398 BQ Patents 2AC Blocks

Patents – 2AC Blocks
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PATENTS – PURE MUSCLE ACTION

PATENTS – PURE MUSCLE ACTION..............................................................................................................1
**Add-Ons**..........................................................................................................................................................5
Economy Add-On...................................................................................................................................................6
Terrorism Add-On [1/2].........................................................................................................................................7
Terrorism Add-On [2/2].........................................................................................................................................8
Global Warming Add-On......................................................................................................................................9
Global Warming Add-On [2/2]...........................................................................................................................10
Biotech Add-On....................................................................................................................................................11
**AT: Counterplans**.........................................................................................................................................12
2AC Lower Courts CP Frontline [1/3]...............................................................................................................13
No Solvency – SC Decisions = Better.................................................................................................................17
AT: Lower Courts Have Expertise.....................................................................................................................18
No Solvency - Supreme Court Sets Law............................................................................................................21
No Solvency – State Courts.................................................................................................................................22
Turn – Judicial Economy....................................................................................................................................23
AT: Judicial Economy Net Benefit.....................................................................................................................24
No Solvency - Supreme Court Will Reverse......................................................................................................25
No Solvency – Supreme Court Will Reverse.....................................................................................................26
No Solvency – Supreme Court Will Reverse.....................................................................................................27
Supreme Court Solves Lower Courts.................................................................................................................28
Supreme Court Will Reverse – State Court Conflict........................................................................................29
Supreme Court Will Reverse – Ninth Circuit Involvement............................................................................30
AT: Lower Courts Check Judicial Activism......................................................................................................31
AT: Lower Courts Check Judicial Activism – Timeframe...............................................................................32
No Solvency - Doesn’t Set Precedent.................................................................................................................33
AT: CP Leads to Plan...........................................................................................................................................34
AT: CP Leads to Plan – Links to NB..................................................................................................................35
“Chrome wheeled, fuel injected and steppin out over the line” 1
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Legitimacy DA......................................................................................................................................................36
Legitimacy DA......................................................................................................................................................37
Legitimacy DA - Link..........................................................................................................................................38
Legitimacy DA – AT: “We Only Do It Once”....................................................................................................39
Supreme Court Reversal Good - Policymaking................................................................................................40
CP Links to Politics..............................................................................................................................................41
2AC Congress CP Frontline [1/3].......................................................................................................................42
2AC Congress CP Frontline [2/3].......................................................................................................................43
2AC Congress CP Frontline................................................................................................................................44
Courts Good – Judicial Review..........................................................................................................................45
AT: Constitutional Amendment CP....................................................................................................................46
AT: Constitutional Amendment CP....................................................................................................................47
AT: Const. Amendment CP – Rights Turn.........................................................................................................48
AT: Const. Amendment CP – Balanced Budget DA.........................................................................................51
AT: Const. Amendment CP – Balanced Budget DA.........................................................................................52
Distinguishing Doesn’t Solve - Precedent..........................................................................................................53
Distinguishing Doesn’t Solve - Confusion..........................................................................................................54
Distinguishing Doesn’t Solve – Lower Courts...................................................................................................55
Distinguishing Kills Stare Decisis.......................................................................................................................56
**AT: Court DAs**..............................................................................................................................................57
2AC Stare Decisis DA Frontline (SS) [1/2].........................................................................................................58
2AC Stare Decisis DA Frontline (SS) [2/2].........................................................................................................59
2AC Stare Decisis DA Frontline (KO) [1/2].......................................................................................................60
2AC Stare Decisis DA Frontline (KO) [2/2].......................................................................................................61
No Supreme Court Capital.................................................................................................................................62
Supreme Court = Activist....................................................................................................................................63
Supreme Court = Activist....................................................................................................................................64
Supreme Court = Divided...................................................................................................................................65
Supreme Court Unpopular.................................................................................................................................66
Overruling Common............................................................................................................................................67
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SC Statutory Overrule – N/U..............................................................................................................................68

Statutory Overrule Good....................................................................................................................................69
Statutory Overrule Good....................................................................................................................................70
AT: Overturning 9-0 Bad....................................................................................................................................71
AT: Overturning 9-0 Bad....................................................................................................................................72
AT: Plan = 9-0, and that’s Bad............................................................................................................................73
AT: Plan = 9-0, and that’s Bad............................................................................................................................73
AT: Roe v. Wade...................................................................................................................................................76
AT: Roe v. Wade...................................................................................................................................................77
**Case Ev**..........................................................................................................................................................78
Patents Low..........................................................................................................................................................79
**AT: Case Turns/Other Offcase**....................................................................................................................80
AT: Pharma Good Turn (KO).............................................................................................................................81
AT: Pharma Good Turn (KO).............................................................................................................................82
AT: Patents Reform Hurts Innovation (KO).....................................................................................................83
AT: TSM Deters Innovation (Generic)...............................................................................................................84
AT: Over-Patenting/Court Clogging..................................................................................................................85
AT: Generic Drugs Turn (CO)............................................................................................................................86
AT: Innovation Turns (SS)..................................................................................................................................87
2AC Ecomanagerialism.......................................................................................................................................88
AT: Germany DA.................................................................................................................................................90
...............................................................................................................................................................................91
AT: States CP – Spending DA.............................................................................................................................92
AT: States CP – California Spending DA...........................................................................................................93
**Miscellaneous Ev**..........................................................................................................................................94
Global Warming > Terrorism.............................................................................................................................95
Economy on Brink...............................................................................................................................................96
Economy Resilient................................................................................................................................................97
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**Add-Ons**
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Economy Add-On
1. A US “innovation revolution” in alternative energy is vital to worldwide
economic transformation – we must act now.
John Deutsch et al, former undersecretary of DOE and Institute Professor at the Massachusetts Institute of
Technology, Issues in Science and Technology, “Ending the Inertia on Energy Policy,” Winter 08,
http://www.issues.org/24.2/ogden.html
The United States must confront the reality of its energy circumstances. Consumers and industry are facing the prospect of a
continued rise in the real price of oil and natural gas as conventional reserves are depleted. The increased reliance of the United
States and its partners on imported oil—a large proportion of which comes from the hostile and politically fragile Persian Gulf
—is constraining the nation’s pursuit of important foreign policy objectives. At the same time, greenhouse gas emissions,
especially carbon dioxide emissions from coal-fired electricity-generation plants, are contributing to dangerous global climate
change. In the absence of an aggressive U.S. carbon-emission control policy, there in no possibility of an international
agreement on greenhouse gas emissions that includes both developed countries and rapidly emerging ones such as China and
India.
There is only one solution to the challenge: The United States must begin the long process of transforming its economy
from one that is dependent on petroleum and high-emission coal-fired electricity to one that uses energy much more efficiently,
develops alternative fuels, and switches to electricity generation that is low-carbon or carbon-free.
The benefits of such a transformation are indisputable: It would avoid unnecessary cost and disruption to the U.S. economy,
protect the environment, and enhance national security. The United States has sought to adopt an effective and coherent energy
policy since the first oil crisis of 1973, but it has failed to do so. The challenge for U.S. political leaders is to craft, fund, and
diligently sustain a range of policy measures that will make this critical transition as certain, rapid, and cost-effective as
possible.
In order to meet this challenge, the United States must undergo an innovation revolution. The rate at which the United States
is able to develop and deploy new energy technologies will, to a great extent, determine the ultimate speed and cost of the
economic transformation. Large-scale carbon capture and sequestration, advanced batteries, plug-in hybrid vehicle
technologies, next-generation biofuels for the transportation sector, and a number of other innovations will be vital to achieving
a low-carbon economy, and the United States must not only develop but deploy these technologies. The benefits of such
innovation will accrue to other countries as well, for U.S. technical assistance programs and trade will carry these advances
abroad.
2. Economic decline causes a nuclear war
Walter Russell Mead, NPQ’s Board of Advisors, New Perspectives Quarterly, Summer 1992, p. 301992(
Hundreds of millions - billions - of people have pinned their hopes on the international market economy. They and their leaders have
embraced market principles -- and drawn closer to the west – because they believe that our system can work for them. But what if it
can't? What if the global economy stagnates - or even shrinks? In that case, we will face a new period of international conflict: South
against North, rich against poor. Russia, China, India - These countries with their billions of people and their nuclear weapons will
pose a much greater danger to world order than Germany and Japan did in the 30s.
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Terrorism Add-On [1/2]

1. Lack of US innovation leadership is the single greatest threat to national
security.
Task Force On the Future of American Innovation (collective including Association of American Universities and National
Association of Manufacturers), “The Knowledge Economy: Is America Losing Its Competitive Edge,” 2/16/05
For more than half a century, the United States has led the world in scientific discovery and innovation. It has been a beacon, drawing
the best scientists to its educational institutions, industries and laboratories from around the globe. However, in today’s rapidly
evolving competitive world, the United States can no longer take its supremacy for granted. Nations from Europe to Eastern Asia are
on a fast track to pass the United States in scientific excellence and technological innovation.
The Task Force on the Future of American Innovation has developed a set of benchmarks to assess the international standing of the
United States in science and technology. These benchmarks in education, the science and engineering (S&E) workforce, scientific
knowledge, innovation, investment and high-tech economic output reveal troubling trends across the research and development
(R&D) spectrum. The United States still leads the world in research and discovery, but our advantage is rapidly eroding, and our
global competitors may soon overtake us.
Research, education, the technical workforce, scientific discovery, innovation and economic growth are intertwined. To remain
competitive on the global stage, we must ensure that each remains vigorous and healthy. That requires sustained investments and
informed policies. Federal support of science and engineering research in universities and national laboratories has been key to
America’s prosperity for more than half a century. A robust educational system to support and train the best U.S. scientists and
engineers and to attract outstanding students from other nations is essential for producing a world-class workforce and enabling the
R&D enterprise it underpins. But in recent years federal investments in the physical sciences, math and engineering have not kept pace
with the demands of a knowledge economy, declining sharply as a percentage of the gross domestic product. This has placed future
innovation and our economic competitiveness at risk.
To help policymakers and others assess U.S. high-tech competitiveness and the health of the American science and engineering
enterprise, we have identified key benchmarks in six essential areas—education,
the workforce, knowledge creation and new ideas, R&D investments, the high-tech economy, and specific
high-tech sectors. We conclude that although the United States still leads the world in research and dis-
covery, our advantage is eroding rapidly as other countries commit significant resources to enhance their
own innovative capabilities.
It is essential that we act now; otherwise our global leadership will dwindle, and the talent pool required to support our high-tech
economy will evaporate. As a recent report by the Council on Competitiveness recommends, to help address this situation the federal
government should: Increase significantly the research budgets of agencies that support basic research in the physical sciences and
engineering, and complete the commitment to double the NSF budget. These increases should strive to ensure that the federal
commitment of research to all federal agencies totals one percent of U.S. GDP.
This is not just a question of economic progress. Not only do our economy and quality of life depend critically on a vibrant R&D
enterprise, but so too do our national and homeland security. As the Hart-Rudman Commission on National Security stated in 2001:…
[T]he U.S. government has seriously underfunded basic scientific research in recent years… [T]he inadequacies of our systems of
research and education pose a greater threat to U.S. national security over the next quarter century than any potential
conventional war that we might imagine. American national leadership must understand these deficiencies as threats to national
security. If we do not invest heavily and wisely in rebuilding these two core strengths, America will be incapable of maintaining its
global position long into the 21st century.
In the post-9/11 era especially, we should heed this warning.
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Terrorism Add-On [2/2]

b. Terrorism causes extinction.
Yonah Alexander, Senior Fellow at the Potomac Institute for Policy Studies and Director of its International Center for Terrorism
Studies, Washington Times, 8/28/03
Last week's brutal suicide bombings in Baghdad and Jerusalem have once again illustrated dramatically that the international
community failed, thus far at least, to understand the magnitude and implications of the terrorist threats to the very survival of
civilization itself. Even the United States and Israel have for decades tended to regard terrorism as a mere tactical nuisance or
irritant rather than a critical strategic challenge to their national security concerns. It is not surprising, therefore, that on September
11, 2001, Americans were stunned by the unprecedented tragedy of 19 al Qaeda terrorists striking a devastating blow at the center
of the nation's commercial and military powers. Likewise, Israel and its citizens, despite the collapse of the Oslo Agreements of
1993 and numerous acts of terrorism triggered by the second intifada that began almost three years ago, are still "shocked" by each
suicide attack at a time of intensive diplomatic efforts to revive the moribund peace process through the now revoked cease-fire
arrangements [hudna]. Why are the United States and Israel, as well as scores of other countries affected by the universal
nightmare of modern terrorism surprised by new terrorist "surprises"? There are many reasons, including misunderstanding of the
manifold specific factors that contribute to terrorism's expansion, such as lack of a universal definition of terrorism, the
religionization of politics, double standards of morality, weak punishment of terrorists, and the exploitation of the media by
terrorist propaganda and psychological warfare. Unlike their historical counterparts, contemporary terrorists have introduced a new
scale of violence in terms of conventional and unconventional threats and impact. The internationalization and brutalization of
current and future terrorism make it clear we have entered an Age of Super Terrorism [e.g. biological, chemical, radiological,
nuclear and cyber] with its serious implications concerning national, regional and global security concerns.
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Global Warming Add-On

A. Greenhouse gases and global warming are increasing in the status quo.
IPCC, a scientific intergovernmental body set up by the World Meteorological Organization (WMO) and by the
United Nations Environment Programme (UNEP), 2007, Climate Change 2007: Synthesis Report, Summary
for Policymakers An Assessment of the Intergovernmental Panel on Climate Change,
http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf
There is high agreement and much evidence that with current climate change mitigation policies and related sustainable development
practices, global GHG emissions will continue to grow over the next few decades. {3.1} The IPCC Special Report on Emissions
Scenarios (SRES, 2000) projects an increase of global GHG emissions by 25 to 90% (CO2-eq) between 2000 and 2030 (Figure
SPM.5), with fossil fuels maintaining their dominant position in the global energy mix to 2030 and beyond. More recent scenarios
without additional emissions mitigation are comparable in range.8,9 {3.1} Continued GHG emissions at or above current rates would
cause further warming and induce many changes in the global climate system during the 21st century that would very likely be larger
than those observed during the 20th century (Table SPM.1, Figure SPM.5). {3.2.1}
B. Innovation key to limit global greenhouse emissions - tech transfer ensures

that US alternative energy innovation goes global.
John Deutsch et al, former undersecretary of DOE and Institute Professor at the Massachusetts Institute of
Technology, Issues in Science and Technology, “Ending the Inertia on Energy Policy,” Winter 08,
http://www.issues.org/24.2/ogden.html
In the future, the greatest opportunity may well lie in transferring technology developed in the United States or other industrialized
countries to rapidly emerging counties such as China and India. Such transfers could help to induce rapidly emerging countries to
participate in a global regime to limit greenhouse gas emissions. The Joint Implementation and Cooperative Development
Mechanisms created in the Kyoto Protocol are examples of such an approach. These mechanisms are currently restricted to carbon-
mitigating technologies, but the transfer of a broader range of technologies, addressing renewable energy, biofuels, and energy
efficiency, could also be envisioned. It is unlikely, however, that technology transfer alone will be sufficient to bridge the gap between
how developed and developing countries control carbon emissions.
C. Global warming causes extinction.

David Stein, Science editor for The Guardian, 2006, “Global Warming Xtra: Scientists warn about Antarctic melting,”
http://www.agoracosmopolitan.com/home/Frontpage/2008/07/14/02463.html
Global Warming continues to be approaches by governments as a "luxury" item, rather than a matter of basic human survival.
Humanity is being taken to its destruction by a greed-driven elite. These elites, which include 'Big Oil' and other related interests,
are intoxicated by "the high" of pursuing ego-driven power, in a comparable manner to drug addicts who pursue an elusive "high",
irrespective of the threat of pursuing that "high" poses to their own basic survival, and the security of others. Global Warming and
the pre-emptive war against Iraq are part of the same self-destructive prism of a political-military-industrial complex, which is on a
path of mass planetary destruction, backed by techniques of mass-deception."The scientific debate about human induced global
warming is over but policy makers - let alone the happily shopping general public - still seem to not understand the scope of the
impending tragedy. Global warming isn't just warmer temperatures, heat waves, melting ice and threatened polar bears. Scientific
understanding increasingly points to runaway global warming leading to human extinction", reported Bill Henderson in
CrossCurrents. If strict global environmental security measures are not immediately put in place to keep further emissions
of greenhouse gases out of the atmosphere we are looking at the death of billions, the end of civilization as we know it and
in all probability the end of humankind's several million year old existence, along with the extinction of most flora and
fauna beloved to man in the world we share.
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Global Warming Add-On [2/2]

D. Timeframe is irrelevant - policymaking in the energy sector is only effective
with long-term perspective.
Staffan Jacobsson and Anna Bergek, Prof of Science & Technology at Chalmers, Industrial and Corporate
Change, Vol 13, No. 5, 2004, p. 816
Before we proceed, we need to point to three features of the energy sector that characterize the larger context in which we must
place any analysis of how policy may influence the transformation process. First, the energy system is huge. Even with
continued high growth rates over the next two decades, wind and solar power may only begin to replace the stock of
conventional energy technologies well after 2020 (see Appendix Table A2). Yet a transformation of the energy sector post
2020 rests on a range of policy initiatives taken today and over the course of the preceding decades. Policy making must
therefore be conducted with a very long-term perspective.
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Biotech Add-On
1. KSR destroyed investment in biotech.
Yi-Chen Su and Albert Wai-Kit Chan, professors of medicine and biotech, 2008, T.C. Wiliiams School of Law, University of
Richmond, lexis ARTICLE: MARY DOE'S DESTINY: HOW THE UNITED STATES HAS BANNED HUMAN EMBRYONIC
STEM CELL RESEARCH IN THE ABSENCE OF A DIRECT PROHIBITION
P49 The Supreme Court issued a decision restricting the issuance of patents approximately one month after the PTO's non-final
decision revoking the first patents in this country issued to human ES-cell lines and methods of obtaining the cell lines. In
KSR International Co. v. Teleflex, Inc., n131 the Supreme Court rejected the Federal Circuit Court of Appeals
"teaching, suggestion, or motivation" test ("TSM test"), n132 and replaced it with an "expansive and flexible
approach" to be used when determining the question of obviousness. n133 Before KSR International, the Federal Circuit
Court of Appeals had developed and adopted the more rigid TSM test. These tests are necessary because a patent cannot be
granted if the subject matter was obvious to a person having ordinary skill in the art, at the time the subject matter was
invented. n134
P50 The Federal Circuit's TSM test was a way of "[s]eeking to resolve the question of obviousness with more uniformity and
consistency . . . ." n135 Under the test, a court is obliged first to presume that the issued patent was valid and then to render its
own independent judgment of obviousness based on a review of the prior art. n136 A patent claim is only proved obvious if
"'some motivation or suggestion to combine the prior art teachings' can be found in the prior art, the nature of the problem, or
the knowledge of a person having ordinary skill in the art." n137 In other words, "unless the 'prior art references address[ed] the
precise problem that the patentee was trying to solve,' the problem would not motivate an inventor to look at those references."
n138
In addition, the fact that the PTO had rejected a broader version of the claim has no place in the analysis under the TSM
test. n139
P51 In rejecting the TSM test, the Supreme Court replaced it with an expansive and flexible approach by stating that, "[t]he
combination of familiar elements according to known methods is likely to be obvious when it does no more than yield
predictable results." n140 The Court further noted that "[o]ne of the ways in which a patent's subject matter can be proved
obvious is by noting that there existed at the time of invention a known problem for which there was an obvious solution
encompassed by the patent's claims." n141 Moreover, courts are invited to look at any secondary considerations that would prove
instructive, wherever appropriate. n142 Under the test, a court can take account of any inferences and creative steps that a person
of ordinary skill in the art would employ. n143
P52 The Supreme Court's flexible approach has raised concerns that the issuance of patents, especially in the field of
biotechnology, will become unpredictable and deter private investment as a result. As the Biotechnology Industry
Organization has argued in its amicus brief, if the standards of obviousness under 35 U.S.C. § 103(a) become less
objective, the increased uncertainty about the availability of patent rights will have a direct impact on investment
incentives in biotechnology, and will deter investment within the industry. n144 In addition, "[i]nventors would have no
predictable defenses against [challengers] seeking to invalidate biotechnology inventions many years, or even decades,
after the ideas were first conceived." n145
2. BIOTECH KEY TO MAKING SURE KAY QUINN LIVES FOREVER, ALLOWING FOR PLENTY MORE GOOD,
GOOD LOVIN.’ [FIND AN IMPACT]
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**AT: Counterplans**
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2AC Lower Courts CP Frontline [1/3]

1. LEGITMACY DA:
A. No Solvency and Turn - Lower court action will limit the legitimacy of
the courts and be struck down.
Evan H. Caminker, Professor of Law at UCLA, “Why Must Inferior Courts Obey Superior Court
Precedents,” 46 Stan. L. Rev. 817, 825, April 1994.
This speculative benefit of improved decisionmaking must be weighed against the process costs of underruling. Suppose an inferior
court explicitly underrules a Supreme Court precedent. Unless and until the Supreme Court entertains an appeal and resolves the
intramural squabble, the inferior court's defiance will thwart uniform federal law interpretation and its attendant values. 192 If the
Supreme Court reviews and reverses (reaffirming its precedent), the inferior court's disobedience will have raised the costs of
adjudication 193 and tarnished the Court's stature by challenging its competence 194 for nothing. Only if the Supreme Court
actually reviews and affirms the inferior court decision (thus overruling its precedent) will these process costs be justifiable. 195
Paulsen acknowledges that "were judges to [underrule] on every issue on which they disagreed with higher courts, the smooth
functioning of the judicial system might rapidly break down." 196 The difficult question is whether, given the potential benefits and
costs outlined above, lower court judges should ever do so. I myself agree that a category of cases exists for which, given the Supreme
Court's fallibility, the benefit of forced rethinking outweighs its cost, though the category might be quite small, and people might
reasonably disagree over its contours.
But this conclusion does not necessarily justify the practice of underruling. First, an inferior court could try to stimulate rethinking
without resort to underruling by instead issuing a "critical concurrence" - an opinion that follows precedent but simultaneously
criticizes it and urges the Supreme Court to review and reverse. 198 By issuing a critical concurrence, the inferior court can encourage
reconsideration without threatening the values served by adherence to hierarchical precedent. Perhaps outright disobedience, given
its unique emotive force, is more likely to attract the Supreme Court's attention and encourage discretionary review than is the
more subtle critical concurrence. 199 This comparison is most likely true, however, in cases where the Court would find disobedience
irksome because the Court is strongly wedded to its precedent, and hence review would more likely spur a rebuff than careful
reconsideration. In any event, any marginal advantage underruling holds over critical concurrences must be offset by its greater
frustration of values secured by hierarchical precedent. 200
B. Democratic transitions are inevitable – only a symbol including a

strong, independent judiciary will promote the rule of law globally
The Center for Justice and Accountability, Amici Curiae in support of petitioners in Al Odah et al. v USA, "Brief of the
Center for Justice and Accountability, the International League for Human Rights, and Individual Advocates for the Independence of
the Judiciary in Emerging Democracies," 3/10/04
Many of the newly independent governments that have proliferated over the past five decades have adopted these ideals. They
have emerged from a variety of less-than-free contexts, including the end of European colonial rule in the 1950's and 1960's,
the end of the Cold War and the breakup of the former Soviet Union in the late 1980's and 1990's, the disintegration of
Yugoslavia, and the continuing turmoil in parts of Africa, Latin America and southern Asia. Some countries have successfully
transitioned to stable and democratic forms of government that protect individual freedoms and human rights by means of
judicial review by a strong and independent judiciary. Others have suffered the rise of tyrannical and oppressive rulers who
consolidated their hold on power in part by diminishing or abolishing the role of the judiciary. And still others hang in the
balance, struggling against the onslaught of tyrants to establish stable, democratic governments. In their attempts to shed
their tyrannical pasts and to ensure the protection of individual rights, emerging democracies have consistently looked to the
United States and its Constitution in fashioning frameworks that safeguard the independence of their judiciaries. See Ran
Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional
Revolutions, 25 Law & Soc. Inquiry 91, 92 (2000) (stating that of the “[m]any countries . . . [that] have engaged in fundamental
constitutional reform over the past three decades,” nearly all adopted “a bill of rights and establishe[d] some form of active
judicial review”). Establishing judicial review by a strong and independent judiciary is a critical step in stabilizing and
protecting these new democracies. See Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical
and Conceptual Analysis, 44 Am. J. Comp. L. 605, 605-06 (1996) (describing the judicial branch as having "a
uniquely important role" in transitional countries, not only to "mediate conflicts between political actors but also [to] prevent
the arbitrary exercise of government power; see also Daniel C. Prefontaine and Joanne Lee, The Rule of Law and
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the Independence of the Judiciary, International Centre for Criminal Law Reform and Criminal Justice Policy (1998) ("There is
increasing acknowledgment that an independent judiciary is the key to upholding the rule of law in a free society . . . . Most
countries in transition from dictatorships and/or statist economies recognize the need to create a more stable system of
governance, based on the rule of law."), available at http://www.icclr.law.ubc.ca/Publications/Reports/RuleofLaw. pdf (last
visited Jan. 8, 2004). Although the precise form of government differs among countries, “they ultimately constitute variations
within, not from, the American model of constitutionalism . . . [a] specific set of fundamental rights and liberties has the status
of supreme law, is entrenched against amendment or repeal . . . and is enforced by an independent court . . . .” Stephen
Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 718 (2001). This phenomenon
became most notable worldwide after World War II when certain countries, such as Germany, Italy, and Japan, embraced
independent judiciaries following their bitter experiences under totalitarian regimes. See id. at 714- 15; see also United States
v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring) (“Since World War II, many countries have adopted forms
of judicial review, which — though different from ours in many particulars — unmistakably draw their origin and inspiration
from American constitutional theory and practice. See generally Mauro Cappelletti, The Judicial Process in Comparative
Perspective (Oxford: Clarendon Press, 1989).”). It is a trend that continues to this day. It bears mention that the United States
has consistently affirmed and encouraged the establishment of independent judiciaries in emerging democracies. In September
2000, President Clinton observed that "[w]ithout the rule of law, elections simply offer a choice of dictators. . . .
America's experience should be put to use to advance the rule of law, where democracy's roots are looking for room and
strength to grow." Remarks at Georgetown University Law School, 36 Weekly Comp. Pres. Doc. 2218 (September 26,
2000), available at http://clinton6.nara.gov/2000/09/2000-09-26- remarks-by-president-at-georgetown-international-
lawcenter. html. The United States acts on these principles in part through the assistance it provides to developing nations.
For example, the United States requires that any country seeking assistance through the Millenium Challenge Account,
a development assistance program instituted in 2002, must demonstrate, among other criteria, an "adherence to the rule of law."
The White House noted that the rule of law is one of the "essential conditions for successful development" of these countries.
See http://www.whitehouse.gov/infocus/developingnations (last visited Jan. 8, 2004).12
C. Stable democracies solve nuclear war.

