Summary

• Objects (0 modified, 0 added, 1 removed)
  • Caselist.CitesClass[14]

Details

Caselist.CitesClass[14]

Cites

...	...	@@ -1,59 +1,0 @@
1		-Government obligations necessitate tradeoffs—that means util. Woller 97
2		-Gary Woller BYU Prof., “An Overview by Gary Woller”, A Forum on the Role of Environmental Ethics, June 1997, pg. 10
3		-“Moreover, virtually all public policies entail some redistribution of economic or political resources, such that one group's gains must come at another group's ex- pense. Consequently, public policies in a democracy must be justified to the public, and especially to those who pay the costs of those policies. Such but justification cannot simply be assumed a priori by invoking some higher-order moral principle. Appeals to a priori moral principles, such as environmental preservation, also often fail to acknowledge that public policies inevitably entail trade-offs among competing values. Thus since policymakers cannot justify inherent value conflicts to the public in any philosophical sense, and since public policies inherently imply winners and losers, the policymakers' duty is to the public interest requires them to demonstrate that the redistributive effects and value trade-offs implied by their polices are somehow to the overall advantage of society. At the same time, deontologically based ethical systems have severe practical limitations as a basis for public policy. At best, Also, a priori moral principles provide only general guidance to ethical dilemmas in public affairs and do not themselves suggest appropriate public policies, and at worst, they create a regimen of regulatory unreasonableness while failing to adequately address the problem or actually making it worse.”
4		-Thus, the standard is maximizing expected pleasure.
5		-Prefer:
6		-1. No act/omission for governments—constraint based theories collapse to util.
7		-Sunstein and Vermule 05
8		-(Cass Sunstein and Adrian Vermuele, “Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs,” Chicago Public Law and Legal Theory Working Paper No. 85 (March 2005), p. 17.)
9		-In our view, both the argument from causation and the argument from intention go wrong by overlooking the distinctive features of government as a moral agent. Whatever the general status of the act-omission distinction as a matter of moral philosophy,38 the distinction is least impressive when applied to government.39 The most fundamental point is that unlike individuals, governments always and necessarily face a choice between or among possible policies for regulating third parties. The distinction between acts and omissions may not be intelligible in this context, and even if it is, the distinction does not make a morally relevant difference. Most generally, government is in the business of creating permissions and prohibitions. When it explicitly or implicitly authorizes private action, it is not omitting to do anything, or refusing to act.40 Moreover, the distinction between authorized and unauthorized private action—for example, private killing—becomes obscure when the government formally forbids private action, but chooses a set of policy instruments that do not adequately or fully discourage it.
10		-2. Empiricism- only the real world can serve as the basis for ethical reasoning. Schwartz: The empirical support for the fundamental principle of empiricism is diffuse but salient. Our common empirical experience and experimental psychology offer evidence that humans do not have any capacity to garner knowledge except by empirical sources. The fact is that we believe that there is no source of knowledge, information, or evidence apart from observation, empirical scientific investigations, and our sensory experience of the world, and we believe this on the basis of our empirical a posteriori experiences and our general empirical view of how things work. For example, we believe on empirical evidence that humans are continuous with the rest of nature and that we rely like other animals on our senses to tell us how things are. If humans are more successful than other animals, it is not because we possess special non-experiential ways of knowing, but because we are better at cooperating, collating, and inferring. In particular we do not have any capacity for substantive a priori knowledge. There is no known mechanism by which such knowledge would be made possible. This is an empirical claim.
11		-This requires util to adjudicate- all judgments are determined based on consequences of pleasure and pain. Nagel: I I shall defend the unsurprising claim that sensory pleasure is good and pain bad, no matter whose they are. The point of the exercise is to see how the pressures of objectification operate in a simple case. Physical pleasure and pain do not usually depend on activities or desires which themselves raise questions of justification and value. They are just is a sensory experiences in relation to which we are fairly passive, but toward which we feel involuntary desire or aversion. Almost everyone takes the avoidance of his own pain and the promotion of his own pleasure as subjective reasons for action in a fairly simple way; they are not back up by any further reasons. On the other hand if someone pursues pain or avoids pleasure, either it as a means to some end or it is backed up by dark reasons like guilt or sexual masochism. What sort of general value, if any, ought to be assigned to pleasure and pain when we consider these facts from an objective standpoint? What kind of judgment can we reasonably make about these things when we view them in abstraction from who we are? We can begin by asking why there is no plausibility in the zero position, that pleasure and pain have no value of any kind that can be objectively recognized. That would mean that I have no reason to take aspirin for a severe headache, however I may in fact be motivated; and that looking at it from outside, you