Documente Academic
Documente Profesional
Documente Cultură
1ac................................................................................................................... 4
FYI on What the Plan Does.................................................................................... 16
Inherency Extensions............................................................................................ 17
INH: Need to Update the Law in digital age......................................................18
Solvency Extensions.............................................................................................. 20
SOLV--AT: Law is Indeterminate.........................................................................21
SOLV--Court Should Reconcile Fourth Amendment.............................................22
SOLV--AT: Rollback/Wont Be Enforced...............................................................23
SOLVExecutive Will Comply.............................................................................25
SOLV--Solvency: Lower Courts will follow...........................................................26
SOLV--Solvency: The Plan will Snowball.............................................................28
SOLV--Solvency: Supreme Court Decisions are Modeled...................................29
Solvency: Court Creates Social Change.............................................................30
Democracy Advantage Extensions........................................................................33
DEM--AT: Other invasions of privacy exist.........................................................35
DEM--Status Quo is a significant intrusion on privacy........................................36
DEM--Fourth Amendment Key to Democracy.....................................................37
DEMDemocracy Good Extensions...................................................................40
DEMDemocracy Good ExtensionsExistential Risk........................................43
DEM--Democracy Good ExtensionsPoverty Add-On........................................44
DEMAT: People just shouldnt use the internet...............................................45
Internet Advantage Extensions............................................................................. 46
INT: Internet Impact Extensions........................................................................47
INT: Internet is in trouble now........................................................................... 48
Imperial Presidency Advantage Extensions...........................................................49
IMP--Executive Power is Increasing Now.............................................................51
IMPExecutive Power = War..............................................................................53
IMPPres Powers = War..................................................................................... 54
IMP--Rights......................................................................................................... 56
IMPPres Powers destroy economy...................................................................58
IMPPres Powers = Biopower............................................................................59
IMPAT: Impact Cards Dont Assume Obama...................................................60
IMP--Solvency for Imperial Presidency................................................................61
1ac
Observation 1: Inherency: The Courts analysis of the Fourth
Amendment is outdated with regard to new technologies:
Abdulmajeed Alhogbani, 2014 (J.D. Candidate, The Catholic University of
America, 2016, CommLaw Conspectus, GOING DARK: SCRATCHING THE SURFACE
OF GOVERNMENT SURVEILLANCE, Accessed 6/23/2015, rwg)
The Court's analysis of the Fourth Amendment is outdated in regards to new
technologies . n35 The Court has held that an individual has no reasonable
expectation of privacy in what they disclose to third parties . n36 In U.S. v. Jones, as Justice
Alito opined, "[s]ome people may find the 'tradeoff' of privacy for convenience 'worthwhile,' or come to accept this
Plan:
The United States Supreme Court should recalibrate the Fourth
Amendment test in Katz v. United States for domestic internet
surveillance to allow what a person seeks to preserve as
private, even in an area accessible to the public, may be
constitutionally protected.
Observation 2: Solvency
The plan text solves and Courts are key to protecting privacy
rights over the internet:
Abdulmajeed Alhogbani, 2014 (J.D. Candidate, The Catholic University of
America, 2016, CommLaw Conspectus, GOING DARK: SCRATCHING THE SURFACE
OF GOVERNMENT SURVEILLANCE, Accessed 6/23/2015, rwg)
The application of the Fourth Amendment to Internet surveillance has expanded the
government's ability to conduct unreasonable searches. The government's power is
currently unchecked and must be recalibrated . n173 The Court's interpretation in
Katz, that the Fourth Amendment protects people, not places, and that people have
a "reasonable expectation of privacy" has become irrelevant due to the advances in
technology. n174 Understanding that the Internet is, in theory, a place where content flows, and renders nearly everything on
the Internet incapable of protection under the Fourth Amendment. n175 Instead of adopting a narrow
interpretation, legislatures need to apply the broader rationale behind the Fourth
Amendment, which reasons, "[w]hat a person knowingly exposes to the public, even
in his[/her] own home or office, is not a subject of Fourth Amendment protection.
But what he[/she] seeks to preserve as private, even in an area accessible to the
public, may be constitutionally protected." n176 The Court must better protect what
a person seeks to preserve as private. n177
Courts are key to check the executive branch with the Fourth
Amendmentself-restraint and Congress fail:
Timothy Casey, 2008 (Associate Professor of Law, Case Western Reserve
University School of Law, RIGHTS AND REMEDIES: Electronic Surveillance and the
Right To Be Secure, UC Davis Law Review, Lexis/Nexis, Accessed 6/25/2015, rwg)
The courts must be more proactive in their role in limiting the reach of the
executive branch. Both the Pen Register Decisions and the NSA Cases presented
Fourth Amendment issues in a context that suggest a greater role for the courts . In
the traditional conception of the adversarial system, the court plays the role of neutral arbiter, deciding only the issues framed by
the parties, based on the evidence provided by the parties. n276 However, in the constitutional context, and particularly in the
context of ex parte proceedings, the courts must protect the unrepresented interests of the People. Courts should assume the
additional obligation of assuring that the government does not reach further than permitted by the Fourth Amendment and the
relevant statutory structure. If courts are not comfortable accepting this role, and many may not be, then they should freely explore
alternative measures to ensure the representation of the interests of the People. The Pen Register Decisions suggest one immediate
[*1032] remedial measure. n277 Commendably, a few courts appointed amici to brief the position opposed to the government.
n278 The appointment of counsel to represent the interests of the People would identify the separate interests of the collective
courts
must accept their role of enforcing the Constitution against the executive branch by
applying greater scrutiny to executive claims of authority . The NSA Cases present the courts with
people and would encourage a more thorough litigation of the issues before the courts. From an institutional perspective,
an opportunity to revisit the difficult issue of the state secrets privilege. As discussed earlier, the application of the state secrets
privilege should be subject to a balancing test where the significance of the interests at stake in the lawsuit are fairly weighed in the
determination of whether the privilege applies. The privilege itself rests on the proposition that some interests, such as national
security, are superior to other types of interests, such as the individual claims in a lawsuit. However, where the interest asserted in
the lawsuit is not a claim for breach of contract but a claim for breach of the Constitution, the application of the privilege should not
be taken lightly. The difficulty in apportioning proper weight to the interests protected by the Fourth Amendment stems from the
use of the language in the reasonable expectation of privacy test. Reclaiming the language of the Fourth Amendment implies a
different role for the courts because the original language denotes a right, rather than an expectation. An expression of the interests
protected by the Fourth Amendment as a right rather than as an expectation necessarily entails a higher degree of involvement for
Advantage 1: Democracy
Government surveillance of the internet risks a police state
the internet is a critical threshold:
Abdulmajeed Alhogbani, 2014 (J.D. Candidate, The Catholic University of
America, 2016, CommLaw Conspectus, GOING DARK: SCRATCHING THE SURFACE
OF GOVERNMENT SURVEILLANCE, Accessed 6/23/2015, rwg)
Government spying is not a new phenomenon; it has been an ongoing custom since the earliest forms of
threshold that grants access to limitless amounts of information . n14 They are
overstepping constitutional boundaries , n15 and raising the possibility of a police
state. n16 By advocating that surveillance is necessary for national security, the government provides an
incentive for citizens to bypass the surveillance. n17 Anonymity is an important virtue of the Internet, and
destroying it causes more harm than good. n18 Legislators must reexamine current legislation, redefine what
constitutes a reasonable search, and balance national security with an individual's right to privacy.
Courts must
reconcile
[*471] modern technology with the U.S. Constitution. Moreover, the judiciary must
fulfill their constitutional function by keeping the executive branch in check.
marked, impact-covered surface of many planets. At the same time, the identification of hyper-velocity impact
craters on the Earth and empirical evidence of half a dozen mass extinction events generated a new view of our
planet as a fundamentally hazardous and catastrophic place in space. More recently, predictions of large-scale
disasters and societal upheaval as a result of catastrophic climate change, as well as growing apprehension about
impending bioterrorism and nuclear warfare, have become almost routine issues of international concern. There can
be little doubt that we are living in an age of apocalyptic angst and alarm. The existential risk paradox At the core of
today's collective anxieties lies what I call the existential risk paradox. As advances in science, medical research,
genetics and technology are accelerating, human vulnerability to global hazards such as cosmic impacts, natural
the proliferation of
democratic liberalism and free market economies around the world has dramatically
disasters, famine and pandemics has significantly decreased. Simultaneously,
curtailed the death toll associated with natural disasters and diseases.
A recent study
confirms that the annual percentage of people killed by natural disasters has decreased tenfold in the last 40 years,
open and
technological societies are becoming increasingly resilient to the effects of natural
disasters. Kari Marie Norgaard Read a view of the psychology of climate scepticism from US scholar Kari
in spite of the fact that the average annual number of recorded disasters increased fivefold. Evidently,
Norgaard Inside the climate ostrich Yet the very same technologies that are serving us to analyse, predict and
prevent potential disasters have reached such a level of sophistication and potency that their misuse can transform
vital survival tools into destructive forces, thus becoming existential risks in their own right. The nuclear device that
may protect us from a devastating asteroid impact can also be employed for belligerent purposes. Genetic
engineering that offers the prospect of infinite food supplies for the world's growing population can be turned into
weapons of bioterrorism. And without the global utilisation of fossil fuels we would lack all trappings of modern
civilisation and social progress. Yet, fossil fuels are regarded as dangerous resources that are widely blamed for
economic tensions, wars and catastrophic climate change. Existential risk perception There seems to be some
correlation between media exposure and existential risk perception. The more people see, hear or read about the
risks of Near Earth Object (NEO) impacts, nuclear terrorism or global climate catastrophes, the more concerned
they have become. The mere mention of catastrophic risks, regardless of its low probability, is enough to make the
danger more urgent, thus increasing public estimates of danger. Scientists who evaluate risks are often torn
between employing level-headed risk communication and the temptation to overstate potential danger. Sunbather
(BBC) Media called on 'climate porn' Chaotic world of climate truth The inclination to amplify a possible risk is only
too understandable. Personal biases, as well as grants and funding pressures, are considerable motivating factors to
hype a probable hazard; ;n many cases, funding is allocated on the basis of intense lobbying. This, in turn, can
tempt researchers to aggressively promote their specific "danger warning" via the mass media. Behind many
alarms lurk vested interests of research institutions, campaign groups, political parties, charities, businesses or the
news media, all of whom vie for attention, influence and funding in a relentless war of words. Professional risk
analysts disapprove of such scare tactics, and point out that the detrimental affects of apocalyptic-sounding alarms
and the rise of collective anxieties are much costlier than generally presumed. Whether individuals regard
existential risks as a serious and pressing threat, or a remote and long-term risk, often depends on their
psychological traits. Nobody has appreciated this conundrum perhaps better than Sir Winston Churchill who
famously said: "An optimist sees an opportunity in every calamity; a pessimist sees a calamity in every
opportunity." Doomsday argument In recent years, leading scientists in the UK, such as Brandon Carter, Stephen
Hawking and Sir Martin Rees, have advanced the so-called Doomsday Argument, a cosmological theory in which
global catastrophes due to low-probability mega-disasters play a considerable role. This speculative theory
maintains that scientific risk assessments have systematically underestimated existential hazards. Hence the
probability is growing that humankind will be wiped out in the near future. I believe that the prophets of doom,
According to a more optimistic view of the future, all existential risks can be tackled, eliminated or significantly
reduced through the application of human ingenuity, hyper-technologies and global democratisation. From this
confident perspective of emergent risk reduction, the resilience of civilisation is no longer restricted by the
constraints of human biology. Instead, it is progressively shielded against natural and man-made disasters by hypercomplex devices and information-crunching technologies that potentially comprise boundless technological
solutions to existential risks. Current advances in developing an effective planetary defence system, for example,
will eventually lead to a protective shield that can safeguard life on the Earth from disastrous NEO impacts. The
societal response to the cosmic impact hazard is a prime example of how technology can ultimately eliminate an
existential risk from the list of contemporary concerns. A technology-based response to climate change impacts is
equally feasible, and equally capable of solving the problem. Global democracy as a solution But while most natural
extinction risks can be entirely eliminated by technological fixes, no such clean-cut solutions are available for the
and authoritarian regimes. Here, the solution can only be political and cultural. Enola Gay. Image: Getty
Effective democracy may prevent man-made catastrophes Fortunately, there is compelling evidence
that the global ascent of democratic liberalism is directly correlated with a steep
reduction of armed conflicts. A recent UN report found that the total number of wars
and civil conflicts has declined by 40% since the end of the Cold War , while the average
number of deaths per conflict has dropped dramatically, from 37,000 in 1950 to 600 in 2002. According to the
field of democratic peace research, the growing number of democracies is the
foremost reason for the pacification of many international conflicts. Democracies
have never gone to war against each other, as democratic states adopt compromise
solutions to both internal and external problems. As Rudolph J Rummel, one of the world's most
eminent peace researchers, has stated: "In democracy we have a cure for war and a way of
minimising political violence, genocide, and mass murder ." On balance, therefore, I believe
that the prophets of doom, including those predicting climate doom, are wrong. Admittedly, there is no guarantee
that we can avoid major mayhem and disruption during our risky transition to become a hyper-technological, type 1
civilisation. Even so, societal evolution has now reached a level of complexity that renders the probability of human
survival much higher than at any hitherto stage of history.
same goal and join the effort along with other stakeholders, including Internet companies and civil society
organizations. The guidelines should require that the rules governing surveillance of private persons be enacted
into law and that each government be required to provide a clear and complete explanation of what surveillance is
essential to democracy .After an introduction that outlines the four myths that fuel skepticism about the
Fourth Amendment[2], the author begins, in Chapter Two, by discussing the historical tenets of the Fourth
Amendment, outlining the Framers strongly held belief that unconstrained governmental discretion cannot be
allowed and that judicial oversight is needed to prevent improper governmental actions. In this chapter, Mr.
Schulhofer argues that the present day courts should focus on the principles and values laid out by the Court in
early Fourth Amendment jurisprudence when deciding cases, rather than relying on a strict adherence to the
specific rules established by the Courts Fourth Amendment jurisprudence. The author calls this adaptive
originalism.[3] This concept is explored further in Chapter 3, as well as in the next chapter where he examines
the changing nature of everyday police work. In both of these chapters the author discusses the exceptions to the
Fourth Amendment that were necessitated by the nature of illegal activity and the need for the police to protect the
public from criminal activity while still adhering to the spirit of the Fourth Amendment. The author continues to
discuss the need for flexibility in Chapter 5, when he discusses administrative searches, those searches that take
place outside the realm of traditional police work. In these special circumstances, for example, searches done to
insure public health and safety, the Court has relaxed the traditional warrant and probable cause requirements.