Larry Diamond, Senior Fellow, Hoover Institution, Co-Editor of the Journal of Democracy, and Professor, Political Science and
Sociology, Stanford University, December 1995 (Promoting Democracy in the 1990s: Actors and Instruments, Issues and Imperatives
– Carnegie Commission on Preventing Deadly Conflict)
http://wwics.si.edu/subsites/ccpdc/pubs/di/fr.htm
OTHER THREATS. This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the
former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies
through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have
utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The
very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to
security are associated with or aggravated by the weakness or absence of democracy, with its provisions for legality, accountability,
popular sovereignty, and openness.
LESSONS OF THE TWENTIETH CENTURY. The experience of this century offers important lessons. Countries that govern
themselves in a truly democratic fashion do not go to war with one another. They do not aggress against their neighbors to aggrandize
themselves or glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less
likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass
destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In
the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must
answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor international
treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret.
Precisely because, within their own borders, they respect competition, civil liberties, property rights, and the rule of law, democracies
are the only reliable foundation on which a new world order of international security and prosperity can be built
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2. Underruling the Supreme Court can’t solve – better benefits come from the Supreme
Court alone.
Charles H. Koch, Dudley W. Woodbridge Professor of Law, William and Mary School of Law, 56
Alabama Law Review, Spring 2005, “POLICYMAKING BY THE ADMINISTRATIVE JUDICIARY”
Caminker posits a nonhierarchical system in which courts at all levels have equal lawmaking authority. n64 Interestingly, such a
system is not merely hypothetical. As strange as such a system might feel to common-law lawyers, Caminker notes the error in
dismissing the system as implausible because the system apparently works in civil-law countries. n65 Moreover, some administrative
systems, especially in the states to be discussed in subpart V.A, are increasingly giving the administrative judges such autonomy.
Caminker examines the possible gains accrued from disobedience by an inferior adjudicative authority, or "underruling." Disobedience
may spur reform; indeed, some refusal to follow prior authority is a necessary element to reevaluation. Still, in the end, Caminker
concludes that the benefits of disobedience are ambiguous, conceding that "one might identify discrete instances in which the benefits
of forced rethinking likely outweigh the costs, but a flat prohibition of underruling might better balance benefits and costs over the
entire range of cases." n66 These observations support a cabined opportunity for experimentation and even disobedience at the
administrative judge level. n67
3. No solvency – Supreme Court will overrule any lower court violation of

precedent.
Ashutosh Bhagwat, Professor of Law at University of California, Hastings College of Law, JD from
University of Chicago, 80 Boston University Law Review 967, 2000
Further explanation for the Court's approach towards undermined precedents seems necessary, and the only one that comes to mind is
distrust of the lower courts - and in particular, distrust of the lower federal courts since they are most likely to be in the position to
"underrule" the Court's decisions. The Court seems willing to tolerate the inefficiency, delay, and occasional injustice generated by its
approach because it does not wish to grant lower courts the authority to decide when a precedent of the Court has been so
undermined as to be no longer binding. In light of the above criticisms, other justifications for the rule, such as minimizing conflict,
or maintaining an orderly system of justice, vanish. A strict application of the doctrine of Rodriguez de Quijas seems more likely to
breed confusion and conflict (albeit internal conflict within the judiciary as a whole, rather than inter-circuit conflict) than to reduce it.
Therefore, whether justified as a form of respect or as a necessary consequence of stare decisis principles, the doctrine of Rodriguez
de Quijas ultimately must be understood as a mode of control, of exercising power over the other courts in the federal judicial
hierarchy. When the Court insists on retaining its "prerogative... to overrule one of its precedents" 56 - note the royal connotations 57 -
it is attempting to exercise a strict form of supervision over lower courts, thereby denying them a substantial area of discretion. 58
4. Plan solves the net benefit - Lower courts follow Supreme Court precedent
when it comes to patent rulings.
Tajuana Massie, Department of Political Science at University of South Carolina, American Political Science
Association, Sept. 2004, “Precedent or Ideology?”
Several recent studies have analyzed the impact of Supreme Court doctrine on the decisions of the U.S. Courts of Appeals, finding
empirical support for the proposition that appeals courts follow precedents established by the Court. In the policy areas of antitrust
and labor, criminal rights, economic regulations, libel, and patents, scholars have found no clearly defiant or overtly noncompliant
decisions by the courts of appeals with precedents established by the Court. For example, in his study, Gruhl (1980) examined appeals
court libel decisions in the decade following the Supreme Court’s decision in New York Times v. Sullivan (1964), to determine
whether these lower courts faithfully applied the new actual malice test mandated by the Supreme Court. He found that the appeals
courts consistently followed the new precedent, and in fact, accepted the basic principle of the Supreme Court’s decision. Additionally,
Gruhl found that appeals courts often extended the Court’s decision in New York Times, in anticipation of the direction that the Court
appeared to be moving. In his study, Johnson (1987) found that appeals court judges tend to follow the Supreme Court in decisions
they cite as precedent. In another study, Pacelle and Baum (1992) found compliance of appeals courts with Supreme Court remands.
Songer and Haire (1992) using an integrated model of judicial attitudes, case characteristics, defenses raised by litigants, and changing
Supreme Court precedent found that appeals courts obscenity decisions became more conservative after the Court’s decision
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[card continues --- no text deleted]
in Miller v. California. Furthermore, Songer, Davis, and Haire (1994) found appeals court judges to respond positive to Supreme Court
job discrimination decisions. While more recently, Benesh (2002) found that courts of appeals judges tend to comply with the Court’s
decision in confession cases. Although these studies find courts of appeals decisions to be following precedents established by the
Supreme Court, other empirical evidence suggests that these courts are instead responding to shifts in Supreme Court ideology.
5. Lower courts can’t solve – corner-cutting guts enforcement.

Brannon P. Denning and Glenn H. Reynolds, Assistant Professor of Law at Southern Illinois University,
Professor of Law at University of Tennessee, 55 Arkansas Law Review 1253, 2003 “RULINGS AND
RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER
COURTS,”
*1303 But if ideology is not the source of lower court resistance--or, if any sustained inquiry is likely to result in the old Scots verdict,
"not proven"--is there an explanation for lower courts' behavior? Research by other scholars suggests that the problem here, to
paraphrase former presidential candidate Michael Dukakis, is not ideology, but rather competence. What we are seeing in lower courts'
Commerce Clause decisions may be only symptomatic of a larger problem in the federal judiciary: that of courts responding to an
increasingly unmanageable caseload by resorting to corner-cutting, resulting in an overall reduction in the quality of courts' work
product.
In a provocative recent article, [FN254] William Richman and William Reynolds, two scholars of the federal judiciary, have argued
that an increased federal judicial caseload has resulted in federal judges adopting "shortcuts to decision making," [FN255] such as the
disposition of cases without oral argument, [FN256] the limitation of published opinions (including the use of per curiam opinions),
[FN257] and an increased reliance on non-judicial decision makers--clerks, staff attorneys, and the like. [FN258] "Another way to
cope with the burgeoning caseload," the authors noted, "is to propound decisional rules that either discourage litigation, particularly at
the appellate level, or that make the cases easier to *1304 resolve." [FN259] The result, the authors argued, is that "the right to appeal"
in many cases "is now only nominal." [FN260] A further result is a diminution in quality of the appellate court work product. [FN261]
Moreover, they argued, this decline in quality is disproportionately borne by disfavored litigants bringing "trivial cases" that federal
judges complain clog their dockets. [FN262]
6. State Courts won’t enforce the counterplan.

The doctrine also applies to state and territorial courts. These courts are bound by precedent set by the United States Supreme Court,
which has the authority to review their federal law decisions. But the state and territorial judges are not bound by precedents
established by courts that do not have the authority to review those judges' decisions, since, as in the Article III regime, authority to
establish precedent follows the path of appellate review. Thus a state court need not follow the holdings of any inferior federal court,
including the court of appeals in whose geographical region the state court sits.
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No Solvency – SC Decisions = Better

Supreme Court numbers and expertise means better decisions.
Congress also created a structural distinction among the courts of various tiers by varying the courts' sizes. District court judges
generally decide cases [*847] alone, 118 courts of appeals judges usually in panels of three, 119 and the nine Supreme Court Justices
collectively. If "two heads are better than one," then higher courts will tend to make the best decisions. 120 Assuming (quite
reasonably) that each individual judge has a greater than fifty percent chance of arriving at the "correct" answer in any given legal
dispute, then the larger the panel the greater the likelihood that a majority of them will reach the correct result, 121 even if each judge
decides independently without consulting the others. Further, multimember courts create the opportunity for collegial deliberation,
which improves individual decisionmaking by adding perspectives 122 and ferreting out faulty reasoning. 123 Of course, beyond
some point increased court size can frustrate collaboration and creativity. 124 But at current staffing levels, my sense is that collegial
deliberation within larger courts marginally adds to the purely numerical argument that nine heads are better than three heads are
better than one.
Taken together, the functional and structural perspectives suggest that 3-judge courts of appeals panels are more proficient at resolving
novel legal controversies than are single-judge district courts. While no salient functional difference distinguishes the courts of appeals
and the Supreme Court, the structural argument suggests that nine heads are marginally better than three. Hence proficiency in
resolving legal issues increases from district court to appellate panel to Supreme Court.
Supreme Court sets better precedents – more justices.
Evan H. Caminker, Professor of Law at UCLA, 73 Texas Law Review 1, April 1994.
Second, differences in court sizes across the tiers influence the quality of decisionmaking. District court judges almost always decide
cases alone, 152 judges sitting on circuit courts of appeals generally decide cases in panels of three, 153 and the nine Justices on the
Supreme Court always decide cases as a single group. 154 This numerical superiority of higher level courts by itself ensures better
decisionmaking. 155 Moreover, the benefits of numerosity become magnified by the opportunity for collegial deliberation. Such
deliberation among judges addressing the same legal issues helps to foster universal awareness of potential approaches and to ferret
out faulty or incomplete reasoning. 156
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AT: Lower Courts Have Expertise

Even if lower courts have expertise, it doesn’t justify overruling – there are alternate forums.
The countervailing argument that a rigid rule of obedience stifles lower courts' potential to spur desirable law reform has some force to
it. 215 But this argument fails to the extent that Article III itself designates the Supreme Court as the interpretive leader of the federal
judiciary. Moreover, the argument is further undermined by the fact that lower courts can still contribute to an interpretive dialogue
through critical opinion-writing short of actual underruling, 216 and a rule allowing underruling even under limited circumstances
might easily be abused by lower court judges confronting disfavored precedents. 217 On balance, the premium placed on national
interpretive uniformity and centralization of final judicial authority persuasively justifies a bright-line rule of obedience.
Benefits of lower courts are exaggerated – they aren’t “laboratories.”
[*56] Defenders of inferior court dialogue typically describe lower courts as "laboratories" in which multitudes of judges
independently evaluate and construct legal arguments. 196 Specifically, they independently interpret existing precedents, identify and
flesh out various legal principles and their applications, and construct what they consider to be optimal and workable doctrinal rules.
When a legal question reaches the Supreme Court, the Court can inform its own judgment by the processes and conclusions of these
separate judicial laboratories as they grapple with pure questions of law.
Ironically, I believe that this most-often-cited contribution of lower court percolation is also the most exaggerated. 197 In a mature
legal system, there quite frequently exists a relatively small number of readily identifiable, plausible interpretations of precedent and
sensible doctrinal constructs. In such cases, the independent judgment of inferior courts will not likely bring to the Supreme Court's
attention arguments and approaches that would not otherwise present themselves either upon the Justices' (or their clerks') reflection,
through briefing by litigants or amici curiae, or through scholarly commentary. 198 Moreover, the more a particular issue has already
percolated its way up to the Supreme Court such that individual Justices have already issued dispositional rules or probative dicta on
point, the less likely that an inferior court deciding the issue will have a novel approach to share.
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Lower court action is overrated – Supreme Court has more expertise and
makes more credible decisions.
[*57] Of course, lower court judges might on some occasions devise unique analyses or doctrines that have and would
otherwise continue to escape notice. Even then, such judges could bring their ideas to their superiors' attention without relying
on those ideas for their disposition. For example, an inferior court judge who held a strong and apparently novel view on a
legal issue might decide a case based on the Supreme Court's predicted ruling, but simultaneously include in her opinion an
explanation of her preferred legal analysis. 199 In this way, the judge can both employ the proxy model and yet simultaneously
provide the Court with the widest possible range of views. 200 Overall, the claim that inferior court percolation is essential to
provide a comprehensive array of analyses and approaches available to the Supreme Court seems to inflate its contribution
significantly.
The proxy model does make it more difficult or awkward for a lower court judge to share with the Court her level of conviction
concerning which approach is optimal. And perhaps this conviction ought to matter, at least for certain types of legal issues. On
one hand, with respect to most straightforward questions of statutory construction, I doubt that the strength of an inferior
court's conviction that a particular interpretation provides the best reading will -- or should-influence the Supreme Court's
independent judgment. It is difficult to see what expertise the inferior court might bring to the problem that would
outweigh the general presumption of greater proficiency in the Supreme Court. 201
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Even if lower courts have expertise, Supreme Court won’t listen to their input.
On the other hand, perhaps inferior courts, and particularly district courts, will have some special insights into legal questions
arising in [*58] specific contexts. For example, district courts might be better situated to determine whether particular
evidentiary exclusionary rules deter police misconduct, given their greater exposure to testimony by and about police officers.
District or circuit courts might offer unique contributions when discussing region-sensitive areas of law such as environmental
law and labor law, for which, perhaps, the needs and burdens of federal law would be felt quite differently in varying
geographic regions. Finally, district court judges might gain, through close, personal exposure to litigants, important insights
into people's thoughts, attitudes, and fears that arguably deserve attention and respect from our legal order. For example, Judge
Terry Hatter's decision in Meinhold 202 is but one of a recent spate of district court opinions invalidating various military
policies excluding homosexual persons from service on the ground that such policies are based on prejudice rather than rational
argument. 203 These rulings might reflect an enlightenment about the character and quality of homosexual servicepersons 204
and the character and agenda of the armed services 205 obtainable best through direct and sustained interaction with both. 206
Even in such contexts, I question whether inferior court judgments significantly influence ultimate Supreme Court rulings very
often. At present, the Court's decisional processes and methodologies often preclude any such influence. Justices
frequently do not avail themselves of any potential inferior court contributions, 207 and they frequently employ [*59]
interpretive methodologies, such as plain-language interpretation or originalism, for which contextual assessments concerning
how a rule will play out in a given region or how it will affect particular persons have little if any relevance. Even if the Court
were to employ interpretive methodologies more attentive to the real world context in which a legal rule is situated, 208 the
number of occasions in which district (or appellate) courts' convictions about legal questions, as opposed to factfinding, would
overshadow other sources of information and conviction available to the Justices might remain quite small. Hence, district
courts revealing their independent convictions in the kinds of cases mentioned above might offer important contributions, but
only in a few instances.
Finally, some defenders of percolation suggest that divergent inferior court rulings are desirable because they create real-world
experiments that can help Supreme Court Justices determine the workability and desirability of various legal rules governing a
particular issue. 209 This appears more true in theory than in practice. It is already a stretch to assume today that Justices or
their clerks carefully read lower court opinions. 210 It goes even further to assume that Justices actually monitor and compare
the actual operation of divergent lower court rules, 211 particularly when the Court's interpretive methodologies frequently
eschew the relevance of such empirical data. 212
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No Solvency - Supreme Court Sets Law
No Solvency - only the Supreme Court can change the law
Michael C. Dorf, Associate Professor of Law at Rutgers University, JD from Harvard, 42 UCLA Law
Review 651, 1995, “Prediction and the Rule of Law”
[*677] Notwithstanding Judge Woodbury's points, the efficiency-based argument for prediction rests on the rather dubious
assumption that a lower court prediction that an existing high court precedent will be overruled will in fact prevent the high court from
having to take the case. If anything, such an approach would seem to have the opposite effect. When a federal appeals court judge
predicts that the Supreme Court will likely renounce some existing precedent, for all courts outside the judge's circuit, the prediction
does not actually change the law: Only the Supreme Court can do that. Even if the appellate judge accurately predicts the
Supreme Court's inclination to change the law, the Court will still have to take the case to do so. On the other hand, if the appeals court
mistakenly predicts that the Supreme Court would overrule a precedent, the Court would almost certainly have to take the case to
resolve the split in authority. 88 Thus, regardless of the accuracy of the appeals court's prediction, it saves the Supreme Court no work.
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No Solvency – State Courts
State courts don’t listen to circuit court precedent.
Larry W. Yackle, Professor of Law at Boston University School of Law, 91 Cornell Law Review 541, 2006
[*554] Of course, the arrangements under which inferior federal courts take up their duties are complex. Those courts have original
jurisdiction to resolve most civil disputes genuinely arising under federal law. 70 Yet state courts ordinarily have concurrent
jurisdiction in the same cases. 71 By tradition, state courts and inferior federal courts are coordinate equals operating in a single
judicial system. Inferior federal courts have no appellate jurisdiction to review state court judgments for error, 72 and the Full
Faith and Credit Statute typically prevents them from considering issues that were or might have been adjudicated previously in civil
proceedings in state court. 73 We have developed a host of other quasi-constitutional norms, statutes, rules, and common law doctrines
to mitigate competition and friction between the two sets of courts contending, after a fashion, for the same business. 74 In all these
ways, we prevent inferior federal courts from routinely superintending the work of their state counterparts in civil cases implicating
federal law. 75
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Turn – Judicial Economy
More discretion to lower courts overloads the Courts docket and hurts judicial
economy
Hugh Baxter, Associate Professor at Boston University, JD at Stanford, PhD at Yale, 46 UCLA Law
Review 343, 1998
Speaking last and decisively, however, is apparently not enough for the Court. Rodriguez de Quijas's insistence on the Court's special
"prerogative" may rest on three additional considerations. First, the Court may believe [*448] that reasons of judicial economy
require limits on the lower courts' interpretive freedom. Second, the Court may believe that line-drawing problems counsel against
recognizing even a small category of cases in which lower courts permissibly could refuse to enforce a Supreme Court precedent.
Third, the Court likely prefers to retain maximum control over the timing of legal change and maximum control over its own docket.
Allowing lower courts the opportunity to force a decision whether to overrule a precedent arguably would interfere with the Court's
power to manage the process of legal change. 532
The judicial economy point is not wholly mistaken. Admittedly, allowing lower courts to determine that a Supreme Court precedent is
no longer applicable might marginally increase the likelihood or scope of litigation in some cases. The reasons why are as follows.
Under Rodriguez de Quijas, the only chance of ultimate victory for the party seeking an overruling decision lies in the Supreme Court.
This still would be true if Rodriguez de Quijas's constraints were relaxed, because the losing party likely would seek Supreme Court
review, and the Court likely would grant it, in most cases in which a federal court of appeals or state supreme court refused to apply a
Supreme Court precedent. But the party seeking an overruling decision would have a better chance of getting Supreme Court review,
and perhaps ultimately victory, if the lower courts could force the Court to take the case by declining to apply one of the Court's
precedents. This improved chance of success might make parties more likely to challenge embattled Supreme Court precedents.
Some suits likely would be filed that would not have been filed under Rodriguez de Quijas, and in some cases that would have been
filed anyway, the additional issue whether to follow the Court's precedent would marginally burden the courts at each level.
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AT: Judicial Economy Net Benefit
No Net Benefit – The CP doesn’t increase efficiency, the Supreme Court will
eventually have to hear the case.
Michael C. Dorf, Associate Professor of Law at Rutgers University, JD from Harvard, 42 UCLA Law
Review 651, 1995, “Prediction and the Rule of Law”
[*677] Notwithstanding Judge Woodbury's points, the efficiency-based argument for prediction rests on the rather dubious
assumption that a lower court prediction that an existing high court precedent will be overruled will in fact prevent the high court from
having to take the case. If anything, such an approach would seem to have the opposite effect. When a federal appeals court judge
predicts that the Supreme Court will likely renounce some existing precedent, for all courts outside the judge's circuit, the prediction
does not actually change the law: Only the Supreme Court can do that. Even if the appellate judge accurately predicts the
Supreme Court's inclination to change the law, the Court will still have to take the case to do so. On the other hand, if the appeals court
mistakenly predicts that the Supreme Court would overrule a precedent, the Court would almost certainly have to take the case to
resolve the split in authority. 88 Thus, regardless of the accuracy of the appeals court's prediction, it saves the Supreme Court no work.
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No Solvency - Supreme Court Will Reverse
No Solvency – the Supreme Court is actively opposed to lower courts not

