will more than likely have very little offense against it due to affirmative time
constraints and the likely hood that the affirmative will over cover theory. As long as you
can beat back theory in the 2NR these cards will pave a path toward negative wins.
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Democracy NC
Strategy Guide
This is a policy style affirmative that argues that jury nullification undermines our
democracy. The argument centers around the link that court legitimacy is critical to
democracy and that by usurping the law through nullification we will call into question
the American criminal justice system. Its faith in the criminal justice that is the
foundation of our democracy. Well you can run this as a traditional LD argument valuing
Democratic ideals through enforcing the laws it really functions better as an off case
position or a disadvantage to many different affirmatives. The impacts are many
utilitarian in that the center around preventing war but democracy also has some
humanitarian benefits and you can also argue that democracy is the root of many of the
rights that the AC tries to protect. This argument pairs well with CPs that offer legal
alternatives to jury nullification.
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conditions for the existence of law. Two questions arise: what is the rule of recognition for
constitutional law, and who must hold the internal standpoint toward that rule? The Constitution
itself initially seems a candidate for the rule of recognition, though the fact that the Constitution
must itself be interpreted leads some theorists to amend this account and say that the rule of
recognition must include authoritative statements of the meaning of the Constitution, under
prevailing interpretive standards.73 As for the internal point of view, we might hope that all state
officials would take this point of view toward constitutional rules.74 In other words, we might
hope that every state actor would comply with the U.S. Constitution because it is the
Constitution, not simply to avoid injunctions, or judicial invalidation of legislative action, or
liability under 42 U.S.C. 1983. But Harts theory does not demand universal adherence to an
internal point of view. Even if legislators and other public officials complied with First or Fourth
or Fourteenth Amendment doctrine only to avoid invalidation or 1983 liability even if these
public officials were the equivalent of Holmess bad manHart might find that constitutional
law still existed in a meaningful sense so long as the judges applying constitutional rules
believed themselves to be bound by a constitutional rule of recognition.75 Here is a possibility,
one I believe we must take seriously and one that prompts anxiety about the existence of
constitutional law itself: there is no common rule of recognition toward which judges and other
officials take an internal point of view.76 Individual judges may adhere to their particular
understandings of the rule of recognition the Constitution as interpreted by proper originalist
methods, for example, or the Constitution as elucidated by popular understandings. But the fact
that individual state actors follow their own rules of recognition in good faith does not satisfy
Harts account of law, and it does not provide a satisfying alternative to Thrasymachus. (There is
no reason, on the might-makes-right account, that the mighty cannot hold the good faith belief
that they are pursuing a common good or acting pursuant to rule-governed authority. What
matters is that their power is in fact traceable to their superior strength.) There is reason for
academic observers to doubt the existence of a single rule of recognition in American
constitutional law. There are too many core interpretive disputes, as discussed in Part I, and it is
now widely accepted that constitutional rules are at least underdeterminatc. Should there be
doubt about this claim, consider this feature of constitutional law textbooks: they include
majority and dissenting opinions, and questions after each case frequently ask the reader which
opinion was more persuasive. Those questions are not posed as rhetorical. For most
constitutional decisions, we can say, it could have been otherwise. With a few votes switched,
with a different line-up of Justices, the same precedents (and in some cases, the same interpretive
methodology) could have produced a different outcome. Moreover, these suspicions of
indeterminancy or underdetermi-nancy are not the unique province of the academy. Think of the
discussions of Supreme Court appointments in presidential elections. Many voters, law
professors or not, understand their vote for president to be also a vote for a certain kind of Justice
and for certain kinds of constitutional outcomes. Discussions of Supreme Court appointments are
often framed in terms of judicial methodology I will appoint judges who are faithful to the
text of the Constitution but that language may be more a matter of decorum than of real
constitutional faith. Judges, of course, are not ignorant of the charges of indeterminancy or of the
politicization of judicial appointments. And it seems possible that the erosion of constitutional
faith has reached the judiciary itself.771 claim no special insight into judicial psychology, but it
seems implausible that the reasons for constitutional skepticismthe discussions of
underdetermined rules, the contingency of outcomes based on 5-4 votes, and the great attention
to swing justices such as Sandra Day OConnor or Anthony Kennedyhave not influenced
judges themselves. Here again it seems worthwhile to consider dissenting opinions. Justice
Scalias polemics come to mind immediately; he has often accused his colleagues of acting
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lawlessly.78 Yet he keeps his post and continues to participate in a system that treats as law the
determinations of five (potentially lawless) Justices. It is possible, I suppose, that Justice Scalias
dissents express earnest outrage, that he is shocked (shocked) by decisions like Lawrence v.