couldn't even say that someone had a reason not to put his hand on a hot stove, just because of the pain. Try looking at it from the outside and see whether you can manage to withhold that judgment. If the idea of objective practical reason makes any sense at all, so that there is some judgment to withhold, it does not seem possible. If the general arguments against the reality of objective reasons are no good, then it is at least possible that I have a reason, and not just an inclination, to refrain from putting my hand on a hot stove. But given the possibility, it seems meaningless to deny that this is so. Oddly enough, however, we can think of a story that would go with such a denial. It might be suggested that the aversion to pain is a useful phobia—having nothing to do with the intrinsic undesirability of pain itself—which helps us avoid or escape the injuries that are signaled by pain. (The same type of purely instrumental value might be ascribed to sensory pleasure: the pleasures of food, drink, and sex might be regarded as having no value in themselves, though our natural attraction to them assists survival and reproduction.) There would then be nothing wrong with pain in itself, and someone who was never motivated deliberately to do anything just because he knew it would reduce or avoid pain would have nothing the matter with him. He would still have involuntary avoidance reactions, otherwise it would be hard to say that he felt pain at all. And he would be motivated to reduce pain for other reasons—because it was an effective way to avoid the danger being signaled, or because interfered with some physical or mental activity that was important to him. He just wouldn't regard the pain as itself something he had any reason to avoid, even though he hated the feeling just as much as the rest of us. (And of course he wouldn't be able to justify the avoidance of pain in the way that we customarily justify avoiding what we hate without reason—that is, on the ground that even an irrational hatred makes its object very unpleasant!) There is nothing self-contradictory in this proposal, but it seems nevertheless insane. Without some positive reason to think there is nothing in itself good or bad about having an experience you intensely like or dislike, we can't seriously regard the common impression to the contrary as a collective illusion. Such things are at least good or bad for us, if anything is. What seems to be going on here is that we cannot from an objective standpoint withhold a certain kind of endorsement of the most direct and immediate subjective value judgments we make concerning the contents of our own consciousness. We regard ourselves as too close to those things to be mistaken in our immediate, nonideological evaluative impressions. No objective view we can attain could possibly overrule our subjective authority in such cases. There can be no reason to reject the appearances here.
12		-3. Reductionism means that there is no personal identity which concludes util
13		-Schultz 86 Bart Schultz, Senior Lecturer in Humanities (Philosophy) and Director of the Humanities Division's Civic Knowledge Project at the University of Chicago, “Persons, Selves, and Utilitarianism,” Ethics, Vol. 96, No. 4 (Jul., 1986), pp. 721-745 JW
14		-The theory of personal identity that might be used to support util- itarianism is that which Parfit once labeled the "Complex View," though he now refers to it as the "Reductionist View" (pp. 209-17). On the Reductionist View, which is the view of Grice, Quinton, Perry, and Parfit, the fact of one's identity over time just consists in various other particular physical and psychological facts-especially, for Parfit, the relations of memory, character, intention, and so forth. By contrast, on the "Simple," or "Non-Reductionist," view, the view of Geach, Chisholm, and Swinburne, personal identity involves either a separate "further fact" or a separately existing entity-such as a Cartesian ego-over and above these psycho- logical continuities. On this view, one's identity may hold quite indepen- dently of these relations and is not reducible to them, although they may provide evidence for it. On the Reductionist View, as Parfit describes it, persons are not separately real entities-there is simply nothing more to them than the various interrelated physical and mental events. All of these facts could be described, and indeed a complete description of reality given, without claiming that persons exist. Even mental states or experiences can be described without claiming that they are had by a person or that persons exist. Furthermore, since on this view the continued existence of a person over time just involves relations that, in their nature, can hold to varying degrees, in cases where these relations hold to an intermediate degree there may not be any deep difference between a person's identity holding or failing to hold. For example, we can imagine a mad neurosurgeon who operates on me in such a way that after the operation the resulting person is, both physically and psychologically, roughly half my former self and half a completely different person. Now, although it may be clear that if I had been completely made over into a replica of somebody else, I would not have survived, and that if almost no changes in my physical or mental make-up had occurred, I would still be me, how does one describe the intermediate case? Have I survived? The question, Parfit argues, is an empty one. Although all of the relevant facts are known, no answer will be truly nonarbitrary. Personal identity can, in this sense, be indeterminate. Of course, adherents of the Non-Reductionist View will hold that the question cannot be empty, that a person's identity always either holds or fails to hold, and that there is a deep difference between the two, just as there is a deep difference between an experience being mine and its being someone else's. An experience cannot be more or less mine; a future person cannot be more or less me. The important point here is that on the Reductionist View the nature and identity of persons is akin to that of other complex persisting objects, such as ships, clubs, or nations. Just as most of us would hold an atomistic, reductionist view of nations, according to which there is nothing more to them or their identity over time than individual persons associated by various cultural, political, and geographical relations, so on the Reductionist View we would hold that there is nothing more to persons than the various and variously associated mental and physical events. It is in this sense that on the Reductionist View we may believe that personal identity is less "deep," that there is less to it than we had been inclined to think.