following precedent and will strike down the counterplan.
The Khan litigation represents a relatively extreme version of an [*970] increasingly common phenomenon: the Supreme Court's
insistence that lower courts must apply and follow an extant, on-point precedent of the Court no matter how outdated that precedent,
and no matter how much later decisions may have undermined the reasoning of that precedent. This rule, at least in its modern,
implacable form, is of relatively recent vintage. 16 Though in various opinions the Court has hinted at such a principle for many years,
17 it was only in 1989 in Rodriguez de Quijas v. Shearson/American Express, Inc. 18 that the Court unequivocally stated: "If a
precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the
Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own
decisions." 19 Rodriguez de Quijas also involved application of a moribund and seemingly undermined Supreme Court precedent, but
in that case, unlike Khan, the Court of Appeals chose to treat the precedent as not binding. For this impudence, the Supreme Court
scolded the lower court (despite the majority's agreement with and affirmance of the Appeals Court on the merits of the case), with
the dissent in the Court accusing the Court of Appeals of "engaging in an indefensible brand of judicial activism." 20 As in Khan,
however, the Court offered no justification for its adoption of this rule. Since Rodriguez de Quijas, as Judge Posner notes, the Supreme
Court has become "increasingly emphatic, even strident" n21in its insistence that lower courts follow all extat Supreme Court
precedent until and unless it has been expressly overruled. Another recent, prominent example of this trend is Agostini v. Felton, a
case which because of its unusual procedural posture presented a particularly striking application of the Court's approach. 22 In this
[*971] paper, I do not mean to debate the merits and demerits of this approach in detail. Other scholars have discussed the evolution
of the rule of Rodriguez de Quijas, and have ably (as well as almost unanimously) critiqued it. 23 Instead, I wish to look at this rule in
a broader context, to seek out its institutional roots and purposes, and through this to try and cast light on the broader question of the
role of the Supreme Court in the federal judiciary.
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No Solvency – Supreme Court Will Reverse
The Court has already shown its hand – they will overrule any lower court
violation of precedent.
Further explanation for the Court's approach towards undermined precedents seems necessary, and the only one that comes to mind is
distrust of the lower courts - and in particular, distrust of the lower federal courts since they are most likely to be in the position to
"underrule" the Court's decisions. The Court seems willing to tolerate the inefficiency, delay, and occasional injustice generated by its
approach because it does not wish to grant lower courts the authority to decide when a precedent of the Court has been so
undermined as to be no longer binding. In light of the above criticisms, other justifications for the rule, such as minimizing conflict,
or maintaining an orderly system of justice, vanish. A strict application of the doctrine of Rodriguez de Quijas seems more likely to
breed confusion and conflict (albeit internal conflict within the judiciary as a whole, rather than inter-circuit conflict) than to reduce it.
Therefore, whether justified as a form of respect or as a necessary consequence of stare decisis principles, the doctrine of Rodriguez
de Quijas ultimately must be understood as a mode of control, of exercising power over the other courts in the federal judicial
hierarchy. When the Court insists on retaining its "prerogative... to overrule one of its precedents" 56 - note the royal connotations 57 -
it is attempting to exercise a strict form of supervision over lower courts, thereby denying them a substantial area of discretion. 58
The Supreme Court will reject the counterplan.
Whatever its causes, evidence of such a change in the Court's attitude abounds. In addition to the "underruling" rule of Rodriguez de
Quijas, there are the recent, highly publicized disputes between the Supreme Court and the Ninth Circuit over implementation of the
death penalty. On two separate occasions in recent years the Court has chastised the Ninth Circuit Court of Appeals for obstructing
state efforts to carry out a death sentence. 63 In the first incident, involving the execution of Robert Alton Harris in 1992, the Court
took the extraordinary step of issuing an order to the Ninth Circuit stating that "no further stays of Robert Alton Harris' execution shall
be entered by the federal courts except upon order of this Court." 64 In the second case, involving Thomas Thompson, the Court
severely criticized the Ninth Circuit's unusual procedural actions, accusing the lower court of negligence, coming close [*979] to
accusing it of bad faith, and concluding that the Ninth Circuit had committed a grave abuse of discretion. 65 The dispute between the
Supreme Court and the Ninth Circuit might simply be attributed to politics; but that is not a complete explanation. In recent years, the
Court has made it a priority to severely limit judicial, especially federal judicial, interference in the death penalty process, and thereby
to speed up the execution process in this country. The Court's substantive Eighth Amendment jurisprudence, as well as its decisions
limiting federal habeas corpus relief, reflect this policy. 66 In Harris and Thompson the Ninth Circuit demonstrated a willingness to
ignore the Court's policy preferences. This was unacceptable to the Court, and in response in Harris, it took the extreme, and arguably
illegitimate, step of stripping the Ninth Circuit of the judicial power conferred on it by Congress.
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No Solvency – Supreme Court Will Reverse
No Solvency – Supreme Court will overrule the counterplan.
C. Steven Bradford, Assitant Professor of Law at University of Nebraska College of Law, JD from Harvard
Law, 59 Fordham Law Review 39, 1990
In Rodriguez, the court expressly overruled Wilko and extended the McMahon holding to 1933 Act claims, in effect confirming the
prediction of those courts that viewed McMahon as overruling Wilko. Both the majority and the dissent in Rodriguez, however, lashed
out at the lower courts for what the Justices saw as a premature rejection of Wilko. According to the Supreme Court, lower courts
owe absolute allegiance to Supreme Court opinions, doubtful or not, until the Supreme Court expressly overrules them. "If a
precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions," the
Rodriguez majority wrote, "the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative
of overruling its own decisions." 17 With no further discussion of the issue, the Supreme Court rejected anticipatory overruling.
The Court would feel extra pressure to reverse the counterplan.
Review 343, 1998
A more weighty argument in favor of Rodriguez de Quijas, I think, concerns the Court's interest in managing the process and timing of
legal change, by maintaining full control over its own docket. The Court may have determined to overrule one of its precedents, but
only in the right sort of case. It may be interested, for example, in taking a case with a particular kind of fact-situation, in ensuring that
both sides are represented by good counsel, in avoiding procedural quirks in the case under review, or in taking a case in which the
issue has adequately "percolated" in lower courts. Such considerations, important in any decision to grant certiorari, 534 are perhaps
more important in cases in which the Court is considering whether to announce the overruling of one of its own precedents. Yet the
Court would feel strong pressure to take any case in which the lower court held a directly relevant Court precedent
unenforceable in light of more recent Court authority. Relaxing the constraints of Rodriguez de Quijas, then, arguably would interfere
with the Court's management of legal change.
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Supreme Court Solves Lower Courts

Lower courts follow Supreme Court precedent.
Tajuana Massie, Department of Political Science at University of South Carolina, American Political Science
Association, Sept. 2004, “Precedent or Ideology?”
Several recent studies have analyzed the impact of Supreme Court doctrine on the decisions of the U.S. Courts of Appeals, finding
empirical support for the proposition that appeals courts follow precedents established by the Court. In the policy areas of antitrust and
labor, criminal rights, economic regulations, libel, and patents, scholars have found no clearly defiant or overtly noncompliant
decisions by the courts of appeals with precedents established by the Court. For example, in his study, Gruhl (1980) examined appeals
court libel decisions in the decade following the Supreme Court’s decision in New York Times v. Sullivan (1964), to determine
whether these lower courts faithfully applied the new actual malice test mandated by the Supreme Court. He found that the appeals
courts consistently followed the new precedent, and in fact, accepted the basic principle of the Supreme Court’s decision. Additionally,
Gruhl found that appeals courts often extended the Court’s decision in New York Times, in anticipation of the direction that the Court
appeared to be moving. In his study, Johnson (1987) found that appeals court judges tend to follow the Supreme Court in decisions
they cite as precedent. In another study, Pacelle and Baum (1992) found compliance of appeals courts with Supreme Court remands.
Songer and Haire (1992) using an integrated model of judicial attitudes, case characteristics, defenses raised by litigants, and changing
Supreme Court precedent found that appeals courts obscenity decisions became more conservative after the Court’s decision in Miller
v. California. Furthermore, Songer, Davis, and Haire (1994) found appeals court judges to respond positive to Supreme Court job
discrimination decisions. While more recently, Benesh (2002) found that courts of appeals judges tend to comply with the Court’s
decision in confession cases. Although these studies find courts of appeals decisions to be following precedents established by the
Supreme Court, other empirical evidence suggests that these courts are instead responding to shifts in Supreme Court ideology.
Supreme Court has declared its authority over lower courts
Amy Coney Barrett, Assistant Professor of Law at Notre Dame Law School, 106 Columbia Law Review 324,
March 2006
The Supreme Court's relationship to inferior federal courts is not a matter on which the Court typically reflects in any depth.
Nevertheless, the Court in Dickerson recently expressed great confidence in at least one aspect of that relationship: its authority over
inferior federal court procedure, even outside the confines of the statutorily authorized federal rulemaking process. As Dickerson
suggests, the idea that the Supreme [*325] Court possesses supervisory authority over inferior court procedure is well entrenched in
its cases. The Court claimed such authority for the first time in 1943, 2 and since then, it has invoked that authority to announce,
through adjudication, a wide range of procedures binding in inferior courts.
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Supreme Court Will Reverse – State Court Conflict
The couterplan leads to inconsistency between state courts and circuit courts –
this guarantees Supreme Court review.
Frank Pommersheim, Professor of Law at University of South Dakota School of Law, 71 University of
Colorado Law Review 123, 2000
Two recent cases neatly illustrate this state-created means to end run the doctrine of comity, 34 the Supremacy Clause 35 and
principles of collateral estoppel. 36 These cases are Hagen v. [*138] Utah 37 and South Dakota v. Yankton Sioux Tribe. 38 In
each of these cases, the Supreme Court decided that an Indian reservation - the Uintah Indian Reservation in Hagen and the
Yankton Sioux Reservation in Yankton Sioux Tribe - had been diminished by congressional actions taken in 1905 and 1894,
respectively. 39 Both of these cases overruled circuit court decisions to the contrary. 40 Both of these cases also involved state
supreme court decisions made in derogation of circuit court precedent directly on point. 41 The state supreme court decisions
created the necessary conflict with circuit court case law to guarantee Supreme Court review. 42 This approach achieved
the desired Supreme Court review and the Supreme Court, in its current states' rights and anti-tribal sovereignty mode,
provided the necessary ad hoc reasoning to conclude that the reservations were necessarily diminished. 43
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Supreme Court Will Reverse – Ninth Circuit Involvement
Ninth Circuit involvement slaughters CP solvency – the Supreme Court will

reverse.
Kevin M. Scott, PhD Assistant Professor of Political Science at Texas Tech University, 48 Arizona Law Review
341, 2006
Over the past fifty years, the Ninth Circuit, the largest circuit court in the country, has been reversed by the U.S. Supreme Court an
average of 10.78 times per term. The next closest circuit, the Fifth Circuit, which is also the second largest circuit, was reversed an
average of 7.42 times. The frequency of the Ninth Circuit's reversals has been even greater in recent times: over the past twenty-one
Supreme Court terms (since the Fifth Circuit was split), the Ninth Circuit has been reversed an average of 14.48 times, with the next
closest circuit (the "new" Fifth) reversed 5.14 times per term over the same time period. This disparity grows even greater if one
considers that the Supreme Court's caseload has been decreasing steadily since the late 1980s. Figure 1 plots the number of reversals
per term for the Ninth Circuit (a three-year moving average), as well as the proportion of [*342] Supreme Court reversals that come
from Ninth Circuit decisions. Even using a moving average, one can observe the familiar "spikes" in Ninth Circuit reversal
frequencies in the 1983 and 1996 terms. While the reversal rate itself may be sufficient cause for concern, criticism of the Ninth
Circuit also focuses on the frequency with which the reversal by the Supreme Court is unanimous. Taking the subset of cases used to
calculate Figure 1 that were decided by eight-to-zero, eight-to-one, and nine-to-zero votes (allowing for lone dissents), it is also clear
that the number of unanimous and nearly unanimous reversals for the Ninth Circuit is astonishingly high; the Ninth Circuit's
proportion of lopsided reversals is greater than its proportion of reversals decided by a closer vote. [*343]
Even if one accounts for the workload of the Ninth Circuit, the frequency with which the Ninth is reversed is a statistical anomaly.
2 Recent congressional reviews of the Ninth Circuit effectively highlight the different possible explanations of the frequency of
reversals of Ninth Circuit cases. The first attempt, which culminated in the report of the Commission on Structural Alternatives for the
Federal Courts of Appeals, 3 focused on the impact of the circuit's size on its ability to maintain uniform law within the circuit. 4 The
Ninth Circuit, with twenty-eight authorized judgeships, has eleven more judgeships than the next largest circuit (the Fifth) and has two
more judgeships than the Fifth Circuit did at the time it was split into two circuits. 5
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AT: Lower Courts Check Judicial Activism
Lower Courts can’t check the power of the judiciary.
Of course, none of these checks resemble the blunt limits on power available against the political branches. It should be noted in this
regard that the changes that I propose here do not require any tangible modifications to existing procedures and doctrines (other than,
perhaps, overruling the doctrine of Rodriguez de Quijas and Agostini). 247 They instead require some evolution in the institutional
culture and attitudes of the federal judiciary, a far more subtle and difficult thing. At bottom, I suggest that the Court would do a better
job, and would better serve its constitutional role, if it treated the lower federal courts as collaborators, rather than as employees. Of
course, all collaborators are not created equal, and nothing I propose would deny the Court the power to have the final word on cases
or issues; but it would change the extent to which the Court tries to micromanage the activities of the lower courts. Realistically,
therefore, the possibility of such change is probably slight because the Court is composed of human beings, and human beings are
notoriously unwilling to yield power for the sake of abstract benefits. It may also be in vain to hope for such limited resistance from
the lower courts. Such a reaction against the leaders of their own branch of government would be difficult, especially because as noted
the Supreme Court seems unlikely to cooperate in a project which would curtail its own power. Any assertion of independence on
the part of the lower judiciary will necessarily be in the face of opposition, active resistance, and criticism by the Supreme
Court, a force which in truth most federal judges are likely to find irresistible. And in fact, lower courts show only a limited
willingness to express their dissatisfaction, or to try and nudge [*1014] the Court towards a more collaborative approach.
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AT: Lower Courts Check Judicial Activism – Timeframe
A lower court check on Supreme Court activism would take a long time.
Moreover, even if the Court is willing to contemplate a loss of power, such changes in the Court's culture and practices will take some
time to become useful, because of the effects that the modern Court's approach of stripping independence and authority has had on the
culture of the lower federal courts. Many if not most lower court judges no longer think of themselves as participants in the joint
process of formulating legal rules, and the consequent loss of intellectual independence and curiosity makes those courts ill-suited to
(and apparently uninterested in) the collaborative process which I espouse. None of this, however, is irreversible, and such resistance,
if it were to emerge, would provide at least some check on the Court's power. That can only be an improvement on the current
situation: a Court which faces essentially no external restraints on its power, and has largely abandoned any internal ones.
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No Solvency - Doesn’t Set Precedent
Lower court action can’t set a precedent like a Supreme Court decision.
Review 343, 1998
The terms "overruling" and "underruling," sometimes used to include any lower court decision that refuses to enforce a Supreme
Court precedent, obscure one further limitation on the present theory. A lower court's determination that the Supreme Court has
abandoned or implicitly overruled an earlier precedent would not have the same legal impact as a similar decision by the Supreme
Court itself. The lower court's decision in such a case would have no more authority than any other lower court decision - that is, it
would not bind higher courts in the same jurisdiction, nor would it bind courts from other jurisdictions. Further, if the decision were
rendered by a federal district court, it would be subject to a contrary determination by a court of appeals panel, and that decision itself
would be subject to possible en banc review. Similar checks on lower-court interpretation are in place in the state courts. These layers
of pre-Supreme Court review likely would insulate the Court from most "rogue" decisions - decisions that are, in any event, always
possible, with or without Rodriguez de Quijas's teaching. 530 And finally, of course, the Supreme Court would have in these matters
the last and decisive word. 531
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AT: CP Leads to Plan
Lower Court action doesn’t lead to Supreme Court modeling
The concept of "percolation" provides another example of the Court's changing attitudes towards the rest of the judiciary. It has long
been a predicate of Supreme Court decision-making that before the Court grants certiorari to finally resolve an issue, it will often
choose to allow the issue to "percolate" in the courts of appeals, so that the Court has the benefit of multiple perspectives. 67 In recent
years, however, no less a figure than Chief Justice Rehnquist has questioned the value of percolation, n68ad a number of academic
commentators have agreed, suggesting implicitly (or explicitly) that the lower courts have little to contribute to the Supreme
Court's decision-making. 69 Furthermore, Evan Caminker has made the argument, with which I agree, that Supreme Court Justices
rarely even read lower court opinions anymore (if they ever did), thereby reducing the value of any percolation. 70 [*980] And even
after the Court has resolved a problem, and adopted a doctrinal rule, the Justices also seem to completely lack the institutional capacity
to observe the actual operation of various doctrinal formulations in the lower courts, and so to make practical assessments of their
"workability and desirability." 71 There are many complex reasons for these developments, including growing caseloads in the lower
courts, which limit the Court's ability to keep track of lower court decisions, and the explosion in the filing of amicus briefs that makes
lower court opinions a less important source of data and legal arguments. 72 The results are nevertheless clear - a growing isolation of
the Supreme Court from the rest of the judiciary.
Lower Court action will never change the Supreme Court’s mind.
In addition, it is highly unlikely that an inferior court exercising independent judgment would benefit the Court's ultimate
decisionmaking to all appreciable extent. Whatever the percolation value generally of inferior court input, 235 the fact that some or all
of the Supreme Court Justices would have already addressed the issue would make the marginal value of more input close to if not
zero. First, the issue likely would have percolated among the lower courts prior to the Supreme Court's addressing it, at which time the
proxy model, like the precedent model, would have revealed the inferior courts' independent reasoning. Second, now that various
Justices would have taken a firm position in writing, it is doubtful that they would change their mind simply on the basis of a
contrary lower court opinion. The likely percolation value of independent judgment is therefore quite specious when predictive data
falling into the first two categories are available.
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AT: CP Leads to Plan – Links to NB
If the counterplan leads to Supreme Court action, it links to all of their

legitimacy net benefits. An overrule is an overrule, regardless of who initiates
it
But the desire to maintain national uniformity cuts the other way. In this context, uniformity has both a temporal and a geographical
dimension. With respect to temporal uniformity, if the Supreme Court did in fact overrule itself, there would be an abrupt break in the
law either way, whether initiated by the inferior court through anticipatory overruling or initiated later by the Supreme Court's
reversing the inferior court's reliance on precedent. If the Supreme Court perchance decided in the end not to overrule itself, then in
hindsight a proxy court would have created a momentary instability in the law, but a precedent court would have maintained
continuity. 248 With respect to geographical uniformity, the precedent model's requirement that all courts stick with the old precedent
ensures perfect consistency. The proxy model at best might do the same, but could possibly generate conflicts. Thus, both dimensions
of uniformity counsel rejection of prediction.
The interest in taking advantage of the Supreme Court's special proficiency is equivocal at best. The old rule reflected, at the time it
was decided, the Court's functional and structural advantages. The probative data suggesting a new position might or might not do the
same, depending on whether the relevant predictive data fall into the first two categories of previously endorsed dispositional rules or
strong dicta. Thus, even with a high correspondence probability, the proxy model does not clearly advance the hierarchy values. 249
[*72] Finally, a bar on anticipatory overruling would assuage any concerns that inferior courts might abuse the proxy model by
stretching to circumvent disfavored Supreme Court precedents based on relatively flimsy evidence that the Court might overrule them
itself. 250 Because the cost of such behavior to uniformity values is quite high, a prophylactic rule against anticipatory overruling
seems sensible. 251
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Legitimacy DA
The counterplan devastates Supreme Court legitimacy.
Lindsay Harrison, lecturer in law at University of Miami, JD from Harvard Law School, 2005,
http://legaldebate.blogspot.com/2005/11/courts-of-appeal-cp.html
If the Courts of Appeal were to uniformly ignore and in fact contradict binding Supreme Court precedent, it would undermine the
Court's legitimacy and would call into question our entire judicial system. As Professor Stephen Presser has stated, "There is no more
basic principle of our federal judicial system than the binding nature of Supreme Court precedent on the courts of appeals and the
district courts." (Professor of Legal History, Northwestern University School of Law, Should Ideology of Judicial Nominees Matter? 6
Tex. Rev. L. & Pol. 245 (2001)).
Part of the reason the U.S. judicial system is so well-respected is the adherence to precedent by the intermediate appellate courts. If
those courts were to abandon that principle and then the Supreme Court denied cert, it would be an unprecedented (no pun intended)
blow to the Court's legitimacy, both in the domestic legal world and abroad. Not only would the discretion of the Courts of Appeal
be called into question, but the Supreme Court would be taken to task for shirking its responsibility - nothing could make the Court
appear weaker than to be told by its literal inferiors that it got it wrong on a question of constitutional law and then to functionally
concede the point by denying cert.
Inconsistency between the lower courts and Supreme Court drains public
respect for the judicial system and the rule of law.
Uniformity of federal law interpretation across the nation ought to be considered equally important in preserving courts' perceived
legitimacy. If federal law means one thing to one court but something else to another, the public might think either or both courts
unprincipled or incompetent, or that the process of interpretation necessarily is indeterminate. Each of these alternatives subverts the
courts' efforts to make their legal rulings appear objective and principled. 152 Of course, perceived legitimacy is not measurable and is
likely affected by a number of variables besides divergent interpretations by autonomous courts. 153 But at the margin, respect for
judicial authority would likely suffer if persistent interpretive conflicts among the federal courts led the public [*854] to believe that
interpretation is inherently arbitrary and unprincipled. Put succinctly, internal consistency strengthens external credibility. 154
Cultural desire for a single authoritative voice. Given the Supreme Court's plenary jurisdiction over federal questions, the present
hierarchical judiciary vests in a single court the opportunity to provide a final, authoritative voice on the meaning of federal law. One
result of this arrangement is nationwide uniformity of interpretation. Yet the presence of a final arbiter may also serve psychological as
well as instrumental purposes. In an uncertain world of indeterminate and shifting norms, having a single oracle to provide us answers
is comforting. To a great degree, this is how today's public perceives the Supreme Court. 155 Arguably, we need the Court to play
this role to maintain a sense of community in our diverse society. 156 Thus the Court's status as the final authority on the meaning of
federal law, which assures a measure of uniformity, may also reinforce our need to believe that we live under the rule of law. 157 In
sum, consistent interpretation and application of law can secure several important values undergirding a government dedicated to the
rule of law. To the extent the doctrine o hierarchical precedent promotes these values, the doctrine has a plausible normative
foundation.
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Legitimacy DA
The counterplan introduces chaos into the legal system and undermines the
Supreme Court
Judge Bork, John M. Olin Scholar in Legal Studies at the American Enterprise Institute, National Review, “The
Case Against Political Judging,” 12/8/89, http://www.highbeam.com/library/docFree.asp?DOCID=1G1:8185767
The practice of overruling precedent is particularly common in constitutional law, the rationale being that it is extremely difficult for
an incorrect constitutional ruling to be corrected through the amendment process. Almost all Justices have agreed with Felix
Frankfurter's observation that "the ultimate touchstone of constitutionality is the Constitution itself and not what we have said about
it." But that, of course, is only a partial truth. It is clear, first, that Frankfurter was talking about the Supreme Court's obligations with
respect to its own prior decisions. Lower courts are not free to ignore what the Supreme Court has said about the Constitution, for that
would introduce chaos into the legal system as courts of appeal refused to follow Supreme Court rulings and district courts
disobeyed their appellate courts' orders. Second, what "the Constitution itself" says may, as in the case of paper money, be
irretrievable, not simply because of "what [the Justices] have said about it," but because of what the nation has done or become on the
strength of what the Court said.
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Legitimacy DA - Link
Lower Court disregard for Supreme Court precedent collapses legitimacy
C. Steven Bradford, Assitant Professor of Law at University of Nebraska College of Law, JD from Harvard
Law, 59 Fordham Law Review 39, 1990
Disregarding a standing, but doubtful, Supreme Court precedent arguably violates a lower court's duty of loyalty to the Supreme
Court. 234 Our multi-tiered judicial system is premised on respect for, and allegiance to, higher court pronouncements; disregarding
standing precedent upsets that system. The duty of obedience to the Supreme Court focuses not only on notions of judicial economy,
but also on the unique leadership role of the higher court. We entrust the Supreme Court with the ultimate judicial decision-making
power. Disregarding live Supreme Court precedent would arguably be a blatant usurpation of that power.
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Legitimacy DA – AT: “We Only Do It Once”
Even if underruling is good in rare circumstances, it’s better to not do it –

avoids a slippery slope.
Second, even assuming a category of rare cases exists for which underruling's benefits outweigh its costs, a rigid duty to obey might
still be desirable to prevent abuses of discretion. Suppose doctrine allowed inferior court judges to underrule superior court precedents
whenever they believed those precedents to [*864] be "outside the range of allowable judicial interpretation," or "lawless," or
"clearly wrong," or "not fully informed." Any such criterion would necessarily be somewhat elastic, and judges might (even in good
faith) stretch the criterion to justify underruling precedents with which they strongly disagree. 201 Thus, permission to underrule in
rare cases could easily lead to its overuse, meaning judges will underrule even when the costs of underruling a particular
precedent outweigh the benefits. At some point, underrulings in the aggregate will do more harm than good. It would then make
sense to withhold permission to underrule entirely. 202 In short, a bright-line doctrinal prohibition against underruling might reflect a
reasonable judgment that overdeterrence is better than the alternative.
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Supreme Court Reversal Good - Policymaking