Texas79 and Boumediene. It is possible that he believes himself to be the last best hope of
constitutional law properly so called. But it seems more likely that he shares the skepticism of
academic observers of the Court. Though one cant help but wonder whether judges are still
constitutionally devout, I should emphasize here that my argument does not turn on a claim that
judges are acting in good or bad faith. Individual judges may well take the internal point of view,
in Harts terms, and strive faithfully to apply the principles they recognize as law. But it seems
clear that American judges do not all hold the internal point of view toward a single, shared rule
of recognition, given the nature of disagreements among judges themselves. If there are
multiple rules of recognition, varying from judge to judge, then legal outcomes will depend
on which judge is empowered to make the critical decision, and Thrasymachus is not so far
off the mark. Contemporary judicial disagreement is profound, and it is not just a matter of
Justice Scalias flair for colorful rhetoric. Consider Scott v. Harris, the recent decision granting
summary judgment (on the basis of qualified immunity) to a police officer who had rammed a
passenger car during a high-speed chase, causing an accident that left the driver a
quadriplegic.80 Like most use-of-force opinions, the decision applies a deferential Fourth
Amendment standard that gives police officers wide leeway. What is unusual about Harris is
that, because the case arose as a civil suit under 42 U.S.C. 1983, the critical question (whether
the driver, Victor Harris, posed a sufficient threat to others bodily safety such that the use of
deadly force was reasonable) was nominally a jury question, and at summary judgment, the court
should have taken the facts in the light most favorable to the non-moving partythe injured
driver. Thus, in earlier use-of-force cases that reached the Court as 1983 claims, the Court
articulated the Fourth Amendment standard and then remanded the case to the trial court.81 But
in Harris, the Court had access to videotapes of the chase recorded by cameras on the dashboards
of the police vehicles involved.82 In the view of the eight-Justice majority, the videotape spoke
for itself: it made Harriss threat to the public so clear that no reasonable juror could conclude
that the officers use of force was unreasonable.83 Accordingly, the Supreme Court found the
officer to be entitled to summary judgment.84 Doubtless there are many instances in which a
court grants summary judgment to one party though non-judicial observers believe a reasonable
juror could find for the other party. Harris is of particular interest, though, because the
reasonable juror who might have found in favor of Victor Harris was clearly visible to the
majorityin fact, this juror had a spokesman on the Court. Justice Stevens, the lone dissenter in
Scott v. Harris, viewed the same videotape and found it to confirm the factual findings of the
district court (which had denied the police offic-ers motion for summary judgment).85 Though
Justice Stevens was careful not to base his argument on an actual determination of the
substantive Fourth Amendment question (chiding his colleagues for doing just that and thereby
acting as jurors rather than judges),86 he viewed the video evidence and explained how one
might conclude, perfectly reasonably, that Scott had used excessive force.87 In order for the
eight Justices in the Harris majority to believe their own opinion, they would have to conclude
that Justice Stevens lived outside the realm of reason. Harris is nominally a dispute about what
reasonable jurors could conclude, rather than a direct argument about the meaning of a particular
constitutional provision. But the two reactions to the videotape should call to mind Larry Tribes
worry that American constitutional law is plagued by deep and thus far intractable divisions
between wholly different ways of assessing truth and experiencing reality.88 It is not just
abortion and assisted suicide that reveal profound disagreement about what is true and real. A
videotape that speaks for itself in the eyes of eight Justices says something entirely different to
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the ninth. Looking beyond the judiciary, consider the consequences of constitutional
disagreement and constitutional indeterminancy for other government officials and for would-be
critics of those officials. Earlier I noted that with sufficient constitutional indeterminancy, theres
no such thing as an unconstitutional president. A more extreme version of this argument is
that with sufficient legal indeterminancy, theres no such thing as illegality. When John Yoo
wrote the Office of Legal Counsel memos that defend practices formerly known as torture, he
was simply doing to bans on torture what critics had long argued it was possible to do for any
law: he was trashing them.89 This was the spawn of CLS put to work in the
OLC; deconstructions on the left are now deconstructions on the right.90 And that, of course, is
cause for anxiety among those who would like to argue that George W. Bush or members of his
administration acted illegally. As I suggested in the Introduction, this may be the Pyrrhic victory
of critical legal studies: If the crits were correct, then there is no distinctively legal form of
critique. About torture, indefinite detention, warrantless wiretapping, and so on, we can say I
don't like it or it doesnt correspond to my vision of the good, but we cannot say its illegal. To
argue that the Bush administration violated the rule of law, we need to believe that the rule of
law exists. But for 30 years or more, we have found reasons to doubt that it does.91 Perhaps it
will seem that I am overstating the influence of legal realism and critical legal studies, or the
doubts about laws existence. Im willing to entertain those possibilities, but I do want to
emphasize that the focus is on constitutional law. Its easy enough to believe in law when we see
it applied and enforced by figures of authority in a recognized hierarchy. That is, the sentencing
judge or the prison warden can believe in lawhe has applied it himself. And the criminal
should believe in law he has felt its force. But these examples illustrate Austinian law:
commands backed by force. What remains elusive, on my account, are laws that are truly laws
given to oneself, and especially law given by a state to itself.92 That is why, in Part I of this
essay, I suggested that brute force is a poor candidate to distinguish ordinary politics, or ordinary
legal decisions, from extraordinary moments of crisis. What would be truly extraordinary is not
the use of force, but its absence: a system of law truly based on consent and independent of
sanction. The Constitution, in theory, is a law given unto oneself. By this I mean not simply that
the Founders gave the Constitution to future generations, but that each successive generation
must give the Constitution to itself: each generation must adopt the internal point of view toward
the Constitution in order for it to be effective. Even once we have accepted the written text as
authoritative, all but the strictest constructionists acknowledge that many meanings can plausibly
be extracted from that text. (And even the strict constructionists must acknowledge that as a
factual matter many meanings have been extracted; they deny only the plausibility of those
varied readings.) Any law given unto oneself requires what Hart called the internal point of view,
and what one more cynical might describe as self-delusion: it requires a belief that one is bound
though one could at any minute walk away. It is possible, I think, that we have outwitted the
Constitution: that we have become too clever, too quick to notice indeterminancy, even too
post-modern to believe ourselves bound. A third possible explanation for contemporary
references to crisis is professional malaise. It could be, as I suggested earlier, that after too many
years of chewing what judges had for breakfast, professors have lost their appetites. It could be
that the problems of originalists and historicists and popular constitutionalists dont amount to a
hill of beans in this crazy world. And if these possibilities have not crossed the law professors
