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Critique My 1AC

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I thought I had added a word document but now I can't seem to do that so I pasted it below. Thanks.

 

1AC: Abolish International Precedent in the Federal courts

 

 People make decisions every day some small and some big. But all of our decisions are made for some reasons. In the Federal courts our judges have to make decisions every day and they have to give us the reasons for their decisions. Originally verdicts were supposed to be based on the Constitution but now they are being based on many different things including international laws. We are outsourcing federal judicial verdicts and are looking to international courts to help determine what should happen within the United States Federal Courts.

Because Morgan and I believe that outsourcing our judicial decisions is illegitimate and may bring harm the United States we stand RESOLVED: The United States Federal Court system should be significant reformed. To show you why we believe this let’s begin by establishing that we are using foreign precedents in our federal courts with Fact 1.

 

FACT 1: Supreme Court uses Foreign Precedent.

In recent years the Supreme Court has cited international precedent: International Precedent are simply understood as a court decision or law that is referred to as an authority on a case. Often once a case has been decided all similar cases will refer to it, this helps us have similar outcomes in similar cases.

However in United States Courts we are looking not just at the constitution and previous U.S. judicial decisions for guidance in current cases. Recently we have broadened our scope to include international laws and judicial decisions. As Robert Delahuny, an associate Professor of law, and John Yoo, a Professor of law, said together:

 

Robert J. Delahunty and John Yoo, [at least 2005] (Robert: Associate Professor of Law, University of St. Thomas School of Law. Delahunty: Professor of Law, University of California, Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute.),“Against Foreign Law”, http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_Delahunty_Yoo.pdf

 

QUOTE: “In recent years, several Supreme Court Justices have looked to the decisions of foreign and international courts for guidance in interpreting the U.S. Constitution. This practice has occurred in several controversial, highprofile cases. Roper v. Simmons1 outlawed application of the death penalty to offenders who were under eighteen when their crimes were committed. Law rence v. Texas2 struck down a state law that criminalized homo sexual sodomy. Atkins v. Virginia3 held against the execution of mentally retarded capital defendants. All three cite foreign and international precedents.” :UNQUOTE

 

 

Now that we’ve established that the United States Federal Courts are using International Precedent in their decisions we wonder why Judges are using international precedent.  There are many reasons why Judges might do this but we will focus on two of the biggest.

 

Reason 1: Judges are pursuing personal agendas

Judges are people just like you and me and though they are supposed to be neutral we cannot expect them to be perfect or unbiased.  Thomas Jefferson once said, “Our judges are as honest as other men and not more so”. [1]

If we understand this we will better be able to combat the issue. But if we continue to believe that our judges are perfect little unbiased angles sitting on the bench giving out unflawed verdicts there is nothing we can do to fix the problem. Ryan Black, Ph.D., Ryan Owens, Ph.D., Daniel Walters, J.D., and Jennifer Brookhart, who is a graduate student of Political Science, understood this reality when they stated in 2014:

 

Ryan C. Black, Ryan J. Owens, Daniel E walters, and Jennifer L. Brookhart, 2014 (Black: Ph.D.; Associate Professor of Political Science, Michigan State University , Owens: J.D., Ph.D.; Lyons Family Faculty Scholar, Associate Professor of Political Science, and Honor- ary Fellow, Institute for Legal Studies, University of Wisconsin-Madison. ,Walters: J.D.; Regulation Fellow, University of Pennsylvania Law School; Graduate Student, Department of Political Science, University of Wisconsin-Madison, Brookhart: Graduate Student, Department of Political Science, University of Wisconsin-Madison.), “Upending a Global Debate: An Empirical Analysis of the U.S. Supreme Court’s Use of Transnational Law to Interpret Domestic Doctrine”, http://georgetownlawjournal.org/files/2014/10/Black-updending.pdf

 

Our theoretical starting point, based on decades of scholarship, is that Justices are strategic judicial decision makers who seek to pursue their policy goals but are constrained from so doing by a host of internal and external norms and actors.80 More specifically, the Supreme Court lacks the power to enforce its decisions. Instead, it must rely on citizens’ and policymakers’ beliefs in its legitimacy, something it earns by writing principled, logical, and well-supported opinions. As Justice Frankfurter once observed, the Court’s authority “ulti- mately rests on sustained public confidence in its moral sanction.”81 In order to effectuate their policy goals, Justices must ensure that the opinions that justify those positions have legal and logical support. One way Justices can support their decisions is to reference transnational practices and transnational law.

