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  • Caselist.CitesClass[3]
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Caselist.CitesClass[3]

EntryDate

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1		-2016-11-08 19:46:13.83
	1	+2016-11-08 19:46:13.0

Caselist.CitesClass[4]

Cites

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	1	+1. Perm do both – The AFF is a necessary first step to recognizing the law’s indeterminacy. Meyer 96
	2	+Meyer, Linda Ross. "When Reasonable Minds Differ." NYU Law Review 71, no. 6 (December 1996). Accessed November 2, 2016. http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-71-6-Meyer.pdf. BA, University of Kansas; JD, PhD, University of California Berkeley JD
	3	+If the theorists are right that indeterminacy is destabilizing, these areas of doctrine are dangerous in the extreme. A look at the law in such areas should show subversive effects on legal legitimacy or stability. Or perhaps it should at least show judges extremely reluctant to find indeterminacy. But, as we shall see, they are not. This Article takes on the challenge of looking at legal indeterminacy in two of these contexts in which legal doctrine itself requires judges to decide whether the law in a particular area is determinate or indeterminate: Rule 11 of the Federal Rules of Civil Procedure and qualified immunity doctrine. Rule 11 authorizes courts to impose sanctions on attorneys and parties for making frivolous arguments or claims. Under Rule 11, a judge must decide whether a legal argument is "frivolous" (and sanctionable) or whether it is "wrong, but reasonable" (not sanctionable). If the argument is reasonable, yet wrong, the finding is an acknowledgement that the law is not clear-that reasonable minds could differ. Qualified immunity doctrine shields officials from personal liability for breaking the law so long as the law was not "clearly established" at the time of the violation. In granting or denying public officials qualified immunity from a lawsuit, a judge must decide whether a constitutional or statutory right is "clearly established." If it is not, again, the judge acknowledges that the law is indeterminate. A look at these doctrinal areas reveals that acknowledgements of radical legal "indeterminacy" are not necessarily radically destabilizing or signs of the demise of the rule of law, as one might expect from reading the theoretical debate. Not only do judges readily acknowledge indeterminacy, but indeterminacy seems to mean different things in different legal contexts. Strangely enough, the same substantive area of law may be considered either determinate or indeterminate, depending on why one is asking. Rule 11 doctrine, as we will see, looks more like the legal landscape the "radical indeterminists" describe, whereas qualified immunity doctrine looks more like the legal landscape the "moderate indeterminists" describe.18How can it be that law sometimes looks determinate and other times does not? As this Article tries to show, once we see that law is a practice, we see too that it is a practice in time. The dispute about indeterminacy is in part a dispute over which temporal aspect courts should focus on in making their decisions. Seeing law as radically indeterminate stresses its future aspect; seeing it as moderately indeterminate stresses its past aspect. Rule 11 law stresses the future aspect of law, preserving the meritorious legal arguments of the future by not prohibiting attorneys from articulating them at the proper time. Qualified immunity doctrine, on the other hand, stresses the past-whether officials had notice of their responsibilities. The difference in temporal focus results in a difference in perceived determinacy. We discover that judges tend to find law indeterminate in order to avoid sanctioning law articulators and thereby to foster legal evolution. Such indeterminacy, even radical indeterminacy, actually promotes legitimacy, if legitimacy is thought of as the concurrence of law and justification. When courts are concerned about fair notice, on the other hand, they tend to see law as determinate-positive-law-style black-letter rules with a few gaps where the courts have not yet spoken. Here, determinacy promotes predictability, another aspect of legitimacy. Hence, looking at legal indeterminacy in legal contexts suggests that the theorists have missed an important aspect of the question. They have not taken seriously enough the idea that law is a practice, not a thing. As a result, they fail to look at how indeterminacy plays itself out in legal contexts. Seen in context, indeterminacy is sometimes a way of preserving justification, not undermining it. It serves this role not at the cost of unleashing judges from the rules they serve, but as part of the very texture of the doctrine itself. Not only can we illuminate theory by juxtaposing it with doctrine, but also we can enlighten doctrinal disputes by juxtaposing them with theory. The splits among the courts of appeals over how to articulate and apply Rule l's "objective standard" are shown to be inevitable, since the future law that Rule 11 affects is never an object that stands still. Likewise, qualified immunity's circuit splits over levels of generality and overlapping sovereignties also are inevitable, given the past focused perspective the cases take. Although the sorts of disputes that arise are in some sense preordained by the approach to indeterminacy courts take, a few suggestions are still in order. Even though Rule 11 affects future law, the future is not a blank slate but is sketched out by the past. A litigant's arguments must have some bearing on recognizably worthy goals- goals that we can see the point of achieving. This sense of what is worthy of pursuit must come from the past. Even though qualified immunity looks to past law, it must not limit itself to past articulations of rules by judges but must recognize that there are more pervasive, widely shared, and readily available norms that help construct what "reasonable" officials ought to know.
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	5	+2. Demands on the state cause crises in the law that solve the K – the alt purposefully cedes the political to keep the left in check Crenshaw 88
	6	+Crenshaw , Law Professor at UCLA, 88 (Kimberle Williams, ―RACE, REFORM, AND RETRENCHMENT: TRANSFORMATION AND LEGITIMATION IN ANTIDISCRIMINATION LAW,‖ Harvard Law Review, May, 101 Harv. L. Rev. 1331)