Although this allows for flexibility, the author argues that this threatens the traditional notions of privacy requiring
the need for governmental accountability and oversight. Again, the author is calling for flexibility while still
recognizing the need for actions that promote the Fourth Amendments original ideals.In Chapter 6, the author
examines the privacy implications resulting from the development of modern technologies, including the effect
wiretapping, electronic eavesdropping and increased access to personal information has had on our Fourth
Amendment jurisprudence. Chapter 7 looks at national security and how the events of 9/11 have affected Fourth
Amendment jurisprudence. In this final chapter, Mr. Schulhofer discusses the effect the events of 9/11 had on our
Fourth Amendment rights, arguing that the assumption that security and prevention of future tragedies outweighs
the protections afforded to us by the Fourth Amendment is misconceived. All decisions have risk and to alienate the
millions of law abiding Muslims in the U.S. in order to protect us from the few that mean us harm is more
damaging. Governmental transparency and checks on governmental power will generate the societal trust needed
to better protect our society from the dangers we now face.[4] In conclusion, Mr. Schulhofer argues in the last
chapter that despite the many societal advances and changes the Framers couldnt possibly have anticipated when
the Fourth Amendment was drafted,
communication , sharing, and storage because they now fear with cause that the
government will be spying on them, whether or not they are the object of that
surveillance. International users properly concerned that they are afforded even less protection than Americans may ditch
American platforms. The European Union and other national governments, which already were threatening laws targeting US
technology companies, will work harder to keep their citizens' data away from the US. Technologists may find it necessary to build in
If we
trust the net less, will we use it less? Will it become less of an engine for innovation
and economic development? Will it be a diminished tool for speech and assembly among citizens? If governments
so many protections, so much encryption and caution, that the openness that is a key value of the net becomes lost.
use this event as an excuse to exercise more oversight and control over the net, will that not then, in turn, reduce citizens' trust in
the net and their freedom using it? Governments present themselves as the protector of our privacy, but as the NSA story
demonstrates, governments present the greatest threat to our privacy as they have the means both to surveil us and to use our
information against us. And note well that governments' relationship with the net is necessarily influenced by the net's disruptive
force on government: witness the internet's use in organizing protests against governments in Turkey, Brazil, Egypt, Tunisia, Iran,
and more nations by the day. Isn't a weakened, controlled, distrusted net in governments' interests? Advertisement So far, much of
the negative coverage and emotion in this story have centered on the technology companies alleged by Edward Snowden's leaked
PowerPoint slides to have cooperated with the NSA. The Washington Post has yet to correct its contention that the NSA and FBI are
"tapping directly" into the servers of internet companies, though that simplistic characterization has been soundly denied by Google,
Facebook, and others. The Associated Press has given a more nuanced and sensible interpretation of the slides, explaining that
some Prism data is the product of warrants served on those companies, producing data from their servers that is delivered by file
transfer, or disc in Google's case, and some is the result of apparent wholesale eavesdropping on internet fibre. That tapping into
the net's full flow of communications is far more troubling even than the US government's secret warrants. For a savvy description of
how that can occur, listen to security expert Steve Gibson's podcast. I've yet to hear internet bandwidth providers (Level3, Verizon,
et al) questioned as internet service companies have been about whether and how they are cooperating with the spies. That is a
next phase of this story. What the NSA is doing may be legal, made so by the Patriot Act. But even on Fox News, regular contributor
Andrew Napolitano has questioned whether its actions and this law are constitutional. That is the key question Edward Snowden and
company now put before us: what principles are being violated or upheld by the government's actions? That is the discussion we
must have. I see these core principles at stake. First, privacy: in the United States, first-class letters and parcels are protected from
search and seizure except by warrant. That should be the case, but is not, for any private communication using any technology:
other classes of mail, email, internet telephony, Twitter direct message, or means yet to be invented. Second, the balance of
powers: the NSA is overseen by a secret court and gagged legislators. Thus, save for Snowden's leaking, we the people are excluded
from the information we need and the opportunity we deserve to keep our representatives and agents in check. A third principle
riding atop these is transparency: the notion that government should be transparent by default and secret by necessity (and there
are necessary secrets). Today, government is secret by default and transparent by force, whether from whistleblowers and
journalists. When government threatens to torture the whistleblowers and prosecute the journalists who share information with us,
then that puts a chill on speech and a choke on the transparency citizens depend upon to assure their rights and monitor their
governments. The first two are principles enshrined in the US constitution: in the fourth amendment that guarantees freedom from
unreasonable searches and seizures; and in the structure of American government itself. The third is a principle whose value I have
learned from the net and the power it gives any citizen to speak publicly; to find, organize, or join a public; and ultimately, to choose
The NSA's actions and the laws that enable them as well as
some occasionally overblown conjecture around this threaten to diminish the
what is public and what is not.
long until other more mainstream services are affected? And it doesnt have to be outright shutdowns or closures
just a series of restrictions or the gradual decline in usage by users who are (rightly) concerned about the
information they are putting online or the digital cookie crumbs they are leaving behind them. As Jones points out,
the cumulative effect of a multitude of decisions like hers could have substantial
repercussions for internet companies (and in fact have already done so) as well as the digital
economy as a whole. How many people will want to use an e commerce solution like Facebook is said to be
launching if they know every transaction will be indexed and tracked by the government or the NSA? Thats just one
example. As Jones puts it: My personal decision is to get off of the Internet to the degree its possible. Im just an
ordinary person. But I really know, after all my research and some serious thinking things through, that I cant stay
online personally without losing my humanness if everyone did that, leap off the Internet, the worlds economy
would collapse, I suppose. I cant really hope for that. But for me, the Internet is over.
bacterial epidemics precipitated the fall of the Golden Age of Athens, the Roman Empire and most of the empires of
The internet can be our key to survival because the ability to work
telepresently can inhibit microbial transmission by reducing human-to-human
contact. In the face of an otherwise devastating epidemic, businesses can keep supply chains running with the
the Native Americans.
maximum number of employees working from home. This can reduce host density below the tipping point required
for an epidemic. If we are well prepared when an epidemic arrives, we can fluidly shift into a self-quarantined
society in which microbes fail due to host scarcity. Whatever the social ills of isolation, they are worse for the
microbes than for us. The internet will predict natural disasters We are witnessing the downfall of
slow central control in the media: news stories are increasingly becoming user-generated nets of up-to-the-minute
information. During the recent California wildfires, locals went to the TV stations to learn whether their
neighbourhoods were in danger. But the news stations appeared most concerned with the fate of celebrity
mansions, so Californians changed their tack: they uploaded geotagged mobile-phone pictures, updated Facebook
easily marched 10km to safety, well ahead of the pyroclastic flow from Mount Vesuvius. If the Indian Ocean had the
Pacifics networked tsunami-warning system, South-East Asia would look quite different today. Discoveries are
retained and shared Historically, critical information has required constant rediscovery. Collections of learning -from the library at Alexandria to the entire Minoan civilisation -- have fallen to the bonfires of invaders or the
wrecking ball of natural disaster. Knowledge is hard won but easily lost. And information that survives often does
not spread. Consider smallpox inoculation: this was under way in India, China and Africa centuries before it made its
way to Europe. By the time the idea reached North America, native civilisations who needed it had already
collapsed. The net solved the problem. New discoveries catch on immediately; information spreads widely. In this
way, societies can optimally ratchet up, using the latest bricks of knowledge in their fortification against risk.
Tyranny is mitigated Censorship of ideas was a familiar spectre in the last century, with state-approved news
outlets ruling the press, airwaves and copying machines in the USSR, Romania, Cuba, China, Iraq and elsewhere. In
many cases, such as Lysenkos agricultural despotism in the USSR, it directly contributed to the collapse of the
nation. Historically, a more successful strategy has been to confront free speech with free speech -- and the internet
allows this in a natural way. It democratises the flow of information by offering access to the newspapers of the
world, the photographers of every nation, the bloggers of every political stripe. Some posts are full of doctoring and
dishonesty whereas others strive for independence and impartiality -- but all are available to us to sift through.
Given the attempts by some governments to build firewalls, its clear that this benefit of the net requires constant
vigilance. Human capital is vastly increased Crowdsourcing brings people together to solve problems. Yet far fewer
motivated teen anywhere on the planet can walk through the worlds knowledge -- from the webs of Wikipedia to
the curriculum of MITs OpenCourseWare.
Societal collapse can often be understood in terms of an energy budget: when energy spend outweighs energy
return, collapse ensues. This has taken the form of deforestation or soil erosion; currently, the worry involves fossilfuel depletion. The internet addresses the energy problem with a natural ease. Consider the massive energy
savings inherent in the shift from paper to electrons -- as seen in the transition from the post to email. Ecommerce
reduces the need to drive long distances to purchase products. Delivery trucks are more eco-friendly than
individuals driving around, not least because of tight packaging and optimisation algorithms for driving routes. Of
course, there are energy costs to the banks of computers that underpin the internet -- but these costs are less than
the wood, coal and oil that would be expended for the same quantity of information flow. The tangle of events that
vast,
networked communication can be an antidote to several of the most deadly
diseases threatening civilisation . The next time your coworker laments internet addiction, the banality
triggers societal collapse can be complex, and there are several threats the net does not address. But
of tweeting or the decline of face-to-face conversation, you may want to suggest that the net may just be the
technology that saves us.
become much more difficult for the United States. It would require a much larger military presence than it does now. On the one hand, it might become necessary for
the United States to reinstate the draft (which would possibly meet with violent resistance from draftees, as it did during the Vietnam War). On the other hand,
Americas all-volunteer army might find it had more than enough volunteers with the national unemployment rate in excess of 20 percent. The army might have to be
employed to keep order at home, given that mass unemployment would inevitably lead to a sharp spike in crime. Only after the Middle East oil was secured would the
country know how much more of its global military presence it could afford to maintain. If international trade had broken down, would there be any reason for the
United States to keep a military presence in Asia when there was no obvious way to finance that presence? In a global depression, the United States allies
in
Asia would most likely be unwilling or unable to finance Americas military bases there or to pay for the upkeep of the U.S. Pacific
fleet. Nor would the United States have the strength to force them to pay for U.S. protection. Retreat from Asia might become unavoidable. And Europe? What would
a costbenefit analysis conclude about the wisdom of the United States maintaining military bases there? What valued added does Europe provide to the United
States? Necessity may mean Europe
will have to defend itself. Should a New Great Depression put an end to the Pax Americana, the world
would become a much more dangerous place. When the Great Depression began, Japan was the rising industrial power in Asia. It invaded
Manchuria in 1931 and conquered much of the rest of Asia in the early 1940s. Would China, Asias new rising power, behave the same way in the event of a new
global economic collapse? Possibly. China is the only nuclear power in Asia east of India (other than North Korea, which is largely a Chinese satellite state). However,
in this disaster scenario, it is not certain that China would survive in its current configuration. Its economy would be in ruins. Most of its factories and banks would be
closed. Unemployment could exceed 30 percent. There would most likely be starvation both in the cities and in the countryside. The Communist Party could lose its
grip on power, in which case the country could break apart, as it has numerous times in the past. It was less than 100 years ago that Chinas provinces, ruled by
warlords, were at war with one another. United or divided, Chinas nuclear arsenal would make it Asias undisputed superpower if the United States were to withdraw
government might not be able to prevent mass migration southward, even if it wanted to. In Europe, severe economic hardship would revive the centuries-old struggle
between the left and the right. During the 1930s, the Fascists movement arose and imposed a police state on most of Western Europe. In the East, the Soviet Union had
become a communist police state even earlier. The far right and the far left of the political spectrum converge in totalitarianism. It is difficult to judge whether
Europes democratic institutions would hold up better this time that they did last time. England had an empire during the Great Depression. Now it only has banks. In
a severe worldwide depression, the countryor, at least Londoncould become ungovernable. Frustration over poverty and a lack of jobs would erupt into antiimmigration riots not only in the United Kingdom but also across most of Europe. The extent to which Russia would menace its European neighbors is unclear. On the
one hand, Russia
would be impoverished by the collapse in oil prices and might be too preoccupied with internal unrest to threaten anyone. On the
other hand, it could provoke a war with the goal of maintaining internal order through emergency wartime powers. Germany is very
nearly demilitarized today when compared with the late 1930s. Lacking a nuclear deterrent of its own, it could be subject to Russian intimidation. While Germany
could appeal for protection from England and France, who do have nuclear capabilities, it is uncertain that would buy Germany enough time to remilitarize before it
became a victim of Eastern aggression. As for the rest of the world, its prospects in this disaster scenario can be summed up in only a couple of sentences. Global
economic output could fall by as much as half, from $60 trillion to $30 trillion. Not
Court approved the collection of telephony metadata on U.S. citizens and interpreted the NSA's surveillance
practices as indistinguishable from a pen register. n239 In similar fashion, an Idaho court held, in Smith v. Obama,
that a citizen seeking an injunction against NSA telephony metadata collection has no reasonable expectation of
privacy with respect to her cellphone data. n240 Other courts dismissed similar actions on the basis that plaintiffs
lack standing. n241 For example, a District Court in Washington, D.C. held that the plaintiff lacked standing,
because "[h]is generalized fear that his communications are being intercepted 'is insufficient to create standing.'"
n242 Opponents of current wiretapping and surveillance legislation have garnered little support from the courts
because national security concerns have prevented revisions to surveillance regulations. n243
At the same
time, the executive branch's authority in this area has been greatly expanded
following 9/11. n244 The 9/11 attacks resulted in "the single largest loss of life from a foreign attack on
American soil," and left the nation in a state of terror. n245 The government has [*495] an obligation to protect
on the authority of the executive and legislative branches. n248 The FISA court has failed to
restrain the power of intelligence agencies over the past two decades. For example, the FISA court approved 20,909
warrants, approximately thirty-three surveillance warrants per week, from 2001 to 2012. n249 During that span,
FISA court judges denied only ten applications and approved over 500 business record warrants, which also include
bulk metadata from phone and Internet providers under section 215. n250 Most notably, the FISA court
"substantially modified" 376 of the 417 business record warrants for 2011 and 2012. n251 It can be reasonably
inferred that the modifications by the court show that the FISA court is doing everything it can to approve warrants
for the NSA, because the court does not reject them completely.
one that enshrines an all-powerful executive. The president has slipped off the petty, outdated constraints of the
past. He makes and unmakes laws and spends trillions of dollars without the consent of Congress.
Even the gravest of decisions, whether to commit our country to war, he makes alone . His ability
to reward friends and punish enemies exceeds anything weve seen before. He is rex quondam, rex futurusthe once and future
king. And all of this seems irreversible. The arc of American government has bent from monarch to monarch, from
George III to Obama. To be sure, Im not the first person to detect a whiff of royal perfume amid the effluvium of our
executive branch. Liberals such as Arthur M. Schlesinger, Jr., who drooled over Jack Kennedy but excoriated Richard
Nixon, have always been quick to decry executive overreach by Republican presidents, even as they celebrated the
assertion of presidential power when their fellow slept at 1600 Pennsylvania Avenue. And, indeed, the
role of the
president has been expanding, and that of Congress receding, for many years now. But weve seen a clear
move recently toward a new conception of our nations highest office, and of government itself. The president now enjoys the
power to make law. Never mind that this is inconsistent with the separation of powers, that Article I, Section 1 of the
Constitution specifies that All legislative Powers herein granted shall be vested in a Congress of the United States.
One might have expected the speaker of the House or the leaders of the Senate to defend their domain. They have
not. In fact, Congress has done more than just quietly acquiesce to its own obsolescence. It has aided and abetted
the expansion of presidential power by drafting major legislation in the most general terms, allowing the details to be penciled
in by federal agencies under executive supervision. This can be seen as a grant to the president of legislative powers, the
regal prerogative the Framers so feared.