This brings us to the Second Reason judges may cite International Precedent.

 

Reason 2: The courts are seeking to add to their powers

If the Federal courts can legitimize the use of international precedent as a source for decisions they are no longer bounded by the constitution to only review certain cases. This in turn adds to the amount of power they have. This was recognized by Robert Delahunty an associate professor of law and John Yoo a professor of law who state together:

 

Robert J. Delahunty and John Yoo, [at least 2005] (Robert: Associate Professor of Law, University of St. Thomas School of Law. Delahunty: Professor of Law, University of California, Berkeley School of Law (Boalt Hall); Visiting Scholar, American Enterprise Institute.),“Against Foreign Law”, http://www.law.harvard.edu/students/orgs/jlpp/Vol29_No1_Delahunty_Yoo.pdf

QUOTE: “This Article concludes by speculating on why the Supreme Court is so attracted to the use of foreign and international law in constitutional adjudication. Two explanations seem plausible.

 

First, the Court may be seeking to augment its own power. The use of foreign law in constitutional cases makes constitutional law more uncertain and unpredictable, and hence more malleable. The use of foreign law enables the Court to impose the results it wants in any given case, with fewer constraints from the written text of the Constitution, the Constitution’s structure and purposes, or even the Court’s own past precedents. The Court is also less fettered by specifically American traditions of law or social practice, and freer to adopt European models and customs, if it finds them compelling. This has the effect of expanding the Court’s power to pursue different policies that would be foreclosed were it limited to relying on purely American practices or doctrines.”: UNQUOTE

 

When our Constitution becomes malleable or illegitimate the Federal Judges will achieve much more power than they were originally intended to have. Because we recognize this we can see the problems that using international precedents causes.

 

Problem 1: Using International Precedents subjects U.S. laws to international community

Using international precedent in determining the validity of Congressional Laws subjects our government to the oversight of the international community. By allowing this we are setting up a dangerous pattern. This danger was recognized by Richard Posner, a judge on the U.S. Court of Appeals, who stated in 2004:

 

Richard Posner, August 2004, (Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School.) “NO THANKS, WE ALREADY HAVE OUR OWN LAWS The court should never view a foreign legal decision as a precedent in any way.” http://www.legalaffairs.org/issues/July-August-2004/feature_posner_julaug04.msp

 

 QUOTE: “Particularly questionable in this regard is citing foreign decisions to establish an international consensus that should have weight in U.S. courts. Such nose-counting is like subjecting legislation enacted by Congress to review by the United Nations General Assembly. I think that the Supreme Court would be making not only a juridical but also a political error by asking the American people (as one justice did in an opinion) to accept that decisions by the Supreme Court of Zimbabwe should influence decisions by our Supreme Court. I think most Americans would think it outrageous that Zimbabwean judges, however distinguished they may be, were making law for us.”: UNQUOTE

 

I think most of can agree with Posner that the rulings of a court in Zimbabwe are not legitimate in America. But when we say that International precedents are ok we have no way of defining which nations these precedents will come from. German, English, and French decisions are just as legitimate as Chinese, Russian, or those of Zimbabwe. This brings us to the second problem.

 

Problem 2: Using International Precedents Erodes the U.S. constitution.

Once we begin saying that international precedent is a valid interpreter of United States laws we have put it on par with the U.S. Constitution. When we do this we open ourselves up to allowing the Federal courts to review any court case instead of being bounded to what the constitution says they may interpret. This in turn begins to make our Constitution illegitimate and if that happens we are left totally at the whims of our judges. Representative Sandy Adams recognized this when he said in 2011:

 

Rep. Sandy Adams, March 9, 2011, (Adams was a Republican member of the House representing Florida. She is a former law enforcement professional who represented District 33 in the Florida House of Representatives.),“”ADAMS: Bam foreign law from courts. http://www.washingtontimes.com/news/2011/mar/9/in-recent-years-supreme-court-justices-have-interj/

QUOTE: “In recent years, Supreme Court justices have interjected international law into their rulings, creating an environment of disregard for national sovereignty and threatening the institutions put in place by our forefathers. The Constitution laid the foundation for our nation’s judicial system, and allowing foreign law to supersede it in any capacity leads to its erosion. Not only is using international precedent a transparent disregard for the Constitution, but it could be used to advance a judge’s personal political agenda over the best interests of the nation.”: UNQUOTE

 

This brings us back to the very reason judges may be using international precedent which was to legitimize their own position. The more we allow them to use International precedent the more it will break down our constitution and give the judges freer reign to make whatever laws they see fit.