15		-This leads to util
16		-a. If people are just a series of certain disconnected physical and mental states, the only relevant impact is maximizing experiences within those states of affairs
17		-b. Other theories presume identity is relevant. If identity is irrelevant, then util must be true
18		-
19		-Plan
20		-Resolved: The Supreme Court of the United States should limit qualified immunity for police officers by forcing lower courts to give reason for exercising constitutional discretion, effectively overturning the precedent set in Pearson v. Callahan.
21		-Walker 15 Christopher J. Walker, Assistant Professor of Law, Michael E. Moritz College of Law, The Ohio State University, Aaron L. Nielson, Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University, “The New Qualified Immunity,” Southern California Law Review, Vol. 89, pp. 1-65, Oct. 19, 2015 JW
22		-Whereas the core constitutional stagnation fear expressed about Pearson discretion is probably exaggerated, the facts on the ground nevertheless show that Pearson is not perfect. There appears to be some stagnation with respect to rights-making; variation across the circuits; and the potential of substantive asymmetries. All of this suggests that the Supreme Court might need to revisit Pearson. Indeed, following Camreta, there may be some appetite to require lower courts to decide whether the alleged right is clearly established and, if it is not, to stop the analysis there.230 Others, however, may press for a return to Saucier, as many scholars advised when Pearson was decided.231 Neither of those options is perfect, nor, in any event, likely. Accordingly, we urge a middle path: the Court should require lower courts—both trial and appellate courts—to give reasons for exercising (or not) their Pearson discretion to reach constitutional questions. We are not writing on a blank slate, but borrow from long-settled principles of administrative law that stress the danger that arises when decisionmakers fail to contemporaneously explain why they have elected to exercise their discretion in a particular way.232 The value of reason giving is not limited to administrative law but has been explored in the law more generally,233 and we are not the first to import it into civil litigation.234 In fact, in his initial response to Pearson, Jack Beermann advanced a reason- giving recommendation: “At a minimum, in light of the strong reasons for reaching the constitutional merits, courts should be required to give reasons for not doing so.”235
23		-The plan is topical- Pearson lead to two expansions of QI- a) no longer bound by legal discretion and b) creating a necessary standard of previous establishment in legal law. So the plan limits qualified immunity, I just have an enforcement mechanism. If this plan is FX-T, so is every other plan on this topic, since they still rely on some enforcement mechanism i.e. Congress or a different court ruling.
24		-Advantage 1 – Con Stagnation
25		-Pearson v. Callahan established a precedent of deference to the lower courts which creates confusion on which rights the Constitution guarantees
26		-Walker 15 Christopher J. Walker, Assistant Professor of Law, Michael E. Moritz College of Law, The Ohio State University, Aaron L. Nielson, Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University, “The New Qualified Immunity,” Southern California Law Review, Vol. 89, pp. 1-65, Oct. 19, 2015 JW
27		-Qualified immunity, however, is more than just substantively controversial; it also creates a procedural puzzle. This immunity shields government officials from personal liability whenever an alleged right was not “clearly established.” This means that a plaintiff seeking damages from an individual officer must clear two hurdles. First, she must be able to show that her constitutional right was violated. And second, she must be able to show that “a reasonable person would have known” of the violation at the time.12 Hence the puzzle: Because many constitutional issues arise in cases subject to qualified immunity, if courts were simply to resolve such claims on the ground that there is no clearly established right, then the constitutional rights may never be clearly established—especially when new fact patterns and technologies are at issue. This dilemma has been dubbed “constitutional stagnation.”13 Yet few judicial principles are as entrenched as Justice Brandeis’s warning that a court should “not pass upon a constitutional question . . . if there is also present some other ground upon which the case may be disposed of”14—a rule Alexander Bickel included among his “passive virtues” for judging.15 With qualified immunity, the urge to prevent constitutional stagnation and the rule against reaching constitutional questions unnecessarily are at loggerheads. The Supreme Court has long struggled with this puzzle. Most recently, in 2009, the Court changed the procedures governing qualified immunity. In Pearson, 16 the Court unanimously overruled Saucier v. Katz, which had required that courts “must” first decide whether the Constitution was violated and