Ignoring the potential for Supreme Court reversal amounts to the worst form
of policymaking – thinking ahead and modifying policies to avoid overrule is
key.
Barry Friedman, Professor of Law at New York University School of Law, 84 Texas Law Review 257, 2005
1. Testing Interbranch Constraint: The Separation of Powers Game. - Positive scholars analyze the extent to which the judiciary is
constrained by other branch actors by using "spatial" models - what some refer to as the "separation of powers game." 300 Although
the modeling can be quite complicated and the empiricism poses difficult challenges, the intuition is really quite simple. All
institutions (including the Supreme Court) have preferences as to policy outcomes, but in acting they also must take into account the
preferences of other branches that play a role in the ultimate policy choice. 301 To choose a familiar example, when Congress passes a
bill, it obviously has to consider the possibility of a presidential veto, and it probably also should think about whether the Supreme
Court is likely to overturn the statute on constitutional grounds.
Central to the operation of these models is the notion of "anticipated reaction," 302 which can make the play of the "game" difficult to
observe. [*312] Branch actors do not actually have to take action and then sit back and wait to see what happens. Congress need not
pass a statute and then wait for the President to veto it. Rather, institutional actors think ahead to what response their action will
engender and then modify their positions in light of the anticipated reaction in a way that moves policy closest to the preferred
outcome, while avoiding trumping action by another branch. Thus, Congress - anticipating a veto of legislation that is too liberal -
will pass a bill that is just conservative enough for the President to accept it or that ensures a two-thirds vote on congressional override
of any veto. The implication of anticipated reaction is that institutions may be responding to constraint, even if this is unobservable.
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CP Links to Politics
Lower court decisions can elicit strong negative reactions
Carlos E. Gonzalez, Associate Professor of Law, Rutgers School of Law – Newark, 45 Santa Clara Law Review
223, 2005
[*335] Most of the alternative systems, in contrast, would encourage courts to publicly justify their decisions by explaining the
democratic legitimacy related factors that actually influence their decisions. In cases where courts see special interest statutes of
dubious democratic legitimacy in conflict with more public regarding regulations, for example, the alternative systems would require
courts to discuss and explain how this circumstance influences whether the court decides to nullify the public regarding regulation.
Return to the Tenth Circuit's treatment of the "do not call" regulations discussed in the Introduction. 203 Though we can never know for
sure, it is very possible that the strong negative public reaction against lower court opinions nullifying the "do not call" regulations
was a key factor motivating the Tenth Circuit to uphold the regulations. The extant system governing conflicts between legal norms
did not give the Tenth Circuit a legitimate way to admit and discuss how the strong democratic legitimacy of the regulations might
have factored into its ruling. Most of the alternative systems, in contrast, would have required that the Tenth Circuit directly and
publicly grapple with this issue. At the very least, we are left with the question of whether the popularity of the "do not call"
regulation influenced the Tenth Circuit's decision. We are probably better off with systems that would allow courts to directly, openly,
and publicly discuss the factors that influence outcomes, than a system which forces courts into interpretive gamesmanship and leaves
one wondering what really drives outcomes.
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2AC Congress CP Frontline [1/3]

1. Counterplan doesn’t solve – just starts an endless fight between Congress
and the Courts.
Michael D. Shumsky, Law Clerk to the Honorable Diarmuid F. O'Scannlain, U.S. Court of Appeals for the
Ninth Circuit, 2003-2004 term, 41 Harv. J. on Legis. 227, “Severability, Inseverability, and the Rule of Law,”
Winter 2004
Ultimately, the analytical trump must be Congress's ability to override judicial decisions. But given that the theory under
consideration posits that courts can deliberately contradict legislative enactments, endless cycling could result. If Congress
enacts a statute, the Supreme Court rejects Congress's choice, and Congress then overrules the Court's decision, could the Court
then overrule Congress's override? Doing so seems plainly out of place in our constitutional order (though Eskridge has come
surprisingly close to suggesting that such repeated overrides are possible.) n191 In any event, absent a limiting principle that--
and here's the rub--the Constitution fails to supply because its structure does not contemplate the courts' exercise of such
authority, this game could go on forever. The assertion that policy choices must ultimately be left to Congress undermines
any claim that courts have inherent authority to contradict unambiguous, constitutionally valid statutory directives in the first
place.
2. Counterplan crushes the independent judiciary and strips the courts.

San Fransisco Chronicle, Dennis Herrera, city attorney of San Francisco, 1/25/07,
http://www.sfgov.org/site/cityattorney_page.asp?id=54641
Our nation's highest court has never allowed Congress to overturn a constitutional precedent by any means other than a
constitutional amendment. Should it do so now, it would self-inflict a devastating blow to judicial independence. Politicians in
the legislative and executive branches -- Republicans and Democrats alike -- will be on notice that judicial rulings may be ignored or
overruled. Our nation is at a point in its history in which the tension between increasingly complex national security obligations and
the need to protect civil liberties is particularly strong. It is times like these when each branch of government must fulfill its
constitutional duties with firm conviction. "There is no liberty, if the power of judging be not separated from the legislative, and
executive powers," wrote Alexander Hamilton, quoting Montesquieu, in The Federalist No. 78. Now more than ever, Americans need
to see attacks on "activist judges" for what they are: a bully tactic intended to enfeeble a coordinate branch of government. A vibrant,
independent judiciary must fulfill its obligation in enforcing a Constitution that protects us all.
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2AC Congress CP Frontline [2/3]

4.
A. Turn - democratic transitions are inevitable – only a symbol including a
strong, independent judiciary will promote the rule of law globally.
The Center for Justice and Accountability, Amici Curiae in support of petitioners in Al Odah et al. v USA, "Brief of the
Center for Justice and Accountability, the International League for Human Rights, and Individual Advocates for the Independence of
the Judiciary in Emerging Democracies," 3/10/04
Many of the newly independent governments that have proliferated over the past five decades have adopted these ideals. They
have emerged from a variety of less-than-free contexts, including the end of European colonial rule in the 1950's and 1960's,
the end of the Cold War and the breakup of the former Soviet Union in the late 1980's and 1990's, the disintegration of
Yugoslavia, and the continuing turmoil in parts of Africa, Latin America and southern Asia. Some countries have successfully
transitioned to stable and democratic forms of government that protect individual freedoms and human rights by means of
judicial review by a strong and independent judiciary. Others have suffered the rise of tyrannical and oppressive rulers who
consolidated their hold on power in part by diminishing or abolishing the role of the judiciary. And still others hang in the
balance, struggling against the onslaught of tyrants to establish stable, democratic governments. In their attempts to shed
their tyrannical pasts and to ensure the protection of individual rights, emerging democracies have consistently looked to the
United States and its Constitution in fashioning frameworks that safeguard the independence of their judiciaries. See Ran
Hirschl, The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional
Revolutions, 25 Law & Soc. Inquiry 91, 92 (2000) (stating that of the “[m]any countries . . . [that] have engaged in fundamental
constitutional reform over the past three decades,” nearly all adopted “a bill of rights and establishe[d] some form of active
judicial review”). Establishing judicial review by a strong and independent judiciary is a critical step in stabilizing and
protecting these new democracies. See Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical
and Conceptual Analysis, 44 Am. J. Comp. L. 605, 605-06 (1996) (describing the judicial branch as having "a
uniquely important role" in transitional countries, not only to "mediate conflicts between political actors but also [to] prevent
the arbitrary exercise of government power; see also Daniel C. Prefontaine and Joanne Lee, The Rule of Law and
the Independence of the Judiciary, International Centre for Criminal Law Reform and Criminal Justice Policy (1998) ("There is
increasing acknowledgment that an independent judiciary is the key to upholding the rule of law in a free society . . . . Most
countries in transition from dictatorships and/or statist economies recognize the need to create a more stable system of
governance, based on the rule of law."), available at http://www.icclr.law.ubc.ca/Publications/Reports/RuleofLaw. pdf (last
visited Jan. 8, 2004). Although the precise form of government differs among countries, “they ultimately constitute variations
within, not from, the American model of constitutionalism . . . [a] specific set of fundamental rights and liberties has the status
of supreme law, is entrenched against amendment or repeal . . . and is enforced by an independent court . . . .” Stephen
Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 718 (2001). This phenomenon
became most notable worldwide after World War II when certain countries, such as Germany, Italy, and Japan, embraced
independent judiciaries following their bitter experiences under totalitarian regimes. See id. at 714- 15; see also United States
v. Then, 56 F.3d 464, 469 (2d Cir. 1995) (Calabresi, J., concurring) (“Since World War II, many countries have adopted forms
of judicial review, which — though different from ours in many particulars — unmistakably draw their origin and inspiration
from American constitutional theory and practice. See generally Mauro Cappelletti, The Judicial Process in Comparative
Perspective (Oxford: Clarendon Press, 1989).”). It is a trend that continues to this day. It bears mention that the United States
has consistently affirmed and encouraged the establishment of independent judiciaries in emerging democracies. In September
2000, President Clinton observed that "[w]ithout the rule of law, elections simply offer a choice of dictators. . . .
America's experience should be put to use to advance the rule of law, where democracy's roots are looking for room and
strength to grow." Remarks at Georgetown University Law School, 36 Weekly Comp. Pres. Doc. 2218 (September 26,
2000), available at http://clinton6.nara.gov/2000/09/2000-09-26- remarks-by-president-at-georgetown-international-
lawcenter. html. The United States acts on these principles in part through the assistance it provides to developing nations.
For example, the United States requires that any country seeking assistance through the Millenium Challenge Account,
a development assistance program instituted in 2002, must demonstrate, among other criteria, an "adherence to the rule of law."
The White House noted that the rule of law is one of the "essential conditions for successful development" of these countries.
See http://www.whitehouse.gov/infocus/developingnations (last visited Jan. 8, 2004).12
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2AC Congress CP Frontline
B. Stable democracies solve nuclear war.

Larry Diamond, Senior Fellow, Hoover Institution, Co-Editor of the Journal of Democracy, and Professor, Political Science and
Sociology, Stanford University, December 1995 (Promoting Democracy in the 1990s: Actors and Instruments, Issues and Imperatives
– Carnegie Commission on Preventing Deadly Conflict)
http://wwics.si.edu/subsites/ccpdc/pubs/di/fr.htm
OTHER THREATS. This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the
former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies
through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have
utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The
very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to
security are associated with or aggravated by the weakness or absence of democracy, with its provisions for legality, accountability,
popular sovereignty, and openness.
LESSONS OF THE TWENTIETH CENTURY. The experience of this century offers important lessons. Countries that govern
themselves in a truly democratic fashion do not go to war with one another. They do not aggress against their neighbors to aggrandize
themselves or glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less
likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass
destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In
the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must
answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor international
treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret.
Precisely because, within their own borders, they respect competition, civil liberties, property rights, and the rule of law, democracies
are the only reliable foundation on which a new world order of international security and prosperity can be built
5. PERM – Do both, yo.
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Courts Good – Judicial Review

Judicial review is the best forum for promoting societal debate about the
constitution
Barry Friedman, Professor of Law at New York University School of Law, 84 Texas Law Review 257, 2005
Judicial review can be understood as attractive precisely because it is embedded in politics, but is not quite of it.
Politics and law are not separate, they are symbiotic. It would be remarkable to believe judicial review could operate
entirely independent of politics or would be tolerated as such. Nor is it clear that this would be desirable given social and
constitutional commitments to accountability and checks and balances. The practice of judicial review is valuable
in that it
serves as one more counterweight, like many others in our constitutional system. Moreover, because judicial
decisions about constitutional law are sticky - they cannot be overturned at [*334] the drop of a hat 415 - judicial
review serves to channel and foster societal debate about constitutional meaning. 416 Relatively insulated judges
may go off on their own, but, in the face of extended debate, Supreme Court decisions and public opinion ultimately come
into some rough accommodation with one another. It could not be otherwise. The system is dialogic and self-
enforcing. 417 It creates continual exchange between constitutional meaning and popular opinion, though
systemically and at a remove.
DDI 2008 BQ
Fishell [PMA]
AT: Constitutional Amendment CP

1. Adding small constitutional amendments trivialize the Constitution-
Decrease stability
Sullivan 1995 [Kathleen M., Professor of Constitutional Law, Stanford Law School, and author of the influential Sullivan &
Gunther Constitutional Law Casebook, Fall. (“Constitutional Amendments” – American Prospect) http://www.albionmonitor.com/1-
12-96/amendmentitis.html]
Stability. James Madison, one of the principal architects of Article V, disagreed with Jefferson. In Madison's view, "a little
rebellion now and then" is to be avoided. To be sure, Madison acknowledged in Federalist No. 43 that "useful alterations will
be suggested by experience," and that amending the Constitution must not be made so difficult as to "perpetuate its discovered
faults." But Madison cautioned too "against that extreme facility" of constitutional amendment "which would render
the Constitution too mutable." Implicit in this caution is the view that stability is a key virtue of a Constitution, and that
excessive "mutability" would thus undercut the whole point of having a Constitution in the first place. As Chief Justice
John Marshall put the point similarly in McCulloch v. Maryland, the Constitution is "intended to endure for ages to come."
Keeping amendment relatively infrequent thus preserves public confidence in the stability of the basic constitutional
structure. While the Framers had to take the argument from stability on faith, the argument looks stronger two centuries later.
The relative success of the American constitutional regime, one bloody civil war excepted, supports arguments along the lines
of "if it ain't broke don't fix it." Our spare Constitution has withstood the test of time. Anyone with a Burkean trust in the
collective wisdom embodied in custom and tradition ought to be wary of a sudden shift to rapid constitutional revision.
2. Amending the constitution for policymaking causes war.
The very idea of a constitution turns on the separation of the legal and the political realms. The Constitution sets up the
framework of government. It also sets forth a few fundamental political ideals (equality, representation, individual liberties)
that place limits on how far any short-term majority may go. This is our higher law. All the rest is left to politics. Those who
lose in the short run of ordinary politics obey the winners out of respect for the long-run rules and boundaries set forth
in the Constitution. Without such respect for the constitutional framework, the peaceful operation of ordinary politics
would degenerate into fractious war.
3. Specific Amendments decrease legitimacy of Courts and Constitution - turns

the DA
How have we managed to survive more than 200 years of social and technological change with only 27 constitutional
amendments? The answer is that we have granted broad interpretive latitude to the Supreme Court. Narrow construction would
necessitate more frequent resort to formal constitutional amendments. Broad construction eliminates the need. Thus the Court
has determined that eighteenth-century restrictions on searches of our "papers and effects" apply to our twentieth-century
telephone calls, and that the command of equal protection forbids racially segregated schools even though such segregation
was known to the 14th Amendment's framers. Neither of these decisions -- Katz v. United States and Brown v. Board of
Education -- required a constitutional amendment.
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Nor did the Court's "switch in time that saved nine" during the New Deal. In the early twentieth century, the Court
struck down much federal economic legislation as exceeding Congress's power and invading the province of the states.
Under President Roosevelt's threat to expand and pack the Court, the Court desisted, and
AT: Constitutional Amendment CP
[card continues]
started to defer to all legislation bearing some plausible relationship to interstate commerce. Some scholars have called the
Court's decision to defer to national economic legislation revolutionary enough to count as an informal constitutional
amendment, but most view it as within the broad contours of reasonable interpretive practice.
Increasing the frequency of constitutional amendment would undermine the respect and legitimacy the Court now
enjoys in this interpretive role. This danger is especially acute in the case of proposed constitutional amendments that would
literally overturn Supreme Court decisions, such as amendments that would declare a fetus a person with a right to life, permit
punishment of flag burning, or authorize school prayer. Such amendments suggest that if you don't like a Court decision,
you mobilize to overturn it.
4. Constitutional legitimacy is key to the Rule of Law and solvency – impact is

extinction.
Sadat ’04 (Henry H. Oberschelp Prof of Law, “An American Vision for Global Justice” Sept 7,
http://www.google.com/search?q=importance+of+supreme+court+legitimacy+poverty&num=20&hl=en&hs=277&lr=&client=
firefox-a&rls=org.mozilla:en-US:official&start=20&sa=N)
Bringing the rule of law back into American thinking about foreign policy will take time. But it is inevitable. Without rules,
human civilization cannot survive; without rules, there is no true freedom. Law is, of course, only one element of foreign
policy, but it is a powerful one. By appealing to principle, we can better persuade. By acquiring legitimacy, our actions take on
a new authority. By delivering justice, we win hearts and minds. From Thomas Jefferson to Warren Christopher, the tradition of
the lawyer statesman persists. The challenge ahead is formidable – it is hard to live in a global age. But we can take comfort in
the words of Jean Monnet, one of the most passionate advocates of a United States of Europe after the war, and one of the chief
architects of the European Community – although I should, in all fairness, disclose that he was a cognac merchant, not a
lawyer! Monnet was never discouraged in his efforts to create the European Economic Community, and he later wrote in his
memoirs, “Resistance is proportional to the scale of the change one seeks to bring about. It is even the surest sign that change is
on the way. . . To abandon a project because it meets too many obstacles is often a grave mistake: the obstacles themselves
provide the friction to make movement possible.”
5. Perm: do the plan and create a Constitutional amendment affirming the decision. This
solves the link – public expects Supreme Court action after an amendment.
Denning & Vile ’02 (Brannon P, Assistant Prof of Law, Southern Illinois University School of Law; John R, Chair, Dept of
Political Science @ Middle Tennessee State University; November, 77 Tul. L. Rev. 247 ln)
The educative function of the debate aside, if proposed and ratified, a formal amendment undeniably changes the Constitution
in one significant respect: it adds language to the Constitution. Thus, to every person who bothers to look at a copy of the
Constitution, the change will be noticed. This textual referent, being available and apparent, enables more people to understand
the fact that there has been constitutional change and to take note of it than if the change comes informally, as the culmination
of doctrinal evolution in the Supreme Court or by accretions that harden into custom in the other branches. The publicity
accompanying the change may, in fact, increase public expectations that the change will be honored by the other
branches, raising the costs of evasion or under-enforcement. 131
DDI 2008 BQ
Fishell [PMA]
AT: Const. Amendment CP – Rights Turn