mind, they probably should. We might consider again Larry Tribes explanation of his decision
to stop work on his treatise of American constitutional law. There are two questions of meaning
there, one of which Tribe confronts directly and the other which he brushes off quickly. Most
obviously, there is the search for constitutional meaning, as Tribe acknowledges, a search that
cannot be concluded within the Constitutions own text. I see no escape from adopting some
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perspectiveexternal to the constitution itself from which to decide questions not indisputably
resolved one way or the other by the text and structure--------9* Tribe goes on to wonder where
these extra-constitutional criteria come from, and who ratified the meta-constitution that such
external criteria would comprise?.94 Supreme Court Justices (and other judges) must struggle
with these questions, given the public authority that they have the enormous responsibility and
privilege to wield.95 But Tribe need not. He can simply decline to finish the treatise. If he
declines to finish the treatise, though, we cant help asking ourselves what was at stake, and what
remains at stake. If the law professor lacks the responsibility of a judge, is his constitutional
theory just an amusing hobby? What was the point of the constitutional law treatise, or of other
efforts to discern coherent principles of constitutional law? The significance of a treatise is the
question of meaning that Tribe brushes off quickly: he says a treatise is an attempt at a synthesis
of some enduring value and insists that his decision is not based on doubts about whether
constitutional treatises arc ever worthwhile.96 But Tribes letter leaves the enduring value of a
treatise rather underspecified, and it is possible that current references to constitutional crisis in
the academy stem from uncertainty about such questions of value. Is constitutional theory good
for absolutely nothing? Only if we believe that the effort to resist Thrasymachus is futile or
pointless. Constitutional theory is a species of legal and political theory, and the most intriguing
forms of such theory are produced by worries that law and violence are too closely
intertwined.97 Thus I suggested at the outset of this essay that existential anxiety is not always to
be regretted, cured, or mocked. Such anxiety may be an important indication that we have
noticed the ways in which Thrasymachus seems right, and we still care enough to try to
prove him wrong.98 After so much talk of crisis and anxiety, consider an illustration from the
dramatic genre. Tom Stoppards play Jumpers features a troupe of philosophy professors who
double as acrobats: Logical positivists, mainly, with a linguistic analyst or two, a couple of
Benthamite utilitarians lapsed Kantians and empiricists generally and of course the usual
Behaviorists a mixture of the more philosophical members of the university gymnastics team
and the more gymnastic members of the Philosophy School.99 The Jumpers seem to practice
what we would now identify as post-modern nihilism: One shoots and kills another,
then conceals the murder with cheerful aplomb. Against these intellectually and physically
adroit colleagues, the clumsy and old-fashioned Professor George Moore struggles to defend
the irreducible fact of goodness,100 the possibility of a moral conscience, and the claim that
there is more in me than meets the microscope.101 Is God? Moore wonders. He can neither
shake nor defend his faith. Law schools, I think, are filled with moral sympathizers to Professor
Moore who possess the skills of modern-day Jumpers.102 The current discourse of crisis is the
latest manifestation of an old struggle between faith and doubt, and it is not one that we will
resolve. On one hand, we have observed too much to believe (in law) unquestioningly. And on
the other hand, we are determined to have law, even if we must make it ourselves. There was
at least a smidgen of truth in John Finniss claim that scholars of critical legal studies were
disappointed absolutists.103 But it is not just crits that are disappointed when they look for
law and see nothing. Few scholars of any stripe want to vindicate Thrasymachus. All of this is
just to reiterate the difficulty, and perhaps the necessity, of giving a law unto oneself. If
constitutional law did not exist, it would be necessary to invent it.
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substantial. In fact, the myth of engagement obscures the actual lack of change being
produced, while the broader pattern of equating extralegal activism with social reform
produces a false belief in the potential of change. There are few instances of meaningful
reordering of social and economic arrangements and macro-redistribution. Scholars write about
decoding what is really happening, as though the scholarly narrative has the power to unpack
more than the actual conventional experience will admit.224 Unrelated efforts become related
and part of a whole through mere reframing. At the same time, the elephant in the room the
rising level of economic inequality is left unaddressed and comes to be understood as natural
and inevitable.225 This is precisely the problematic process that critical theorists decry as losers
self-mystification, through which marginalized groups come to see systemic losses as the
product of their own actions and thereby begin to focus on minor achievements as representing
the boundaries of their willed reality. The explorations of micro-instances of activism are often
fundamentally performative, obscuring the distance between the descriptive and the
prescriptive. The manifestations of extralegal activism the law and organizing model; the
proliferation of informal, soft norms and norm-generating actors; and the celebrated, separate
nongovernmental sphere of action all produce a fantasy that change can be brought about
through small-scale, decentralized transformation. The emphasis is local, but the locality is
described as a microcosm of the whole and the audience is national and global. In the context of
the humanities, Professor Carol Greenhouse poses a comparable challenge to ethnographic
studies from the 1990s, which utilized the genres of narrative and community studies, the latter
including works on American cities and neighborhoods in trouble.226 The aspiration of these
genres was that each individual story could translate into a time of the nation body of
knowledge and motivation.227 In contemporary legal thought, a corresponding gap opens
between the local scale and the larger, translocal one. In reality, although there has been a recent
proliferation of associations and grassroots groups, few new local-statenational federations have
emerged in the United States since the 1960s and 1970s, and many of the existing voluntary
federations that flourished in the mid-twentieth century are in decline.228 There is, therefore, an
absence of links between the local and the national, an absent intermediate public sphere, which
has been termed the missing middle by Professor Theda Skocpol.229 New
social movements have for the most part failed in sustaining coalitions or producing
significant institutional change through grassroots activism.
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circumstances present domestic constitutional issues centered on fundamental freedoms. 49 The
lens through which Lawrence and Roper considered foreign law was specific, restricting foreign
norms to a confirmatory role after laying a solid groundwork in American law.15 In this way, the
Court seemed to prevent the usurpation of American ideals by foreign ones. 15 Michael Kirby, a
Justice on Australia's High Court, warned that the United States "is in danger 'of becoming
something of a legal backwater' if its courts continue to disregard foreign precedent."252 As long
as the Court continues to limit the relevance of foreign law to issues that concern the protection
of fundamental rights and does not seek to transpose foreign norms onto purely domestic affairs
(e.g., American social-welfare practices not shared by other democratic nations), the real
danger appears to be in America's refusal to participate in the ongoing, global judicial
dialogue.