only then decide whether the constitutional right at issue was clearly established.17 Rather than requiring Saucier’s rigid “order of battle,” Pearson leaves sequencing to the “sound discretion” of the lower courts.18 Pearson thus effectuates Justice Breyer’s forceful charge—based on concerns about judicial resources and the dangers of unnecessary constitutional decisions—to “end the failed Saucier experiment now.”19 Whereas Saucier gave courts no flexibility at all, Pearson now gives courts maximalist discretion.20 Pearson was controversial when decided and “remains controversial” today.21 This is unsurprising. Pearson poses thorny theoretical questions. Many scholars and judges fear, for instance, that without Saucier, constitutional law will “stagnate as lower courts flee from the merits.”22 Reflecting the same point but from a different perspective, Judge Harvey Wilkinson celebrates Pearson as a signal that “the trend toward constitutional avoidance seems, finally, to be taking hold.”23 Some contend that Saucier had an important psychological component—that forcing courts to decide constitutional questions first affected whether they imposed liability.24 Others reject that view.25 Many also worry that courts will get bogged down in debates about when to decide constitutional questions.26
28		-Empirically proven that Pearson increased constitutional stagnation as circuit courts refused to answer constitutional questions
29		-Walker 15 Christopher J. Walker, Assistant Professor of Law, Michael E. Moritz College of Law, The Ohio State University, Aaron L. Nielson, Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University, “The New Qualified Immunity,” Southern California Law Review, Vol. 89, pp. 1-65, Oct. 19, 2015 JW
30		-On the other hand, if one is concerned not only with courts reaching constitutional questions, but also with courts finding constitutional violations where the law is not clearly established (in other words, in the pure Saucier manner), the numbers may be less encouraging. In only one in twenty instances (5.0 or 53 claims) in which qualified immunity was granted did the court recognize a constitutional violation that was not clearly established but that, because of the court’s decision, would be in future cases. This means that in the overwhelming majority of cases in which courts opt to use their discretion to decide the constitutional merits, they are concluding that no right has been violated. To be sure, assessing whether Pearson discretion has increased the risk of constitutional stagnation requires a comparison between pre- and post-Pearson judicial decisionmaking. As discussed in Part II.A, several empirical studies were conducted before Pearson and two were conducted on cases decided shortly after Pearson. These studies do not provide perfect comparisons, as the methodologies differ. For instance, like this study, the Leong and Rolfs studies analyze both published and unpublished circuit decisions, whereas the Hughes, Sobolski-Steinberg, and JonesYauch studies look only at published decisions.194 Each study analyzes cases from different time periods before and after Saucier and Pearson, 195 which may matter. Similarly, whereas most of the prior studies draw on random samples of cases that contained certain keys words,196 our study, like the Jones-Yauch study, looks at every case within the defined population (and time period) but that population is limited to those decisions that cite Pearson. With those qualifications in mind, comparing the studies’ findings provides some (albeit limited) context on the development of constitutional law before and after Pearson, as well as before and after Saucier—the Supreme Court precedent that required courts to answer constitutional questions in every case.197 Table 1 provides that purely descriptive comparison.198 As these comparisons suggest, circuit courts unsurprisingly opt not to reach constitutional questions as often; indeed, this result flows directly from Pearson. What matters, however, is how often courts do so. The data suggest that courts decline to decide constitutional questions at a rate similar to the pre-Saucier period—in around one in four cases, as opposed to less than six percent during the Saucier regime. The overall rate of reaching constitutional questions accordingly has decreased after Pearson; it would be shocking if it were otherwise. This decrease by itself is not necessarily problematic. For the reasons given by the Pearson Court, some cases are poor vehicles to decide constitutional questions because, for instance, they are poorly briefed.199 Presumably no one thinks it is a bad thing that those cases are not being resolved on constitutional grounds. 200 Moreover, it is not obvious that civil libertarians should prefer Saucier. Imagine a world in which courts keep declining to clarify a point of law regarding a certain practice. Police might avoid that practice, or use it sparingly, because of the legal uncertainty. But if the practice is declared constitutional, police may no longer be reluctant to use it broadly. Nonetheless, as to constitutional stagnation in the pure Saucier sense, the concern about post-Pearson stagnation appears well founded: all of the post-Pearson studies—ours and the Jones-Rauch and Rolfs studies—found that circuit courts found constitutional violations of rights that were not clearly established in 3.6, 7.9, and 2.5, respectively, of the total claims reviewed, whereas the three pre-Pearson studies found rates ranging from 6.5 to 13.9 during the Saucier mandatory sequencing regime.201 Our findings suggest something has changed. The implications of these findings for substantive constitutional law are important. Pure Saucier cases are often difficult—as they should be. Finding a constitutional violation that has not been identified before is one of the most momentous things a judge can do. Such cases are often contentious. For