1. Adding trivial amendments decreases importance of fundamental rights like
free speech.
Sullivan 1995 [Kathleen M., Professor of Constitutional Law, Stanford Law School, and author of the
influential Sullivan & Gunther Constitutional Law Casebook, Fall. (“Constitutional Amendments” – American
Prospect) http://www.albionmonitor.com/1-12-96/amendmentitis.html]
This is why opponents of new amendments often argue that they would tend to trivialize or politicize the Constitution. They
trivialize it in the sense that they clutter it up and diminish its fundamentality. Consider the experience of the state
constitutions. Most state constitutions are amendable by simple majority, including by popular initiative and referendum. While
the federal Constitution has been amended only 27 times in over 200 years, the fifty state constitutions have had a total of
nearly 6,000 amendments added to them. They have thus taken on what Marshall called in McCulloch "the prolixity of a legal
code" -- a vice he praised the federal Constitution for avoiding. Many of these state constitutional amendments are products of
pure interest-group politics. State constitutions thus are difficult to distinguish from general state legislation, and they water
down the notion of fundamental rights in the process: The California constitution, for example, protects not only the right to
speak but also the right to fish.
2. Even seemingly trivial that diminish the right to free speech embark down a
slippery slope towards genocide and escalating conflict - the root cause of war
is the seemingly innocuous suppression of speech.
Frances D’Souza, anthropology at Oxford, 1996 http://www.europarl.eu.int/hearings/speech/freedom_en.htm
In the absence of freedom of expression which includes a free and independent media, it is impossible to protect other rights,
including the right to life. Once governments are able to draw a cloak of secrecy over their actions and to remain unaccountable
for their actions then massive human rights violations can, and do, take place. For this reason alone the right to freedom of
expression, specifically protected in the major international human rights treaties, must be considered to be a primary right. It is
significant that one of the first indications of a government’s intention to depart from democratic principles is the ever
increasing control of information by means of gagging the media, and preventing the freeflow of information from abroad. At
one end of the spectrum there are supposedly minor infringements of this fundamental right which occur daily in Western
democracies and would include abuse of national security laws to prevent the publication of information which might be
embarrassing to a given government: at the other end of the scale are the regimes of terror which employ the most brutal
moves to suppress opposition, information and even the freedom to exercise religious beliefs. It has been argued, and will
undoubtedly be discussed at this Hearing, that in the absence of free speech and an independent media, it is relatively easy for
governments to capture, as it were, the media and to fashion them into instruments of propaganda, for the promotion of ethnic
conflict, war and genocide.
2. Enshrining the right to freedom of expression
The right to freedom of expression is formally protected in the major international treaties including the United Nations
Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the
European Convention on Human Rights. In addition, it is enshrined in many national constitutions throughout the world,
although this does not always guarantee its protection. Furthermore, freedom of expression is, amongst other human rights,
upheld, even for those countries which are not signatories to the above international treaties through the concept of customary
law which essentially requires that all states respect the human rights set out in the Universal Declaration of Human Rights by
virtue of the widespread or customary respect which has been built up in the post World War II years.
3. Is free speech absolute?
While it is generally accepted that freedom of expression is, and remains the cornerstone of democracy, there are permitted
restrictions encoded within the international treaties which in turn allow for a degree of interpretation of how free free speech
should be.
Thus, unlike the American First Amendment Rights which allow few, if any, checks on free speech or on the
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[card continued]
independence of the media, the international treaties are concerned that there should be a balance between competing
rights: for example, limiting free speech or media freedom where it impinges on the individual’s right to privacy; where free
speech causes insult or injury to the rights and reputation of another; where speech is construed as incitement to violence or
hatred, or where free speech would create a public disturbance.
Given that these permitted restrictions are necessarily broad, the limits of free speech are consistently tested in national law
courts and, perhaps even more importantly, in the regional courts such as the European Commission and Court of Human
Rights. In recent years several landmark cases have helped to define more closely what restrictions may be imposed by
government and under what circumstances. In particular, it has been 49ondition49 by the European Court that any restriction
must comply with a three-part test which requires that any such restriction should first of all be prescribed by law, and thus not
arbitrarily imposed: proportionate to the legitimate aims pursued, and demonstrably necessary in a democratic society in order
to protect the individual and/or the state.
4. Who censors what?
Despite the rather strict rules which apply to restrictions on free speech that governments may wish to impose, many
justifications are nevertheless sought by governments to suppress information which is inimical to their policies or their
interests. These justifications include arguments in defence of national and/or state security, the public interst, including the
need to protect public morals and public order and perfectly understandable attempts to prevent racism, violence, sexism,
religious intolerance and damage to the indi-vidual’s reputation or privacy. The mechanisms employed by governments to
restrict the freeflow of information are almost endless and range from subtle economic pressures and devious methods of
undermining political opponents and the independent media to the enactment of restrictive press laws and an insist-ence on
licensing journalists and eventually to the illegal detention, torture and disappearances of journalists and others associated with
the expression of independent views.
5. Examples of censorship
To some the right to free speech may appear to be one of the fringe human rights, especially when compared to such violations
as torture and extra-judicial killings. It is also sometimes difficult to dissuade the general public that censorship, generally
assumed to be something to do with banning obscene books or magazines, is no bad thing! It requires a recognition of some of
the fundamental principles of democracy to understand why censorship is so immensely dangerous. The 49ondition of
democracy is that people are able to make choices about a wide variety of issues which affect their lives, including what they
wish to see, read, hear or discuss. While this may seem a somewhat luxurious distinction preoccupying, perhaps, wealthy
Western democracies, it is a comparatively short distance between government censorship of an offensive book to the
silencing of political dissidents. And the distance between such silencing and the use of violence to suppress a growing
political philosophy which a government finds inconvenient is even shorter. Censorship tends to have small beginnings and to
grow rapidly. Allowing a government to have the power to deny people information, however trivial, not only sets in place
laws and procedures which can and will be used by those in authority against those with less authority, but it also denies people
the information which they must have in order to monitor their governments actions and to ensure accountability.
There have been dramatic and terrible examples of the role that censorship has played in international politics in the last few
years: to name but a few, the extent to which the media in the republics of former Yugoslavia were manipulated by government
for purposes of propaganda; the violent role played by the government associated radio in Rwanda which incited citizens to kill
each other in the name of ethnic purity and the continuing threat of murder issued by the Islamic Republic of Iran against a
citizen of another country for having written a book which displeased them.
6. The link between poverty, war and denial of free speech
There are undoubted connections between access to information, or rather the lack of it, and war, as indeed there are between
poverty, the right to freedom of expression and development. One can argue that democracy aims to increase participation in
political and other decision-making at all levels. In this sense democracy empowers people. The poor are denied access to
information on decisions which deeply affect their lives, are thus powerless and have no voice; the poor are not able to have
influence over their own lives, let alone other aspect of society. Because of this essential powerlessness, the poor are unable to
influence the ruling elite in whose interests it may be to initiate conflict and wars in order to consolidate their own power and
position.
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[card continued]
Of the 126 developing countries listed in the 1993 Human Development Report, war was ongoing in 30 countries and severe
civil conflict in a further 33 countries. Of the total 63 countries in conflict, 55 are towards the bottom scale of the human
development index which is an indicator of poverty. There seems to be no doubt that there is a clear association between
poverty and war. It is reasonably safe to assume that the vast majority of people do not ever welcome war. They are normally
coerced, more often than not by propaganda, into fear, extreme nationalist sentiments and war by their governments. If the
majority of people had a democratic voice they would undoubtedly object to war. But voices are silenced. Thus, the freedom to
express one’s views and to challenge government decisions and to insist upon political rather than violent solutions, are
necessary aspects of democracy which can, and do, avert war.
Government sponsored propaganda in Rwanda, as in former Yugoslavia, succeeded because there weren’t the means to
challenge it. One has therefore to conclude that it is impossible for a particular government to wage war in the absence of a
compliant media willing to indulge in government propaganda. This is because the government needs civilians to fight wars for
them and also because the media is needed to re-inforce government policies and intentions at every turn.
DDI 2008 BQ
Fishell [PMA]
AT: Const. Amendment CP – Balanced Budget DA

1. Counterplan leads to the Balanced Budget Amendment.
Stephen B. Presser Fall 2k, “Constitutional Amendments: dangerous threat or democracy in action,” 5
Tex. Rev. Law & Pol. 209
The authors of the Guidelines point to only two recent Amendments which have come close to securing the necessary two-thirds votes
for passage in Congress: the Balanced Budget [*219] Amendment and the Flag Protection Amendment. n43 The latter Amendment
is the only Amendment in the history of the republic that forty-nine state legislatures have actually asked to be sent on to them for
ratification. n44 The Flag Protection Amendment is an Amendment proposal that often seems to spark the special ire of the authors of
the Guidelines; n45 although, in fairness, they do concede that the Flag Protection Amendment has met the procedures specified in one
of their Guidelines: that of exhausting possible legislative remedies. n46 This is the Amendment with which I have the most
experience, having appeared several times before the House Committee on the Judiciary to testify in its favor. n47 It is that experience
which leads me to reject the Great and Extraordinary Occasions criticism of the Flag Protection Amendment in particular and
constitutional amendments in general.
The authors of Great and Extraordinary Occasions suggest that the Flag Protection Amendment violates some of their Guidelines -
those which caution against addressing matters which are only of "immediate concern," n48 which do not "protect individual rights,"
n49 and which might have implications for related "constitutional doctrine." n50 But proponents of the Flag Protection Amendment
view it in a manner very much at odds with the analysis of the Guidelines' proponents. Great and [*220] Extraordinary Occasions
confidently declares that the Flag Protection Amendment is an attempt "to carve specific new exceptions out of the broad concept of
freedom of speech set forth in the First Amendment." n51 They further claim that "the proposed flag desecration amendment would
rewrite the Constitution to say that while the government generally may not prohibit speech based on dislike of its message, it may do
so in the case of flag desecraters." n52
Proponents of the Flag Protection Amendment have been able to garner the strong support that they have due to their view that "Flag
Desecration" simply is not speech protected by the First Amendment. They argue that the Supreme Court was wrong when it held for
the first time in 1989 that flag desecration was protected First Amendment speech. n53 For these proponents of the Flag Protection
Amendment, there is no First Amendment issue involved. The conduct they wish to prohibit, as they were constitutionally permitted to
do until 1989, for them, involves an egregious act that undermines timeless and important cultural values. n54 For the proponents of
the Flag Protection Amendment, their effort represents an authentic assertion that honor, civility, duty and responsibility are as
important as rights, that the sacrifice of the men and women who have given life and limb for their country is entitled to legal
recognition. For them, legally forbidding the desecration of the flag is a means of appropriately recognizing that duty and
responsibility and that sacrifice. For them, this issue involves the upholding of [*221] fundamental values and enduring truths; for
them it is not an "ephemeral political issue." n55
For proponents of the Flag Protection Amendment then, their issue is not merely of "immediate concern," it is an appropriate issue of
responsibility trumping "rights," and it involves an inappropriate "act" committed against a unique national symbol, so that there is no
impingement on related constitutional doctrine. Only because the authors of Great and Extraordinary Occasions insist on seeing the
Flag Protection Amendment as a narrow First Amendment issue can they argue that it violates their proposed Guidelines. n56
The Flag Protection Amendment seeks to overturn a Supreme Court decision. n57 The authors of the Guidelines excoriate it because it
is narrow of purpose - simply to overturn one Supreme Court decision which (in the eyes of the Amendment's proponents) finds a First
Amendment issue where none exists. But one person's narrowness is another person's entirety, at least where constitutional
amendments are concerned. Most academics and intellectuals regard the flag as a mere piece of colored cloth, but the eighty percent of
Americans who favor the Amendment regard it as a unique symbol and physical expression of the self-sacrifice of loved ones who
served their country. n58 They believe that protecting the flag from desecration - as the Supreme Court no longer permits - is
fundamental to national honor, and that a nation in which nothing is officially sacred is a nation in danger of moral collapse. n59 The
struggle over the Flag Protection Amendment is, at one level, merely a struggle over the appropriate treatment [*222] for the nation's
unique shared symbol, but at another level, it is a struggle over nothing less than the nation's soul. n60 The authors of the Guidelines
may not have understood this. Worse, they have never told us who is actually authoritatively to interpret and apply these Guidelines,
unless it is to be the authors themselves.
DDI 2008 BQ
Fishell [PMA]
AT: Const. Amendment CP – Balanced Budget DA

2. Balanced Budget Amendment kills the economy.
Stephen B. Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law, and
Professor of Business Law, Kellogg Graduate School of Management and Strategy, Northwestern
University, 5 Tex. Rev. Law & Pol. 209, Fall, 2k, “Constitutional Amendments: Dangerous Threat or
Democracy in Action?”
Birch Bayh's staff at the Senate Judiciary subcommittee on the Constitution carefully examined the state petitions. Some proposed
very strict budget balancing requirements; others permitted exceptions under various circumstances. Most had been formally filed
with Congress, but, as it turned [*109] out, at least six had not, and Indiana's had been filed by mistake, not actually having been
adopted by the state legislature. Another half dozen petitions requested submission of a balanced budget amendment but failed to
specify that this be done by convention. n38 While the review suggested that considerably fewer than the reported number of
petitions could pass the test of asking for the same thing and doing so in a proper fashion, Bayh's staff did not relax.
Acknowledging the political appeal of the balanced budget idea, the staff assembled arguments against it. They focused on the
adverse effect it would have on efforts to remedy economic recession. With the economy in decline, federal revenues shrinking,
and required outlays for unemployment compensation and public assistance increasing, Congress would be compelled to reduce
other expenditures and perhaps raise taxes as well rather than prime the pump of recovery. "In this situation," a staff memo
concluded, "the budget might end up chasing the economy down its own slide." n39
3. Economic collapse causes nuclear war.

Walter Russell Mead, NPQ’s Board of Advisors, New Perspectives Quarterly, Summer 1992
Hundreds of millions - billions - of people have pinned their hopes on the international market economy. They and their leaders
have embraced market principles -- and drawn closer to the west – because they believe that our system can work for them. But
what if it can't? What if the global economy stagnates - or even shrinks? In that case, we will face a new period of international
conflict: South against North, rich against poor. Russia, China, India - These countries with their billions of people and their
nuclear weapons will pose a much greater danger to world order than Germany and Japan did in the 30s
DDI 2008 BQ
Fishell [PMA]
Distinguishing Doesn’t Solve - Precedent

Distinguishing doesn’t solve the precedent – it’s too ambiguous.
Jill E. Fisch, Professor and Director, Center for Corporate, Securities and Financial Law, Fordham Law School,
13 Journal of Contemporary Legal SIssues, 2003, “LEGAL TRANSITIONS: IS THERE AN IDEAL WAY TO
DEAL WITH THE NON-IDEAL WORLD OF LEGAL CHANGE?: The Implications of Transition Theory for
Stare Decisis,” Lexis
This second factor is important. Under any rule of stare decisis, courts are only incompletely bound by prior decisions. The second
court has, at its disposal, a variety of mechanisms with which to evade the effect of the precedent, including distinguishing the
precedent, characterizing components of the old rule as dicta, and so forth. n10 In principle, these tools offer courts expansive power
to avoid prior decisions without overruling them. Nonetheless, and despite the easy availability of alternatives, courts do overrule
precedents. The persistence of affirmative overrulings suggests that overruling a precedent has an independent lawmaking value that is
imperfectly replicated through the alternative mechanisms. Although the alternatives may enable a court to reach its desired outcome,
they do not have the same lawmaking effect.
Indeed, for purposes of this essay, the distinction between overruling and its alternatives is key. The doctrine of stare decisis constrains
[*98] overruling - a distinctive method of legal change - and requires, in those cases in which it applies, one of two alternatives. The
first alternative, is incremental lawmaking through the traditional common law methodology. n11 In contrast to overruling, traditional
adjudicative legal change is incremental. Specific decisions involve changes of smaller magnitude. In addition, the speed and direction
of change is more ambiguous. A third court, taking at face value the second court's effort to distinguish the first court's legal rule,
could continue to apply the initial rule. Even if the second court's decision serves as a signal that the legal rule is problematic, the
rule's application need not be immediately and universally terminated. Accordingly, n12 some class of litigants may continue to
governed by the old legal rule. Thus distinguishing and other incremental forms of legal change afford parties some degree of
transition relief that is not available when the court explicitly overrules a precedent.
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Distinguishing Doesn’t Solve - Confusion

Distinguishing causes confusion.
Michael J. Gerhardt, Associate Professor, Marshall-Wythe School of Law, 60 George Washington Law
Review 68, Nov. 1991, “The Role of Precedent in Constitutional Decisionmaking and Theory,” Lexis
n119 Implicit overrulings or overrulings sub silentio occur when the Court suggests obliquely or by inference that some precedent(s)
may no longer be viable. See, e.g., Webster v. Reproductive Health Servs., 492 U.S. 490, 532 (1989) (Scalia, J., concurring in part and
concurring in the judgment) (suggesting that the Court can overrule precedents either explicitly or sub silentio). Implicit overrulings
and distinguishing cases differ in their respective practical effects: an implicitly overruled precedent no longer controls even the fact
situation it initially purported to resolve, while a distinguished precedent at least retains sufficient vitality to resolve a fact situation
identical to that which it originally settled. Sometimes the Court can cause confusion when the Court does not make clear whether it is
distinguishing or implicitly overruling a precedent. For example, the Court generated considerable confusion in a series of decisions
involving whether private shopping centers could regulate political speech. See Marsh v. Alabama, 326 U.S. 501 (1946) (reversing the
conviction of a Jehovah's Witness for distributing religious literature on the premises of a company-owned town); Amalgamated Food
Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) (holding that the prohibition of peaceful labor picketing of a
store within a shopping center violated the First Amendment); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (upholding a privately
owned shopping center's prohibition of union picketing of a store on the premises); Hudgens v. NLRB, 424 U.S. 507 (1976)
(clarifying that Lloyd effectively had overruled Logan Valley).
DDI 2008 BQ
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Distinguishing Doesn’t Solve – Lower Courts

Even if the Supreme Court distinguishes, the lower courts will apply the old precedent.
Christopher J. Peters, Assistant Professor of Law, Wayne State University Law School, 100 Columbia
Law Review 1454, Oct. 2000, “ASSESSING THE NEW JUDICIAL MINIMALISM”
This challenge to the accountability of adjudicative decisionmaking is a function of a lack of narrowness (that is, of width) in
judicial decisionmaking. But it is worth noting that a lack of shallowness (depth) can compromise accountability in precisely
the same way. Indeed, depth produces [*1516] width. It is difficult to imagine a court opinion that is deeply reasoned without,
by virtue of the very depth of its reasoning, also setting out some sort of broad rule that will impact future cases.
Suppose, for example, that a court strikes down as unconstitutional a particular government activity - say, the maintenance of a
males-only public military college - but gives no reason for doing so other than simply saying, "This particular policy on these
particular facts violates the Equal Protection Clause." Such a decision would be both very shallow and very narrow; it would
have no necessary implications for any other case, unless another case arises bearing virtually identical facts to those at issue in
the precedential case.
But suppose, on the contrary, that the court invalidates the males-only policy in a deeply reasoned opinion elucidating first
principles of gender equality under the Equal Protection Clause. (This is what the Supreme Court actually did in its VMI
decision. n255) Even if the court purports to act narrowly in doing so - by expressly limiting the precedential force of its
decision to the particular facts of the case, as the VMI Court did - the actual impact of the decision will be inescapably broader
than those particular facts. This will hold true especially among lower federal and state courts, which will properly be reluctant
to ignore the grounds upon which a Supreme Court decision has been rendered. The deep reasoning underlying the decision,
precisely because it is deep reasoning, will have applications in other gender equality cases. In effect, the reasoning will
operate as a sort of rule, influencing the decisions of future cases to which that reasoning is relevant. And that reasoning will be
relevant in a broad spectrum of cases involving government-imposed distinctions between men and women, not just in cases
with facts very similar to those of VMI.
DDI 2008 BQ
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Distinguishing Kills Stare Decisis
Distinguishing destroys stare decisis – it lacks flexibility and judgement.
Richard B. Cappalli, Professor, James E. Beasley School of Law, Temple University, 72 Temple Law Review
303, Summer, 1999 “WHAT IS AUTHORITY? CREATION AND USE OF CASE LAW BY
PENNSYLVANIA'S APPELLATE COURTS”
In utilizing stare decisis, n75 the Pennsylvania courts commit themselves to deploying the full range of skills and methods necessary
to execute the doctrine correctly. As the Pennsylvania Supreme Court has stated, "for the sake of certainty, n76 a conclusion reached
in one case should be applied to those which follow, if the facts are substantially the same...." n77 The seemingly innocuous phrase, "if
the facts are substantially the same," however, has provoked worlds of controversies. n78
The word "substantially" makes the matter more complicated than merely determining whether the facts in Case B are identical to
those in Case A. It injects flexibility and, hence, judgment. If precedents were binding only upon their DNA clones, the doctrine of
precedent would be of small value. Judges are allowed to discount some factual dissimilarities. But which?
Distinguishing kills stare decisis.
Jason M. Waite, Associate, Grunfeld, Desiderio, Lebowitz & Silverman, LLP, 33 New England Law Review
81, Fall 1998, “Agostini v. Felton: Thickening the Establishment Clause Stew”
In Agostini, the Court neglects this principle of the rule of law leaving even the most learned citizens guessing as to what the
Constitution might tomorrow be held to have mandated.
If Aguilar can be implicitly overruled by Zobrest and Witters, whose pronouncements are only analogously applicable, then any
majority of Justices is able to recognize or effect a change in law without actually having to justify its decision to overrule the prior
case on the merits. The Court can avoid the responsibility that comes with changing the law by simply saying that it has already
changed. Competing interpretations of precedents in an area of law such as the Establishment Clause are understandable because in
such a sensitive area of law it is impossible "to find any set of principles that reconciles all standing statutes and precedents." n245
However, because of the Rule 60(b)(5) context of the case, the Court in Agostini effectively is forced to assert that the "gravitational
force" n246 of Aguilar silently disappeared. This silent disappearance is particularly disconcerting because, as Professor Ronald
Dworkin has written, when recognizing mistakes in prior decisions, "consistency requires justification, not explanation, and the
justification must be plausible and not a sham. If the justification . . . makes distinctions that are arbitrary and deploys principles that
are unappealing, then it cannot count as justification at all." n247 Agostini, because of its procedural context, fails to provide an
adequate justification for change in the law. After a careful [*112] and genuine reading of Zobrest and Witters, it remains difficult to
understand how Aguilar ever lost the status of law without proper justification in the form of a fresh new case directly challenging its
precepts.
DDI 2008 BQ
Fishell [PMA]
**AT: Court DAs**
DDI 2008 BQ
Fishell [PMA]
2AC Stare Decisis DA Frontline (SS) [1/2]

1. Non-unique: The Court’s last two terms have seen multiple precedents
shattered.
Los Angeles Times, “The evolving Supreme Court,” 6/29/08,
http://www.latimes.com/news/printedition/opinion/la-ed-court29-2008jun29,0,681992.story
A year ago, when the U.S. Supreme Court finished its second term under Chief Justice John G. Roberts Jr., the court was criticized --
including on this page -- for giving the lie to Roberts' paeans at his confirmation hearings to consensus and respect for precedent.
Twenty-four cases were resolved by 5-4 votes, and on some key issues there was no majority at all. Far from respecting precedent, the
Roberts court in its 2006-07 term executed unseemly U-turns on two issues, approving a federal ban on "partial-birth" abortions and
overriding school districts that sought to achieve a modicum of racial integration in the classroom.
Last week, the court ended its 2007-08 term, still reckless in its treatment of precedent but more in line with Roberts' comments about
consensus. We say this even though three of the most significant cases were decided 5 to 4 on predictable ideological lines: the
invalidation of the District of Columbia's gun-control law, turning decades of precedent upside down; a ruling that the death penalty
may not be imposed on child rapists; and a rejection of the Bush administration's and Congress' view that detainees at Guantanamo
Bay lack the protections of habeas corpus.
2. Boumediene jacked stare decisis - overruled Eistentrager and common law

precedent.
Richard Samp, Washington Legal Foundation, “Boumediene Guest Commentary,” 6/13/08,
http://www.scotusblog.com/wp/?s=stare+decisis
First, the Court did not buy into the detainees' principal historical argument -- that extension of the writ to aliens being detained
overseas was consistent with English tradition. The best that the majority could muster was that search of the case law "reveals no
certain conclusions." (The four dissenters thought it "entirely clear" that habeas corpus did not extend beyond "the sovereign territory
of the Crown" under English common law.) Instead, the majority came up with what it dubbed a "functional" test for determining
whether constitutional rights should be given extraterritorial application. In the course of doing so, the majority sub silentio overruled
a number of precedents, principally Johnson v. Eisentrager, the 1950 decision holding that habeas jurisdiction did not extend to
Germans being held in an American military prison located in Germany. While the majority purported to distinguish Eisentrager, it
did so only half-heartedly. If there is anyone who seriously thinks that today's decision can be squared with Eisentrager's holding
(stated explicitly on several occasions by Justice Jackson) that the Constitution does not empower courts to issue writs of habeas
corpus to aliens abroad under any circumstances, I would be interested hearing their thinking. Of course, the majority had a vested
interest in denying that it was overruling precedent. Since the Court is admittedly second-guessing the combined wisdom of Congress
and the Executive Branch on how best to address detainees' claims of innocence, it did not want to admit to rejecting prior case law as
well. But its less-than-candid approach is difficult to square with any coherent theory of stare decisis.
3. Non-unique: Supreme Court has overturned prior patent rulings.