(Ray, professor @ Hastings College of the Law University @ University of California and former
Dean of Law School @ Vanderbilt, Tulane, and Cornell, George Washington Law Review, August 1989, l/n)
the startling fact is that one man alone has the ability to start a
nuclear war. A basic theory--if not the basic theory of our Constitution--is that
concentration of power in any one person , or one group, is dangerous to mankind. The
Constitution, therefore, contains a strong system of checks and balances, starting with
On the basis of this report,
the separation of powers between the President, Congress, and the Supreme Court. The message is that no one of
person.
As a result of public indignation aroused by the Vietnam disaster, in which tens of thousands lost their
lives in military actions initiated by a succession of Presidents, Congress in 1973 adopted, despite presidential veto,
the War Powers Resolution. Congress finally asserted its checking and balancing duties in relation to the making of
presidential wars. Congress declared in section 2(a) that its purpose was to fulfill the intent of the framers of the
Constitution of the United States and insure that the collective judgment of both the Congress and the President will
apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent
involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in
hostilities or in such situations. The law also stated in section 3 that [t]he President in every possible instance shall
consult with Congress before introducing United States Armed Forces into hostilities or into situations where
imminent involvement in hostilities is clearly indicated. . . .Other limitations not essential to this discussion are also
provided. The intent of the law is clear. Congress undertook to check the President, at least by prior consultation, in
any executive action that might lead to hostilities and war. [*1638] President Nixon, who initially vetoed the
resolution, claimed that it was an unconstitutional restriction on his powers as Executive and Commander in Chief of
the military. His successors have taken a similar view. Even so, some of them have at times complied with the law
by prior consultation with representatives of Congress, but obedience to the law has been uncertain and a subject
of continuing controversy between Congress and the President. Ordinarily, the issue of the constitutionality of a law
would be decided by the Supreme Court. But, despite a series of cases in which such a decision has been sought,
the Supreme Court has refused to settle the controversy. The usual ground for such a refusal is that a "political
question" is involved. The rule is well established that the federal judiciary will decide only "justiciable"
controversies. "Political questions" are not "justiciable." However, the standards established by the Supreme Court
in 1962 in Baker v. Carr, 369 U.S. 186, to determine the distinction between "justiciable controversies" and "political
questions" are far from clear. One writer observed that the term "political question" [a]pplies to all those matters of
which the court, at a given time, will be of the opinion that it is impolitic or inexpedient to take jurisdiction.
Sometimes this idea of inexpediency will result from the fear of the vastness of the consequences that a decision on
It
is difficult to defend the Court's refusal to assume the responsibility of
decisionmaking on this most critical issue. The Court has been fearless in deciding other issues of
the merits might entail. Finkelstein, Judicial Self-Limitation, 37 HARV. L. REV. 338, 344 (1924)(footnote omitted).
"vast consequences" in many historic disputes, some involving executive war power. It is to be hoped that the
assumed its responsibility to tell us whether the Constitution gives Congress the necessary power to check the
President, the War Powers Resolution itself is unclear. Does the Resolution require the President to consult with
Congress before launching a nuclear attack? It has been asserted that "introducing United States Armed Forces into
hostilities" refers only to military personnel and does not include the launching of nuclear missiles alone. In support
of this interpretation, it has been argued that Congress was concerned about the human losses in Vietnam and in
other presidential wars, rather than about the weaponry. Congress, of course, can amend the Resolution to state
explicitly that "the introduction of Armed Forces" includes missiles as well as personnel. However, the President
could continue to act without prior consultation by renewing the claim first made by President [*1639] Nixon that
the Resolution is an unconstitutional invasion of the executive power. Therefore, the real solution, in the absence of
a Supreme Court decision, would appear to be a constitutional amendment. All must obey a clear rule in the
Constitution. The adoption of an amendment is very difficult. Wisely, Article V requires that an amendment may be
proposed only by the vote of two-thirds of both houses of Congress or by the application of the legislatures of twothirds of the states, and the proposal must be ratified by the legislatures or conventions of three-fourths of the
states. Despite the difficulty, the Constitution has been amended twenty-six times. Amendment can be done when
a problem is so important that it arouses the attention and concern of a preponderant majority of the American
people. But the people must be made aware of the problem. It is hardly necessary to belabor the relative
importance of the control of nuclear warfare. A constitutional amendment may be, indeed, the appropriate method.
But the most difficult issue remains. What should the amendment provide? How can the problem be solved
specifically? The Constitution in section 8 of Article I stipulates that "[t]he Congress shall have power . . . To declare
War. . . ." The idea seems to be that only these many representatives of the people, reflecting the public will, should
possess the power to commit the lives and the fortunes of the nation to warfare. This approach makes much more
sense in a democratic republic than entrusting the decision to one person, even though he may be designated the
"Commander in Chief" of the military forces. His power is to command the war after the people, through their
representatives, have made the basic choice to submit themselves and their children to war. There is a recurring
relevation of a paranoia of power throughout human history that has impelled one leader after another to draw their
people into wars which, in hindsight, were foolish, unnecessary, and, in some instances, downright insane.
Whatever may be the psychological influences that drive the single decisionmaker to these irrational commitments
of the lives and fortunes of others, the fact remains that the behavior is a predictable one in any government that
does not provide an effective check and balance against uncontrolled power in the hands of one human. We,
naturally, like to think that our leaders are above such irrational behavior. Eventually, however,
human nature,
with all its weakness, asserts itself whatever the setting . At least that is the evidence that
experience and history give us, even in our own relatively benign society, where the Executive is subject to the rule
Vietnam and other more recent engagements show that it can happen
and has happened here. But the "nuclear football"--the ominous "black bag" --remains in the
sole possession of the President. And, most important, his decision to launch a
nuclear missile would be, in fact if not in law, a declaration of nuclear war, one
which the nation and, indeed, humanity in general, probably would be unable to
survive.
of law. [*1640]
the NSA
argues that the bulk collection of Internet metadata is similar to a pen register and does not
constitute a search within the meaning of the Fourth Amendment . n200
n199 Although this appears to be a clear abuse of discretionary authority under 1861, [*490]
Inherency Extensions
Mason C. Clutter, 2014 (National Security and Privacy Counsel to the National
Association of Criminal Defense Lawyers, DOGS, DRONES, AND DEFENDANTS: THE
FOURTH AMENDMENT IN THE DIGITAL AGE , George Mason Law Review,
Lexis/Nexis, Accessed 6/24/2015, rwg)As technology evolves and expectations of
individual privacy morph, so too must the law. Unfortunately , Congress is failing to keep up
with technological advances, and the courts are forced to refer to our founding document for
guidance on the government's use of new technologies. The Fourth Amendment protects
"persons, houses, papers, and effects, against unreasonable searches and seizures." n1 We know that a man's
what protection do
citizens have from intrusion by electronic devices and other "enhanced searching
technologies" that can see, smell, and hear through walls and track one's physical
location and electronic communications? Can law enforcement use these
technologies against us outside of our homes? The law is always a bit stickier when we step
home is his castle and one of the most private and protected spaces under the law. But
Solvency Extensions
language is important, and reclaiming the language of security will provide greater
clarity and guidance in our analysis of Fourth Amendment issues. n18
courts otherwise ought to decide cases in accordance with the original understanding n151 -
have accepted
the authority of judicial precedent , including past decisions that could not
themselves be justified under originalist principles. n152
http://arjournals.annualreviews.org/doi
/full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJAL
Re]
It is also worth asking why the Court fares so well in Congress. As noted above, few
of the Court's most controversial interventions in the past half century have been
directly reversed . Nor has Congress enacted any of the numerous bills to remove
the Court's jurisdiction over areas in which the Court has aroused congressional
anger. A large part of the explanation lies in the difficulty of enacting legislation in a
process with so many veto points. That difficulty is especially great in an era like the current one,
which lacks a strong or stable law-making majority. In such an era, interventions are likely to have significant
support in government regardless of their ideological direction, and
Congress would rarely risk the public backlash that would come
with ignoring a Supreme Court directive . n240 President Nixon, for example, would have
found it all but impossible to refuse to provide Congress with his Oval Office tapes .
branches is misguided.
n241 Redish even argues that courts gain from challenging the political branches. n242 Courts, and especially the
Supreme Court, are viewed as the final arbiters of the Constitution, and public support will frequently be on their
side if they choose to challenge Congress or the executive. n243 Thus, the institutional reasons for granting
deference to Congress provide little support for the plenary power doctrine.
can produce a result contrary to what the political process would have produced in the absence of the initial judicial decision.
Obama
is not suggesting that he would refuse to comply with an unfavorable ruling. He is
not following FDR and arguing that Congress should retaliate by adding additional
seats to the court. He has no leverage to force the court to do anything. He's expressing
criticizing the latest anti-ObamaCare attack cooked up by the law's most fanatical opponents is asinine.
http://arjournals.annualreviews.org/
doi/full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJ
ALRe]
Once we know more about the implementation of the Court's decisions in absolute and relative terms, the most
Within the judiciary, part of the answer undoubtedly lies in selection and
socialization processes that enhance agreement about legal policy and acceptance
of hierarchical authority . Even the Court's limited powers may be sufficient to rein
in administrators, especially in the era of broad legal mobilization that Epp has described: Groups that
undertake litigation campaigns to achieve favorable precedents can also litigate against organizations that refuse to
accept those precedents.
reveal [*1160] gestalts - the particular interaction between law's manifestations and the beliefs they express.
Court , the German Constitutional Court, and other similar national courts serve as significant
role models for these new democracies. n92 Even though the flow of ideas is primarily
one directional, it is, as with any other exchange, a two-way street.
[*1411] "Jim Crow legislation was generally more symbolic than functional," according to Klarman, because "white
supremacy depended less on law than on entrenched social mores, backed by economic power and the threat and
reality of violence" (p. 82). But surely it is not simply a coincidence that a relatively stable racial order marked the
four decades between the turn of the twentieth century and the beginning of World War II, the same era during
which the Plessy Court's validation of legal segregation and black disfranchisement remained operative. Nor is it
incidental that substantial black activism and corresponding white violence marked the fluid and unsettled racial
climate that existed during the decades before the Supreme Court's endorsement of segregation and
disfranchisement in the late 1890s, and also during the period after the federal judiciary began to chip away at both
series of rulings that invalidated forced peonage laws, grandfather clauses, separate-and-unequal luxury
accommodations in railroad cars, and city ordinances mandating residential segregation. n36 These cases, which
Klarman aptly characterizes as "concerned more with form than substance," were therefore "easy to circumvent" as
long as legislatures continued to pay lip service to constitutional principles (p. 62). For example, beginning in the
1920s the NAACP mounted an aggressive assault on residential segregation, which emerged as a decidedly national
phenomenon as a result of urbanization in the South and the First Great Migration of blacks to the North. But the
federal courts upheld restrictive racial covenants under the doctrine of private property rights until the late 1940s,
and they have never seriously challenged "racially motivated but facially neutral zoning" (p. 92) and other public
policies that offer ample evidence of state action. n37 In the area of criminal law, the [*1412] Supreme Court
expanded the scope of due process during the interwar period to rescue black victims of grossly unjust trials, but
these individual (rather than class-action) cases did almost nothing to remedy the structural racism that pervaded
the southern legal system (pp. 117-35, 152-58). During the New Deal era, the justices did signal a greater
willingness to consider the state action dilemma in cases involving the all-white primary in Texas and the failure of
Missouri to provide a substantively equal law school for a black applicant in the Gaines litigation brought by the
NAACP. n38 The civil rights group ensured that voting discrimination and substantive equality in public education
would remain on the judicial agenda during and after World War II, the turning point in Klarman's story.
Brown v. Board of Education n1 spent much time thinking about mass torts. Nonetheless, it is entirely appropriate
that a commemoration of their achievements include not only that topic but also international human rights and health care, as well
aspirations that brought them to law school and the world of practice as they perceive it. But whether or not it is well-founded, this
belief, with roots traceable to Brown and civil rights litigation, has endured for several generations. Thus,
Brown reshaped
day.
This is a very good and readable book and a very useful addition to Oxfords Inalienable Rights series. Stephen
Schulhofer, the Robert McKay Professor of Law at New York University, skillfully combines an historical overview of
the purposes and functions of the Fourth Amendment with a reasonably lively account of how the U.S Supreme
Court has steadily abandoned many of the core principles embedded in the Fourth Amendment. This, of course, is
not a new story and for those who have followed the Courts approach to the Fourth Amendment and Schulhofer
certainly isnt advancing an argument that hasnt been voiced before. Indeed Justice Brennan proclaimed in 1984
that the Courts victory over the Fourth Amendment was now complete. (U.S v. Leon, 1984, Justice Brennan
dissenting). Brennans comment was perhaps overstated in 1984 but Schulhofers account skillfully documents the
Courts continuing assaults on the Fourth Amendments core principles. Anyone looking for a short but persuasive
argument detailing the Courts victory over the Fourth Amendment should consider this work. Professor
Schulhofer begins by advancing the argument that too many people believe that the Fourth Amendment is primarily
designed to protect criminals or to shield information that is at best disreputable (p.11). Those who see
themselves as good law-abiding citizens see little value in the Fourth Amendment because they have nothing to
hide. While Schulhofer offers no empirical support suggesting how many people really believe that the Fourth
Amendment is of no value to them, he is probably right that too many neglect the larger function that the Fourth
Amendment grew out of the English common law tradition of resisting general warrants carried out by an
executive without judicial approval. The opposition to such general warrants carried over to the American colonies
as seen in the outcries against writs of assistance aimed at enforcing unpopular British laws. This opposition to
general searches or fishing expeditions unmoored from evidence linking a particular person to a particular crime
ultimately became the cornerstone of the Fourth Amendment. Schulhofer argues that the peculiar structure of the
Fourth Amendment gives rise to part of our modern interpretative problem. While the second part of the
Amendment clearly asserts [*233] that warrants can only be issued by a judge (neutral magistrate) on the basis
of probable cause and must identify the places and things to be searched, the opening clause only speaks to not
violating the peoples right against unreasonable searches and seizures. Thus the possibility arises that a search
can be reasonable without having first obtained a warrant. The irony here is that if it is not necessary to get a
warrant based on probable cause then why would government officials ever get one. It would always be easier to
avoid obtaining a warrant and simply argue later that a search was reasonable. One answer would be that what
makes a search reasonable is obtaining a warrant based upon probable cause. While the Court has never firmly
adhered to that position the typical answer to this puzzle has been to argue that the general rule is to obtain
warrants based upon probable cause while acknowledging that sometimes it isnt reasonable to insist on a warrant.