instance, to return to the example used in the Introduction, the en banc Ninth Circuit’s holding that Officer Aikala’s use of a Taser on Ms. Mattos violated the Fourth Amendment but that the right was not “clearly established”202 prompted fierce dissent. Indeed, then-Chief Judge Kozinski warned that the majority’s constitutional “mistake will be paid for in the blood and lives of police and members of the public.”203 Hence, it is possible that courts—perhaps for the sake of comity on the bench or simply because of the call of other work—may decide not to resolve difficult constitutional questions. For instance, in one case, a prisoner’s “ovary and lymph nodes were removed without her consent during a radical hysterectomy.”204 A divided panel concluded that the doctors did not violate any clearly established law.205 The majority’s decision to just apply qualified immunity rather than reach the constitutional question obviously can be defended. But one could imagine other panels resolving the constitutional question too, as the Supreme Court did in Plumhoff v. Rickard. 206 The risk, post-Pearson, is that this type of constitutional question—i.e., a contentious one—may fall through the cracks more often after Pearson than before it.207 In sum, post-Pearson constitutional law continues to develop, but the finding of constitutional violations (when granting qualified immunity)— the pure Saucier development of constitutional law—has decreased. The data thus provide at least some support for the post-Pearson constitutional stagnation theory discussed in Part I.D
31		-Qualified immunity doesn’t even involve a question of constitutionality anymore as a result of Pearson v. Callahan.
32		-Chen 15 Alan K. Chen, William M. Beaney Memorial Research Chair and professor of law at the University of Denver Sturm College of Law, “Qualified Immunity Liming Access to Justice and Impeding Development of the Law,” Human Rights Magazine Vol 41 No 1, 2015, http://www.americanbar.org/publications/human_rights_magazine_home/2015~-~-vol~-~-41-/vol~-~-41~-~-no~-~-1~-~--lurking-in-the-shadows~-~-the-supreme-court-s-qui/qualified-immunity-limiting-access-to-justice-and-impeding-devel.html JW
33		-To address this concern, the Court at one point instructed lower courts to order their decision making so that they first addressed whether the official’s conduct violated the Constitution before deciding whether he or she had immunity from suit. Saucier v. Katz, 533 U.S. 194, 200 (2001). Thus, as in Savana Redding’s case, while she might not have benefited from the articulation of the relevant constitutional rule, at least similarly situated future plaintiffs could have benefited. But just a few years later, the Court reversed course and restored the lower courts’ discretion to determine in which order to decide those questions. Pearson v. Callahan, 555 U.S. 223, 242 (2009). There was some skepticism about how often lower courts addressed the merits question first, even under the Saucier regime, Alan K. Chen, Rosy Pictures and Renegade Officials: The Slow Death of Monroe v. Pape, 78 UMKC L. Rev. 889, 927 n.247 (2010), or if, when they did, they recognized a previously unarticulated constitutional right. Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 Pepp . L. Rev. 667, 692– 93 (2009). In any event, lower courts now have a green light to avoid the “harder” constitutional law question and simply decide that defendants are entitled to immunity whether or not they violated the Constitution. What this means is that in cases involving cutting-edge issues of constitutional law, qualified immunity may itself prevent the law from ever becoming clearly established. A couple of examples will help illustrate this phenomenon. One area of First Amendment doctrine that is not yet fully developed is whether or not citizens have a right to surreptitiously record police officers during the course of their duties. In Kelly v. Borough of Carlisle, 622 F.3d 248, 259 (3d Cir. 2010), the court reviewed the First Amendment claim of an automobile passenger who attempted to videotape a police officer during a traffic stop. After discovering the passenger’s conduct, the officer arrested him and confiscated his camera. Id. at 251–52. Rather than address the merits of the passenger’s First Amendment claim, the Third Circuit instead found that the right to record police officers was not clearly established and affirmed the officer’s claim that he was entitled to qualified immunity. Id. at 262. Other federal courts have followed this same practice, thus failing to clarify or advance the relevant First Amendment law. See Szymecki v. Houck, 353 F. App’x 852, 852–53 (4th Cir. 2009).
34		-US military readiness is low now. Maze ‘13
35		-Rick Maze. Services prepare for scant recruiting year. May. 2, 2013. http://www.armytimes.com/article/20130502/NEWS/305020027/Services-prepare-scant-recruiting-year
36		-Finding recruits to join the military in 2014 could be increasingly challenging, even with declining recruiting goals, defense and service personnel officials are warning Congress. At the moment, it’s hard to see the problem: The services all met their goals for quality and quantity for the active forces in the first quarter of fiscal 2013. In the reserve components, only the Army Reserve has missed its goals. “Generally, a slow economy makes recruiting less challenging, and operates to the advantage of those who are hiring, including the U.S. military,” said Jessica Wright, acting undersecretary of defense for personnel and readiness, in an April 17 statement provided to the Senate Armed Services Committee. But the rosy recruiting environment could be coming to an end as the economy shows “signs of economic improvement, “she said. And if thats not enough of a concern, other factors also are in play. Among them: Fifty-seven percent of parents, teacher, counselors and similar authority figures who influence