David Orange, joint J.D.-LL.M. candidate at the University of Washington School of Law, CASRIP Newsletter,
Vol. 13, Iss. 1, Winter 2006,
http://www.law.washington.edu/Casrip/Newsletter/Vol13/newsv13i1US1.html#_ftn1
The Supreme Court overturned its prior rulings, holding that the presumption of market power derives from the patent misuse
doctrine, not antitrust law. The Court explained that Congress began unwinding these doctrines with the codification of 35 U.S.C.
271(d), and that this decision furthers this work. The Court also rejected Respondent's arguments for a rebuttable presumption of
market power.
DDI 2008 BQ
Fishell [PMA]
2AC Stare Decisis DA Frontline (SS) [2/2]

4. Link turn - Overturning a recent precedent bolsters Supreme Court
credibility.
Might there be some tension in extolling the connection between rights and the continuity of the common law method, as I did in Part
III.C, while at the same time appealing to the adaptability of the common law method, as I have just done in responding to the inertia
objection? In the context of overrulings of precedent, this tension may indeed exist. When the Court overrules its own precedent - at
least when it does so in fairly short order, as in Adkins and West Coast Hotel - it acts like a legislature repealing a statute, and thus
arguably forfeits some of its credibility as a trustworthy decisionmaker about rights. n303 Of course, it can also be argued that the
Court bolsters its credibility by quickly repudiating decisions that are obviously wrong. n304
5. Overruling decisions is inevitable and doesn’t hurt stare decisis.
John Paul Stevens, Associate Justice, Supreme Court of the United States, New York University Law Review,
Vol. 58, No. 1, April 1983
Numbers can be misleading. Two or three overrulings each Term are, indeed, significant. But it must be remembered that the
Court disposes of literally thousands of cases every year; over and over again the Court’s action involves nothing more than the
application of old precedent to a new controversy. Moreover, as the body of precedent continues to grow year after year, the
likelihood that doctrinal inconsistency may force the Court to reject one precedent in favor of another must likewise increase.
As the nation itself grows older – surviving and adjusting itself to changes in the economy and changes in the temper of its
people – it is inevitable that judge-made rules that were fashioned in different periods of our dynamic history will be subjected
to increasingly frequent reexamination. Quite clearly the mere number of overruling decisions is not sufficient to warrant the
conclusion that the rule of stare decisis has passed away.
6. Democracy doesn’t solve – their Diamond ev only says that democracies

won’t go to war with other democracies. They’ll still go to war with non-
democratic nations. Empirically proven – only time we’ve ever used nukes was
against a non-democratic government.
7. Democracy isn’t on the verge of collapse – it’s sustained wars and secession
from our beloved South. It can handle a patent ruling.
DDI 2008 BQ
Fishell [PMA]
2AC Stare Decisis DA Frontline (KO) [1/2]

1. Their uniqueness evidence is embarrassing. It describes theoretically
what a minimalist court would look like. It doesn’t say the court is
minimalist now.
2. Non-unique: The Court’s last two terms have seen multiple precedents
shattered.
3. Boumediene jacked stare decisis - overruled Eistentrager and common law

precedent.
Richard Samp, Washington Legal Foundation, “Boumediene Guest Commentary,” 6/13/08,
http://www.scotusblog.com/wp/?s=stare+decisis
First, the Court did not buy into the detainees' principal historical argument -- that extension of the writ to aliens being detained
overseas was consistent with English tradition. The best that the majority could muster was that search of the case law "reveals no
certain conclusions." (The four dissenters thought it "entirely clear" that habeas corpus did not extend beyond "the sovereign territory
of the Crown" under English common law.) Instead, the majority came up with what it dubbed a "functional" test for determining
whether constitutional rights should be given extraterritorial application. In the course of doing so, the majority sub silentio overruled
a number of precedents, principally Johnson v. Eisentrager, the 1950 decision holding that habeas jurisdiction did not extend to
Germans being held in an American military prison located in Germany. While the majority purported to distinguish Eisentrager, it
did so only half-heartedly. If there is anyone who seriously thinks that today's decision can be squared with Eisentrager's holding
(stated explicitly on several occasions by Justice Jackson) that the Constitution does not empower courts to issue writs of habeas
corpus to aliens abroad under any circumstances, I would be interested hearing their thinking. Of course, the majority had a vested
interest in denying that it was overruling precedent. Since the Court is admittedly second-guessing the combined wisdom of Congress
and the Executive Branch on how best to address detainees' claims of innocence, it did not want to admit to rejecting prior case law as
well. But its less-than-candid approach is difficult to square with any coherent theory of stare decisis.
DDI 2008 BQ
Fishell [PMA]
2AC Stare Decisis DA Frontline (KO) [2/2]

4. Non-unique: Supreme Court has overturned prior patent rulings.
David Orange, joint J.D.-LL.M. candidate at the University of Washington School of Law, CASRIP Newsletter,
Vol. 13, Iss. 1, Winter 2006,
http://www.law.washington.edu/Casrip/Newsletter/Vol13/newsv13i1US1.html#_ftn1
The Supreme Court overturned its prior rulings, holding that the presumption of market power derives from the patent misuse
doctrine, not antitrust law. The Court explained that Congress began unwinding these doctrines with the codification of 35 U.S.C.
271(d), and that this decision furthers this work. The Court also rejected Respondent's arguments for a rebuttable presumption of
market power.
5. Link turn - Overturning a recent precedent bolsters Supreme Court

credibility.
Might there be some tension in extolling the connection between rights and the continuity of the common law method, as I did in Part
III.C, while at the same time appealing to the adaptability of the common law method, as I have just done in responding to the inertia
objection? In the context of overrulings of precedent, this tension may indeed exist. When the Court overrules its own precedent - at
least when it does so in fairly short order, as in Adkins and West Coast Hotel - it acts like a legislature repealing a statute, and thus
arguably forfeits some of its credibility as a trustworthy decisionmaker about rights. n303 Of course, it can also be argued that the
Court bolsters its credibility by quickly repudiating decisions that are obviously wrong. n304
6. Overruling decisions is inevitable and doesn’t hurt stare decisis.

John Paul Stevens, Associate Justice, Supreme Court of the United States, New York University Law Review,
Vol. 58, No. 1, April 1983
Numbers can be misleading. Two or three overrulings each Term are, indeed, significant. But it must be remembered that the
Court disposes of literally thousands of cases every year; over and over again the Court’s action involves nothing more than the
application of old precedent to a new controversy. Moreover, as the body of precedent continues to grow year after year, the
likelihood that doctrinal inconsistency may force the Court to reject one precedent in favor of another must likewise increase.
As the nation itself grows older – surviving and adjusting itself to changes in the economy and changes in the temper of its
people – it is inevitable that judge-made rules that were fashioned in different periods of our dynamic history will be subjected
to increasingly frequent reexamination. Quite clearly the mere number of overruling decisions is not sufficient to warrant the
conclusion that the rule of stare decisis has passed away.
7. Plan doesn’t drink the milkshake. Their Shapiro evidence literally says that
the US has a “resevoir of legitimacy” that has been collecting for two hundred
years. A patent ruling isn’t going to dry it up.
DDI 2008 BQ
Fishell [PMA]
No Supreme Court Capital

No capital now - Hamdan ruling was extremely controversial.
Andy Worthington, writer and historian, alternet, “A Closer Look at the Hamdan Trial,” 7/25/08
http://www.alternet.org/rights/92806/a_closer_look_at_the_hamdan_trial/
Last week, however, Hamdan's run of significant court victories came to an end, after a two-hour hearing with Judge Robertson in
which both sides put their cases. Defending the process, and Hamdan's eligibility for the trial, lawyers for the government said, as the
Christian Science Monitor explained, that the Commission process "was created by Congress and features an impartial judge and jury,
as well as a 'full panoply' of trial rights." In a court filing, Justice Department lawyer Alexander Haas declared, "Such rights for an
alien charged with war crimes are utterly unprecedented and far exceed the protections given to the defendants [in prior war crimes
tribunals]."
The Supreme Court has been divided since the Hamdan decision.
Andrew C. McCarthy, contributing editor to National Review Online, “The Hamdan Commission Will Go
Forward,” 7/18/08, http://article.nationalreview.com/?q=MmE3YWViZTM3N
zc0NDE5NjYyNmUwOWUxM2MyOWQ2YmQ=
That ruling was later rejected by a three-judge panel of the D.C. Circuit Court of Appeals that included then-Circuit Judge John
Roberts. When he was confirmed soon after as U.S. Chief Justice, Roberts recused himself from Hamdan’s appeal to the Supreme
Court. Thus in Hamdan v. Rumsfeld (2006), the sharply divided high court ruled, 5-3, that the president’s commission system
violated federal law. Though it did not fully adopt Judge Robertson’s reasoning, the majority found that enemy combatants were
protected by the Geneva Conventions’ “Common Article 3,” at least to the extent it required any trials to be conducted by “a regularly
constituted court.” (My analysis of the flaws in this ruling can be found here.)
Boumediene decision was unprecedented.

Marissa Taylor, staff writer, McClatchy Newspapers, “Bush lawyers told to speed Guantanamo detention
appeals,” 7/8/08, http://www.mcclatchydc.com/257/story/43481.html
Assistant Attorney General Gregory Katsas told Hogan that the Supreme Court's ruling had raised an "unprecedented range of
uncertainties," adding the department would not be able to comply with the deadline proposed by lawyers for the plaintiffs because of
a lack of resources. Instead, he said the department could file records in about 50 cases a month — a prospect that he said would still
"strain our resources almost to the breaking point."
DDI 2008 BQ
Fishell [PMA]
Supreme Court = Activist
Supreme Court recently ignored precedent with the D.C. handgun ban.
Erwin Chemerinsky, dean of the University of California, Irvine School of Law, originally appearing in the
Los Angeles Times, “Judicial activism by conservatives,” 6/30/08,
http://www.baltimoresun.com/news/opinion/oped/bal-op.antiguns30jun30,0,1020170.story
The Supreme Court's invalidation of the District of Columbia's handgun ban powerfully shows that the conservative rhetoric about
judicial restraint is a lie. In striking down the law, Justice Antonin Scalia's majority opinion, joined by the court's four other most
conservative justices, is quite activist in pursuing the conservative political agenda of protecting gun owners.
If the terms "judicial activism" and "judicial restraint" have any meaning, it is that a court is activist when it is invalidating laws and
overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.
Never before had the Supreme Court found that the Second Amendment bestows on individuals a right to have guns. In fact, in 1939
(and other occasions), the court rejected this view. In effectively overturning these prior decisions, the court both ignored precedent
and invalidated a law adopted by a popularly elected government.
Activism is inevitable with conservative majority.

Erwin Chemerinsky, dean of the University of California, Irvine School of Law, originally appearing in the
Los Angeles Times, “Judicial activism by conservatives,” 6/30/08,
http://www.baltimoresun.com/news/opinion/oped/bal-op.antiguns30jun30,0,1020170.story
This should not be surprising. The conservative justices regularly jettison judicial restraint when it is at odds with conservative
politics. They've done the same thing in cases involving affirmative action and desegregation programs.
The irony is that the same conservative justices who were so eager last week to find an individual liberty under the Second
Amendment are loath to do so when a right of a criminal defendant is at stake or when it is a matter of enforcing the religion clauses
of the First Amendment. This decision is a powerful reminder that the conservative justices are activists when it serves their political
agenda.
DDI 2008 BQ
Fishell [PMA]
Supreme Court = Activist

The Court’s last two terms have seen multiple precedents shattered.
DDI 2008 BQ
Fishell [PMA]
Supreme Court = Divided

Court divided now.
AP, “Long quiet, justices end their term with a growl,” 6/28/08,
http://ap.google.com/article/ALeqM5jqMTOgREK3tZZKxnLN0BErj7BqkwD91J60NG0
The court, in its three most important cases, declared a constitutional right to have guns at home for self-defense, granted some
constitutional protections to foreign prisoners at Guantanamo Bay and outlawed the death penalty for people who rape children.
Not only did the familiar ideological divisions return in these cases and several others, but the justices took turns hurling charges of
"judicial activism" and worse at each other.
Giving rights to the detainees "will almost certainly cause more Americans to be killed," Justice Antonin Scalia said in a scathing
dissent he read from the bench.
No one threw that line back at Scalia in the guns case. But Justice John Paul Stevens, also summarizing his dissent in court, said of
Scalia's majority opinion on gun rights that "adherence to a policy of judicial restraint by this court is far wiser than the bold decision
it announced today."
Those were among nine 5-4 decisions handed down in the past two weeks. Until then, there had been only two all term, leading a
former Supreme Court clerk, Robert Gordon, to remark that the era of good feelings at the court lasted about a month.
The last term concluded with sharp internal divisions.

New York Times, “Supreme Court,” 7/28/08,
http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?8qa&scp=1-
spot&sq=&st=nyt
The 2007-2008 term of the Supreme Court was marked by sharp 5-4 divisions in two of its signature cases: a decision overturning the
District of Columbia’s ban on handguns and a ruling granting access to federal courts for detainees at Guantanamo who are suspected
of terrorism.
Chief Justice John G. Roberts, in his third year on the court, was in the majority on 90 percent of the decisions, more than any other
justice. But the jurist who left the most definitive mark on the term was Justice Anthony M. Kennedy, who has been on the court for
20 years. He cast decisive votes with the conservative majority in the gun and Guantanamo cases, writing the majority opinion in the
latter. He wrote the majority opinions siding with the liberal justices in a case ruling out the death penalty for child rape and in a
decision providing more procedural rights to immigrants facing deportation.
Read More...
Overall, the court did not have as many 5-4 decisions as it did in its previous term. But it also had less unanimity, with fewer than 30
percent of the cases decided without dissent, compared with just over 40 percent in the previous term and just over half in 2005-2006.
DDI 2008 BQ
Fishell [PMA]
Supreme Court Unpopular

The D.C. gun decision decreased Court popularity.
Boston Phoenix, editorial, “Crackpot court,” 7/2/08, http://thephoenix.com/Boston/News/64181-Crackpot-
court/
“Gun rights” has been for the Republicans one of the most important, and most crass, of these foolish ideas. Most reasonable people
agree that private ownership of weaponry should be carefully controlled and regulated — as a public issue, guns are not all that
different from automobiles. Debate over the details properly belongs in the venue of local, state, and national legislatures, to be shaped
through discussion, lobbying, public pressure, and ultimately elections.
But that approach doesn’t get people riled up to pay membership dues to the National Rifle Association (NRA), or to vote Republican
out of the belief that Democrats intend to take away one’s hunting rifle.
So, since the early 1970s, the NRA and its ideological brethren have pushed the novel, and unjustified, theory that private gun
ownership (for other than state-militia purposes) is an enshrined constitutional right. Republicans latched on, and won over millions of
working-class voters.
Now, five justices have turned this ludicrous idea into constitutional law, proving that years of nominations made to appease the far
right have at last given us a crackpot Supreme Court.
DDI 2008 BQ
Fishell [PMA]
Overruling Common
The Supreme Court overturns an average of 3 precedents every year.
James F. Spriggs and Thomas G. Hansford, Department of Political Science at University of California, Davis,
Journal of Politics, April 1998, “Explaining the Overruling of U.S. Supreme Court Precedent,”
http://www.law.berkeley.edu/institutes/csls/precjopfinal.pdf
As Justice Kennedy’s opinion suggests, the doctrine of stare decisis, by which courts follow the legal precedents articulated in
previously decided cases, does not preclude the Supreme Court from overruling a prior case. Yet, as Justice Kennedy also states in his
opinion, stare decisis is “‘of fundamental importance to the rule of law’” (491 U.S. 164, at 172). Adherence to precedent reportedly
serves such goals as clarity, stability, and predictability in the law (Douglas [1949] 1979; Powell 1990; Rasmusen 1994; Stevens
1983), efficiency (Landes and Posner 1976; Stevens 1983), legitimacy (Knight and Epstein 1996; Powell 1990, 286-87; Stevens 1983,
2), and fairness and impartiality (Freed 1996; Padden 1994). Justices and scholars alike argue that for these reasons the Court is loathe
to overrule past cases. Between 1946 and 1992, however, the Supreme Court overruled 154 of its prior decisions, for an average of
about three overruled decisions each term (Brenner and Spaeth 1995). In this paper, we ask a simple yet important question: What
explains why and when the Supreme Court chooses to overrule one of its precedents?
DDI 2008 BQ
Fishell [PMA]
SC Statutory Overrule – N/U

Supreme Court can overturn federal statutes – it’s done so in the past.
William N. Eskridge, Jr., Professor at Georgetown University Law Center, 88 Michigan Law Review 2450,
August 1990, “The Case of the Amorous Defendant: Criticizing Absolute Stare Decisis for Statutory Cases”
At conference, all nine Justices agreed that the conviction ought to be overturned. Chief Justice Marshall assigned the opinion to
himself. In his draft opinion for Amorous v. United States, he started with the proposition that the Caminetti and Squalid precedents
interpreting the statute ought to be reaffirmed, based upon the arguments in his earlier law review article for a rule of absolute stare
decisis in statutory cases. n7 The Chief Justice's draft opinion candidly noted that the Court has occasionally overruled its precedents
interpreting federal statutes in the past, and that Caminetti would, under the Court's traditional approach, be a possible candidate for
overruling. n8 Caminetti's view that the statute criminalized transportation of a woman for extramarital relations was probably an
excessively broad interpretation of the statute [*2452] in 1917, because it went well beyond the original legislative expectations, n9
and is certainly too broad today, in light of current constitutional protections of sexual privacy. n10
Supreme Court has overturned multiple statutory precedents.

Christopher P. Banks, Assistant Professor of Political Science, Buchtel College of Arts and Sciences, The
University of Akron, 32 Akron Law Review 233, 1999, “Reversals of Precedent and Judicial Policy-Making:
How Judicial Conceptions of Stare Decisis in the U.S. Supreme Court Influence Social Change”
While a few commentators are skeptical about the validity of this distinction, n28 Appendix A, which lists the overruling decisions of
the Rehnquist Court, suggests that the Court regularly applies it in its decision-making. Table 1 (Tables begin on page 249), in
particular, indicates that twenty-two of the twenty-eight overruling cases (78.5%) decided since the 1986 Term are constitutional
cases. n29 Only six, or [*238] 21.5%, are statutory. Of the constitutional cases, 42.9% concern issues of criminal law/procedure,
whereas the balance deal with primary claims involving interpretations of the commerce clause (14.5%), the Tenth or Eleventh
Amendments (14.5%), habeas corpus and federalism (9.5%), the First Amendment (9.5%), affirmative action (4.8%), and abortion
(4.8%). n30 Notably, these areas have been the focus of conservative Rehnquist Court jurisprudence and supply some proof that
precedents do not stand in the way of the judicial policy pronouncements of an activist Court. n31
DDI 2008 BQ
Fishell [PMA]
Statutory Overrule Good

Deferring to Congress for overturning statutory precedent violates Separation
of Powers and overloads the legislature.
Opinion of J. Posnerbrook, joined by McNollgast & Schwartz, JJ., 2001 edited byWilliam N. Eskridge, Jr.,
Professor at Georgetown University Law Center, 88 Michigan Law Review 2450, August 1990, “The Case of
the Amorous Defendant: Criticizing Absolute Stare Decisis for Statutory Cases”
"A final consequence of the Chief Justice's proposed rule is the most troubling. The Constitution sets forth a clearly defined system of
separate powers. The Chief Justice is correct in saying that the legislature should make all major policy choices in our polity. The
Chief Justice is also correct in saying that the courts should do nothing more than interstitial lawmaking. The Chief Justice is not
demonstrably correct in saying that throwing the Court's own mistakes back to the legislature subserves the democratic process. The
legislature's agenda is not infinitely elastic. Thousands of issues compete for its attention, and only a few important policy initiatives
can run the procedural juggernaut each year. Our tossing complex issues of legal coherence back to the legislature further crowds its
agenda. The legislature might indeed respond by overruling the precedents itself. But the opportunity costs will often be high. The
legislature has better things to do than clean up our own augean stables."
DDI 2008 BQ
Fishell [PMA]
Statutory Overrule Good

Statutory overrule is good – key to check legislative bias.
William N. Eskridge, Jr., Professor at Geogetown University Law Center, 88 Michigan Law Review 2450,
August 1990, “The Case of the Amorous Defendant: Criticizing Absolute Stare Decisis for Statutory Cases”
"The evidence is insufficient to reject the Court's longstanding willingness to overrule its statutory precedents in compelling
circumstances. The Chief Justice has a heavy burden of demonstrating that his rule would stimulate the legislature to greater
involvement in its constitutional responsibility for updating statutes. He has not met that burden. Several state courts have rules of
absolute stare decisis for statutory precedents, yet the Chief Justice has advanced no evidence suggesting that their legislatures are
more active in updating statutes than are the national legislature or the legislatures of states having more flexible stare decisis rules.
n15 The Chief Justice seeks to avoid the dearth of empirical evidence by relying instead on academic theories. But they provide little
more than speculative support for his proposal.
"'Public choice theory,' the application of economic principles to political markets, does not indicate significantly, if any, greater
legislative involvement under a rule of absolute stare decisis. n16 Public choice theory, like many other theories of the legislative
process, assumes that reelection is the most important motivation for legislators. Legislators desiring reelection are interested in
appeasing important interest groups, but without offending other organized groups (to the extent this is possible). Legislators,
consequently, have an incentive to respond [*2454] to many of the Court's statutory decisions, whatever this Court's stare decisis
rule, when the decisions harm the interests of important groups. These groups will petition the legislators to overrule such decisions,
and they will usually be successful if there is little or no organized opposition. Legislators may have fewer incentives to respond to
decisions of this Court which benefit some organized groups while hurting other organized groups, because legislators want to avoid
offending any politically salient group. But legislators in these 'conflictual' situations have incentives to work out a compromise which
will alter the Court's decisions in a way acceptable to most or all the relevant groups. Legislators already have plenty of incentives to
respond to the Court's decisions. Nothing in the Chief Justice's opinion changes these incentives in the legislative process.
DDI 2008 BQ
Fishell [PMA]
AT: Overturning 9-0 Bad

1/3rd of all overturned precedents were 9-0s.
That courts analyze extant precedent in light of the solidarity of the court issuing the underlying rule of law is intuitive. The more
dissension in a case cannot help but signal to prospective litigants and courts that a disfavored precedent is on weak footing and ripe
for an aggressive challenge in court. Table 3, a summary of the percentage of unanimity or dissension in overturned cases by the
Rehnquist Court, partially belies this traditional logic, however. Of the total number of overturned cases, twelve, or 36.4%, were
decided by a bare majority (i.e. a 5-4 vote). In addition, in cases featuring three dissents or more, the Court reversed them nearly one-
half (48.5%) the time. These findings show that opinions resulting from closely-divided Courts are indeed more vulnerable to
subsequent attack. Nevertheless, Table 3 also discloses that unanimity is not a guarantee that precedent is sacrosanct. Of the thirty-four
toppled decisions, eleven precedents, or 33.3%, were unanimous. While unanimity or dissension is still a conventional part of the
Court's approach to stare decisis, the expectation that unanimity strengthens the force of precedent and dissension weakens it is not,
therefore, completely met.
\
DDI 2008 BQ
Fishell [PMA]
AT: Overturning 9-0 Bad

Unanimous decisions are fair game for overruling – key to check misreadings.
David Cole, Attorney at the Center for Constitutional Rights in New York, 95 Yale Law Journal 857, April
1986, “Agon at Agora: Creative Misreadings in the First Amendment Tradition.”
Every judicial opinion misreads past precedent. No judge or group of judges can state unequivocally and without distortion the
holding of a prior case or the precise rule to be applied in the case at hand. To find and apply a rule of law requires interpretation of
past precedent, and the act of interpretation necessarily involves some degree of misreading. Antithetical criticism therefore should be
applicable to all opinions -- unanimous, majority, plurality, concurring, and dissenting.
Dissents are nonetheless an especially appropriate focus for antithetical analysis. The agonistic struggle by definition involves a
certain element of isolation, because insofar as we are defined and determined by our predecessor's influence, we must, as part of the
creative moment, separate our sense of identity from the past that constitutes our present. Breaking from the tradition, we find
ourselves alone. This suggests that while both the majority and the dissent will misread precedent, the dissent will often present the
more extreme misreading. In dissent, the Justice stands apart; similarly, in concurrence his theory will be his own, even while he
agrees with the result.
[*870] It is possible, but less likely, that a majority opinion will advance a more radical misreading than a dissent, or even that a
unanimous opinion, when viewed against its precedential background, will constitute a strong misreading. Collective misreadings do
occur -- the American Revolution, the Constitution, and several of the Amendments constitute strong collective misreadings on a
grand scale -- but they are much more difficult and consequently much less frequent. n35 To be valued as great, one must stand out;
while collective bodies do at times stand out as great, both the requirement of a radical break and the inherent exclusivity of the term
suggest that "greatness" will be found more often in an individual than in a committee. If the antithetical theory holds, then, revisions
in the law will often surface initially in dissenting or concurring opinions, and only later, if they are truly strong, will they be
incorporated into the mainstream. n36
DDI 2008 BQ
Fishell [PMA]
AT: Plan = 9-0, and that’s Bad