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Rather, I make this claim with all due caution and with complete sincerity. A careful review of
the contemporary proliferation optimism literature does not reflect an understanding of, or
engagement with, the developments in academic deterrence theory in top scholarly journals such
as the American Political Science Review and International Organization over the past few
decades.[7][35] While early optimists like Viner and Brodie can be excused for not knowing
better, the writings of contemporary proliferation optimists ignore the past fifty years of
academic research on nuclear deterrence theory. In the 1940s, Viner, Brodie, and others argued
that the advent of Mutually Assured Destruction (MAD) rendered war among major powers
obsolete, but nuclear deterrence theory soon advanced beyond that
simple understanding.[8][36] After all, great power political competition does not end with
nuclear weapons. And nuclear-armed states still seek to threaten nuclear-armed adversaries.
States cannot credibly threaten to launch a suicidal nuclear war, but they still want to coerce their
adversaries. This leads to a credibility problem: how can states credibly threaten a nuclear-armed
opponent? Since the 1960s academic nuclear deterrence theory has been devoted almost
exclusively to answering this question.[9][37] And, unfortunately for proliferation optimists, the
answers do not give us reasons to be optimistic. Thomas Schelling was the first to devise a
rational means by which states can threaten nuclear-armed opponents.[10][38] He argued that
leaders cannot credibly threaten to intentionally launch a suicidal nuclear war, but they can make
a threat that leaves something to chance.[11][39] They can engage in a process, the nuclear
crisis, which increases the risk of nuclear war in an attempt to force a less resolved adversary to
back down. As states escalate a nuclear crisis there is an increasing probability
that the conflict will spiral out of control and result in an inadvertent or accidental nuclear
exchange. As long as the benefit of winning the crisis is greater than the incremental increase in
the risk of nuclear war, threats to escalate nuclear crises are inherently credible. In these games
of nuclear brinkmanship, the state that is willing to run the greatest risk of nuclear war before
back down will win the crisis as long as it does not end in catastrophe. It is for this reason that
Thomas Schelling called great power politics in the nuclear era a competition in risk
taking.[12][40] This does not mean that states eagerly bid up the risk of nuclear war. Rather,
they face gut-wrenching decisions at each stage of the crisis. They can quit the crisis to avoid
nuclear war, but only by ceding an important geopolitical issue to an opponent. Or they can the
escalate the crisis in an attempt to prevail, but only at the risk of suffering a possible nuclear
exchange. Since 1945 there were have been many high stakes nuclear crises (by my count, there
have been twenty) in which rational states like the United States run a risk of nuclear war and
inch very close to the brink of nuclear war.[13][41] By asking whether states can be deterred or
not, therefore, proliferation optimists are asking the wrong question. The right question to ask is:
what risk of nuclear war is a specific state willing to run against a particular opponent in a given
crisis? Optimists are likely correct when they assert that Iran will not intentionally commit
national suicide by launching a bolt-from-the-blue nuclear attack on the United States or Israel.
This does not mean that Iran will never use nuclear weapons, however. Indeed, it is almost
inconceivable to think that a nuclear-armed Iran would not, at some point, find itself in a crisis
with another nuclear-armed power and that it would not be willing to run any risk of nuclear war
in order to achieve its objectives. If a nuclear-armed Iran and the United States or Israel have a
geopolitical conflict in the future, over say the internal politics of Syria, an Israeli conflict with
Irans client Hezbollah, the U.S. presence in the Persian Gulf, passage through the Strait of
Hormuz, or some other issue, do we believe that Iran would immediately capitulate? Or is it
possible that Iran would push back, possibly even brandishing nuclear weapons in an attempt to
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deter its adversaries? If the latter, there is a real risk that proliferation to Iran could result in
nuclear war. An optimist might counter that nuclear weapons will never be used, even in a crisis
situation, because states have such a strong incentive, namely national survival, to ensure that
nuclear weapons are not used. But, this objection ignores the fact that leaders operate under
competing pressures. Leaders in nuclear-armed states also have very strong incentives to
convince their adversaries that nuclear weapons could very well be used. Historically we have
seen that in crises, leaders purposely do things like put nuclear weapons on high alert and
delegate nuclear launch authority to low level commanders, purposelyincreasing the risk of
accidental nuclear war in an attempt to force less-resolved opponents to back down. Moreover,
not even the optimists first principles about the irrelevance of nuclear posture stand up to
scrutiny. Not all nuclear wars would be equally devastating.[14][42] Any nuclear exchange
would have devastating consequences no doubt, but, if a crisis were to spiral out of control and
result in nuclear war, any sane leader would rather be facing a country with five nuclear weapons
than one with thirty-five thousand. Similarly, any sane leader would be willing to run a greater
risk of nuclear war against the former state than against the latter. Indeed, systematic research
has demonstrated that states are willing to run greater risks and, therefore, more likely to win
nuclear crises when they enjoy nuclear superiority over their opponent.[15][43] Proliferation
optimists miss this point, however, because they are still mired in 1940s deterrence theory. It is
true that no rational leader would choose to launch a nuclear war, but, depending on the
context, she would almost certainly be willing to risk one. Nuclear deterrence theorists have
proposed a second scenario under which rational leaders could instigate a nuclear exchange: a
limited nuclear war.[16][44] By launching a single nuclear weapon against a small city, for
example, it was thought that a nuclear-armed state could signal its willingness to escalate the
crisis, while leaving its adversary with enough left to lose to deter the adversary from launching
a full-scale nuclear response. In a future crisis between a nuclear-armed China and the United
States over Taiwan, for example, China could choose to launch a nuclear attack on Honolulu to
demonstrate its seriousness. In that situation, with the continental United States intact, would
Washington choose to launch a full-scale nuclear war on China that could result in the
destruction of many more American cities? Or would it back down? China might decide to strike
hoping that Washington will choose a humiliating retreat over a full-scale nuclear war. If
launching a limited nuclear war could be rational, it follows that the spread of nuclear weapons
increases the risk of nuclear use. Again, by ignoring contemporary developments in scholarly
discourse and relying exclusively on understandings of nuclear deterrence theory that became
obsolete decades ago, optimists reveal the shortcomings of their analysis and fail to make a
compelling case. The optimists also error by confusing stability for the national interest. Even if
the spread of nuclear weapons contributes to greater levels of international stability (which
discussions above and below suggest it might not) it does not necessarily follow that the spread
of nuclear weapons is in the U.S. interest. There might be other national goals that trump
stability, such as reducing to zero the risk of nuclear war in an important geopolitical region.