Or, as Justice Stewart put it in Katz, searches conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically
established and well-delineated exceptions (Katz v. U.S, 1967). So an important question becomes how varied and
how broad are these exceptions? As Schulhofer argues, the Court has generally adhered to the warrant rule in
searches inside the home but has increasingly abandoned a concern with warrants in other settings. Some of this is
familiar territory and non-problematic. No one expects police to get a warrant in hot pursuit of a suspect and
certainly no one wants the police to get a warrant to obtain access to a bomb when there is evidence that it is in a
car along a parade route. Still, despite the Courts assertion in Katz that the Fourth Amendment protects people not
places, the Court has found ways to avoid applying the full protection of the Fourth Amendment to a growing
number of situations. Some of these exceptions are to the warrant requirement (automobiles), while others are to
probable cause or even reasonable suspicion (stop & frisk, drug tests, and other administrative or so called special
needs searches). The strength of Schulhofers book is his ability to provide succinct summaries of Court decisions
in a wide variety of search and seizure areas and still maintain a flowing narrative of the Courts gradual
abandonment of key Fourth Amendment principles. Thus, we find nice chapters on the Courts application of the
Fourth Amendment in public places, administrative searches, wiretapping, eavesdropping in the information age,
and issues related to national security. Schulhofers discussion of all of these issues is timely and persuasive. I
would not hesitate to assign any of these chapters, or indeed the entire book, for my civil liberties course.
Schulhofers account of the manner in which the Court has failed to respond to issues related to the new
particular setting. Schulhoferman notes that in the Courts view what we turn over to third party actors doesnt
warrant any protection at all since an individual has chosen to reveal this information to others (p.126). He argues
that to treat information conveyed to a trusted intermediary, under promise of confidentiality, as if it had been
posted on a public billboard is to make nonsense out of the Fourth Amendment. (p.127). In a world where
participation through communication technologies is virtually required if one is to be a full participant in civil society
the Court seems to be saying that the price of admission is to give up any notion of privacy. As Schulhofer notes,
the Fourth Amendment should be seen as protecting these third party transactions not as irrelevant to them.
decisions interpreting this part of the constitutional text until it confronted technological surveillance for the first
time in Olmstead. This expansive view of constitutional liberty was the impetus for Katz, although subsequent
decisions have obliterated that element of the decision. Justice Scalia's opinion in Kyllo suggests that the Court
might be ready to try to reclaim this essential element of our constitutional heritage by replacing the present
"convoluted system of achieving a basic task" with a "technological [*50] trespass" theory. May they succeed in
the effort.
globalization. It may well turn out to be the best invention for human survival and
the betterment of everyday living. Indeed, in time, democracy in large-scale societies
may be judged the most important discovery of the twentieth century since
vaccines. Governments systematically killing their own peoples and nearly nonstop
international wars of scale marked the first half of the twentieth century (Rummel
1996). By that century's end, the beginning of the institutionalization of a second
democratic revolution, not only had major international wars ceased, but almost all
governments openly subscribed to the principle that they should improve people's
lives and should not kill , incarcerate, or expel them. As important was the muting of any
credible national political challenges to rudimentary human rights. The killing of masses of people by legitimate
authorities may be the most important international fact of the first half of the twentieth century. But the most
important fact of this era of globalization is that almost all [*24] governments, save one or two, stopped doing that
around the century's end, following the spread of democracy.
(Joshua Muravchik, Paper presented before the NPEC/IGCC Summer Faculty Seminar,
"Democracy and Nuclear Peace," http://www.npec-web.org/Syllabus/Muravchik.pdf)
The greatest impetus for world peace -- and perforce of nuclear peace -- is the
spread of democracy In a famous article, and subsequent book, Francis Fukuyama argued that democracy's extension was leading to
"the end of history." By this he meant the conclusion of man's quest for the right social order, but he also meant the "diminution of the likelihood of largescale conflict between states."1 Fukuyama's phrase was intentionally provocative, even tongue-in-cheek, but he was pointing to two down-to-earth
Indeed the proposition that democracies do not go to war with one another has
been described by one political scientist as being " as close as anything we have to
an empirical law in international relations ."3 Some of those who find enthusiasm for democracy offputting have
challenged this proposition, but their challenges have only served as empirical tests that have confirmed its robustness. For example, the academic Paul
Gottfried and the columnist-turned-politician Patrick J. Buchanan have both instanced democratic England's declaration of war against democratic Finland
during World War II.4
and even a
hypothetical nuclear exchange between the U.S. and the U.S.S.R (232 million), it was
clear that even war cannot begin to compare with structural violence, which
continues year after year. In other word, every fifteen years, on the average, as many
people die because of relative poverty as would be killed in a nuclear war that caused
232 million deaths; and every single year, two to three times as many people die from
poverty throughout the world as were killed by the Nazi genocide of the Jews over a six-year
period. This is, in effect, the equivalent of an ongoing, unending , in fact accelerating,
thermonuclear war, or genocide, perpetrated on the weak and poor every year of
every decade, throughout the world.
1965-1966 (perhaps 575,000 deaths), the Vietnam war (possibly two million, 1954-1973),
their privacy when they have no other option. The Fourth Amendment should protect American
citizens against NSA practices under section 215 because it violates the reasonable expectation of privacy, and
"[i]t
rights are being met, the human in question is likely to die. True that there were several debates in the other
generations that do we even need to make sure most, if not all, human being survive, fortunately we seem to be
never really related to if internet is the only thing we are concerned about. Internet is a tool. We're merely talking
about ensuring that all the human beings be able to make use of this tool to the furthest of their ability and to their
appropriate needs. Now let's go into the idea of why and how those rights came to the conclusion when in a dark
age we'd have considered that our only basic mode of survival is to hunt down other people. The answer is always
technological innovation. Wheels once made sure that more people meet and that forwarded empathy after people
learnt to get through language barriers. Innovation ensured that more people can travel to further areas and ensure
their survival, then came industrial revolutions that made making products easier, and that made sure we can
actually afford to at least try to make sure that most of the people survives and make use of their abilities
regardless of our ethical differences. Technology,culture,politics and innovation is fundamentally correlated.
Sometimes technological advances comes first and then that changes culture, but sometimes to achieve faster
growth we have to change the existing ideologies first to actually redirect technological innovation to a particular
direction. Right now internet is the vastest content generation tool which allocates immediate distribution to the
people and it promotes openness, and ensures that we are free of secrecy and conspiracy. We should also
remember that it's basically a trillion dollar market where companies are practicing delivering goods and earning,
from Yahoo, Microsoft, Google, Facebook all of them are basically internet based companies compared to previous
generation companies where they were more hardware based such as GM or several other oil or car companies.
Starting something which is internet based is easier as it goes, compared to every single other industries, such as
technological hurdles are pretty hard to overcome in Biotech based companies. Now let's go to the idea of industrial
The Administration (and its Senate allies like Sen. Dianne Feinstein) spent little
time in setting itself against the open Internet forum and has sought a variety limitations and sanctions for Internet
Department has pursued various individuals for web posting. There will come a day when Democrats will seek
again to speak in favor of core values of free speech, free press, privacy, and the like. When that day comes, there
will be a chorus of howls from civil libertarians who have watched in astonishment as the Democratic Party enabled
these assaults on freedom either actively or by acquiescence. The trading away of the power of principle for the
I
am not sure how the Administration will celebrate its latest distinction, but the First Lady is currently traveling at
great public expense in China. That would seem a perfect place to celebrate since the White House told reporters
that they would not answer any questions. However, the First Lady (despite announcements that she would avoid
discussion of human rights) did call for respect for freedom of speech and other rights.
in a 2012 Slate article, a new era of augmented international cooperation over policing the Internet is on the
horizon.[8] Internet freedom activists have protested attempts to police and regulate online content on the
controversial issue with respect to government regulation of the Internet; Adam Thierer recently argued against
such regulation as an encroachment on First Amendment rights: [t]he First Amendment was intended to protect us
from tyrannical, coercive government power, not the silly mistakes of private [cable] companies.[9] Freedom vs.
Control: Ryan Gallagher writes in a recent Slate magazine article: The Internet is often seen as a place of chaos and
disorder, a borderless world in which anonymous trolls roam free and vigilante hackers wreak havoc. But []
there are fears governments are secretly maneuvering to restructure and rein in the
anarchic Web we have come to know and love, perhaps even ushering in a new era
of pervasive surveillance. So just how real is the threat of change and what might it mean?[10]
overreach, however, may quite literally take the cake and comes to us courtesy of the Food and Drug Administration. This sweeping
regulation will directly affect what kinds of food we are allowed to purchase at our neighborhood grocery store. The FDA has long
taken issue with trans fat a type of unsaturated fat found produced from vegetable fats. Products containing trans fat have
become more widespread since the 1950s when they appeared on the scene in the form of margarine and have since made their
way into everything from frozen pizzas to Reeses Pieces. While initially viewed as a healthy alternative to other fats, research
indicates that overindulging can contribute to health risks. That conclusion led FDA regulators to require food manufacturers to label
all their products containing trans fat. While many health conscious individuals choose to steer clear of products that contain trans
fat (consumption has decreased 78 percent between 2003 and 2012), millions of Americans have continued to enjoy many of the
delicious foods that contain trans fat, albeit in moderation. Unfortunately thats a problem for the heavies at Mr. Obamas FDA.
Rather than letting people make their own decisions about whether to indulge in the occasional trans fat-laden snack, the FDA has
just ordered a ban on trans fat, which federal regulators say food companies must remove from all of their products by 2018. And
while the FDA is patting itself on the back, the ban will like most everything else cooked up by federal regulators may have
serious unintended consequences. Foremost, the cost to food producers could be enormous. While many producers have moved
away from trans fat on their own, the fats remain essential to many popular products due to its taste, texture and ability to preserve
shelf life. Finding a replacement may not be easy or cheap, and consumers will ultimately face increased costs as a result. Worse,
its entirely possible that the eventual replacement for trans fat may not be any healthier. But these are things federal regulators
rarely consider when they try to control our behavior and supplant their all-knowing judgment for our own. At its core ,
this ban
represents the worst of Washington . Rather than letting individuals decide whats best for them, our allknowing government overlords want to tell us they know better . These perpetual critics
of freedom simply cant sit idly by while Americans enjoy the occasional slice of frozen pizza, or handful of candy.
For them, that kind of freedom is as dangerous as Reeses Pieces. Kidding aside, Americans have little recourse
when dealing with the alphabet soup of government agencies that continue to intrude into
their daily lives regulating everything from light bulbs to groceries. Thats unfortunate.
Families deserve to make their own decisions about whats best for their lives. Congress should push back on ham-handed FDA
regulation, and tell Mr. Obamas bureaucrats to get their greedy hands out of our collective snack bowl.
person. Recall the recent stand-offs between Obama and the House over the debt ceiling. On one side was Obama,
claiming that he alone spoke for the entire country as a whole; on the other was John Boehner of West Chester,
Ohio, and a fractious bunch of congressmen. It wasnt much of a contest. Second ,
news outfit in its own right, complete with photographers and videographers. It need not rely on print newspapers
or the television networks to get its message out. It need no longer put the president at the mercy of probing
reporters, preferring instead teleprompters and softball questions from People magazine. The fawning reporter is
rewarded with access; hostile would-be newshounds are frozen out. And so
George Mason once called
an elective monarchy.
concentrations of power often surround prime ministers in parliamentary governments, but they are
much more dangerous in presidential regimes. For one thing, the American president is head of state
as well as head of government. He is the symbol of the entire country, the figure with whom every patriot identifies,
at least theoretically. A person who moves to America, as I did, must learn to suppress his gag reflex when reading
a Peggy Noonan op-ed on the sublimity of a State of the Union Address, or listening to an MSNBC talking head
bloviate about our godlike president. In parliamentary regimes, politicians are comical figures. If theres a national
tragedy, we dont wait for a speech from the prime minister. Oh sure, we get misty-eyed over jug-eared princes, but
they havent been able to hurt us since 1832. Theyre not going to spend us into bankruptcy or audit us. Further,
and removal from officewhich never rears its head unless the president is from one
party and the House and two-thirds of the Senate from another. Heres a piece of trivia:
Only one president in American history, Andrew Johnson in 1868, has ever faced impeachment by such a Congress.
(Republicans only controlled 55 votesnot two-thirdsin the Senate in 1998, and the 45 Democrats voted in
lockset to acquit Bill Clinton.) Yet even then, the ruling party could not muster the votes in the Senate to toss
Johnson out of office. The requirement of a two-thirds supermajority in that chamber was snuck in at the last
moment at the 1787 constitutional convention, elicited no discussion, and transformed the shape of American
politics. It should not be so hard to give a president the boot . Id like to see it done often, for
high crimes and misdemeanors, for stupidity, for arrogance, or just for the spirit of the thing.
ex post checks places all modern Presidents in a "synopticon" that produces a deterrent effect (p. 207). "Officials
a crucial check
on presidential adventurism - reelection - has been nonexistent for second-term
Presidents since 1951. n38 This structural change may hide the Executive from the synopticon's
watchful eyes, making presidential decisionmaking freer of checks and balances than it
otherwise might be in a system that properly relies on Madisonian power sharing. And, as Goldsmith himself
are much more careful merely by virtue of being watched," Goldsmith notes (p. 207). However,
acknowledges, presidential popularity can often blunt the power of the synopticon - particularly when national
security is pitted against civil liberties (p. 47). The popular willingness to err on the side of national security, and the
consequent weakness of the synopticon, will be at its apex when the issue involves the rights of foreigners - who
altogether lack the ability [*1001] to vote. n39 Yet the rights of foreigners are a crucial part of the post-9/11
debate.
be more open and more receptive to American values -- democracy, free markets, and the rule of law. Second,
such a world would have a better chance of dealing cooperatively with the world's major
problems, such as nuclear proliferation, threats of regional hegemony by renegade
states, and low-level conflicts. Finally, U.S. leadership would help preclude the rise of
another hostile global rival, enabling the United States and the world to avoid another
global cold or hot war and all the attendant dangers, including a global nuclear
exchange. U.S. leadership would therefore be more conducive to global stability than a bipolar or a multipolar
balance of power system
Presidential prerogative. After the first Gulf War, many politicians in Washington regretted not taking Saddam Hussein out of power
when they had the chance. Because of recent intelligence reports that Iraq had evaded UN resolutions requiring it to destroy all
stocks of weapons of mass destruction, including chemical and biological weaponsThere were also reports that Iraq had not
abandoned its efforts to develop nuclear weapons, another violation of UN resolutions (Irons 222). The George W. Bush
administration knew that Hussein posed a threat to national security and to the lives of his fellow Iraqis whom he was testing his
biological weapons on. Through several attempts by the UN, the Bush administration warned Hussein that denying UN inspectors
into the country to search for chemical and biological weapons would have serious repercussions. In October 2002, Congress
passed the Iraq Resolution to empower President Bush to use military force against Iraq. The administration told lawmakers and the
public that Iraq possessed weapons of mass destruction and had the capacity to inflict even greater damage on the United states
than the 9/11 terrorist attacks (Fisher 2011, 262). Louis Fisher in Defending Congress and the Constitution argues that the claims
the Bush administration made to the public and Congress were far-fetched and driven by the administration preying upon the fears
Whether such an authorization met the constitutional standard had become a moot point, since Congress had long ago abdicated its
war- declaring power to the executive branch (Irons 234).
Congress authorized President Bush to retaliate against any nations, organization, or persons he
determined to be involved in the atrocity. But there is no evidence linking even that ugliest of regimes, Iraq, to the
September attacks. So the administration has spent months developing an alternative justification for attacking: the refusal to accept
United Nations inspections aimed at deterring development of weapons of mass destruction. Nonproliferation is a worthy
concern, but not one obviously warranting war. Indeed, Baghdad has been out of compliance with the U.N.s inspection
regime since 1998. Moreover, the President has no authority to act for this reason. Congress authorized him to retaliate
against terrorism, not to commence war to enforce U.N. inspections-or overthrow a nasty dictator. After the Senate
Foreign Relations Committee held hearings on the prospect of war with Iraq last August, President Bush promised to consult with
Congress. But consultation is not nearly enough. Article 1, Sec. 8 (11) states, Congress shall have the power . . . to declare war.