9-0 decisions are best – they promote the rule of law and agreement amongst
justices.
Cass R. Sunstein, LA Times, “The Minimalist,” 5/25/06, http://articles.latimes.com/2006/may/25/opinion/oe-sunstein25
THE SUPREME COURT regularly has to choose between issuing narrow rulings and issuing broader ones.
Suppose, for instance, that an alleged enemy combatant, who is also an American citizen, argues that he has a right to a hearing before
he can be held as a prisoner by the United States. A minimalist court would be inclined to rule on the combatant’s particular claim
without saying a word about the president’s general power to wage war on terror, and it would remain silent about the rights of
foreigners.
Or suppose that an elderly cancer patient is challenging a state ban on physician-assisted suicide. A minimalist court would focus on
the specific facts of the case and the law in question and refuse to say anything about whether the Constitution provides a more
general right to privacy that might encompass a right to commit suicide.
Or imagine that a rejected white applicant is challenging an affirmative-action program at a particular medical school. A minimalist
court might strike down the specific program for some narrow, perceived flaw in its structure without saying whether affirmative
action is generally permissible.
Last week, when Chief Justice John G. Roberts Jr. delivered his first commencement address, at Georgetown University Law Center,
he offered an original, substantive and unambiguous defense of narrow, minimalist rulings.
Roberts began by arguing in favor of unanimous or near-unanimous opinions, which, he said, serve the rule of law by ensuring that
the court’s message is not confused by its own internal divisions. He went on to suggest that such a consensus on the part of the
justices would, almost by necessity, lead to narrow rulings, limited in most situations to the particular issue at hand. “The broader the
agreement among the justices, the more likely it is that the decision is on the narrowest possible ground,” he said. After all, the nine
justices have highly diverse views, and if they are able to join a single opinion, that opinion is likely to be narrow. This, in the chief
justice’s view, is entirely desirable. “If it is not necessary to decide more to dispose of a case, in my view it is necessary not to decide
more,” he said. Roberts made several approving references to Justice Felix Frankfurter, one of American history’s great minimalist
judges who consistently called for narrow rulings, especially on the issues that divide the nation most sharply. Writing more than 50
years ago, Frankfurter said that the court has an obligation “to avoid putting fetters upon the future by needless pronouncements
today.” It was advice Frankfurter followed himself. In his opinion voting to strike down President Truman’s 1952 seizure of the
nation’s steel mills, Frankfurter refused to say much about presidential power in general. He emphasized that “rigorous adherence to
the narrow scope of the judicial function” is especially important when national security is at risk, notwithstanding the national
“eagerness to settle – preferably forever – a specific problem on the basis of the broadest possible constitutional pronouncement.”
Roberts referred, with unmistakable enthusiasm, to Frankfurter’s suggestion that courts should focus on the concrete issue and “not
embarrass the future too much.” What makes Roberts’ argument noteworthy is that it takes a side in one of the deepest and most long-
standing divisions in American jurisprudence – a division that cuts across the standard ideological lines. One strand of that
jurisprudence, associated with justices Antonin Scalia and Hugo Black, prizes broad, ambitious rulings on the ground that they give
the clearest signals to lower courts, potential litigants and the nation as a whole. Scalia has long attacked minimalism on the ground
that a court that resolves “one case at a time” leaves far too much doubt. If the court focuses on particular facts, people won’t know,
for example, when affirmative-action programs are permissible, when government can interfere with private choices and what,
exactly, the president may or may not do to protect the nation.
The competing strand, associated with Frankfurter and Justice Sandra Day O’Connor, prizes narrow rulings. O’Connor emphasized
the need for humility, which would require the justices to acknowledge what they do not know and to leave many questions
undecided.
In a period in which the court must answer many novel questions, there is a lot to be said for minimalism – not least because it tries to
avoid taking a stand on the most controversial questions and thus shows respect for people with reasonable competing views.
Indeed, narrow rulings help to promote a key goal of societies that are both diverse and free: to make agreement possible where
agreement is necessary, while also making agreement unnecessary where agreement is not possible.
It remains to be seen whether the court as a whole might be willing and able to move in the direction of broader consensus and hence
narrowness – something Roberts can encourage in his role as chief justice.
AT: Plan = 9-0, and that’s Bad

Unanimous decision key – any division weakens Court legitimacy.
DDI 2008 BQ
Fishell [PMA]
Thomas R. Hensley and Scott P. Johnson, Professor of Political Science, Kent State University, and Visiting
Assistant Professor of Political Science, SUNY at Fredonia 31 Akron. L. Rev. 387, 1998
As one of the three branches of government, the U.S. Supreme Court is subject [*403] to various checks and balances
inherent in the separation of powers doctrine. n79 For instance, the legislative branch can threaten the Court's jurisdiction n80
and size, n81 or the executive branch simply can refuse to implement a judicial decision. n82 Hence, the Court must render
decisions that are respected by Congress and the President. Because the Justices consider the preferences and expected actions
of other government actors, they should behave strategically in cases dealing with Congress or the President. n83 Therefore,
the Court should desire unanimity because it is necessary to rule assertively in cases involving congressional or presidential
action. n84 Otherwise, judicial decisions might be questioned easily by the other branches if the Court appears uncertain or
ambiguous in its ruling. Any division [*404] might weaken the authority and legitimacy of the Court's ruling. n85 By issuing
unanimous decisions in cases involving federal action, the Court is able to protect its own power stakes.
9-0 key to stare decisis.

Neal Katyal, John Carroll Research Professor, Georgetown University Law Center, 79 Notre Dame L. Rev.
1237, July 2004
To my knowledge, no one has yet reflected upon, or advocated, judicial sunsets. This is not surprising since the standard
conception of stare decisis is binary - either precedent should be given weight or it should not. And while some of the
conditions for strong adherence to stare decisis have been enumerated (unanimity, recency, crystallization of social
expectations), little discussion has taken place around the question of what methods a majority of the Court may use to signal
its hesitation about freezing a legal principle into place.
DDI 2008 BQ
Fishell [PMA]
AT: Overturning Recent Precedents Bad
Recent precedents are more likely to be overturned than those that are well-
established.
The final legal factor affecting the laws' stability is the age of the precedent under review. Courts are more apt to re-examine extant
principles if they are less seasoned or not well-established over time. Thus, in their study of 154 Supreme Court precedents, Brenner
and Spaeth report that 50.0% are less than twenty-one years old at the time of overturning; whereas, only 6.4% of the overturned
decisions are older than ninety years. n45 They also observe that the average and median age of the precedents overturned in the
Rehnquist Court (up to 1992) is 38.8 and 23.0 years, respectively. Half of the overruled cases they studied lasted less than twenty-one
years, and only 10% predate 1900. n46 Their major findings therefore support the conventional wisdom that recent principles of law
are more at risk than older principles. It seems fair to say, then, that a legal principle of recent origin is more susceptible to having the
Rehnquist Court give that principle a second look and, under the right circumstances, reverse it.
Table 4 identifies, in ten-year increments, the precise age of the precedent reversed by the Rehnquist Court since 1986. It discloses that
the preponderance of overturned cases are relatively young in age. For example, 29.4% were only on the books less than ten years, and
17.7% were upset after having an age between eleven and twenty years. 23.5% had an age of twenty-one to thirty years. The most
striking [*242] finding, though, is that the age of nearly half (47.1%) of the overturned cases is less than twenty years; almost three-
quarters (70.6%) of the overturned cases have an age of thirty years or less; and, over two-thirds (76.5%) are forty years or less. While
14.7% of the overturned rulings are more than ninety-one years old, only 8.8% are over 100 years old. Though the percentages slightly
differ, these findings are generally consistent with Brenner and Spaeths' major conclusions. It is relatively certain, therefore, that the
Rehnquist Court will reverse younger, less seasoned law while, at the same time, hesitate in overturning older cases.
DDI 2008 BQ
Fishell [PMA]
AT: Roe v. Wade

1. Stare decisis doesn’t prevent Roe v. Wade reversal.
Albert P. Blaustein et al, Professor of Law at Rutgers University School of Law, 15 American Journal of Law &
Medicine 204, 1989
The growing polarization over Roe within the Court, and within society, also confirms the assessment of legal scholars that
many of these holdings were in error. It is wrong to propogate such a decision unless, under renewed scrutiny, the reasoning of
Roe withstands the arguments made against it. n15 Without independent grounds for affirming Roe, stare decisis alone does not
stand as an impediment to reversal. [*207] AFFIRMATION OF ROE v. WADE SERVES NONE OF THE INTERESTS OF
STABILITY, PREDICTABILITY OR CONSISTENCY THAT ARE FURTHERED BY STARE DECISIS. The protection of
stare decisis is qualified. As the full title of the doctrine -- stare decisis et non quieta movere (stand by the precedents and do
not disturb the calm) n17 -- implies, respect for past decisions extends properly only to those doctrines that are "at rest." Roe v.
Wade, however, is an unsettled doctrine with an unsettling effect. It is the inevitable result of the majority's failure to heed the
counsel of one of its own number: From age to age the problem of constitutional adjudication is the same. It is to keep the
power
of government unrestrained by social or economic theories that one set of judges may entertain. . . . It is when a judiciary with
life tenure seeks to write its social and economic creed into the Constitution that instability is created. n18 Roe ostensibly
settled the issue of abortion in American law but has proven to be inherently difficult to apply in any consistent and principled
manner. This is highlighted by Roe's progeny, which has produced a growing body of intricate, arbitrary regulations
surrounding the abortion decision. Adherence to Roe promises more unpredictability, and more "justification" for the Court to
"sit as a superlegislature to weigh the wisdom of legislation." n19 Even supposedly "settled" questions of abortion law, such as
the permissibility of requiring notification to parents before an abortion is performed on their minor daughter, can result in
deadlock over a minor refinement of the issue, n20 and this case presents the issues of post-viability regulation and abortion
funding to the Court for the fourth and sixth times respectively. State regulations in these three areas have all been upheld by
the Court, but due to the ever-expansive nature of Roe's restrictions on state authority, states legislate in these areas at their
peril.
Further indication that a doctrine is not settled is its effect on legal principles of more general application. In this regard, Roe
has proven the judicial equivalent of a runaway freight train. In its zeal to affirm [*208] Roe, the majority in Thornburgh v.
American College of Obstetrics and Gynecologists n21 was compelled to ignore, abandon or reverse prior legal and
constitutional doctrine on issues involving statutory construction, plenary review of preliminary injunctions, informed consent
and state regulation of the professions. n22 "No legal rule or doctrine is safe from ad hoc nullification by this Court when an
occasion for its application arises in a case involving state regulation of abortion." n23 Political activity, public opinion and
scholarly analysis n24 also reject the hypothesis that Roe is settled law. During the years since Roe, state legislatures from all
regions have enacted hundreds of laws regulating abortion. n25 At least twenty-three state legislatures have sent memorials
requesting Congress to propose an anti-abortion amendment to the Constitution, and at least nineteen state legislatures have
passed petitions to convene a constitutional convention to propose a human life amendment to the Constitution. n26
2. Overturning Roe will be determined politically, not by stare decisis

Larry J. Pittman, Associate Professor of Law, University of Mississippi School of Law, 53 Alabama Law Review 789, “The Federal
Arbitration Act: The Supreme Court’s Erroneous Statutory Interpretation, Stare Decisis, and a Proposal for Change,” Spring 2002
Further, it seems that a majority of the Court can either adhere or not adhere to stare decisis depending upon whether or not the use of
that doctrine achieves a particular majority's philosophical agenda. That seems to have been the situation in Alexander v. Sandoval,
n135 where Justice Scalia, in conformity with his textualist interpretive viewpoint, was able to garner a majority vote (along with
Chief Justice Rehnquist and Justices Kennedy, O'Connor, and Thomas) that Congress did not intend to create a private right of action
under the disparate impact regulations that the Department of Justice properly adopted pursuant to its authority under Title VI of the
Civil Rights Act of 1964. n136 In so holding, the Court also cut back on its willingness to use Cort v. Ash n137 to imply a private
cause of action under a federal statute, stating instead that "private rights of action to enforce federal law must be created by
Congress." n138
DDI 2008 BQ
Fishell [PMA]
AT: Roe v. Wade

3. Casey already gutted Roe.
William E. Buelow III, JD Candidate, 71 Temple Law Review 963, COMMENTS: TO BE AND NOT TO BE: INCONSISTENCIES
IN THE LAW REGARDING THE LEGAL STATUS OF THE UNBORN FETUS, Winter 1998
The most significant departure from Roe came in 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey, n54 which
effectively overruled much of Roe. At issue in Casey was a Pennsylvania statute that placed several restrictions on a woman's ability
to obtain an abortion. The Court upheld all but one of the challenged Pennsylvania restrictions. First, the Court upheld an informed
consent provision which required that absent an emergency: (1) a physician must inform the woman of the health risks of both
abortion and childbirth; (2) a woman must be informed of the probable gestational age of the fetus; and (3) a woman must be given
state-printed materials describing the fetus and the availability of non-abortion alternatives. n55 Second, the Court upheld a provision
which required parental consent before a woman under the age of eighteen could obtain an abortion. n56 Finally, the Court upheld
certain record-keeping requirements. n57 The provision of the statute that the Court invalidated required a [*970] married woman
n58 to sign a statement indicating she had notified her husband of her intention to terminate the pregnancy. n59
DDI 2008 BQ
Fishell [PMA]
**Case Ev**
DDI 2008 BQ
Fishell [PMA]
Patents Low
Alternative energy patents low now – first quarter of 2008 saw a drop in long-
term growth trends.
Cleantech Group, Heslin Rothenberg Farley & Mesiti P.C., “Clean Energy Patent Growth Index,” 6/11/08,
http://cepgi.typepad.com/heslin_rothenberg_farley_/
The CLEAN ENERGY PATENT GROWTH INDEX (CEPGI), published quarterly by the Cleantech Group at Heslin Rothenberg
Farley & Mesiti P.C, provides an indication of the trend of innovative activity in the Clean Energy sector. Results from the first
quarter of 2008 reveal the CEPGI to have a value of 220 granted U.S. patents which is down from a value of 227 in the fourth quarter
of 2007 and down from a value of 228 in the first quarter of 2007. (Please click on the charts below for larger versions)
The long term trend for the components of the CEPGI show Fuel Cells continuing to dominate the other components, but are down
relative to the last quarter and one year earlier. Granted wind patents continue to trend upwardly after a third quarter drop.
Hybrid/electric vehicle patents continue their downward trend begun in early 2007. Also, solar energy patents dipped relative to the
last quarter and trend downwardly.
DDI 2008 BQ
Fishell [PMA]
**AT: Case Turns/Other Offcase**
DDI 2008 BQ
Fishell [PMA]
AT: Pharma Good Turn (KO)

1. No link – we only overturn KSR in the field of alternative energy. Pharma
patent regulations stay the same.
2. Only the plan solves - Their Bouchard evidence says that the ideal system
balances flexibility and responsiveness. TSM is the only framework that
can account for changing technology while still maintaining an effective
filter. That’s AIPLA ’06. [NOTE – READ THE CARD BELOW IF IT’S NOT IN
YOUR 1AC, WHICH IT TOTALLY SHOULD BE]
AIPLA [AMERICAN INTELLECTUAL PROPERTY LAWASSOCIATION], Brief of American Intellectual
Property Law Association as Amicus Curiae Supporting Respondents at 6, KSR Int'l Co. v. Teleflex, Inc., No.
04-1350 (U.S. Oct. 12, 2006)
The legal standard for obviousness does not change case to case but the facts – the inventions and technology – do. Thus, the
analytic framework must be adaptable. As Judge Learned Hand said in Safety Car, supra, there cannot be a single, objective
test. The rule must be flexible to account for both changing facts and technology. Graham, 383 U.S. at 11-12, 17-19. This is
what the Federal Circuit has done. In re Eli Lilly & Co., 902 F.2d 943, 947 (Fed. Cir. 1990).
In the present case the technology is mechanical, which the Ruiz opinion correctly noted is "simpler" to analyze. Ruiz, 357 F.3d
at 1276; see McGinley v. Franklin Sports, Inc., 262 F.3d 1339, 1351 (Fed. Cir. 2001) ("When the art in question is relatively
simple, as is the case here, the opportunity to judge by hindsight is particularly tempting. Consequently, the tests of whether to
combine references need to be applied rigorously.")(citations omitted). In more complex technologies, such as biotechnology,
understanding the state of the art for an obviousness analysis is more difficult.
By looking through the eyes of one of ordinary skill in that art at the relevant time, TSM accounts for the different
technologies. The long history of applying TSM demonstrates that it is well-adapted for the different circumstances in
individual cases. As explained supra, the TSM analysis does not impose an inflexible rule of law demanding an explicit written
suggestion in the prior art. To the contrary, it provides for multiple avenues of proof, allowing adaptation for different
technologies and factual circumstances. E.g., Dystar, slip. op. at 8-9.
TSM's ability to account for wildly divergent fact patterns becomes clearer in reviewing how the methodology has been properly
applied. For example, in Lamb-Weston, Inc. v. McCain Foods, Ltd., 78 F.3d 540, the patent claimed a
3. Bouchard goes aff – he says a highly constraining IPR rights regime skews
the benefits of innovation.
4. Other countries solve pharma innovation.
Kristy Barnes, in-PharmaTechnologist.com, “Japan needs innovation to maintain pharma foothold,”

http://www.in-pharmatechnologist.com/Industry-Drivers/Japan-needs-innovation-to-maintain-pharma-foothold
In 2002, the country held 11.7 per cent of the world's pharmaceutical sales to the tune of $398bn, however, although that figure had
risen to $608bn in 2006, Japan's market share had slipped to only 9.3 per cent, with other countries such as Spain and Italy edging
forward.\
Japan, whose pharmaceutical industry has reminaed largely a homogenous marketplace, is now only realising the need to take
innovative steps to maintain its number two spot.
As is the scenario in many parts of the world, drugs in the fields of oncology, central nervous system (CNS) and diabetes are the
strongest growth performers in terms of disease indication, and as such are areas being focused on by pharma firms.
However, it is Japan's generics industry - which has barely taken off - that currently presents the biggest opportunity for growth.
DDI 2008 BQ
Fishell [PMA]
AT: Pharma Good Turn (KO)

5. Their Huff evidence doesn’t assume a decrease in pharma innovation. It
says that if an HIV-positive person was to stop pursuing traditional
medication, the virus might mutate.
6. No impact – NOWHERE in their Swire card does it say that AIDS will cause
extinction. Rather, it concedes that AIDS is now manageable.
7. AIDS won’t cause extinction.

George Caldwell, PhD in Biology and Political Science, 2003 (http://www.foundation.bw/TheEndOfTheWorld.htm)
Disease could wipe out mankind. It is clear that HIV/AIDS will not accomplish this – it is not even having a significant impact on
slowing the population explosion in Africa, where prevalence rates reach over thirty percent in some countries. But a real killer
plague could certainly wipe out mankind. The interesting thing about plagues, however, is that they never seem to kill everyone –
historically, the mortality rate is never 100 per cent (from disease alone). Based on historical evidence, it would appear that, while
plagues may certainly reduce human population, they are not likely to wipe it out entirely. This notwithstanding, the gross
intermingling of human beings and other species that accompanies globalization nevertheless increases the likelihood of global
diseases to high levels.
DDI 2008 BQ
Fishell [PMA]
AT: Patents Reform Hurts Innovation (KO)

1. Their turn doesn’t link. The Patent Doc evidence talks about a bill that
was proposed after the KSR decision. This isn’t the plan.
2. Even if patent reform is bad in the abstract, extend Raciti – the KSR
decision led to a decrease in patent procurement. This kills investment in
alternative energy. Only the old TSM standard can solve – that’s AIPLA.
DDI 2008 BQ
Fishell [PMA]
AT: TSM Deters Innovation (Generic)

1. TSM spurs innovation. Our Robbins evidence says that TSM is the only
effective system because it’s transparent and predictable. Lack of
predictability uniquely chills innovation – without it, investors won’t back
independent innovators. That’s why the system is failing in the status
quo.
2. Only way to ensure longterm solvency - AIPLA 06 says that TSM is the
best framework for the future because it’s adaptable, which is key to
facilitate innovation in changing fields like alternative energy.
3. TSM solves bad patents – AIPLA 06 says that tests other than TSM ignore
the risk of hindsight review, which accelerates procurement of bad
patents. TSM ensures evolution and accountability – this means no bad
patents, only innovative ones.
4. Alternative is worse: standards other than TSM guts patent quality,

consistency and predictability – ensures no innovation and more
litigation.
PATRICK G. BURNS, GREER, BURNS & CRAIN, LTD. October 2006 KSR INTERNATIONAL CO., Petitioner,v. TELEFLEX
INC. and TECHNOLOGY HOLDING CO., Respondents. “BRIEF OF THE INTELLECTUAL PROPERTY LAW
ASSOCIATION OF CHICAGO AS AMICUS CURIAE IN SUPPORT OF RESPONDENT.”
As a practical matter, rejection of the TSM requirement would lead to less certainty and predictability in both patent
prosecution and litigation. From an administrative standpoint in the U.S. Patent and Trademark Office (“PTO”), objective evidence
showing obviousness to modify and combine is essential for training purposes, review and consistency. It is important in litigation
because judges and juries are not schooled in the nuances of obviousness and non-obviousness. Opponents of the TSM requirement
advocate using subjective standards such as “synergy,” “mere aggregation,” and so forth. Under such subjective standards, the
conclusion as to obviousness depends more on the personal experience and personality of the person making it than on the evidence.
For at least this reason, such subjective 3 standards would have far reaching adverse consequences, including a decline in quality,
consistency, and predictability in the PTO and in litigation. The patent system favors disclosure of all non-obvious inventions over
maintaining inventions as trade secrets. In so doing, it is important that the system encourage disclosure of incremental improvements,
as well as pioneering breakthroughs in technology. The adoption of subjective standards that might recognize only the breakthroughs
would not encourage the disclosure of incremental improvements.
DDI 2008 BQ
Fishell [PMA]
AT: Over-Patenting/Court Clogging

1. TSM solves bad patents and court clogging – AIPLA 06 says that tests
other than TSM ignore the risk of hindsight review, which accelerates
procurement of bad patents. TSM ensures evolution and accountability –
this means no bad patents, only innovative ones.
2. Even if there’s an increase in patents filed, under TSM they require

almost no litigation and account for only 3% of federal lawsuits.
Declan McCullagh, staff writer for CNETNews.com, “Patent crisis is a myth, says ex-Microsoft exec,”
8/24/05, http://software.silicon.com/applications/0,39024653,39151642,00.htm
Not only have fears of a patent crisis been greatly exaggerated but the US patent system is functioning quite well, Microsoft's
former chief technologist said on Tuesday.
Nathan Myhrvold, now the chief executive of a start-up company that exists to create and licence inventions, told a conference
that "before you get worked up about this gigantic problem, you ought to see what the facts are".
Patent litigation represents only three per cent of federal lawsuits and there has been a steady decline in the number of lawsuits
filed per patent, Myhrvold said. "Almost everything you have heard about patent litigation statistics is not true," he said.
"Patents are the least litigious part of intellectual property law."
3. Patent litigation has exploded under the new system, putting increased
strain on overburdened federal courts.
Christopher F. Shiflet, member of the Columbus Bar Association, “United States Patent Reform on the
International Stage,” 5/3/07
Patent litigation has experienced a recent explosion, growing at a rate even greater than the number of patents issued. Figure 1, below,
illustrates this point, plotting the number of patent case filings and patents issued over time. Although the increase in patent litigation
is not necessarily a problem in itself, it has created some concern. First of all, the federal courts are already overburdened, and the
addition of complicated patent cases only contributes to the problem. A pilot program seems likely to begin in some district courts
allowing uninterested judges to decline patent cases to a roster of interested judges from which one is chosen at random. It would also
provide funding for additional patent law education and patent law clerks. Still, if a change to patent law could simplify litigation in a
manner that maintains equity, it would certainly help the courts. Beyond the sheer volume of patent litigation, the size of recent
damage rewards has also been quite troubling. Most recently, a federal jury found Microsoft guilty of infringing patents related to the
MP3 digital audio format and awarded $1.52 billion in damages. Such large awards have motivated calls for a new damage calculus in
patent infringement cases.
4. Even if TSM allows for some non-innovative patents, the alternative of no

innovation at all is worse.
DDI 2008 BQ
Fishell [PMA]
AT: Generic Drugs Turn (CO)

1. No link – we only overturn KSR in the field of alternative energy. Generic
drug regulations stay the same.
2. Trade agreements impede generic drug production – means no access for

20 years.
Medsin, UK charity, Newsletter 177, 3/11/08, http://www.medsin.org/newsletter/177
Yet generic competition has been able to lower the price of antiretroviral therapy for human immunodeficiency virus (HIV)
from more than $15 000 per patient-year 6 years ago to $99 today. Unfortunately, generic drug production has been impeded by
trade agreements that prevent generic companies from producing new drugs for up to 20 years. Millions wind up dying because
competition can no longer take place, and pharmaceutical companies wind up having exclusive rights to vital medicines.
3. Other countries solve generics.