decisions about enlisting in the military generally dont recommend military service, Wright said. One in five youths ages 12 to 19 is overweight, according to an April 24 statement by Army personnel officials provided to the Senate committee. This compares with one in 20 in 1960. The trend is getting worse, with one in four expected to be overweight by 2015. “A higher number of youths are going to college directly from high school,” Wright said — but conversely, Army officials noted that 20 percent of high school students fail to graduate. Graduation, they said, is “a critical milestone in becoming competitive to serve in highly skilled positions” in the military. And, the multiple deployments required over the past decade for many service members raise concerns in service-aged youths that this high operating tempo will continue, Wright said. These concerns have received only passing attention from Congress, apparently because there is no immediate crisis. The Senate Armed Services Committee’s military personnel panel held two hearings recently on military personnel programs, with only one question focusing directly on recruiting. The House Armed Services Committee’s personnel panel does not plan to hold a hearing on recruiting and retention issues before it begins writing its version of the 2014 defense budget in mid-May. Sen. Tim Kaine, D-Va., wondered if the services were “having to do anything unusual or extra” to fill the ranks. Frederick Vollrath, assistant defense secretary for readiness and force management, said, “Currently, recruiting is on track and in good shape,” but he added that the situation easily could change. “We hope that the economy in the United States continues to improve and the unemployment rate continues to go down. That is our fondest wish, along with every other citizen,” Vollrath said. “But, as that occurs, and we believe that will occur, we know by experience that we have to be attuned to the fact that recruiting is probably going to get a little more difficult.” Vollrath also said it’s “sometimes hard to explain” to people outside the military that the force is getting smaller “but we still would like to hire.”
37		-Constitutional review key to military readiness which prevents extinction risk.
38		-Kellman 89,Barry, Judicial Abdication of Military Tort Accountability: But Who is to Guard the Guard Themselves, http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3099andcontext=dlj
39		-In this era of thermonuclear weapons, America must uphold its historical commitment to be a nation of law. Our strength grows from the resolve to subject military force to constitutional authority. Especially in these times when weapons proliferation can lead to nuclear winter, when weapons production can cause cancer, when soldiers die unnecessarily in the name of readiness: those who control military force must be held accountable under law. As the Supreme Court recognized a generation ago, the Founders envisioned the army as a necessary institution, but one dangerous to liberty if not confined within its essential bounds. Their fears were rooted in history. They knew that ancient republics had been overthrown by their military leaders. . . . . . . . We cannot close our eyes to the fact that today the peoples of many nations are ruled by the military. We should not break faith with this Nation's tradition of keeping military power subservient to civilian authority, a tradition which we believe is firmly embodied in the Constitution. n1 Our fears may be rooted in more recent history. During the decade of history's largest peacetime military expansion (1979-1989), more than 17,000 service personnel were killed in training accidents. n2 In the same period, virtually every facility in the nuclear bomb complex has been revealed *1598 to be contaminated with radioactive and poisonous materials; the clean-up costs are projected to exceed $ 100 billion. n3 Headlines of fatal B-1B bomber crashes, n4 the downing of an Iranian passenger plane, n5 the Navy's frequent accidents n6 including the fatal crash of a fighter plane into a Georgia apartment complex, n7 remind Americans that a tragic price is paid to support the military establishment. Other commentaries may distinguish between the specific losses that might have been preventable and those which were the random consequence of what is undeniably a dangerous military program. This Article can only repeat the questions of the parents of those who have died: "Is the military accountable to anyone? Why is it allowed to keep making the same mistakes? How many more lives must be lost to senseless accidents?" n8 This Article describes a judicial concession of the law's domain, ironically impelled by concerns for "national security." In three recent controversies involving weapons testing, the judiciary has disallowed tort accountability for serious and unwarranted injuries. In United States v. Stanley, n9 the Supreme Court ruled that an Army sergeant, unknowingly drugged with LSD by the Central Intelligence Agency, could not pursue a claim for deprivation of his constitutional rights. In Allen v. United States, n10 civilian victims of atmospheric atomic testing were denied a right of tort recovery against the government officials who managed and performed the tests. Finally, in Boyle v. United Technologies, n11 the Supreme Court ruled that private weapons manufacturers enjoy immunity from product liability actions alleging design defects. A critical analysis of these decisions reveals that the judiciary, notably the Rehnquist Court, has abdicated its responsibility to review civil matters involving the military security establishment. n12 *1599 Standing at the vanguard of "national security" law, n13 these three decisions elevates the task of preparing for war to a level beyond legal *1600 accountability. They suggest that determinations of both the ends and the means of national