Optimists might argue that South Asia is more stable when India and Pakistan have nuclear
weapons, but certainly the risk of nuclear war is higher than if there were no nuclear weapons on
the subcontinent. In addition, it is wrong to assume that stability is always in the national
interest. Sometimes it is, but sometimes it is not. If stability is obtained because Washington is
deterred from using force against a nuclear-armed adversary in a situation where using force
could have advanced national goals, stability harms, rather than advances, U.S. national interests.
The final gaping weakness in the proliferation optimist argument, however, is that it rests on a
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logical contradiction. This is particularly ironic, given that many optimists like to portray
themselves as hard-headed thinkers, following their premises to their logical conclusions. But,
the contradiction at the heart of the optimist argument is glaring and simple to understand: either
the probability of nuclear war is zero, or it is nonzero, but it cannot be both. If the probability of
nuclear war is zero, then nuclear weapons should have no deterrent effect. States will not be
deterred by a nuclear war that could never occur and states should be willing to intentionally
launch large-scale wars against nuclear-armed states. In this case, proliferation optimists cannot
conclude that the spread of nuclear weapons is stabilizing. If, on the other hand, the probability
of nuclear war is nonzero, then there is a real danger that the spread of nuclear weapons
increases the probability of a catastrophic nuclear war. If this is true, then proliferation
optimists cannot be certain that nuclear weapons will never be used. In sum, the spread of
nuclear weapons can either raise the risk of nuclear war and in so doing, deter large-scale
conventional conflict. Or there is no danger that nuclear weapons will be used and the spread of
nuclear weapons does not increase international instability. But, despite the claims of the
proliferation optimists, it is nonsensical to argue that nuclear weapons will never be used and to
simultaneously claim that their spread contributes to international stability. Proliferation Antiobsessionists: Other scholars, who I label anti-obsessionists argue that the spread of nuclear
weapons has neither been good nor bad for international politics, but rather irrelevant. They
argue that academics and policymakers concerned about nuclear proliferation spend too much
time and energy obsessing over something, nuclear weapons, that, at the end of the day, are not
all that important. In Atomic Obsession, John Mueller argues that widespread fears about the
threat of nuclear weapons are overblown.[17][45] He acknowledges that policymakers and
experts have often worried that the spread of nuclear weapons could lead to nuclear war, nuclear
terrorism and cascades of nuclear proliferation, but he then sets about systematically dismantling
each of these fears. Rather, he contends that nuclear weapons have had little effect on the
conduct of international diplomacy and that world history would have been roughly the same had
nuclear weapons never been invented. Finally, Mueller concludes by arguing that the real
problem is not nuclear proliferation, but nuclear nonproliferation policy because states do
harmful things in the name of nonproliferation, like take military action and deny countries
access to nuclear technology for peaceful purposes. Similarly, Ward Wilson argues that, despite
the belief held by optimists and pessimists alike, nuclear weapons are not useful tools of
deterrence.[18][46] In his study of the end of World War II, for example, Wilson argues that it
was not the U.S. use of nuclear weapons on Hiroshima and Nagasaki that forced Japanese
surrender, but a variety of other factors, including the Soviet Unions decision to enter the war. If
the actual use of nuclear weapons was not enough to convince a country to capitulate to its
opponent he argues, then there is little reason to think that the mere threat of nuclear use has
been important to keeping the peace over the past half century. Leaders of nuclear-armed states
justify nuclear possession by touting their deterrent benefits, but if nuclear weapons have no
deterrent value, there is no reason, Ward claims, not to simply get rid of them. Finally, Anne
Harrington de Santana argues that nuclear experts fetishize nuclear weapons.[19][47] Just like
capitalists, according to Karl Marx, bestow magical qualities on money, thus fetishizing it, she
argues that leaders and national security experts do the same thing to nuclear weapons. Nuclear
deterrence as a critical component of national security strategy, according to Harrington de
Santana, is not inherent in the technology of nuclear weapons themselves, but is rather the result
of how leaders in countries around the world think about them. In short, she argues, Nuclear
weapons are powerful because we treat them as powerful.[20][48] But, she maintains, we could
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just as easily defetish them, treating them as unimportant and, therefore, rendering them
obsolete. She concludes that Perhaps some day, the deactivated nuclear weapons on display in
museums across the United States will be nothing more than a reminder of how powerful nuclear
weapons used to be.[21][49] The anti-obsessionists make some thought-provoking points and
may help to reign in some of the most hyperbolic accounts of the effect of nuclear proliferation.