The president is commander-in-chief, but he must fulfill his responsibilities within the framework
established by the Constitution and subject to the control of Congress. Today, of course, presidents prefer to
make the decision for war themselves. In effect, American presidents claim to possess power comparable to,
if not greater than, that of the onetime head of the Soviet communist party. As then-Defense Secretary Caspar
Weinberger rightly criticized the Evil Empire: Now who among the Soviets voted that they should invade Afghanistan? Maybe one,
maybe five men in the Kremlin. Who has the ability to change that and bring them home? Maybe one, maybe five men in the
Kremlin. Nobody else. And that is, I think, the height of immorality. Now who among Americans has voted to attack, say,
Iraq? Should one man in the White House make that decision, it would also be the height of immorality. One
of the founders criticisms of the British king was that he could unilaterally drag his nation into war. President Abraham Lincoln, a
strong president apt to act on his own authority, nevertheless reflected: Kings had always been involving and impoverishing their
people in wars, pretending generally, if not always, that the good of the people was the object. The Constitutions framers
consciously rejected such a system. Still, some Americans opposed the proposed Constitution because they feared that
it gave the president too much authority. Dont worry, explained that great friend of executive power Alexander Hamilton.
The presidents power would amount to nothing more than the supreme command and direction of the land and naval forces . . .
while that of the British King extends to the declaring of war. The founders wrote the Constitution as they did because
they feared that presidents would act as they do now. Explained James Madison in 1793, it is necessary to adhere
to the fundamental doctrine of the Constitution that the power to declare war is fully and exclusively vested
in the legislature. Constitutional convention delegates did change Congresss power from make to
declare war, but the intent was to give the president authority to respond to a sudden attack , not initiate a
conflict. The Founders wanted to make war less likely. The president is not safely to be entrusted with the
power to decide on war, said Virginias George Mason. James Wilson advocated a strong presidency, but was pleased that the
proposed constitution will not hurry us into war. Instead, It is calculated to guard against it. It will not be in the power of a single
man, or a single body of men, to involve us in such distress. The founders were prescient. Presidents have routinely
deceived the public, lied to Congress, and manipulated the political system when taking America into war.
IMP--Rights
(--) An increase in presidential power causes tyranny
Turley 14 (Jonathan Turley, is the Shapiro Professor of Public Interest Law at George
Washington University and frequently appears before Congress as a witness on constitutional issues
He is the host of www.jonathanturley.org, an award-winning legal and policy blog, A Question of
Power: The Imperial Presidency, http://www.legion.org/magazine/222394/question-power-imperialpresidency, Published 1 June 2014, Accessed 25 June 2015, CMT)
warned future generations that if Tyranny and Oppression come to this land, it will be in the guise of fighting a
foreign enemy.
The framers knew how effective fear can be to induce citizens to give
up their liberties. Recent years have proven them once again prophetic in their warnings. To this day, many
Americans misunderstand the separation of powers as simply a division of authority between three
branches of government. In fact, it was intended as a protection not of institutional but of
individual rights, by preventing any branch from assuming enough power to become
tyrannical. No branch is supposed to have enough power to govern alone. Once power becomes concentrated
in the hands of a president, citizens are left only with the assurance that such unchecked power will be used wisely
a Faustian bargain the framers repeatedly warned us never to accept. Benjamin Franklin said it best when he
warned that they who would give up essential Liberty, to purchase a little temporary Safety, deserve neither
Liberty nor Safety.
substituted executive agreements for treaties to extend United States troop and combat commitments in
Afghanistan and to regulate greenhouse gas emissions. He has issued presidential signing statements to
frustrated legislative or judicial oversight by improper invocations of state secrets or executive privilege. He has
issued executive orders regulating government contactors which usurp the legislative powers of Congress.
(11). In How Would A Patriot Act ?, Glenn Greenwald argues that it was through President Bushs authorization
that the National Security Agency started eavesdropping on Americans without court approved warrants, in
violation of the constitutional laws (14). Similarly, President Bush also created a controversy when his
administration kept an American born citizen, Jose Padilla, accused of making a bomb plot, locked away in solitary
These
presidential actions only show us a glimpse of the absolute authority at the disposal
of the president and a complete disregard to the existing laws, habeas corpus ,
and constitutional rights of all residents of this country
confinement for more than three years as an enemy combatant, without right to trial (47).
makes business subject to two regulatory regimes. One is a legal regime, created by Congress and by
The other is a kind of
peoples democracy regime, in which government stirs up public anger to force businesses to comply
with extra-legal government demands. This second regulatory regime operates without rules, and so subjects business to
the regulatory agencies to which Congress delegates a portion of its own constitutional regulatory power.
potentially debilitating uncertainty in the sense of a risk that cannot be quantified. We know from Keynes and other students of
uncertainty that a common and often the sensible response to uncertainty is to freeze, in the hope that the uncertainty will dissipate
over time, or to take active steps to reduce the uncertainty. Both are options for business faced with the threat of presidential wrath.
A business can hire less, invest less, and build up its cash balances as a hedge against adversity. It can also redouble its lobbying and
other influence activities in an effort to neutralize or deflect threats of extra-legal regulation. Neither is a healthy response; the first is
downright pernicious, especially in a depression or recession, or the early stages of economic recovery. Both are responses that the
American-Yemeni cleric
emails with Congress, told courts he doesnt have to justify his claimed power to assassinate suspected terrorists
and decided to stop deporting certain illegal immigrants even though Congress has refused to enact a law to do
that. Those moves cap a slow buildup of executive branch power since Obama took office in January 2009. Some
actions build on war powers seized by the administration of President George W. Bush and Vice President Dick
congressional authorization. So what makes Obama different? At the surface, his administration may not seem so different. But
many political experts believe Obama has moved beyond the accepted loopholes, and done so while maintaining the facade of the
reluctant warrior.
A speech Goldsmith gave before the Hoover Institute in early November gave a close
analysis of three specific ways that Obama who was a constitutional lawyer has expanded the war
power beyond any measure taken by previous administrations, including that of
Bush.
The NSA Cases alert us to the very real possibility that the executive
branch has the capacity to monitor every transaction and communication of any
individual without the check of judicial review . The Pen Register Decisions involve requests for
constitutional review.
judicial orders permitting real time tracking of individuals by the government based on a mere certification that the
information is relevant to an investigation. Both sets of cases provide an impetus to reexamine the increasingly
complicated intersection of law, advancing technology, and our conceptions of personal and national security.
In the
great majority of situations, a debate still rages over the propriety of unilateral
presidential authority . n25 I will not join the debate about the constitutionality of any of the specific actions
taken by the current administration. For present purposes, I assume merely that the administration's positions are
pushing the constitutional envelope in terms of presidential power under the Constitution.
My aim is to
equilibrium is re-established will vary depending upon the particular change at issue, but the goal of maintaining
the boundaries of the structural safeguards embedded in the Constitution remains constant. Part II also identifies
the fundamental structural principles that should guide courts. The Constitution and the documents surrounding its
drafting and ratification reveal three foundational principles: (1) The Constitution is based on maintaining multiple
and meaningful centers of political authority situated horizontally and vertically from one another. These power
centers -- the three coordinate branches of the federal government and the states -- must be capable of
meaningfully playing their roles in maintaining a separation of governing authority; (2) the People must be allowed
to have meaningful participation in the governing process; and (3) whatever power relationships are implemented,
the resulting governmental structure must be functional. The goal of Part II is to prepare specifically to address how
courts should respond to the Bush administration's assertion of executive authority. Before one is able to do so,
one must get a better understanding of the Bush administration's specific conception of executive authority. Part III
is a descriptive exercise devoted to distilling the single dominant theme and three distinct but related sub-attributes
of President Bush's constitutional Chief Executive. The dominant and overarching theme of the Bush
administration's stance is a strongly unilateral executive who is constitutionally empowered to take a wide array of
actions without "interference" from any other power center in American government. The three distinct subattributes associated with unilateralism are: (1) the unilateral authority is often exercised in secret, greatly reducing
transparency in government (such lack of transparency applies to citizens as well as to other institutions of
government); (2) the administration is highly intolerant of criticism and questioning associated with its exercise of
power; and (3) the administration is disciplinarian and retributive with respect to those people and entities that do
challenge its exercise of authority. [*878] Part IV of the Article turns to the specific question of the courts and
President Bush by applying the theory set out in Part II to the description of the Bushian constitutional executive laid
out in Part III. In order to do so, I use cases considered by the United States Supreme Court during its October 2005
Term. I consider cases in such divergent areas as the legality of military commissions, n27 federal attempts to
interfere with state laws providing a limited right to physician-assisted suicide, n28 partisan redistricting, n29
campaign finance reform, n30 and First Amendment protections for public employees and citizens alike. n31 I
explain how these cases, as well as some others, fit into the structural equilibrium approach. In some instances the
theory produces the same results as those actually reached, while in other important respects I argue that the Court
should have approached matters quite differently in order to act as an agent of structural equilibrium. Finally, Part
V concludes by considering issues on the horizon in which courts will again have the opportunity to respond to the
have explained the central attributes of the potential constitutional change advocated by the Bush administration.
It is wide-ranging and potentially quite dangerous to American fundamental constitutional values. My goal has been
to develop the operation of the structural equilibrium theory with the Bushian model as an example. I did so using
the Supreme Court's October 2005 Term. As discussed above, with the structural equilibrium model as a baseline,
the Court did well as to some matters but was deficient with respect to others. This effort addressing how the
structural equilibrium approach would have operated is important in its own right. Without doing so, one would not
be in as good a position to evaluate the merits of the approach I advocate. However, the true significance of the
approach is forward-looking. I hope that the Court consciously acts on the approach I have suggested here, because
the challenges most certainly continue in the future. How will the Court rule on cases raising the continued viability
of the "state secrets" privilege? n298 What will [*938] the Court decide concerning executive preemption in a case
it heard during the October 2006 Term? n299 And what will the Court do when it next confronts the applicability of
the Chevron doctrine in the context of aggressive administrative agency actions? n300 Each of these issues
implicates core elements of the proposed new constitutional order. In each case, the Court will need to decide how
to synthesize the new with the old. When it does so, it should consciously act as an agent of constitutional
as
Professor Ackerman recently wrote considering executive power and terrorism, "our
structural equilibrium to preserve the foundational principles in the most effective way possible. In sum,
great constitutional tradition of checks and balances provides the material we need
to withstand the tragic attacks and predictable panics of the twenty-first century ."
n301 They also provide the material to weather the more general storm of extraconstitutional change , whether it is instigated by Democrats or by Republicans.
Now, the Court needs to act on that constitutional tradition.
check-balance-court-shows-bush-it-also-has.html?pagewanted=all&src=pm,
rwg)
In the fall of 2001, President Bush justified his decision to treat some captured
terrorist suspects as ''enemy combatants'' without access to lawyers, courts or other longestablished legal rights on the grounds that he could not let the United States' ''enemies use the forums of liberty to
summer, that a president is not commander in chief of the country, only of the military. Justice Jackson wrote that in
his concurring opinion overturning Harry S. Truman's seizure of the American steel industry during the Korean war,
political check on Mr. Bush's effort to keep some citizens and aliens held as the
most dangerous ''enemy combatants'' from ever having their day in any court. It is
precisely the right to some such hearing, the court held, that defines the constitutional separation of powers and by
extension the American governing creed.
Topicality Answers2ac
T AnswersSurveillance
1) We meet: Alhogbani evidence says the government is
spying on citizens with the internet.
2) We meet: NSA uses the internet to conduct surveillance
activities:
Electronic Frontier Foundation, 2015 (NSA Spying on America,
https://www.eff.org/nsa-spying, Accessed 7/9/2015, rwg)
News reports in December 2005 first revealed that the National Security Agency
(NSA) has been intercepting Americans phone calls and Internet communications.
Those news reports, combined with a USA Today story in May 2006 and the
statements of several members of Congress, revealed that the NSA is also receiving
wholesale copies of American's telephone and other communications records. All of
these surveillance activities are in violation of the privacy safeguards established
by Congress and the US Constitution.
the National Security Agency (NSA) has been intercepting Americans phone calls and Internet
communications. Those news reports, combined with a USA Today story in May 2006 and the statements of
several members of Congress, revealed that the NSA is also receiving wholesale copies of American's telephone
to collect domestic information on a massive scale through a series of legislative changes and court decisions over
the decade following September 11, 2001. See this timeline of loosening laws. The Director of National Intelligence
says that authority for PRISM programs comes from section 702 of the Foreign Intelligence Surveillance Act and the
Verizon metadata collection order cites section 215 of the Patriot Act. The author of the Patriot Act disagrees that
the act justifies the Verizon metadata collection program. The NSA's broad data collection programs were originally
in
March 2004 a Justice Department review declared the bulk Internet metadata
authorized by President Bush on October 4, 2001. The program operated that way for several years, but
program was illegal. President Bush signed an order re-authorizing it anyway . In response,
several top Justice Department officials threatened to resign, including acting Attorney General James Comey and
FBI director Robert Mueller. Bush backed down, and the Internet metadata program was suspended for several
By 2007, all aspects of the program were re-authorized by court orders from
the Foreign Intelligence Surveillance Court .
months.
households reported computer ownership, with 78.5 percent of all households having a
desktop or laptop computer, and 63.6 percent having a handheld computer (Table 1). In 2013, 74.4
percent of all
households reported Internet use, with 73.4 percent reporting a high- speed connection
(Table 1). Household computer ownership and Internet use were most common in homes with relatively young householders,
in households with Asian or White householders, in households with high incomes, in metropolitan areas, and in homes where
house- holders reported relatively high levels of educa - tional attainment (Table 1). 9 Patterns for individuals were similar to
those observed for households with computer owner - ship and Internet use tending to be highest among the young, Whites or
Asians, the affluent, and the highly educated (Table 2). The most common household connection type was via a cable
modem (42.8 percent), followed by mobile broadband (33.1 percent), and DSL con - nections (21.2 percent). About one-quarter
of all households had no paid Internet subscription (25.6 percent), while only 1.0 percent of all households reported connecting
to the Internet using a dial-up connection alone (Table 3)
surveillance programs face crucial court hearings in Washington and New York this coming week,
but the Supreme Court won't reconsider the decisions of a secret federal court. The challenges, brought by liberal,
conservative and privacy watchdog groups, raise the prospect that a federal judge could order at least a temporary
halt to the National Security Agency's snooping on millions of Americans. U.S. District Court Judge Richard Leon on
Monday will hear former Reagan administration lawyer Larry Klayman's request for preliminary injunctions against
both of the government's major surveillance programs. One sweeps up telephone companies' data from domestic
call records, even though the targets are foreign terrorists. The other goes after cellphone and computer data from
major wireless companies and Internet service providers.
Theory Answers2ac
only real source of power in America , the indirect election of judges through a
republican system should be a source of comfort to all concerned.