Because we believe that the use of international precedents to interpret the laws of the United States are invalid, that judges should not be allowed to add to their powers or pursue personal agendas, that our laws should not be subjected to the international community, and that we should support our constitution, we propose the following plan.

 

PLAN

Mandate: Congress will pass and the President will ratify the House Representatives Bill 3052: To Amend title 28, United States Code, to prevent the misuse of foreign law in Federal courts, and for other purposes.

 

This bill in short says that no federal courts of the United States shall decide a case based on the authority of foreign law except if the Constitution or an Act of Congress merits its use. This bill is available to the Negative team upon request.

 

Thank you and I am now ready for any questions from the opposing team.


[1]  “Thomas Jefferson on Politics and Government” - Thomas Jefferson to Edward Livingston, 1825. ME 16:114 http://famguardian.org/subjects/politics/thomasjefferson/jeff1030.htm

 

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http://www.c-span.org/video/?185122-1/constitutional-relevance-foreign-court-decisions

 

 

January 13, 2005 Constitutional Relevance of Foreign Court Decisions

Justices Scalia and Breyer talked about the relevance of foreign law for American Constitutional adjudication. Among the topics they addressed were using foreign court precedents in deciding U.S. Constitutional cases and whether the U.S. should take into account shifting world standards on social and moral issues such as the death penalty. The discussion was moderated by New York University Law Professor Norman Dorsen.

Edited by Lazzarone

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Wow, that was awful.

 

I recommend scrapping the aff; in part because it's not actually inherent (no court has cited international law as binding precedent -- only as persuasive authority for guidance, which is massively distinct), in part because its reasoning is ridiculous (judges citing international law somehow shows a lack of neutrality?), in part because the case is racist (all those foreign courts are somehow irrational by virtue of being not-US-courts? what the fuck is wrong with a Zimbabwe decision just because it's from Zimbabwe if the decision is well-written?), in part because the SCOTUS has expressly done the aff already (Medellín v. Texas, 552 U.S. 491 (2008)).

 

Seriously never read this.

Edited by Snarf

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Thank you both for your responses it gives me some idea of what people might have against it. 

 

What do you mean by a gendered language?

 

Binding Precedent -  I agree it hasn't been the only thing they've cited but as my quote stated there have been 3 instance in which it was cited with some amount of authority. Also there are reasons to believe that if we don't stop it from happening now that it will increase. For instance many well known people are pushing for it as well as a couple of the SCOTUS judges think it is a good idea. And again if we let this go you can look at 2 of the harms I listed I do have a couple more though.

 

 

Medellin v. Texas held that international law isn't binding on the United states not that the courts couldn't use international law in their decisions so I'm not quite sure how that applies. 

 

As for Zimbabwe - it is practically a monarchy though it calls itself a republic the same party has "won" the elections since independence and now there's a power share between two people, Mugabe and Tsvangirai. In short it does not have a similar government structure nor are the people, those governed, the same as the people of the united states. We have many different ideals than what is practically happening in Zimbabwe.

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Thank you both for your responses it gives me some idea of what people might have against it. 

 

What do you mean by a gendered language?

 

Binding Precedent -  I agree it hasn't been the only thing they've cited but as my quote stated there have been 3 instance in which it was cited with some amount of authority. Also there are reasons to believe that if we don't stop it from happening now that it will increase. For instance many well known people are pushing for it as well as a couple of the SCOTUS judges think it is a good idea. And again if we let this go you can look at 2 of the harms I listed I do have a couple more though.

 

 

Medellin v. Texas held that international law isn't binding on the United states not that the courts couldn't use international law in their decisions so I'm not quite sure how that applies. 