They remind us, for example, that our worst fears have not been realized, at least not yet. Yet, by
taking the next step and arguing that nuclear weapons have been, and will continue to be,
irrelevant, they go too far. Their arguments call to mind the story about the man who jumps to
his death from the top of a New York City skyscraper and, when asked how things are going as
he passes the 15th story window, replies, so far so good. The idea that world history would
have been largely unchanged had nuclear weapons not been invented is a provocative one, but it
is also unfalsifiable. There is good reason to believe that world history would have been
different, and in many ways better, had certain countries not acquired nuclear weapons. Lets
take Pakistan as an example. Pakistan officially joined the ranks of the nuclear powers in May
1998 when it followed India in conducting a series of nuclear tests. Since then, Pakistan has been
a poster child for the possible negative consequences of nuclear proliferation. Pakistans nuclear
weapons have led to further nuclear proliferation as Pakistan, with the help of rogue scientist
A.Q. Khan, transferred uranium enrichment technology to Iran, Libya, and North Korea.[22][50]
Indeed, part of the reason that North Korea and Iran are so far along with their uranium
enrichment programs is because they got help from Pakistan. Pakistan has also become more
aggressive since acquiring nuclear weapons, displaying an increased willingness to sponsor
cross-border incursions into India with terrorists and irregular forces.[23][51] In a number of
high-stakes nuclear crises between India and Pakistan, U.S. officials worried that the conflicts
could escalate to a nuclear exchange and intervened diplomatically to prevent Armageddon on
the subcontinent. The U.S. government also worries about the safety and security of Pakistans
nuclear arsenal, fearing that Pakistans nukes could fall into the hands of terrorists in the event of
a state collapse or a break down in nuclear security. And we still have not witnessed the full
range of consequences arising from Pakistani nuclear proliferation. Islamabad has only possessed
the bomb for a little over a decade, but they are likely to keep it for decades to come, meaning
that we could still have a nuclear war involving Pakistan. In short, Pakistans nuclear capability
has already had deleterious effects on U.S. national security and these threats are only likely to
grow over time. In addition, the anti-obsessionists are incorrect to argue that the cure of U.S.
nuclear nonproliferation policy is worse than the disease of proliferation. Many observers would
agree with Mueller that the U.S. invasion of Iraq in 2003 was a disaster, costing much in the way
of blood and treasure and offering little strategic benefit. But the Iraq War is hardly
representative of U.S. nonproliferation policy. For the most part, nonproliferation policy operates
in the mundane realm of legal frameworks, negotiations, inspections, sanctions, and a variety of
other tools. Even occasional preventive military strikes on nuclear facilities have been far less
calamitous than the Iraq War. Indeed, the Israeli strikes on nuclear reactors in Iraq and Syria in
1981 and 2007, respectively, produced no meaningful military retaliation and a muted
international response. Moreover, the idea that the Iraq War was primarily about nuclear
nonproliferation is a contestable one, with Saddam Husseins history of aggression, the
unsustainability of maintaining the pre-war containment regime indefinitely, Saddams ties to
terrorist groups, his past possession and use of chemical and biological weapons, and the window
of opportunity created by September 11th, all serving as possible prompts for U.S. military
action in the Spring of 2003. The claim that nonproliferation policy is dangerous because it
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denies developing countries access to nuclear energy also rests on shaky ground. If anything, the
global nonproliferation regime has, on balance, increased access to nuclear technology. Does
anyone really believe that countries like Algeria, Congo, and Vietnam would have nuclear
reactors today were it not for Atoms for Peace, Article IV of the NPT, and other appendages of
the nonproliferation regime that have provided developing states with nuclear technology in
exchange for promises to forgo nuclear weapons development? Moreover, the sensitive fuelcycle technology denied by the Nuclear Suppliers Group (NSG) and other supply control
regimes is not even necessary to the development of a vibrant nuclear energy program as the
many countries that have fuel-cycle services provided by foreign nuclear suppliers clearly
demonstrate. Finally, the notion that nuclear energy is somehow the key to lifting developing
countries from third to first world status does not pass the laugh test. Given the large upfront
investments, the cost of back-end fuel management and storage, and the ever-present danger of
environmental catastrophe exemplified most recently by the Fukushima disaster in Japan, many
argue that nuclear energy is not a cost-effective source of energy (if all the externalities are taken
into account) for any country, not to mention those developing states least able to manage these
myriad challenges. Taken together, therefore, the argument that nuclear nonproliferation policy
is more dangerous than the consequences of nuclear proliferation, including possible nuclear
war, is untenable. Indeed, it would certainly come as a surprise to the mild mannered diplomats
and scientists who staff the International Atomic Energy Agency, the global focal point of the
nuclear nonproliferation regime, located in Vienna, Austria. The anti-obsessionsists, like the
optimists, also walk themselves into logical contradictions. In this case, their policy
recommendations do not necessarily follow from their analyses. Ward argues that nuclear
weapons are irrelevant and, therefore, we should eliminate them.[24][52] But, if nuclear weapons
are really so irrelevant, why not just keep them lying around? They will not cause any problems
if they are as meaningless as anti-obsessionists claim and it is certainly more cost effective to do
nothing than to negotiate complicated international treaties and dismantle thousands of warheads,
delivery vehicles, and their associated facilities. Finally, the idea that nuclear weapons are only
important because we think they are powerful is arresting, but false. There are properties inherent
in nuclear weapons that can be used to create military effects that simply cannot, at least not yet,
be replicated with conventional munitions. If a military planner wants to quickly destroy a city
on the other side of the planet, his only option today is a nuclear weapon mounted on an ICBM.
Therefore, if the collective we suddenly decided to defetishize nuclear weapons by treating
them as unimportant, it is implausible that some leader somewhere would not independently
come to the idea that nuclear weapons could advance his or her countrys national security and
thereby re-fetishize them. In short, the optimists and anti-obsessionists have brought an
important perspective to the nonproliferation debate. Their arguments are provocative and they
raise the bar for those who wish to argue that the spread of nuclear weapons is indeed a problem.
Nevertheless, their counterintuitive arguments are not enough to wish away the enormous
security challenges posed by the spread of the worlds most dangerous weapons. These myriad
threats will be considered in the next section. Why Nuclear Proliferation Is a
Problem The spread of nuclear weapons poses a number of severe threats to international
peace and U.S. national security including: nuclear war, nuclear terrorism, emboldened nuclear
powers,constrained freedom of action, weakened alliances, and further nuclear proliferation.