4) They limit out all AFFs: all AFFs require multiple steps
they create a bill, put it through a committee, Congress passes
it, and then Obama signs it.
5) Their interp limits out all Courts AFFs
A) Bad for education: we learn more about the Courts and
their unique role in surveillance policy.
B) Not real world: the Court decides all kinds of issues
related to Fourth Amendment Law.
6) We spike out of zero topic specific das: we claim to
massively curtail surveillance.
7) Good is good enough: Reasonability should be the standard
on T.
AT: Over-spec
1) Counter-interpretation: AFF gets any agent of the USFG:
The federal government refers to any entity of the federal
government
The Chicago Manual of Style 2010 16th edition text
(http://www.chicagomanualofstyle.org/CMS_FAQ/CapitalizationTitles/Capitalizatio
nTitles32.html)
Q. When I refer to the government of the United States in text, should it be US Federal Government or US federal
A. The government of the United States is not a single official entity . Nor
is it when it is referred to as the federal government or the US government or the
US federal government. Its just a government, which, like those in all countries, has
some official bodies that act and operate in the name of governmen t: the
government?
Disad Answers
Politics DA Answers
(--) Supreme Court announces decisions in May & June
Supreme Court of the United States, 7/25/2012 (The Court and
Its Procedures,
http://www.supremecourt.gov/about/procedures.aspx, Accessed 7/25/2012,
rwg)
The Court maintains this schedule each Term until all cases ready for submission
have been heard and decided. In May and June the Court sits only to announce
orders and opinions. The Court recesses at the end of June, but the work of the Justices is unceasing.
During the summer they continue to analyze new petitions for review, consider motions and applications, and must
make preparations for cases scheduled for fall argument.
(--) ZERO LINK AT ALL: The Supreme Court does the plan
Obama doesnt use any capital to push the plan.
(--) Courts preserve presidents political capital
Tushnet, 2008 (law professor at Harvard, Mark, THE OBAMA
PRESIDENCY AND THE ROBERTS COURT: SOME HINTS FROM POLITICAL
SCIENCE: POLITICAL FOUNDATIONS OF JUDICIAL SUPREM-ACY: THE
PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN
U.S. HISTORY, Summer, 25 Const. Commentary 343, lexis, Accessed
2/18/2013, rwg)
What can the courts do for a resilient regime? Presidents and Congress have limited
time and political energy. They will spend them on what they regard as central issues. But at any time
there will be "outliers" - geographic regions as yet uncommitted to the regime's constitutional understandings, or
substantive areas that plainly require change if those understandings are to become deeply implanted in society,
yet politically too touchy [*347] or relatively unimportant to Congress. "For the affiliated leader, enhancing judicial
authority to define and enforce constitutional meaning provides an efficient mechanism for supervising and
correcting those who might fail to adhere to the politically preferred constitutional vision" (pp. 105-06). The courts
can serve as a convenient but essentially administrative mechanism for bringing these outliers into the
constitutional order. n16 In addition, the courts may have rhetorical resources unavailable to presidents. Their
obligation to explain their decisions, and the fact that they make decision after decision, means that they have an
opportunity to develop a reasonably general account of the resilient regime's constitutional understandings. In
Whittington's words, "It is the classic task of judges within the Anglo-American tradition ... to render new decisions
and lay down new rules that can be explicated as a mere working out of previously established legal principles" (p.
84). Presidents, in contrast, only sporadically make speeches illuminating those understandings. More boldly,
affiliated presidents may try to use the courts to "overcomee gridlock" (p. 124) caused by the strategic positions
at least rely
on the courts to take the initiative, because "the Court can sometimes move
forward on the constitutional agenda where other political officials cannot" (p. 125).
recalcitrant opponents of the new constitutional regime may occupy. And, if not "use the courts,"
"Coalition leaders might be constrained by the needs of coalition maintenance," but "judges have a relatively free
hand" (p. 125). This "use" of the courts, though, poses risks. The courts may push the regime's constitutional
principles further and faster than is politically wise, and the regime's political leaders may find themselves on the
defensive. Indeed, in this way the courts can contribute to making a resilient regime vulnerable, which may be part
of the story about the Warren Court and the demise of the New Deal/Great Society regime. n17 [*348] Preemptive
presidents face a special strategic problem. Sometimes they take office because they manage to persuade the
public that they remain committed to a resilient regime's constitutional vision even if in their hearts they want to
transform the regime. n18 At other times they take office as a regime becomes vulnerable, but do not themselves
have the program, vision, or charisma to be reconstructive presidents themselves. n19 They are likely to face
opposition in Congress and to some degree in the courts. But they can turn divided government to their advantage
by seeking judicial confirmation of executive prerogative. The judges in place might be sympathetic to such claims
for doctrinal and political reasons. They will have "inherited from affiliated administrations" (p. 169) doctrines
supporting executive authority. And, though Whittington doesn't make this point explicitly, they may see the
preemptive president as an accident, soon to be replaced by an affiliated one whose exercises of presidential power
they will want to endorse. Finally, preemptive presidents need to get their authority from somewhere when they
face congressional opposition, as they will. They don't have much of their own, but they can try "to borrow from the
authority of the courts in order to hold off their political adversaries" (p. 195). One final point before I move to
some speculations about the future of judicial supremacy. Whittington emphasizes the growth of judicial supremacy
during the twentieth century, both in terms of the judges' self-understanding and, perhaps more importantly, in
terms of the degree of political commitment to judicial supremacy (p. 25). He suggests that
politicians have
had increasingly strong reasons to support the Supreme Court. The reconstructive
presidency of Ronald Reagan was less ambitious than that of Franklin Roosevelt (p. 232), assuring the American
people that Reagan's policies would strengthen rather than destroy the social safety nets that Roosevelt and Lyndon
Johnson's regimes had created. Even a reconstructive president could hope that the Supreme Court would assist in
articulating regime principles in the way the Court ordinarily does for affiliated presidents. Further, drawing again on
Skowronek's account of the [*349] ways in which regimes leave a residue even after they have been displaced,
Whittington describes the doctrinal thickening that occurred during the twentieth century with respect to essentially
every possible ideological and political commitment a President could have (p. 283). Doctrinal thickening means
that every member of a ruling coalition will have some basis in constitutional law for its assertions that the
Constitution requires satisfaction of its policy preferences, and that the Court cannot possibly satisfy all the
demands on it. n20 So, for the future, we might expect Presidents to have increasingly ambivalent views about the
In the twenty-first century, the Supreme Court will be useful and annoying
to every President - useful because the Court can do some policy work that
Presidents would rather not expend time and political capital on , and annoying because
Supreme Court.
the Court's failure to satisfy all the demands emanating from a President's political supporters will put pressure on
the President to do something about the Court.
the
judicial backstop allows legislators to focus on some dimensions of the proposed
policy (the most optimistic and politically popular) while downplaying others (the
constitutionally subversive and treacherous). Legislators even gain a political
windfall when the courts actually act to strike down the popular law. The
visibility of the exercise of judicial review creates another opportunity for
legislators to publicize their position on the issue, this time by bewailing the
Courts actions .
pressing the Court to refine its doctrine or in filling in the lacuna left by judicial decisions. More subtly,
In previous work on support for institutions and leaders, scholars have demonstrated the
crucial effects of discrete political events and circumstances on the rise and decline of public
confidence. For example, Mueller (1973) persuasively argues that crises in foreign affairs result in "rallyingaround-the-flag" and a subsequent increase in the popularity of the incumbent chief executive (cf. Parker,
more political cover to raise taxes and cut spending following the high courts
decision that it was unconstitutional for the state to pare back promised pension benefits for state employees.
whether this political pressure and the excuse of a court decision would give
legislators the political cover to raise taxes in order to level poor schools up.
dominatedbyRepublicanappointees ,givesDemocrats
problems in schools, prisons and mental health facilities until state or federal judges forced them to
act. "It's the classic political response to problems they don't want to deal with,"
said Maurice Dyson, a school finance expert and assistant law professor at Southern Methodist
University. "There is no better political cover than to have a court rule that
something must be done, which allows politicians to say their hands are tied."
the political controversy that they themselves are unwilling or unable to address,
thereby foisting disruptive political debates off on the Supreme Court. 34 Graber
writes that elected officials encourage or tacitly support judicial policymaking both as a
means of avoiding political responsibility for making tough decisions and as a
means of pursuing controversial policy goals that they cannot publicly advance
through open legislative and electoral politics. 35 Furthermore, political and electoral
advantages can accrue by ducking these tough questions and sending them on
to be settled by the Court. Graber explains that elites (including the executive) can benefit
from passing the political buck to the Court in multiple ways. Party activists can
be redirected to focus on legal action in the courts, thereby reducing pressure on
mainstream politicians who wish to maintain a more politically viable moderate
stance. Voters can be redirected to focus any ire they might have over policy outcomes on the
Court. Politicians can take responsive positions on judicial decisions that may make
for a good sound bite but really require no politically accountable action on their part.
Finally, political compromise between the legislature and the executive might be had under the table of Court
policymaking. 36 This is an impressive set of political benefits that can stem from a practice of judicial
supremacy that creates a Court equipped with the interpretive authority and legitimacy to make controversial
public policies. Graber's article, then, highlights the perversion of political accountability that can possibly occur
where everyone in the system, the public included, accepts and expects interpretive authority to reside with the
courts.
the U.S. Supreme Court is not unique in the esteem in which it is held and, like
other courts, it profits from a tendency of people to credit it for pleasing
decisions but not to penalize it for displeasing ones. Generally, older courts more
successfully link specific and diffuse support, most likely due to satisfying successive,
nonoverlapping constituencies.
The judicially
created Fourth Amendment third-party doctrine is the product of judicial activism in
favor of government power. Because it is not supported by the text, purpose or
history of the Fourth Amendment, it may be overturned through our republican process, which
constitutionally protected rights of the people, the black-robed ones are not the last word.
exalting the judiciary over the executive and legislature would disgrace the
judiciary and lead to its eventual degradation . The Jeffersonian prediction did not
happen, thanks to the US Supreme Court mostly steering clear of politics and
respecting the power of the legislative and executive branches.
although postKatz cases claimed to be applying the Katz test, "this show of loyalty to Katz has
proven specious, for subsequent cases have undermined the promise of Katz "); Brian J.
Technologies, and the Fourth Amendment, 84 Cal. L. Rev. 1437, 1454 (1996) (arguing that
Serr, Great Expectations of Privacy: A New Model for Fourth Amendment Protection, 73 Minn. L. Rev. 583, 587
(1989) (arguing that "the entire course of recent Supreme Court fourth amendment precedent, which has narrowed
significantly the scope of individual activities that are protected constitutionally, is misguided and inconsistent with
the spirit of the fourth amendment."); Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of
Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and
Permitted by Society", 42 Duke L.J. 727, 732 (1993) (arguing that some Supreme Court cases "do not reflect societal
understandings" of when an expectation of privacy is "reasonable," and that "some of the Court's conclusions
[about what expectations of privacy are reasonable] may be well off the mark"); Tomkovicz, supra note 99, at 647
(explaining that post-Katz cases "neither fulfilled the promises of Katz nor been consonant with an appropriately
conceived fourth amendment core.").
Conventional wisdom suggests that courts secure compliance with their decisions
by drawing upon their store of legitimacy, which is undermined by decisions that are
(--) No internal link: Capital doesnt tradeoff between issues-Redish and Cisar, 1991 prof law @ Northwestern and Law clerk to US Court of Appeals, 1991
Law Clerk to
Chief Judge William Bauer, United States Court of Appeals, Seventh Circuit, Dec 1991,
CONSTITUTIONAL PERSPECTIVES: ARTICLE: "IF ANGELS WERE TO GOVERN" *: THE NEED
(MARTIN H. REDISH, prof law and public policy @ Northwestern; ELIZABETH J. CISAR,
judges make
decisions so as to advance their political or ideological [*1444] policy ends,
without regard to either the demands of the normative legal model or the concerns of other
institutions. n39 It is normative in that it assumes that judges are unconstrained and have singlepeaked utility functions. In this model, judges decide so as to advance their ideological
policy ends, without regard for the formal requirements of law (e.g., constraining precedents and text)
and without concern for the reaction of external entities. The political model may find support in
legal sources beyond the legal realists and the contemporary critical legal
theorists. n40 Supreme Court Justices are commonly characterized as "liberal" or
"conservative" - political terms describing the ideological import of their decisions.
Significantly, this model of decisionmaking does not necessitate an extremely
cynical view of judges, as the political model may reflect subconscious
psychology and cognitive dissonance. n41 With the growth of clerk populations, it is easy for "the
The normative political model, sometimes called the attitudinal model, contends that
appellate judge to determine a result based on personal notions of fairness and right, and then to leave to the
n42
the normative legal model, considerable empirical data supports the claims of the political model of judicial
decisionmaking.
Many studies have already been described in the legal literature . n43
Some prominent judges have taken issue with these studies and raised some methodological challenges,
though
n45
n44
and the judges' political party explained thirty-eight percent of the variance in their voting.
notices.
@ Long
Island University, & Jeffrey Mondak, Professor of Political Science @ U of Illinois, 1998, Do attitudes
toward specific supreme court decisions matter? The impact of Webster and Texas v Johnson on Public
Confidence in the Supreme Court Political Research Quarterly, vol. 51 no 3 633-54 September1998)
Opinion about the Supreme Court may influence opinion about the Court's decisions, but is the opposite true?
Court were fully determined by early political socialization and deeply rooted attachments to democratic
values, then justices would be free to intervene in controversial policy questions without risk that doing so
sources of this diffuse support are usually seen as rather stable and immune
from short-term influences, implying that evaluations of specific decisions are of little or no
broad importance. For instance, Caldeira and Gibson (1992) find that basic democratic values, not
Gibson 1992). The
The
limited pie
theory,
n39
is
limited pie of
institutional capital, of institutional goodwill, and if it spends some of that on constitutional federalism, it will be deprived of its
opportunity to use that for where it really is needed - individual rights. The reason institutional capital is really needed in individual rights is [*604]
primarily that the states can protect themselves in the jungles of the political process, while individuals cannot. To that, my colleague Michael Perry
and others have added what implicitly underlies this: that individual rights are simply more important than constitutional federalism. n40 I like to
take the position that a true constitutional liberal should strongly believe in adherence to constitutional, not just political, limits on federalism,
because federalism serves an important function as a buffer between the government and the individual. The whole idea, the genius of the
structure set up by the Framers, was that the system of separation of powers, the system of federalism, and the system of individual rights would
all interlock as different fail-safe mechanisms. If federalism and separation of powers are working properly as divisions of government power,
tyranny would be prevented, and presumably the number of instances where individuals and government conflict over their rights would be
reduced. The story that best illustrates how constitutional federalism can protect against tyranny is the story that I gather is true about Mussolini
when he was given a copy of the National Recovery Act, which ultimately was held unconstitutional, and he looks at it and he says in Italian, "Ah,
now there's a dictator." And I think that illustrates how dangerous it is in terms of the values of our constitutional system to vest full power within
n41
n42
roughly 15 percent of the little variance in diffuse support they detected. However, due to the nine-year gap
between the waves of their panel survey, the authors could not attribute change in support to any specific
some caution that it could be decided in a narrow way that punts on the standing
issue that Silicon Valley finds so vital, or that it could be decided in a way that
actually helps plaintiffs. The Supreme Court has reviewed the Fair Credit Reporting Act, or FCRA, multiple
times since it was passed in 1970, noted Georgetown's Vladeck. The harm that comes from incorrect revelations
such as the ones at issue in the case are baked into the law, not something that must be separately proven, he
The Ninth Circuit's unanimous ruling was authored by Diarmuid O'Scannlain, one of the
court's more conservative judges. Moreover, the Supreme Court might be disinclined to rule in a way
that plaintiffs lawyers predict would result in more privacy actions being filed in state court. " This court has at
least four self-identified conservative jurists ," said Kamber, the New York plaintiffs lawyer. "I'd be
surprised if those jurists would abdicate the express intentions of Congress" in passing
said.
the Class Action Fairness Act of 2005, which allowed defendants to remove state court class actions with more than
$5 million at stake to federal court. Even Cooley's Rhodes has come to a more cautious view of Spokeo.