security are inherently above the law and hence unreviewable regardless of the legal rights transgressed by these determinations. This conclusion signals a dangerous abdication of judicial responsibility. The very underpinnings of constitutional governance are threatened by those who contend that the rule of law weakens the execution of military policy. Their argument ~-~- that because our adversaries are not restricted by our Constitution, we should become more like our adversaries to secure ourselves ~-~- cannot be sustained if our tradition of adherence to the rule of law is to be maintained. To the contrary, the judiciary must be willing to demand adherence to legal principles by assessing responsibility for weapons decisions. This Article posits that judicial abdication in this field is not compelled and certainly is not desirable. The legal system can provide a useful check against dangerous military action, more so than these three opinions would suggest. The judiciary must rigorously scrutinize military decisions if our 18th century dream of a nation founded in musket smoke is to remain recognizable in a millennium ushered in under the mushroom cloud of thermonuclear holocaust.
40		-
41		-Advantage 2 – 4th Amendment
42		-SCOTUS’s interpretation of the fourth Amendment gives police incredible search power.
43		-Carbado 16
44		-Carbado, Devon "Blue-on-Black Violence: A Provisional Model of Some of the Causes." ,2016
45		-By prohibiting the government from engaging in unreasonable searches and seizures, the Fourth Amendment is supposed to impose constraints on the police. However, the Supreme Court has interpreted the Amendment in ways that empower, rather than constrain, the police. More precisely, the Court’s interpretation of the Fourth Amendment allows police officers to force engagement with African-Americans with little or no basis. To put the point more provocatively, the Supreme Court has interpreted the Fourth Amendment to protect police officers, not black people.130 Indeed, we might think of the Fourth Amendment as a Privileges and Immunities Clause for police officers—it confers tremendous power and discretion to police officers with respect to when they can engage people (the “privilege” protection of the Fourth Amendment) and protects them from criminal and civil sanction with respect to how they engage people (the “immunities” protection of the Fourth Amendment).
46		-The impact is that fourth Amendment power has become non-existent- only the plan solves. Carbado 16
47		-Carbado, Devon "Blue-on-Black Violence: A Provisional Model of Some of the Causes." ,2016
48		-With respect to whether the officer’s conduct violated the plaintiff’s constitutional rights, the standard, as in the criminal context, centers on reasonableness: whether a reasonable officer would have believed that the use of force was necessary.195 And, as in the criminal context, juries will often defer to an officer’s claim that he/she employed deadly force because he/she feared for his/her life.196 Moreover, implicit and explicit biases can inform their decision making.197 With respect to the “clearly established” doctrine, there are two problems with the standard. First, courts often avoid deciding the question of whether the officer’s conduct violated the Constitution and rule instead on whether the constitutional right in question was clearly established.198 The Supreme Court has made clear that lower courts are free to proceed in this way,199 making it relatively easy for courts to make the defense of qualified immunity available to a police officer without having to decide whether the officer violated a constitutional right.200 This avoidance compounds the extent to which the law is unsettled. And, the greater the uncertainty about the law, the greater the doctrinal space for a police officer to argue that particular rights were not “clearly established” at the time the officer acted.201 In other words, the more courts avoid weighing in on the sub stantive question of whether police conduct violates the Constitution, the more leeway police officers have to argue that their conduct did not violate a clearly established right. Consider, for example, Stanton v. Sims.202 There, the Court avoided the question of whether an officer’s entrance into a yard to effectuate the arrest of a misdemeanant violated the Fourth Amendment, but ruled that the right to avoid such an intrusion was not clearly established.203 Unless and until the Supreme Court expressly rules that, absent exigent circumstances, one has a right to be free from warrantless entry into one’s yard, courts will likely grant qualified immunity in cases involving such arrests.204 A second problem with the “clearly established” doctrine pertains to how courts apply it. According to the Supreme Court, in applying the “clearly established” standard, the inquiry is whether the right is “sufficiently clear ‘that every reasonable official would have understood that what he/she is doing violates that right.’”205 This standard creates rhetorical room
49		-
50		- for police officers to argue that not “every” reasonable officer would have understood that the right in question was clearly established.206 The standard is also, as Karen Blum observes, “riddled with contradictions and complexities.” 207 Eleventh Circuit Judge Charles Wilson puts the point this way: The way in which courts frame the question, “was the law clearly established,” virtually guarantees the outcome of the qualified immunity inquiry. Courts that permit the general principles enunciated in cases factually distinct from the case at hand to “clearly establish” the law in a particular area will be much more likely to deny qualified immunity to government actors in a variety of contexts. Conversely, those courts that find the law governing a particular area to be clear ly established only in the event that a factually identical case can be found, will find that government actors enjoy qualified immunity in nearly every context.208 When one adds the difficulties of the “clearly established” standard to the other dimensions of the qualified immunity doctrine, it becomes clear that the qualified immunity regime erects a significant doctrinal hurdle to holding police officers accountable for acts of violence.