	7	+Rights discourse provided the ideological mechanisms through which the conflicts of federalism, the power of the Presidency, and the legitimacy of the courts could be orchestrated against Jim Crow . Movement leaders used these tactics to force open a conflict between whites that eventually benefited Black people. Casting racial issues in the moral and legal rights rhetoric of the prevailing ideology helped create the political controversy without which the state's coercive function would not have been enlisted to aid Blacks. Simply critiquing the ideology from without or making demands in language outside the rights discourse would have accomplished little. Rather, Blacks gained by using a powerful combination of direct action , mass protest, and individual acts of resistance , along with appeals to public opinion and the courts couched in the language of the prevailing legal consciousness. The result was a series of ideological and political crises. In these crises, civil rights activists and lawyers induced the federal government to aid Blacks and triggered efforts to legitimate and reinforce the authority of the law in ways that benefited Blacks . Simply insisting that Blacks be integrated or speaking in the language of "needs" would have endangered the lives of those who were already taking risks ~-~- and with no reasonable chance of success. President Eisenhower , for example, would not have sent federal troop s to Little Rock simply at the behest of protesters demanding that Black schoolchildren receive an equal education . Instead, the successful manipulation of legal rhetoric led to a crisis of federal power that ultimately benefited Blacks . n192 Some critics of legal reform movements seem to overlook the fact that state power has made a significant difference ~-~- sometimes between life and death ~-~- in the efforts of Black people to transform their world. Attempts to harness the power of the state through the appropriate rhetorical/legal incantations should be appreciated as intensely powerful and calculated political acts . In the context of white supremacy, engaging in rights discourse should be seen as an act of self-defense . This was particularly true because the state could not assume a position of neutrality regarding Black people once the movement had mobilized people to challenge the system of oppression: either the coercive mechanism of the state had to be used to support white supremacy, or it had to be used to dismantle it. We know now, with hindsight, that it did both. n193
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	9	+3. The arguments about the law are wrong—discussion legal solutions and engaging legal scholarship has enormous beneficial impact- empirics prove
	10	+West 09
	11	+(Robin, A Reply to Pierre http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1790andcontext=facpub)
	12	+I’ll start with a relatively small descriptive point I think Pierre has wrong. Pierre has argued elsewhere and repeats the claim here,7 that mainstream legal scholarship is not only uninteresting, but that it is also inconsequential. Sometimes, maybe most of the time, the aim of legal “scholarship” is not to answer the question “what is the law of so-and-so” in the abstract or for the sheer fun of it, but to answer the question so as to influence judges who may be grappling with the same question, or who may soon do so. But if that’s the case, Pierre suggests, it’s most assuredly a failure, by its own lights, and regardless of whether or not it “gets the law right.” Judges don’t even read this stuff anymore. They’re certainly not swayed by it.8 If the point of legal “scholarship” is to be efficacious rather than merely enlightening, the ship is surely sunk. Legal scholarship simply has no effect. But this isn’t completely true, as Pierre himself notes toward the end of his piece. Legal scholarship affects the way law professors think, the way our students think, the way legal bloggers and their readers think, the way the judges’ clerks think, and ultimately the way clients and their lawyers think.9 And sometimes, Pierre’s charge notwithstanding, it affects the way judges think, and occasionally that effect is clearly observable in judicial opinions. From Georgetown faculty’s scholarship alone and just over the last few years—and I’m sure the same claim could be made of most law schools—quite conventional legal scholarship has affected the arguments that have convinced the Supreme Court and lower courts on the unconstitutionality of the terms under which detainees are held in Guanta´namo, on the constitutionality of the Family and Medical Leave Act, and on the applicability of the Clean Air Act to greenhouse gases. It has affected the content and wording of statutes, including the Americans with Disabilities Act, the Violence Against Women Act, the Family and Medical Leave Act, the proposed Anti-Discrimination Act, and god knows how many others. It has influenced the way the Washington, D.C. courts are configured to deal with domestic violence claims. Contrary to Pierre’s charge, mainstream legal scholarship does have an impact on both judicial decisions and substantive law. It doesn’t do so routinely. But it does enough of the time to justify the effort, if that is the scholar’s goal. (868-9)
	13	+4. Incremental reform is good – it allows for manipulation and reapplication of current laws to prevent current institutions from being further entrenched Pavone, 14
	14	+Tommaso Pavone, 12-7-14, Beyond The Hollow Hope: The Promise and Challenges of Studying Gradual Sociolegal Change, https://pdfs.semanticscholar.org/6463/9f39a818ea8267a23b7e637c52a598df1c75.pdf VC
	15	+Historical institutionalists have long argued that legal change need not be limited to the introduction of new, sweeping legal rules - it can also take the form of creative engagement with the existing institutional environment (Hacker 2004; Mahoney and Thelen 2010). Indeed, Hart (1961) emphasizes that all legal rules possess a residual “open texture” due to the inherent ambiguities of language.10 This fact can be exploited by litigants and judges to promote gradual sociolegal change. Loopholes within a statute can be filledin via the extension of the legal rule’s components or via analogical reasoning; rules meant to govern a particular set of social disputes are applied to novel situations that were not considered by their legislative or executive authors; the semantic content of the rules is gradually reinterpreted and adjusted, case-by-case, to accomodate shifting social and linguistic understandings.11 A single snapshot of such incrementalist tweakings of open-textured rules will not strike anyone as “social change,” particularly given that within courtrooms these limited exercises of agency can be couched in the legalistic discourse of law application rather than the policymaking discourse of law creation. As a result, monitoring the creative reshaping of open-textured law is likely to be difficult, minimizing the threat of political backlash. By the time that opponents of social change become aware, perhaps via a lawsuit of their own, that the existing set of legal rules has been slowly but fundamentally reshaped, the reconfigured institutional environment is likely to have already become entrenched within existing social practices.

EntryDate

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	1	+2016-11-08 19:46:13.691

Judge

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	1	+Miyamoto, Dan

Opponent

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	1	+Loyola GR

ParentRound

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	1	+3

Round

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	1	+1

Team

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	1	+Harvard Westlake Mork Aff

Title

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	1	+NOVDEC CJS Good

Tournament

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	1	+Damus