Rhodes
said he could see some of the conservative justices on the court applying a
separation of powers analysis to the case. Congress did, after all, pass the FCRA with a private right to
sue and statutory damages embedded within it. "It's a conservative principle to defer to the
legislature," Rhodes said.
growing confidence among defense lawyers that they have a grip on the
legal threat posed by suits that seek to hold companies accountable for improperly
collecting, selling off, rifling through or failing to protect customers' data . The Recorder
reflected
first used the phrase "privacy class action" 15 years ago to describe a new class of suits aimed at dot-com
companies. There have been plenty of ambitious predictions since. But though the legal theories have evolved,
there have been few big pay days and some signs that mainstream plaintiffs firms
are losing interest . After three boom years, privacy litigation filed in the Northern District
of California against Silicon Valley giants Apple Inc., Facebook Inc. and Google Inc. fell off dramatically
in 2013, according to a Recorder review of cases invoking the statutes most frequently used in privacy cases.
The search turned up just a single privacy suit against Apple, Facebook or Google filed in
2015.
U.S. District Judge Richard Seeborg of the Northern District of California approved a $20 million deal that Facebook Inc. reached with
users whose images appeared without consent in its sponsored stories. Plaintiffs counsel, who asked for $7.5 million in fees, were
awarded about $4.7 million, which was less than the team said it would have collected billing at hourly rates. In January 2014,
comScore Inc. agreed to pay $14 million to Internet users who claimed the analytics company installed data tracking software on
their computers without consent. Plaintiffs counsel at Edelson were awarded $4.7 million. On the data breach front, Sony Computer
Entertainment America LLC agreed last June to give $14.5 million in games, online currency and identity theft reimbursement as a
result of a massive hack of credit and debit card information from its PlayStation Network. " There's
never going to
come to a day where you're going to see a privacy case worth as much as a mass
tort case or a large antitrust case," said Edelson name partner Jay Edelson, who was the subject of a New York
Times profile in April.
much more conservatively than in the past," he says. "What speaks to the conservatism is that
tech is the only sector of the S&P 500 with positive net cash on the balance sheets."
I think it is quite
plausible that the Court could adopt that reading , agree with the petitioner that CA9's broad
ruling was wrong, and remand. All in a good day's work. I do not see why you think that such a conventional way of
proceeding "would itself violate article III."
the plaintiffs bar remains confident the Ninth Circuits ruling was the
right one. My prediction is that Spokeo is going to end up backfiring on the
industry groups behind the cert effort , said plaintiffs attorney Jim Francis of Francis & Mailman PC,
who specializes in FCRA class actions. According to Francis, case law already allows for plaintiffs to
sue for informational and privacy injuries such as reputational damage and invasion of
privacy that are protected by the FCRA and similar statutes, and there is no reason for the court to
go against that precedent now. I do not see the high court undoing years of clear
and consistent precedent, he said.
facing businesses,
http://arjournals.annualreviews.org/doi/full/10.1146/annurev.polisci.6.1
21901.085526;jsessionid=n1HzQqZJALRe, rwg]
For Dahl, of course, the challenge stems partly from the sheer volume of intervention in the current era. Just as
important,
the Court's active participation in policy making has continued for a long
period.
Dahl suggested that significant interventions occur chiefly in transitional periods, similar to what other
scholars have labeled realignments.The several decades since 1960 are too long to be labeled a transitional period.
On the other hand, this is an era in which partisan control of House, Senate, and presidency has been divided most
of the time. In such an era, it is difficult even to identify a law-making majority, let alone characterize the Court's
1860s. Over that period, its jurisdiction has never been cut back as a negative
response to its policies despite a long list of bills with that purpose .
http://arjournals.annualreviews.org/doi/
full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJALR
e]
Another possibility is that the justices ordinarily give little attention to their political
environment but take protective action when their decisions have aroused
negative reactions from other policy makers. Justices might reason that it is a poor
strategy to depart from their most preferred positions to avoid the possibility of an
unfavorable response from the other branches. But when conflicts actually occur,
the justices retreat as a means to limit the damage .
is analogous to the "fire alarm" form of congressional oversight over the executive branch. Compared with routine
strategy, it would lead to more interventions and more confrontations, but some periods of intervention would end
a triumph for civil rights activists , who had feared the justices would rein in these lawsuits, and the
administration of President Barack Obama, which had asked the justices to allow such claims to continue.
without falling into a falsely conscious perception of law and without perpetuating
the hegemonic nature of legal institutions. Relying on Gramsci's theory of counterhegemony (1971) and on
Hunt's interpretation of this theory (1990), McCann argues that movement activists who struggle to promote social change often
have no other choice but to use existing institutions, since "all struggles commence on old ground"
http://arjournals.annualreviews.org/doi/full/10.1146/annurev.polisci.6.1219
01.085526;jsessionid=n1HzQqZJALRe]
Among students of judicial behavior, there is a lively debate over the justices' hierarchies of goals. The most
contentious issue is whether justices act almost exclusively on their interest in making good public policy or
whether they balance that interest against the goal of interpreting the law well. Most students of judicial behavior
explicitly or implicitly take the first position. The work of some political scientists challenges this position, explicitly
policy
considerations certainly play a powerful part in shaping the justices' choices.
or implicitly, in part by examining the legal frameworks in which decisions are made But
Brown had a direct and forceful impact on the success of the Civil Rights
Movement and landmark civil rights legislation enacted during the 1960s. n116
According to these scholars, Brown gave Blacks hope that racial equality would be achieved
and that the rights of Blacks would be recognized, thereby shaping and helping
to forge a more aggressive Civil Rights Movement, a movement that would
result in strong anti-discrimination statutes such as Title VII of the Civil Rights Act
and the Voting Rights Act of 1965. n117
Tushnet,
California,
[Evaluating Legality: Toward a Cultural Approach to the Study of Law and
Social
Change,
June,
http://www.blackwellsynergy.com/doi/full/10.1111/1540-5893.3702006]
Based on these findings, McCann argues that sociolegal scholars should rethink their
critical view of the role of law in social change. He suggests that this critical view is
based on scholars' tendency to overdetermine legal norms and to identify them too
narrowly with formal legal institutions . He calls for a reconceptualization of law in more relational,
context-specific terms that would alter the ways of assessing the value of law in social reform. Accordingly, he
that judicial victories may be seen as more empowering for social
movements than critics often recognize. Moreover, McCann maintains that the
argues
equal" could have been achieved (which I do not believe was possible), but rather, as Ted Shaw proclaimed,
whether we would have been "satisfied with that as a nation." n133 The answer for many of us is a clear,
resounding "No." Our ability to interact across racial lines allows us to learn about the differences in each other's
culture and history, and more importantly, about what we have in common, what are our shared experiences, and
what are our shared interests. It is only through this form of integration that true racial equality can be achieved.
n134 Indeed, the most recent debates regarding the Ten Percent Plan in the state of Texas reveal the ways in which
integration and the discovery of once concealed, common interests can lead to the unearthing of race and class
inequality.
California,
[Evaluating Legality: Toward a Cultural Approach to the Study of Law and
Social
Change,
June,
http://www.blackwellsynergy.com/doi/full/10.1111/1540-5893.3702006]
However, recent work on law and social change tempers this generalized assault on rights and provides a more
complex and nuanced description of the interplay between rights, political mobilization, and social change.
including more than formal legal norms or institutions. Drawing on legal consciousness literature, he suggests that
law should be understood as including the meanings that movement activists who use legal tactics assign to legal
issue on the national agenda and alerted leaders that wage equity was "the working woman's issue of the 1980s."
Lawsuits were then filed on behalf of working women as the centerpiece of a successful union and movement
organizing strategy in scores of local venues around the nation Sustained legal action over time worked to render
employers vulnerable to challenge, to expand the resources available to working women, to provide them a unifying
claim of egalitarian rights, and to increase both their confidence and sophistication in advancing those claims.
California,
[Evaluating Legality: Toward a Cultural Approach to the Study of Law and
Social
Change,
June,
http://www.blackwellsynergy.com/doi/full/10.1111/1540-5893.3702006]
Silverstein (1996) has joined McCann in reacting against the critique of rights and litigation. Her study of the
animal rights movement is symbolically titled Unleashing Rights. She finds that the use of legal tactics
and of rights rhetoric by the animal rights movement has been useful in many ways.
For example, she suggests that litigation has been used to dramatize abuses of
animals, to embarrass particular institutional actors, and to win favorable media
attention. Silverstein concludes that despite their many constraints, both rights talk
and litigation are powerful resources for those who seek widespread and subtle
change, especially when used by strategically minded activists .
Legitimacy DA Answers
(--) No link: we dont overrule any prior precedentwe just
clarify the Katz decision.
(--) Non-unique: gay marriage ruling has angered
conservatives:
Fox News, 6/26/2015 (Supreme Court: Same-sex couples can marry in all 50
states, http://www.foxnews.com/politics/2015/06/26/supreme-court-same-sexcouples-can-marry-in-all-50-states/, Accessed 6/26/2015, rwg)
Roberts wrote: "If you are among the many Americans -- of whatever sexual
orientation -- who favor expanding same-sex marriage, by all means celebrate
today's decision. ... But do not celebrate the Constitution. It had nothing to do with it." Each of the four
dissenting justices also wrote a separate dissent. Prominent social conservatives, meanwhile,
blasted the decision. Tony Perkins, head of the Family Research Council, said it puts
the government on a "collision course with America's cherished religious freedoms."
the Supreme Court , with 35 percent favorability and its unfavorability at 41 percent
In the courts other major ruling on the ACA, NFIB v. Sebelius, the court stated
clearly it does not have the expertise to make judgments regarding public policy
but the King v. Burwell ruling relies wholly on judgments regarding public policy to
justify its conclusion that the plain language of Obamacare cannot mean what
plaintiffs argued it meant. Such clear contradictions in reasoning undermine the
sophistry.
credibility of the court for the average, commonsense people it relies upon for
legitimacy.
[Outside the Beltway] Furthermore, the Supreme Court is in the unique position of having the last word on so many
issues that divide us. It's hardly a surprise that the justices take some of the blame when they take sides on issues
the public is still fiercely debating.
Conventional wisdom suggests that courts secure compliance with their decisions
by drawing upon their store of legitimacy, which is undermined by decisions that are
unpopular, controversial, or lack intellectual integrity . n25 Part IV argues that
precisely the opposite is true : an unpopular or unpersuasive decision can, in fact,
enhance a court's power in future cases , as long as it is obeyed. Widespread
compliance with a decision that is controversial , unpopular, or unpersuasive serves only to
strengthen the widely held expectation that others comply with judicial decisions.
This expectation, in turn, is self-fulfilling : those who expect others to comply with a court's decisions
will find it strategically prudent to comply themselves, and the aggregate result will, in fact, be widespread
compliance. Part IV illustrates these strategic insights--and the Supreme Court's apparent grasp of them--by
contrasting [*734] Bush v. Gore n26 with Brown v. Board of Education n27 and Cooper v. Aaron. n28
http://arjournals.annualreviews.org/doi/full/10.1146/annurev.polisci.6.1
21901.085526;jsessionid=n1HzQqZJALRe, rwg]
Unpopular decisions may cost the Court a degree of public support in the short run,
but in the long run the Court's standing tends to hold up well . Thus, justices have
reason to think that even under relatively difficult conditions, they can engage in
policy interventions that they find appropriate without fear of serious consequences
a newly established constitutional court in an emerging democracy, faces greater risk that its decisions will be
disobeyed and its reputation for obedience stillborn. Should it succeed in deciding such a case, however, it will
engender expectations of future obedience that boost its power in subsequent cases. If those gains seem more than
commensurate with the risks involved, adjudication becomes a prudent gamble. A truly strategic court, as opposed
to a merely timid one, will recognize that its political environment is characterized not merely by risks, but also by
rewards: nothing ventured, nothing gained.
detailed study,15 we may perhaps draw some initial conclusions from recent Gallup polling data. Over the last
decade, poll respondents have usually held more confidence in the Supreme Court than in the other two branches
of government.16 In June 2000, 47 percent of those polled said that they held either a "great deal" or "quite a lot"
Even in
light of the usual caveats surrounding the use of polling data, the resiliency in the
Court's public support has been relatively deep and wide ,18 even as it has rendered
a series of controversial decisions ranging from affirmative action to abortion to civil
rights to religion.
of confidence in the Supreme Court, versus 42 percent for the presidency and 24 percent for Congress.17
The Court describes this first circumstance as "hypothetical." n272 The distinct
impression left by this passage is that decisions of the Supreme Court overruling earlier
decisions on matters of constitutional interpretation are rare and thus should not be
too readily emulated, lest the "legitimacy" of the Court be called into question. But this
impression is wrong. On more than 200 occasions, the Court has overturned previous
decisions, and in nearly three-fourths of those cases, the Court overruled because the
earlier decision had wrongly interpreted the Constitution. n273 What does this
remarkable track re [*75] cord of "judicial correction" mean? At the very least,
that the "legitimacy" of the Court is not affected by its acknowledgement of prior error,
even when that error involved an intepretation of the Constitution. Indeed, as in Brown
and West Coast Hotel, the Court has often enhanced its credibility by overruling
decisions that were wrong when originally decided. One more overruling decision, if
otherwise appropriate, could not reasonably be expected to damage that credibility.
central teaching, as I say, is not about the permanent principles that justify representative government but about the inevitability of, indeed the
duty to, change.
courts are
always ultimately accountable to the electorate because anything they do is subject
to legislative reconsideration or veto. n216 Accordingly, one must view "judicial
creativity ... not [as] a usurpation of legislative power; [but] rather ... an entirely
appropriate part of a joint lawmaking responsibility ." n217
to the electorate is incompetent to make new law with broad social policy consequences. But
therefore illusory." n231 That courts in fact do accept this role is borne out in practice. "Every day ... state courts
delineate the limits of tort liability, thereby defining socially acceptable conduct." n232
Activism Answers
(--) Plan isnt activistCourts have the right to extend privacy
in personal information:
William J. Fenrich, 1996 (Fordham Law Review, NOTE: COMMON LAW
PROTECTION OF INDIVIDUALS' RIGHTS IN PERSONAL INFORMATION, Accessed
7/9/2015, rwg)
courts should adopt the Reform Model of
jurisprudence and extend the common law to protect individuals rights in personal information .