This section explores each of these threats in turn. Nuclear War. The greatest threat posed by the
spread of nuclear weapons is nuclear war. The more states in possession of nuclear
weapons, the greater the probability that somewhere, someday, there is a catastrophic
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nuclear war. A nuclear exchange between the two superpowers during the Cold War could have
arguably resulted in human extinction and a nuclear exchange between states with smaller
nuclear arsenals, such as India and Pakistan, could still result in millions of deaths and casualties,
billions of dollars of economic devastation, environmental degradation, and a parade of other
horrors. To date, nuclear weapons have only been used in warfare once. In 1945, the United
States used one nuclear weapon each on Hiroshima and Nagasaki, bringing World War II to a
close. Many analysts point to sixty-five-plus-year tradition of nuclear non-use as evidence that
nuclear weapons are unusable, but it would be nave to think that nuclear weapons will never be
used again. After all, analysts in the 1990s argued that worldwide economic downturns like the
great depression were a thing of the past, only to be surprised by the dot-com bubble bursting in
the later 1990s and the Great Recession of the late Naughts.[25][53] This author, for one, would
be surprised if nuclear weapons are not used in my lifetime. Before reaching a state of MAD,
new nuclear states go through a transition period in which they lack a secure-second strike
capability. In this context, one or both states might believe that it has an incentive to use nuclear
weapons first. For example, if Iran acquires nuclear weapons neither Iran, nor its nuclear-armed
rival, Israel, will have a secure, second-strike capability. Even though it is believed to have a
large arsenal, given its small size and lack of strategic depth, Israel might not be confident that it
could absorb a nuclear strike and respond with a devastating counterstrike. Similarly, Iran might
eventually be able to build a large and survivable nuclear arsenal, but, when it first crosses the
nuclear threshold, Tehran will have a small and vulnerable nuclear force. In these pre-MAD
situations, there are at least three ways that nuclear war could occur. First, the state with the
nuclear advantage might believe it has a splendid first strike capability. In a crisis, Israel might,
therefore, decide to launch a preemptive nuclear strike to disarm Irans nuclear capabilities and
eliminate the threat of nuclear war against Israel. Indeed, this incentive might be further
increased by Israels aggressive strategic culture that emphasizes preemptive action. Second, the
state with a small and vulnerable nuclear arsenal, in this case Iran, might feel use em or loose
em pressures. That is, if Tehran believes that Israel might launch a preemptive strike, Iran
might decide to strike first rather than risk having its entire nuclear arsenal destroyed. Third, as
Thomas Schelling has argued, nuclear war could result due to the reciprocal fear of surprise
attack.[26][54] If there are advantages to striking first, one state might start a nuclear war in the
belief that war is inevitable and that it would be better to go first than to go second. In a future
Israeli-Iranian crisis, for example, Israel and Iran might both prefer to avoid a nuclear war, but
decide to strike first rather than suffer a devastating first attack from an opponent. Even in a
world of MAD, there is a risk of nuclear war. Rational deterrence theory assumes nuclear-armed
states are governed by rational leaders that would not intentionally launch a suicidal nuclear war.
This assumption appears to have applied to past and current nuclear powers, but there is no
guarantee that it will continue to hold in the future. For example, Irans theocratic government,
despite its inflammatory rhetoric, has followed a fairly pragmatic foreign policy since 1979, but
it contains leaders who genuinely hold millenarian religious worldviews who could one day
ascend to power and have their finger on the nuclear trigger. We cannot rule out the possibility
that, as nuclear weapons continue to spread, one leader will choose to launch a nuclear war,
knowing full well that it could result in self-destruction. One does not need to resort to
irrationality, however, to imagine a nuclear war under MAD. Nuclear weapons may deter leaders
from intentionally launching full-scale wars, but they do not mean the end of international
politics. As was discussed above, nuclear-armed states still have conflicts of interest and leaders
still seek to coerce nuclear-armed adversaries. This leads to the credibility problem that is at the
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heart of modern deterrence theory: how can you threaten to launch a suicidal nuclear war?
Deterrence theorists have devised at least two answers to this question. First, as stated above,
leaders can choose to launch a limited nuclear war.[27][55] This strategy might be especially
attractive to states in a position of conventional military inferiority that might have an incentive
to escalate a crisis quickly. During the Cold War, the United States was willing to use nuclear
weapons first to stop a Soviet invasion of Western Europe given NATOs conventional
inferiority in continental Europe. As Russias conventional military power has deteriorated since
the end of the Cold War, Moscow has come to rely more heavily on nuclear use in its strategic
doctrine. Indeed, Russian strategy calls for the use of nuclear weapons early in a conflict
(something that most Western strategists would consider to be escalatory) as a way to de-escalate
a crisis. Similarly, Pakistans military plans for nuclear use in the event of an invasion from
conventionally stronger India. And finally, Chinese generals openly talk about the possibility of
nuclear use against a U.S. superpower in a possible East Asia contingency. Second, as was also
discussed above leaders can make a threat that leaves something to chance.[28][56] They can
initiate a nuclear crisis. By playing these risky games of nuclear
brinkmanship, states can increases the risk of nuclear war in an attempt to force a less
resolved adversary to back down. Historical crises have not resulted in nuclear war, but many of
them, including the 1962 Cuban Missile Crisis, have come close. And scholars have documented
historical incidents when accidents could have led to war.[29][57] When we think about future
nuclear crisis dyads, such as India and Pakistan and Iran and Israel, there are fewer sources of
stability that existed during the Cold War, meaning that there is a very real risk that a future
Middle East crisis could result in a devastating nuclear exchange.
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Strategy Guide
This strategy is one that argues that the inequalities in our criminal justice system are
rooted in how it deals with non-human species and can be used in variety of different ways that
would be palatable to different Judges .
Policy & Traditional Style
The argument here is going to be valuing justice, and providing a route to justice that currently
nonhumans are excluded from. Supporting jury nullification would only help reinforce a system
that at its core excludes nonhumans because they are not even granted the right to habeas corpus
(jury trials) under current law. This means that jury nullification can never be extended to
nonhumans in our current criminal justice system. The Wise evidence should be used first to
establish that historically nonhumans are things and lack rights. If you are debating in front of
judges who are inclined to policy style arguments you can look to extend a common law writ to
non-humans or grant status of legal personhood to some nonhumans like was done with
corporations giving nonhumans certain legal protections not currently available via animal
welfare laws. If you are in front of more traditional judges you can prove that the aff doesnt
achieve justice by evaluating justice under the guise of equal protection and arguing that due to
nonhumans failure to access jury nullification it violates the standard of equal protection.