51		-Diluted 4th Amendment protections massively expand government power, enabling mass surveillance – that chills democratic deliberation and kills privacy
52		-Hafetz 13 Jonathan Hafetz, "How NSA surveillance endangers the Fourth Amendment," National Constitution Center, 8/13/2013
53		-The New York Times has reported that the National Security Agency (NSA) is combing through vast amounts of Americans’ email and text communications into and out of the country. This latest revelation—part of the continuing fallout from the disclosures of government documents by former NSA contractor Edward J. Snowden—underscores the frayed fabric of the Constitution’s Fourth Amendment and the threat to the values it protects. We already knew that the government was sweeping up international communications of American citizens under the FISA Amendments Act of 2008 (FAA). While the FAA authorizes the government to target foreigners abroad, it also permits the government to collect Americans’ communications with those foreign targets, as well as to retain and disseminate that information to other government agencies and foreign governments. The Times story, however, makes clear that the NSA is also acquiring—without a warrant—the communications of any foreigner “about the target,” once a target has been identified, thus sweeping in an even wider range of communications by U.S. citizens than previously believed. The Fourth Amendment provides a bulwark against this type of dragnet surveillance. Before searching Americans’ private communications, the Fourth Amendment requires that the government demonstrate probable cause or individualized suspicion. The Fourth Amendment also interposes an independent judiciary between the government and its citizenry—requiring that the government obtain a warrant by making this individualized showing before a federal judge. Review by a neutral and independent decisionmaker is crucial to the Madisonian system of checks and balances, designed to prevent government overreaching and safeguard individual freedoms. The NSA surveillance programs undermine these protections, threatening to render them a dead letter for all “foreign intelligence information”—a category broadly defined to include information not only about terrorism, but also about intelligence activities, national defense, and even the “foreign affairs” of the United States. Further, given the lax standards the NSA uses to determine whether prospective surveillance targets are foreigners abroad, errors are inevitable. This means that the NSA is likely collecting the content of purely domestic communications as well. In 1978, Congress established a special court—known as the Foreign Intelligence Surveillance Court (FISC)—to review requests for national security surveillance. But, at best, the FISC is merely providing review of the overall surveillance programs conducted under the FAA, and not individual requests for information. Moreover, no FISC ruling explaining its legal analysis of the FAA or “about the target” searches of Americans’ cross-border communications has been disclosed to the public. The secrecy that shrouds the FISC’s decisions heightens the risk to the Fourth Amendment, as even the reasoning used to justify massive government surveillance remains secret. The impact of NSA surveillance is deep and far-reaching. Vacuuming up Americans’ communications undermines basic principles of privacy. It also chills the communications and discourse essential to a democratic society and fundamentally alters the citizenry’s relation with its government. The NSA’s widespread, suspicionless surveillance of Americans’ private communications will not only impact the work of journalists, lawyers, and others who frequently communicate with people abroad. It will also affect the conduct of ordinary citizens, now fearful of visiting a controversial website or discussing a particular topic via email. Over time, the vibrant exchange of ideas essential to democracy will diminish and trust in the government will erode. At the same time, the government will be emboldened to justify further incursions on individual liberty in name of protecting the United States from terrorism or other threats.
54		-These impacts particularly harm the poor and form structural violence.
55		-Carbado 16
56		-Carbado, Devon "Blue-on-Black Violence: A Provisional Model of Some of the Causes." ,2016
57		-Group vulnerability increases the likelihood that the police will target African- Americans, particularly those who are marginalized both inside and outside of the black community, such as LGBTQ people.83 Marginalized groups are more vulnerable to police contact and violence because members of these groups often have non-normative identities to which stereotypes of criminality and presumptions of disorder apply.84 Additionally, people with vulnerable identities are less likely to report instances of police abuse and less likely to be believed when they do. That is to say, members of vulnerable groups are impossible witnesses to their own victimization and lack the social standing and credibility to articulate it.
58		-
59		-Underview was some stuff

EntryDate

...	...	@@ -1,1 +1,0 @@
1		-2016-11-05 02:27:41.0

Judge

...	...	@@ -1,1 +1,0 @@
1		-Bennett Eckert

Opponent

...	...	@@ -1,1 +1,0 @@
1		-Lexington KL

ParentRound

...	...	@@ -1,1 +1,0 @@
1		-14

Round

...	...	@@ -1,1 +1,0 @@
1		-1

Team

...	...	@@ -1,1 +1,0 @@
1		-Strake Jesuit Chen Aff

Title

...	...	@@ -1,1 +1,0 @@
1		-ND - SCOTUS AC

Tournament

...	...	@@ -1,1 +1,0 @@
1		-Apple Valley