 

As for Zimbabwe - it is practically a monarchy though it calls itself a republic the same party has "won" the elections since independence and now there's a power share between two people, Mugabe and Tsvangirai. In short it does not have a similar government structure nor are the people, those governed, the same as the people of the united states. We have many different ideals than what is practically happening in Zimbabwe.

As in addressing a group of people as a specific gender, when the odds are they probably are not all men/women or identify as such, which I agree, is ew. 

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Medellin v. Texas held that international law isn't binding on the United states not that the courts couldn't use international law in their decisions so I'm not quite sure how that applies. 

Your plan text also doesn't say that they can't use international law 

 

 

"This bill in short says that no federal courts of the United States shall decide a case based on the authority of foreign law except if the Constitution or an Act of Congress merits its use. This bill is available to the Negative team upon request."

 

I don't see the functional distinction. Especially when you take into account this:

 

(no court has cited international law as binding precedent -- only as persuasive authority for guidance, which is massively distinct)

 

Furthermore,

 

 

Once we begin saying that international precedent is a valid interpreter of United States laws we have put it on par with the U.S. Constitution. When we do this we open ourselves up to allowing the Federal courts to review any court case instead of being bounded to what the constitution says they may interpret.

 

Has 0 legal standing. Judges can't just wake up in the morning and arbitrarily change laws just because another court made a decision. Saying that a court could draw from legal reasoning applied elsewhere when they're deciding another case that's in front of them is completely different (that basically seems like the legal equivalent quoting a scholarly journal when writing a research paper). 

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Your plan text also doesn't say that they can't use international law 

 

 

"This bill in short says that no federal courts of the United States shall decide a case based on the authority of foreign law except if the Constitution or an Act of Congress merits its use. This bill is available to the Negative team upon request."[/size]

 

I don't see the functional distinction.

Leaving aside Snarf's arguments from the far left (no, it's not racist to believe that foreign courts applying foreign laws shouldn't be cited to interpret US law, especially if the foreign court is in Mugabe's crazed dictatorship or one of Venezuela's kangaroo courts), Snarkosaurus is right, you do have a serious solvency deficit. After all, the justices in the majorities in Lawrence, Roper, and Atkins didn't cite foreign law out of nowhere; they argued that it was instructive in evaluating how the Constitution should be interpreted in the modern world. Those justices would just read that statute and say that the Constitution merited the use of foreign law in those cases.

 

I'm not quite sure where you got the idea for the other sentence Snarkosaurus quoted; Rep. Adams is talking about the use of foreign law to decide U.S. cases, but even in those cases U.S. courts have to decided cases in front of them, not just arbitrarily opine on things. Article III standing requires the courts to decide cases, not issues.

 

The biggest problem here is the DA that the law appears to ban voluntary choices of foreign law or use of foreign law according to common law choice of law principles. Some examples:

 

Walcorp imports drugs from Pharma GmbH, a German company, and their sales contract specifies that all disputes will be decided by German law. Walcott sues Pharma for breach of contract in the District of Delaware. Germany gets really angry at us for ignoring the letter of the contract.

 

Daimler AG sells tires that end up on a French rental car; some Americans rent the car in France, the tires blow out, and they crash and die. The Americans' heirs bring a lawsuit in a U.S. Federal court. Result?

 

Sara and Joe get married in Fredonia, where the age of consent for marriage is 16. They subsequently move to a U.S. state where the age of consent is 18. When Joe gets put on trial in federal court for importing cocaine from Fredonia, the government calls Sara to testify. Does the court hold that foreign law doesn't apply, so they aren't married, and thus they have no marital communications privilege?

 

The practical problems with bills like these are a little too great to make them worthwhile.

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We need to remember that this is not a national circuit/spread circuit affirmative. That should frame most of the comments on this thread.

I'm not usually one to agree with Edgehopper but his post was good.

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Again thanks for all the great responses... It's starting to get me think again about some of the larger holes. So here are some of the cuff responses to some of the arguments. Let me know what ya'll think.

 

"except if the Constitution or an Act of Congress merits its use. This bill is available to the Negative team upon request."[/size]

 

This bill is about 1 page long. So short enough the other team can read it in round.

 

In response to the except if the constitution or an Act of congress merits its use. I would say the Constitution may merit it's use when ruling on a case that has impact not just in/on the United States for example below, also the actual bill states Requires its consideration, would it be better if I used require?