Further, in light of legislative problems detailed above, n337
In so doing,
these courts should not fear that they are acting excessively activist ;
rather they should realize that they will be acting in accordance with the line of
cases in which courts have adopted and developed the right to privacy . The next section
presents a number of these cases as examples of the steps that courts can and have taken to move forward to
protect individuals against privacy violations. n338
subsequent privacy cases adopting the right to privacy. As this section demonstrates,
sales
beyond their competence, but rather would join in a well-reasoned line of decisions
extending privacy to protect individuals' privacy against encroachments created by
advancing technology.
Counterplan Answers
Congress CP Answers
1) Agent counterplans are bad:
A) They steal the entire AFFthey get back 8 minutes of
arguments with a 10 second plan text.
B) Creates a strategy skew cant argue against ourselves.
C) Voting issue for fairness & education.
2) Doesnt solve the Fourth Amendment: Fourth Amendment
jurisprudence is on the brink of collapseonly the courts
can solve:
Timothy Casey, 2008 (Associate Professor of Law, Case Western Reserve
University School of Law, RIGHTS AND REMEDIES: Electronic Surveillance and the
Right To Be Secure, UC Davis Law Review, Lexis/Nexis, Accessed 6/25/2015, rwg)
Recent cases demonstrate that our Fourth Amendment jurisprudence is on the
verge of collapse and will only survive if courts reclaim the original meaning and
language of the Constitution. The next paradigm shift must include a departure from
Katz's use of privacy language, and focus instead on the right of the People to be secure. Fundamental to the
modern conception of personal security, and indeed one of the basic precepts of the Founding Fathers, is the idea
that the government does not ensure the security of the People, but rather that the government embodies the
interest against which the People must be protected. Reclaiming the original language of the Constitution by
substituting a right to personal security for a reasonable expectation of privacy will simultaneously dispel the false
notion that the Fourth Amendment protects individual interests in opposition to collective interests, and reaffirm the
idea that only by protecting individual security will we increase our collective personal and national security.
opposition was based on the rejection of integration itself, not the fact that
integration was being "illegitimately" imposed by courts.
Why should a democraticallyelected legislature be in favor of unreasonable searches , coerced confessions, unreliable
identification evidence, or biased juries? As we shall see, legislatures in fact favor all of these
things, and for compelling reasons of electoral survival.
why are legislatures indifferent or hostile to the rights of the accused?
personal information , individuals should not wait for legislative action but rather should
Courts are well suited to address the issue for two
distinct but related reasons. First, when appropriate, state courts can extend and modify
the common law to keep pace with technological and societal changes. Second,
legislatures often are too beholden to special interests to thoughtfully and rationally
consider certain questions. Courts, which possess greater independence than
legislatures, must consider whether individuals should have legally enforceable
rights in their names and personality profiles.
continue to litigate the issue in state courts.
III focuses particularly on courts' roles in light of the legislative process. It endorses a "Reform Model" of judicial
activity that urges courts to embrace their lawmaking function when interest group pressure distorts legislative
processes. Part III finally demonstrates that
information issue on its merits, and thereby serve as catalysts for legislative action
to overcome interest groups' power to force on dispersed individuals the burden of
inducing legislative action. [*959]
contemporary social movement advocates neither put all their hope in courts nor
look to courts to single-handedly produce change . n48 Instead, advocates view
litigation as a significant but partial tactic - one that works in conjunction with other
tactics , and aids rather than displaces other forms of mobilization. They see courts
as opportunities, often providing the first official venue in which to articulate and
(--) Criminal law requires an active role for the Supreme Court:
Donald A. Dripps, 1993 (Professor of Law, University of Illinois at UrbanaChampaign, Syracuse Law Review, ESSAYS: CRIMINAL PROCEDURE, FOOTNOTE
FOUR, AND THE THEORY OF PUBLIC CHOICE; OR, WHY DON'T LEGISLATURES GIVE A
DAMN ABOUT THE RIGHTS OF THE ACCUSED? Accessed 7/8/2015, rwg)
Certainly the lobbying of the commission would parallel the lobbying of legislatures. Who would testify before the
commission? Who would bombard the commissioners with policy papers and lecture invitations? My guess is that it
would be the Director of the FBI, the head of the OLP, and the National Association of State Attorney Generals. And I
it seems to
me that even minimal respect for the rights of the accused depends on a
am quite certain that neither Terrance Bostick nor Larry Youngblood would put in an appearance. So
continuing role for the courts, especially for the Supreme Court , to formulate and
modify rules of criminal procedure on constitutional grounds.
Imperfections in
legislative processes lead to the belief that "the judiciary's responsibility when
exercising its lawmaking function may be greater than that of the other branches
because of its greater accessibility and its responsiveness ." n190 Accordingly, the Reform
rather fears that the common law will not be responsive enough to social change. n189
Model [*979] views courts as completely competent to make law, and demands that courts embrace this role.
force of special interest groups, the "impotence" of potential tort plaintiffs with
regard to obtaining legislative activity, and the legislative inertia that tilts the initial
balance in favor of the status quo. n215
can, and in fact should , advance tort-based consideration of the issue, to grant individuals
privacy rights in personal information. Disproportionate interest-group pressure
distorts the legislative process and gives courts the responsibility to address the
personal information issue on its merits, so as to weaken the legislative inertia amassed against
meaningful consideration of proposals to grant individuals rights in personal information. This jurisprudential
model can liberate the lawmaking capabilities of our republican government
without providing judges with unrestrained power, because any court-created rule is always
subject to review, and even veto, by the legislature.
concerns and undervalue personal privacy ." Id. at 1424-25. This Note argues that interest
group pressure has, in fact, distorted legislative consideration of proposals to vest
individuals with rights in personal information , and further suggests that adequate protection can
be achieved through extension of already-existing common law tort doctrine.
(--) FIAT Abuse: all the district courts wouldnt take the same
action at the same time
A) Utopian: all 13 district courts wouldnt take the
same action at the same time
B) Distorts the literature base: makes it impossible to
generate offense vs. the CP
C) Voting issue: Fairness & Educationdebate has been
fundamentally altered by introduction of the
illegitimate Counterplan.
(--) Lack of federal court uniformity dooms non-judicial
enforcement
Caminker 94
Evan H., Professor of Law @ UCLA, April, 46 Stan. L. Rev. 817
The executive branch enforces public law. If the judiciary does not interpret and implement
federal laws uniformly , the executive branch may have a difficult time determining its enforcement options
and obligations. As a result, administrators of federal law confront the problems of unpredictability discussed above. And even if administrators could
foresee each particular rule applicable in each divergent case, the disuniformity would still hamper the
executive branch's ability to plan and implement effective enforcement strategies in many contexts. 144 Thus
rational and efficient administration of public law often requires federal courts to interpret federal law
Administration of public law.
uniformly .
(--) Permute: Have the Supreme Court do the plan and all the
lower courts followguarantees double-solvency, shields the
link to the DA.
(--) Turn: Rule of Law
A) Lower court underruling devastates rule of law
Bhagwat 2000
Ashutosh, Professor of Law @ University of California, Hastings College of Law; J.D. from UChicago; 80 B.U.L. Rev. 967
a lower court might engage in purely predictive reasoning and refuse to follow a precedent that the court
believes the Supreme Court would not follow today based on the court's assessment of the views of individual
justices, even if the decision has not been undermined by what Michael Dorf describes as "impersonal sources of law" - i.e., subsequent opinions. 28 Such an approach is defensible, and
indeed has been ably advocated by Evan Caminker; n29but Michael Dorf has presented a convincing, if not definitive argumet for why such purely predictive reasoning
undermines values associated with the rule of law . 30 It is therefore also not surprising or problematic that
the Supreme Court should reject such purely predictive "underruling."
Second,
The tremendous yearning of all peoples for peace can only be answered by the use of law to replace weapons
in resolving international disputes . We in our country sincerely believe that mankind's best hope for preventing the tragic
consequences of nuclear-satellite-missile warfare is to persuade the nations of the entire world to submit all
disputes to tribunals of justice for all adjudication under the rule of law. We lawyers of America would like to join lawyers from every
nation in the world in fashioning an international code of law so appealing that sentiment will compel its general acceptance.
Man's relation to man is the most neglected field of study, exploration and development in the world community. It is also the most critical. The
most important basic fact of our generation is that the rapid advance of knowledge in science and technology has forced increased international
relationships in a shrunken and indivisible world. Men must either live together in peace or in modern war we will surely die together. History
teaches that the rule of law has enabled mankind to live together peacefully within nations and it is clear that
this same rule of law offers our best hope as a mechanism to achieve and maintain peace between nations.
In cases like Rodriguez de Quijas, Agostini, and State Oil v. Kahn, the
the exercise of the judicial power as a cooperative venture in reasoned decision-making and precedentbuilding, where there is value to be gained from participation by all levels of the judiciary, the Court
increasingly seems to see it as an exercise of raw power , so that any sharing of that power is necessarily at
the expense of the Court's own authority.
certain legal issues, as with the preliminary ruling system of the European Court of Justice and the Kelsenian jurisdictional arrangements of
continental constitutional courts, decision making under the constraints of vertical stare decisis tends to migrate
downward to lower courts. For otherwise the highest court would have to take case after case after case
after case deciding exactly the same thing in exactly the same way rather than issuing commanding
precedents. Whatever its virtues or vices vertical stare decisis is a necessity of judicial economy.
increased number of cases strain an already burdened judicial system, depriving lawyers and judges of
ample time to hear cases and denying defendants the right to a fair trial. They also contend that resources
have been diverted from pursuing offenders more dangerous than the typical migrant worker and that prosecutors
cannot use their own discretion in choosing which violators to go after. "I'm all for national security and
border security," said Brack, who was appointed to the bench in 2003 by President Bush. "The people I generally see are
humble people who have no criminal offenses other than coming back and forth to pick chili. We're
spending a lot of time catching these folks when we could concentrate on those penetrating our
border to do us harm."
What would be the consequences of a nuclear attack by terrorists? Even if it fails, it would further exacerbate
the negative features of the new and frightening world in which we are now living. Societies would close in on themselves,
police measures would be stepped up at the expense of human rights, tensions between civilisations and religions would rise
and ethnic conflicts would proliferate. It would also speed up the arms race and develop the awareness that a different
type of world order is imperative if humankind is to survive. But the still more critical scenario is if the attack succeeds. This could
lead to a third world war, from which no one will emerge victorious. Unlike a conventional war which ends when one side
triumphs over another, this war will be without winners and losers. When nuclear pollution infects the whole planet, we will all
be losers.
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.
One of the issues rarely addressed in the debate on reliance on foreign authority to interpret constitutional
guarantees is what attitude lower courts should take with respect to the question. As most scholars know, the Missouri
Supreme Court in Roper v. Simmons relied on foreign authority in flagrantly departing from Supreme Court precedent in Stanford
to hold that the juvenile death penalty was cruel and unusual punishment. That approach led to a "no comment" from the Supreme Court
in Roper, but a sharp rebuke from Justice Scalia. In dissent Justice Scalia noted: "To add insult to injury, the Court affirms the Missouri
Supreme Court without even admonishing that court for its flagrant disregard of our precedent in Stanford. Until today, we have always
held that 'it is this Court's prerogative alone to overrule one of its precedents.' ... Today, however, the Court silently
approves a state-court decision that blatantly rejected controlling precedent." Last week the Ninth Circuit in Allen v. Ornoski was faced with a
death penalty claim by Clarence Ray Allen, an inmate in his seventies who has been on death row for over twenty years. He argued, among other
things, "that execution of an elderly person does not comport with 'evolving standards of decency,' in that the execution 'offends humanity,'
provides no deterrence value, does not serve any retributive purpose, and violates the norms of domestic and international law." The Ninth
Circuit, per Clinton-appointee Judge Wardlaw, rejected the international argument out of hand: "While international norms may also
be instructive in this analysis, in light of the nonexistence of domestic authority supporting Allen's claim, and the lack of definitive international
authority provided by Allen, we, as an intermediate court, decline to consider the asserted practices of foreign jurisdictions." Allen suggests that
lower courts should be more cautious than the Supreme Court in relying on foreign authority, particularly
where that authority is not clear and definitive. I am not aware of any empirical studies analyzing how lower courts have
handled the question of reliance on foreign authority in constitutional adjudication. It would be worth the time to make such inquiries. Nor am I
aware of other lower courts that have expressed the need for greater caution on this question. But I can appreciate the concern because obviously
adherence to and departure from precedent is of greater moment for lower courts than the Supreme Court.
The use of precedent by courts in the United States of America should be viewed as a tradition or a practice, rather than a legal doctrine in the strictest sense of the
word, because it is so deeply embedded in the culture of the legal profession and the judiciary that it takes place without much reflection by judges. In its simplest and
the doctrine of stare decisis requires all tribunals of inferior jurisdiction to follow the
precedents of courts of superior jurisdiction, to accept the law as declared by superior courts, and not to
attempt to overrule their decisions. American lawyers have come to believe that "the slightest deviation from this
rigid rule would destroy the sanctity of the judicial practice. There would be no finality or
stability in the law and the court system would be chaotic in its operation and unstable and inconsistent in
its decisions." This strict rule of stare decisis, which governs lower courts in all common-law, statutory and constitutional cases, does not clarify the
most important sense,
n159
n160
circumstances in which courts may overrule their own previous decisions, or deviate from their own precedents. Americans have never wandered very far down the
Benthamite road of extreme stare decisis, which once bound English common-law courts to respect their own erroneous or unreasonable precedents. n161 Perhaps this
distinction between English and American practice arose in part from amorphousness [*87] of the English Constitution, which leaves Parliament free to correct any
perceived errors of the judiciary, n162 but the more fundamental difference follows from the American view of law as intimately connected to reason, not a command,
but truth as revealed by experience. "It is more important that the Court should be right upon later and more elaborate consideration of the cases than consistent with
previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience." n163
(--) FIAT Abuse: all 50 state courts wouldnt take the same
action at the same time
A) Utopian: all 50 state courts wouldnt take the same
action at the same time
B) Distorts the literature base: makes it impossible to
generate offense vs. the CP
C) Voting issue: debate has already been irreparably
altered.
(--) Supreme Court is necessary to solve for the statesstates
will interpret their constitutions the way the Supreme Court
does:
Bill Swinford, 1994 (Assistant Professor of Political Science, University of
Richmond, Temple Law Review, SHEDDING THE DOCTRINAL SECURITY
BLANKET: HOW STATE SUPREME COURTS INTERPRET THEIR STATE
CONSTITUTIONS IN THE SHADOW OF RODRIGUEZ, 67 Temp. L. Rev. 981;
Lexis, rwg)
State courts often interpret language in state constitutions in order to grant
protection to rights and privileges that is broader than that afforded by the Supreme
Court under the United States Constitution. n1 However, state courts tend to be
guided (if not controlled) by United States Supreme Court interpretations of
analogous language in the United States Constitution . n2 In other words, state
courts have traditionally used Supreme Court precedents as "doctrinal security
blankets," looking to Court precedent for legal support for decisions on state
constitutional questions, even when there is no legal necessity for doing so.
'should' is
weaker.