Kristy Barnes, in-PharmaTechnologist.com, “Japan needs innovation to maintain pharma foothold,”
http://www.in-pharmatechnologist.com/Industry-Drivers/Japan-needs-innovation-to-maintain-pharma-foothold
In 2002, the country held 11.7 per cent of the world's pharmaceutical sales to the tune of $398bn, however, although that figure had
risen to $608bn in 2006, Japan's market share had slipped to only 9.3 per cent, with other countries such as Spain and Italy edging
forward.\
Japan, whose pharmaceutical industry has reminaed largely a homogenous marketplace, is now only realising the need to take
innovative steps to maintain its number two spot.
As is the scenario in many parts of the world, drugs in the fields of oncology, central nervous system (CNS) and diabetes are the
strongest growth performers in terms of disease indication, and as such are areas being focused on by pharma firms.
However, it is Japan's generics industry - which has barely taken off - that currently presents the biggest opportunity for growth.
DDI 2008 BQ
Fishell [PMA]
AT: Innovation Turns (SS)

1. They say our Margolis evidence takes out uniqueness, but the evidence only says in the late
Reagan and early Clinton years we shied away from R&D. Prefer our Raciti 08 evidence to answer
the question of uniqueness – the early 2000’s boom of R&D was deflated by the KSR decision. The
Margolis evidence does say that the impact to lowered R&D spills over internationally. That’s still
true.
2. They say patent overload – extend AIPLA evidence. The TSM evidence allows for flexibility and
accountability but not an overload. Prefer our evidence - it’s from a law association specializing in
IPR, not from a dude who writes for a blog called “techdirt.”
3. No patent glut – even if there’s an increase in patents filed, under TSM

they require almost no litigation.
Declan McCullagh, staff writer for CNETNews.com, “Patent crisis is a myth, says ex-Microsoft exec,”
8/24/05, http://software.silicon.com/applications/0,39024653,39151642,00.htm
Not only have fears of a patent crisis been greatly exaggerated but the US patent system is functioning quite well, Microsoft's
former chief technologist said on Tuesday.
Nathan Myhrvold, now the chief executive of a start-up company that exists to create and licence inventions, told a conference
that "before you get worked up about this gigantic problem, you ought to see what the facts are".
Patent litigation represents only three per cent of federal lawsuits and there has been a steady decline in the number of lawsuits
filed per patent, Myhrvold said. "Almost everything you have heard about patent litigation statistics is not true," he said.
"Patents are the least litigious part of intellectual property law."
4. Extend Robbins – TSM framework is the only way to ensure innovation by assuring that patent
validity is predictable. Don’t let Mr. Techdirt assume Supreme Court motives.
5. Extend Raciti – KSR drove patent rates down and investors away from the sector. This evidence is
specific to alternative energy and innovation.
DDI 2008 BQ
Fishell [PMA]
2AC Ecomanagerialism
1. NO LINK – NOWHERE IN THE 1AC DO WE DEPICT NATURE AS THREATENING HUMANITY. WE DON’T
CLAIM AN ENVIRONMENT ADVANTAGE. DON’T LET THEM GENERATE A LINK OF AN “IMPLICIT
ASSUMPTION” OF THE 1AC – THERE ARE THOUSANDS OF FALSE ASSUMPTIONS AND NEGATIVE
REPRESENTATIONS EMBEDDED IN ANY LITERATURE.
2. ALTERNATIVE IS DOOMED – WITHOUT RENEWABLE INNOVATION, WE’LL CONTINUE TO

ACCELERATE ENVIRONMENTAL DESTRUCTION IN OUR ENDLESS SEARCH FOR FOSSIL FUELS.
INNOVATION IS KEY TO FOSTERING A NEW RELATIONSHIP WITH THE ENVIRONMENT, ONE IN WHICH
THE RELATIONSHIP IS NOT DOMINANT BUT HARMONIOUS.
3. ALT CAN’T SOLVE – THEIR DALBY EV CONCEDES THAT INTERNATIONAL ACTIONS LEAD TO THE
DEGRADATION OF NATURE. REJECTING THE PLAN WON’T SOLVE THE AMAZON RAIN FOREST.
4. RECONCEPTUALIZING DOES NOTHING. DALBY SAYS THAT REPRESENTATIONS OF NATURE MIGHT BE

BAD BUT OFFERS NO SOLUTION. MEANS ALL WE HAVE TO DO IS PROVE THAT THERE’S A RISK THAT
THE PLAN IS BETTER THAN THE STATUS QUO.
5. PERM: DO THE PLAN AND ALL PARTS OF THE ALT THAT DON’T REJECT THE PLAN. THIS PUTS THEM
IN A DOUBLE-BIND: EITHER THE ALT IS STRONG ENOUGH TO OVERCOME INSTANCES OF
MANAGERIALISM EXTERNAL FROM THE AFF SO IT CAN OVERCOME THE AFF, OR IT CAN’T
OVERCOME THE AFF AND IT CAN NEVER SOLVE.
6. Perm Solves - Combining scientific representations with the

acknowledgment that science is shaped by social issues solves issues of
expert knowledge and instrumentalism.
David Demeritt, Department of Geography King’s College London, 6/1/2001,
(“The Construction of Global Warming and the Politics of Science,” Annals of the Association of American Geographers,
91(2), 2001, p. 307–337, Blackwell Publishers, InformaWorld)
Unfortunately, public representations of science seldom acknowledge the irreducibly social dimension of scientific knowledge
and practice. As a result, disclosure of the social relations through which scientific knowledge is constructed and conceived has
become grounds for discrediting both that knowledge and any public policy decisions based upon it. This political strategy of
social construction as refutation has been pursued by the socalled climate skeptics and other opponents of the Kyoto Protocol. It is
premised upon an idealized vision of scientific truth as the God’s-eye view from nowhere. Rather than accepting this premise
and being forced to deny that scientific knowledge is socially situated and contingent, the proper response to it is to develop a
more reflexive understanding of science as a situated and ongoing social practice, as the basis for a more balanced assessment of
its knowledge. A richer appreciation for the social processes of scientific knowledge construction is as important for scientists
themselves as it is for wider public credibility of their knowledge. In the particular case of climate change, heavy reliance upon
diverse, highly specialized, and multidisciplinary bodies of scientific knowledge highlights the problem of trust in knowledge
and the expert systems that produce it. As phenomena, the global climate and anthropogenic changes to it would be difficult even to
conceive of without sophisticated computer simulations of the global climate system. Although satellite monitoring systems as well as
instrumental records and paleoclimatic evidence have also been important, particularly in the identification of historic changes in the
climate to date, it is these powerful computer models that have been decisive in identifying the problem of future anthropogenic
climate change and making it real for policy makers and the public. 2 Ordinary senses struggle in the face of phenomena so extensive
in space and time and incalculable in their potential impacts. For the social theorist Ulrich Beck (1992), this dependence upon
science to make tangible otherwise invisible environmental risks is characteristic of what he calls the modern risk society.
DDI 2008 BQ
Fishell [PMA]
DDI 2008 BQ
Fishell [PMA]
AT: Germany DA
1. Their Philipine Daily Inquirer ev says that Germany is pretty good at
exporting shit, not that they have anything close to a “competitive
edge.”
2. Their Walsh evidence says that US alternative innovation captures market

share from the Japanese, not Germany.
3. Walsh also says that increased US market share would help German
competitiveness because companies like Siemens (heh) provide turbines
to the US.
4. Please read their Schavan card. It only says that Germany has established
guidelines for science in general. Nowhere does it say that alternative energy is
key to anything. It doesn’t even say science is key to the economy.
5. German economy stagnating now.

Heightened concerns about the growing threat of inflation combined with stagnating economic growth have triggered a sharp
slump in German economic confidence.
While a survey released Tuesday said German consumer confidence dropped to a two-year low, the closely watched Ifo index
showed business confidence in Europe's biggest economy cascading down to a two-and-half year low in June.
'Rising fears of inflation, combined with the sustained crisis in the financial markets, a strong euro and a weaker global economy
mean that consumers are not very upbeat in their assessments of future economic growth,' the GfK marketing research group said
releasing its latest consumer confidence survey.
The Nuremberg-based GfK said its forward-looking index slumped to 3.9 points in July from a downwardly revised 4.7 points in
June as surging energy and food prices helped to stoke concerns among the nation's households.
Analysts had predicted that the survey of about 2,000 consumers would slip to 4.6 points from the original 4.9 points projected by
the GfK.
Based on a survey of 7,000 German executives, the Ifo business confidence index fell to 101.3 points this month from 103.5
points in May as the mood darkened in the boardrooms of Europe's biggest economy.
Economists had forecast that the monthly index drawn up by the Munich-based Ifo economic institute would slip to 102.3 points
with both the business and consumer surveys highlighting pressure facing the European Central Bank as it moves to tackle
inflation when growth is losing momentum.
'The firms have assessed their current business situation clearly less favourably than in the previous month, and they are more
sceptical regarding the six-month outlook,' said Ifo chief Hans- Werner Sinn releasing the survey.
'The sharp hike in oil prices is evidently becoming an increasing burden on the German economy,' Sinn said.
Both surveys could also set the stage for the release this week of a series of major economic sentiment surveys, which are likely
to point to a bleaker outlook taking shape across Europe.
Business confidence in Belgium, which is seen by economists as a key barometer of the economic mood in the 15-member
eurozone, fell sharply in June to minus 5.9 from minus 1.9 in May, the country's national bank said Monday.
Economists had predicted a decline to minus 2.5 with a drop in confidence in Belgian's manufacturing sector helping to drag
down the overall indicator.
6. Their GIST 08 concedes German economy isn’t key to world economy –

Germany’s biggest exports are probably cars and lederhosen.
DDI 2008 BQ
Fishell [PMA]
DDI 2008 BQ
Fishell [PMA]
AT: States CP – Spending DA

State spending on the brink now – 31 states are facing gaping budget deficits.
ABC News.com, Marcus Baram, staff writer, “Gloom and Doom: States Face Looming Budget Deficits,”
7/30/08, http://abcnews.go.com/Business/story?id=5473725&page=1
Delaware legislators are considering allowing racetracks to operate 24 hours a day. California Gov. Arnold Schwarzenegger is
threatening to cut the pay of thousands of state workers to minimum wage. And Nevada officials are encouraging their state police to
drive less to save money on gas.
These are just some of the extraordinary measures being considered by states that face gaping budget deficits that total at least $40.3
billion, almost triple the shortfall the previous year, according to the National Conference of State Legislatures.
Squeezed by reduced tax revenue and suffering the impact of the housing crisis, the credit crunch and higher unemployment, states
across the country are struggling with budget problems that mirror the weak condition of the economy, budget experts say.
"Reduced tax revenue is number one," says Brian Sigritz, staff associate at the National Association of State Budget Officers. "Sales
taxes came in a lot lower than expected, were actually slightly lower than last year comparing the first quarters of the calendar year."
Sigritz notes the ripple effect of the housing crisis which impacts sales tax and real-estate transfer tax revenue. "Homes aren't being
sold and if people are not doing home improvements, that hurts contractors and other workers and it all reduces the taxes brought in by
states."
Across the country, 31 states are projecting budget gaps, and that number doesn't even include large states such as California,
Illinois, Michigan and North Carolina, which have not yet completed their budgets.
And on Tuesday, New York Gov. David Paterson delivered a somber speech about the dire state of the state's economy, which he has
compared to the fiscal crisis of the 1970s. Paterson said that the state's $5 billion budget deficit will grow unless drastic spending cuts
and layoffs are enacted. Earlier this week, Schwarzenegger postponed his plan to reduce the salaries of California's 200,000 state
workers to the minimum wage of $6.55 an hour to plug a $17 billion budget deficit. As a whole, the budget crisis is most comparable
to the downturn after the dot-com collapse which prompted budget gaps of $58 billion in 2002, $79 billion in 2003 and $83.78 billion
in 2004, says Corina Eckl, director of Fiscal Affairs program at NCSL. And was the case in those years, the crisis is expected to
deepen in the next few years. "Based on what legislative fiscal directors say, the state fiscal situation is expected to get worse before it
gets better and most of them are bracing for tougher times," Eckl tells ABCNews.com.
DDI 2008 BQ
Fishell [PMA]
AT: States CP – California Spending DA

1. California spending on the brink – pay cuts gave the state just enough
money to avoid crisis until budget is implemented.
Los Angeles Times, Nancy Vogel and Michael Rothfeld, staff writers, “Governor slashes workers’ pay,” 7/31/08
SACRAMENTO -- Gov. Arnold Schwarzenegger today ordered his administration to lay off thousands of part-time state workers and
to work with the state controller to temporarily slash the pay of most full-time employees to the federal minimum wage of $6.55 an
hour.
Schwarzenegger administration officials said the move will help give the state enough cash to get by until a state budget is signed. The
budget was due July 1 but is still being negotiated by the governor and legislative leaders.
"It is a terrible situation to be in," Schwarzenegger said after signing an executive order. "I don't think any governor wants to be in this
situation."
2. New California spending tanks the deal – fiscal discipline key to passing
sales tax increase.
Daniel Weintraub, staff writer for the Sacramento Bee, MercuryNews.com, “Chaotic scene in state capital usually means budget is
near,” 8/1/08, http://www.mercurynews.com/opinion/ci_10065195
It used to be said that state leaders couldn't get a budget deal until the temperatures in the capital city topped 100 degrees. But since
the coming of air conditioning, that maxim no longer holds. Now it's more accurate to say that the opposing sides won't agree until
everybody watching them pretty much concludes that they are on the verge of a partisan meltdown.
In other words, they're getting close to a deal.
That's not the same as closing the deal. It's common for the party leaders to have the framework of an agreement, even an outline of a
new budget plan, but then be stymied for days or even weeks over a disagreement on details.
But by listening to the legislative leaders talk and tapping into the chatter in the Capitol hallways, you can begin to sense what a new
budget agreement might look like, whenever it comes. Here's my best guess:
• It is going to include some borrowing. There is just no way they are going to close a $15 billion gap with spending cuts and tax
increases alone. So expect some gimmicks.
Lawmakers, for instance, might find a way to tap into local government funds. Also, the governor's proposal to borrow against future
state lottery earnings is still very much alive. I would not be surprised if a scaled-down version of the governor's plan emerged as part
of this package.
• The final deal will include some tax increases. The worst-kept secret in the Capitol is that at least a handful of Republicans are
prepared to accept some tax increases in exchange for what they call "budget reform."
If Democrats were to accept a strict limit on future spending, a top priority for Republicans, the majority party could probably
get enough Republican votes to pass a sales tax increase. But the Democrats won't go there because such a limit would constrain
growth in government services during the next economic expansion
DDI 2008 BQ
Fishell [PMA]
**Miscellaneous Ev**
DDI 2008 BQ
Fishell [PMA]
Global Warming > Terrorism

Global warming is a greater threat than terrorism – magnitude and probability.
Clive Crook, senior editor of the Atlantic and columnist for the National Journal, “The New New Economy
Will Be All About Energy,” 7/19/05, http://www.theatlantic.com/doc/200507u/nj_crook_2005-07-19
Ex-presidents, especially. Bill Clinton turned up last week at the Aspen Ideas Festival—a gathering of intellectually engaged American
plutocrats. (The meeting was co-sponsored by The Atlantic Monthly, a sister publication of National Journal.) Admittedly, that setting
is irresistibly conducive to lofty environmentalism, but what Clinton said about the greatest challenge confronting the world was still
striking. It was not chemical, biological, or nuclear terrorism, he said. The worst that terrorists might do, even equipped with weapons
of mass destruction, is kill a few million people. That would pose no real threat to the survival of our civilization, he said. Clinton
could foresee only one such peril. It was global warming.
DDI 2008 BQ
Fishell [PMA]
Economy on Brink
Holy shit, we’re on the brink of the worst economic free-fall in US history.
William Greider, National affairs correspondent for the Nation and former editor of the Washington Post, “Economic Free Fall?” The
Nation, 7/30/08
The nation, meanwhile, is flirting with historic catastrophe. Nobody yet knows how bad it is, but the peril is vastly larger than
previous episodes, like the savings and loan bailout of the late 1980s. The dangers are compounded by the fact that the United States is
now utterly dependent on foreign creditors--Japan and China lead the list--who have been propping us up with their lending. Thanks to
growing trade deficits and debt, foreign portfolio holdings of US long-term debt securities have more than doubled since 1994, from
7.9 percent to 18.8 percent as of June 2007. If these countries get fed up with their losses and pull the plug, the US economy will be a
long, long time coming back.
The gravest danger is that the national economy will weaken further and spiral downward into a negative cycle that feeds on
itself: as conditions darken, people hunker down and wait for the storm to pass--consumers stop buying, banks stop lending, producing
companies cut their workforces. That feeds more defaulted loan losses back into the banking system's balance sheets. This vicious
cycle is essentially what led to the Great Depression after the stock market crash of 1929. I offer not a prediction but a warning. The
comparison may sound farfetched now, but US policy-makers and politicians are putting us at risk of historic deflationary forces that,
once they take hold, are very difficult to reverse.
Economic resilience won’t last.

The Economist.com, 7/31/08, “Still on the Right Road,”
http://www.economist.com/finance/displayStory.cfm?story_id=11850301&source=features_box_main
The economy’s resilience, while remarkable, cannot be relied upon to last. Export growth is likely to soften, because America’s
trading partners in the rich world are now struggling too. GDP growth in the euro area is grinding to a halt and Britain is teetering on
the brink of recession. Japan’s economy may be flirting with one too.
Spending by American firms and households is also likely to soften. If consumers relied heavily on tax rebates to keep their spending
going in the second quarter, there will be less cash left over to shell out in the coming months. And the lifeline provided by home-
equity loans is increasingly constricted, as damaged banks cut back on pre-arranged credit lines. Firms will be more circumspect about
investing—even if they could secure funding for big projects—if spending at home and abroad is set to turn down.
The Federal Reserve’s rate-setters, who meet on August 5th, have already bumped up their forecasts for GDP growth this year,
because of the economy’s unexpected resilience. Some Fed officials are uncomfortable that interest rates are so low when headline
inflation is at 5% and the economy is still growing at a decent rate. Yet most are still more concerned that the economy could yet
nosedive as credit becomes scarcer. For that reason, the Fed is widely expected to keep interest rates on hold, at 2%, for a second
successive meeting.
DDI 2008 BQ
Fishell [PMA]
Economy Resilient
US economy is resilient – it constantly defies predictions of its collapse.
The Economist.com, 7/31/08, “Still on the Right Road,”
http://www.economist.com/finance/displayStory.cfm?story_id=11850301&source=features_box_main
THE American economy has often defied predictions of its demise. It has done so again. Official figures published on Thursday July
31st show that America’s GDP rose at an annualised rate of 1.9% in the second quarter. This would a respectable enough growth rate
at the best of times. That this was achieved despite the considerable handicaps of a badly damaged banking system, a big jump in oil
prices and the ongoing housing bust, makes it remarkable.
Revisions to earlier quarters took some of the shine of the news. Government statisticians now reckon that the economy shrank in the
final three months of last year: the annualised change to GDP was revised from 0.6% to -0.2%. But growth picked up slightly to 0.9%
in the first quarter, so on this reading at least, America seems to have just steered clear of a technical recession—two consecutive
quarters of contraction.
One reason why the economy has held up well is that the weak dollar has encouraged exports and curbed imports. American firms
have been kept going by foreign sales during a period in which domestic spending has been somewhat hampered. In the two years
since the housing bust started in earnest, the contraction in homebuilding has taken around one percentage point a year of GDP
growth. That drag has been more or less fully offset by the boost from net trade. In the second quarter, exports net of imports
accounted for all and more of the increase in GDP.
Spending at home has held up rather better than might have been expected, as well. Consumer spending picked up speed in the second
quarter, lifted in part by the $86 billion of tax-rebate cheques that were sent out between the end of April and the start of July. The
homebuilding industry shrank again, but at a slower rate than in previous quarters, and the dampening effect on the economy was
partly offset by a big increase in the construction of commercial buildings.
DDI 2008 BQ
Fishell [PMA]

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PATENTS – PURE MUSCLE ACTION

SC Statutory Overrule – N/U..............................................................................................................................68

2. Economic decline causes a nuclear war

Terrorism Add-On [1/2]

In the post-9/11 era especially, we should heed this warning.

Terrorism Add-On [2/2]

Global Warming Add-On

B. Innovation key to limit global greenhouse emissions - tech transfer ensures

C. Global warming causes extinction.

Global Warming Add-On [2/2]

2AC Lower Courts CP Frontline [1/3]

B. Democratic transitions are inevitable – only a symbol including a

C. Stable democracies solve nuclear war.

2AC Lower Courts CP Frontline [2/3]

3. No solvency – Supreme Court will overrule any lower court violation of

2AC Lower Courts CP Frontline [3/3]

5. Lower courts can’t solve – corner-cutting guts enforcement.

6. State Courts won’t enforce the counterplan.

No Solvency – SC Decisions = Better

Supreme Court sets better precedents – more justices.

AT: Lower Courts Have Expertise

Benefits of lower courts are exaggerated – they aren’t “laboratories.”

AT: Lower Courts Have Expertise

AT: Lower Courts Have Expertise

No Solvency - Supreme Court Sets Law

No Solvency - only the Supreme Court can change the law

No Solvency – State Courts

State courts don’t listen to circuit court precedent.

Turn – Judicial Economy

AT: Judicial Economy Net Benefit

No Solvency - Supreme Court Will Reverse

No Solvency – the Supreme Court is actively opposed to lower courts not

No Solvency – Supreme Court Will Reverse

The Supreme Court will reject the counterplan.

No Solvency – Supreme Court Will Reverse

No Solvency – Supreme Court will overrule the counterplan.

The Court would feel extra pressure to reverse the counterplan.

Supreme Court Solves Lower Courts

Supreme Court has declared its authority over lower courts

Supreme Court Will Reverse – State Court Conflict

Supreme Court Will Reverse – Ninth Circuit Involvement

Ninth Circuit involvement slaughters CP solvency – the Supreme Court will

AT: Lower Courts Check Judicial Activism

Lower Courts can’t check the power of the judiciary.

AT: Lower Courts Check Judicial Activism – Timeframe

No Solvency - Doesn’t Set Precedent

AT: CP Leads to Plan

Lower Court action doesn’t lead to Supreme Court modeling

AT: CP Leads to Plan – Links to NB

If the counterplan leads to Supreme Court action, it links to all of their

The counterplan devastates Supreme Court legitimacy.

Lower Court disregard for Supreme Court precedent collapses legitimacy

Legitimacy DA – AT: “We Only Do It Once”

Even if underruling is good in rare circumstances, it’s better to not do it –

Supreme Court Reversal Good - Policymaking

2AC Congress CP Frontline [1/3]

2. Counterplan crushes the independent judiciary and strips the courts.

2AC Congress CP Frontline [2/3]

2AC Congress CP Frontline

B. Stable democracies solve nuclear war.

5. PERM – Do both, yo.

Courts Good – Judicial Review

AT: Court DAs

AT: Case Turns/Other Offcase