In front of K Judges
In front of K judges its a pretty easy argument to put together. An aff vote is defacto support of
the criminal justice process of our country which is historically rooted in anthropocentric
practices. Supporting anthropocentric institutions can lead to a wide variety of impacts including
extinction level ones in order to compete with util affs. Alternative choices include traditional
ones like an ethic of care which would even allow to access a floating pic using the Tudor
evidence.
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quantum mechanics used evidence to argue with one another about how to properly
observe quantum mechanical phenomena. Bodies of epistemic practice are empirically
segregated but they are not fundamentally isolated from one another, and their
practitioners can understand, [and] critique, and even respect one another's epistemic
values. From a naturalized perspective, there is no coherent possibility of a
transcendental stance outside all possible bodies of epistemic practices from which we
can judge which one's deliverances are really really right. Different bodies of
epistemic practice can be used to assess one another, and their practitioners can struggle
with one another over which practices and standards of objectivity yield the best and most
accountable results. But there is no such epistemic practice as the practice of stepping
out of all such practices in order to assess their objectivity 'from above'. This will
bother us only if we begin with the question-begging, anti-naturalistic assumption that such
an impossible stance is the only one that counts as objective. Now this might seem to
justify the sweeping rejection of self-effacing objectivity for which I criticized Barad
above. For if there is no such thing as a transcendental perspective outside all local bodies
of epistemic practices, then in an important sense the understanding of objectivity as selferasure is simply incoherent, rather than merely limited and historically situated.
Standpoint theory is deeply right, on this naturalized picture: knowledge is always
and ineliminably the knowledge of a performative, concrete self who is situated
within a particular, historically and socially contextualized body of norms. As natural
beings engaged in natural epistemic practices, selves cannot adopt a stance outside of
the nature they seek to know, and knowing is a material, interactive activity, and hence
[End Page 299] there is no possibility of attaining objectivity by erasing the traces of
the knowing self and its standpoint. Doesn't this make the ideal of mechanical objectivity
fundamentally and unqualifiedly wrong-headed, as Barad, unlike Daston and Galison,
believes?
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single-celled beings, and as chrysanthemums; but the eyes with which you looked at
me this morning tell me you have never died.(32) In this prayer, we are, quite
simply, all in it together. And, although this new ecological Holocaust -- this creation
of planet Auschwitz -- is under way, it is not yet final. We have time to step back from
the brink, to repair our world. But only if we see that world not as an other across an
irreducible gap of loneliness and unchosen obligation, but as a part of ourselves as we
are part of it, to be redeemed not out of duty, but out of love; neither for our selves
nor for the other, but for us all.
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PETAs attempt to obtain judicial recognition of the rights of nonhuman animals failed, but
the result can still be taken as a learning experience and as motivation to seek a new
approach.189 It is no great controversy to argue as we have that under the common law, as
opposed to under statutory interpretation, a legal person is not required to be a human
being. A person in this sense is a term of art; it is not about biology.190 As one scholar has
explained, it is instead about whether an entity has a legal right that should be protected, i.e.,
[p]ersonhood is thus a conclusion, not a question.191 There is no reason that nonhuman
animals, many of whom possess similar capacities to humans, should not have the access to
the same common law procedures as do other living beings nonetheless considered under the
law to be things or property.
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http://civilrightslawjournal.com/issues/25.159.pdf
On its face, the writ de homine replegiando appears to be the best procedure for a nonhuman
animal to challenge its detention. It is a writ of right so, at least initially, it should not be
denied.46 It can be brought by a third-party on behalf of the nonhuman animal, which is a
practical necessity.47 It allows for the immediate freedom of the non- human animal upon
provision of a bond, which helps prevent any fur- ther damage due to confinement.48 If the
writ is properly brought and supported, the propriety of the nonhuman animals confinement
will be ruled upon by a jury, which may be more inclined to grant a nonhu- man animal rights
than would a judge.49
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These newer animal rights campaigners demands for fundamental legal rights for nonhumans
are often misinterpreted as demanding human rights for nonhuman animals. But that is not
correct; the new animal rights practitioners recognize that our subjects are not human. We are
demanding legal rights that are appropriate to the levels of cognition that scientists are able to
determine through their work with nonhuman animals both in the wild and in captivity.
Therefore, chimpanzees are entitled to chimpanzee rights, elephants to elephant rights,
and orcas to orca rights.
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able to rise above monotonous, species-determined biological existence. Change in the
service of human freedom is seen to be our primary agenda. Humans are thus cast as active
agents whose very essence is to transform the world as if somehow acceptance, appreciation,
wonder, and reverence were beyond the pale. This discursive frame of reference is
characteristic of critical pedagogy. The human/animal opposition upon which it rests is
taken for granted, its cultural and historical specificity not acknowledged. And therein lies
the problem. Like other social constructions, this one derives its persuasiveness from its
seeming facticity and from the deep investments individuals and communities have in setting
themselves off from others (Britzman et al., 1991, p. 91). This becomes the normal way of
seeing the world, and like other discourses of normalcy, it limits possibilities of taking up
and confronting inequities (see Britzman, 1995). The primacy of the human enterprise is
simply not questioned. Precisely how an anthropocentric pedagogy might exacerbate the
environmental crisis has not received much consideration in the literature of critical pedagogy,
especially in North America. Although there may be passing reference to planetary destruction,
there is seldom mention of the relationship between education and the domination of nature, let
alone any sustained exploration of the links between the domination of nature and other social
injustices. Concerns about the nonhuman are relegated to environmental education. And
since environmental education, in turn, remains peripheral to the core curriculum (A. Gough,
1997; Russell, Bell, & Fawcett, 2000), anthropocentrism passes unchallenged.
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