 

Bill text can be found at: https://www.govtrack.us/congress/bills/114/hr3052/text

 

Article III section 2a of the Constitution states

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

 

But then you must consider Amendment XI

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

 

Acts of congress would have a similar deal attached to them. Are they dealing with international laws or is this a purely national question? This question could be the basis of deciding if it merits the use of international precedents and/or laws.

 

DA response: If you want to choose to be ruled by international law then why can't they prosecute in that country? (a lot of what I'm saying hasn't gone though a sieve yet so If some of it is flawed continue to press it, I guess)

 

Case in which international law or cases in which the preceding happened on international soil could be referred to the court of the country in question.  Or maybe it would fall under the Acts of congress if they're is a bill addressing international law in contract law? I'm not quite sure of yet...

 

Your last example is flawed because at least where I live you can get married at 16 with parental consent. But I think I get where you're going with the examples... It may fall under the require idea. Also I believe that that wouldn't necessary be the court system you are talking about when it comes to marital communications privileges doesn't that happen during the incarceration before they ever get to court, so not in the courts?

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Again thanks for all the great responses... It's starting to get me think again about some of the larger holes. So here are some of the cuff responses to some of the arguments. Let me know what ya'll think.

 

"except if the Constitution or an Act of Congress merits its use. This bill is available to the Negative team upon request."[/size]

 

This bill is about 1 page long. So short enough the other team can read it in round.

 

In response to the except if the constitution or an Act of congress merits its use. I would say the Constitution may merit it's use when ruling on a case that has impact not just in/on the United States for example below, also the actual bill states Requires its consideration, would it be better if I used require?

Here's where a bit of legal realism comes into play--who interprets the bill? The courts. Unless you rewrite the bill to explicitly and specifically define in what circumstances US courts may apply or cite foreign law, you leave the interpretation to the very judges you've spent your whole 1AC arguing are political actors who misapply the law to suit their agendas. The exception still kills solvency,

 

Article III section 2a of the Constitution states

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

 

But then you must consider Amendment XI

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

 

Acts of congress would have a similar deal attached to them. Are they dealing with international laws or is this a purely national question? This question could be the basis of deciding if it merits the use of international precedents and/or laws.

I'm not quite sure what you mean with this. The 11th amendment is about sovereign immunity; it prevents someone from another state or from a foreign country from bringing suit against a state government; it doesn't do anything about private lawsuits between people of different states or different countries.

 

DA response: If you want to choose to be ruled by international law then why can't they prosecute in that country? (a lot of what I'm saying hasn't gone though a sieve yet so If some of it is flawed continue to press it, I guess)

Because that's not how the U.S. court system works. Whether a U.S. court has jurisdiction to hear a matter or to bind a defendant is a different question than what law it applies. In the Pharma GmbH hypothetical, the District of Delaware may have jurisdiction over the defendant because the contract was negotiated in Delaware, or because Pharma ships the drugs in question through Delaware, or has any other "minimum contacts" sufficient to create jurisdiction. But the District of Delaware would still be required by the contract to apply German law, absent your bill.

 

Case in which international law or cases in which the preceding happened on international soil could be referred to the court of the country in question.  Or maybe it would fall under the Acts of congress if they're is a bill addressing international law in contract law? I'm not quite sure of yet...

Same problem. There generally isn't a rule that a lawsuit can only be brought in one place.

 

Your last example is flawed because at least where I live you can get married at 16 with parental consent. But I think I get where you're going with the examples... It may fall under the require idea. Also I believe that that wouldn't necessary be the court system you are talking about when it comes to marital communications privileges doesn't that happen during the incarceration before they ever get to court, so not in the courts?

The hypothetical said a state where the age of consent was 18, and marital communications privilege is entirely something that happens in court; it prevents the government from introducing into evidence statements made by the defendant to his or her spouse in confidence.

 

The general point is that the vast majority of times US courts apply or interpret foreign law, they do so in important but uncontroversial ways that the average person never hears about, and that are a good deal more complicated than the "The government of Zimbabwe can't tell us what to do!" response addresses. A poorly drafted bill passed in response to a few politically sensitive Supreme Court decisions is likely to do much more harm than good,

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