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1		-Brackets for clarify or to avoid offensive rhetoric.
2		-I value morality since the resolution poses a normative question over what our obligations are through the word ought.. This means we should focus on the theory of obligations, which is what morality does.
3		-The standard is resisting material inequalities. This necessitates consequentialism- rather than following general abstract principles, we should level the playing field first.
4		-Prefer:
5		-1. Debate should deal with the real-world consequences of oppression.
6		-Curry 14, Tommy, The Cost of a Thing: A Kingian Reformulation of a Living Wage Argument in the 21st Century, Victory Briefs, 2014,
7		-Despite the pronouncement of debate as an activity and intellectual exercise pointing to the real world consequences of dialogue, thinking, and (personal) politics when addressing issues of racism, sexism, economic disparity, global conflicts, and death, many of the discussions concerning these ongoing challenges to humanity are fixed to a paradigm which sees the adjudication of material disparities and sociological realities as the conquest of one ideal theory “Ideal Theory as Ideology,” Charles Mills outlines the problem contemporary theoretical-performance styles in policy debate and value-weighing in Lincoln-Douglass are confronted with in their attempts to get at the concrete problems in our societies. At the outset, Mills concedes that “ideal theory applies to moral theory as a whole (at least to normative ethics as against metaethics); since ethics deals by definitiocan with normative/prescriptive/evaluative issues, against factual/descriptive issues.” At the most general level, there is a conceptual chasm between what emerges as actual problems in the world (e.g.: racism, sexism, poverty, disease, etc.) and how we frame such problems theoretically—the assumptions and shared ideologies we depend upon for our problems to be heard and accepted as a worthy “problem” by an audience—is the most obvious call for an anti-ethical paradigm, since such a paradigm insists on the actual as the basis of what can be considered normatively. Mills, however, describes this chasm as a problem of an ideal-as-descriptive model which argues that for any actual-empirical-observable social phenomenon (P), an ideal of (P) is necessarily a representation of that phenomenon. In the idealization of a social phenomenon (P), one “necessarily has to abstract away from certain features” of (P) that is observed before abstraction occurs. ¶ This gap between what is actual (in the world), and what is represented by theories and politics of debaters proposed in rounds threatens any real discussions about the concrete nature of oppression and the racist economic structures which necessitate tangible policies and reorienting changes in our value orientations. As Mills states: “What distinguishes ideal theory is the reliance on idealization to the exclusion, or at least marginalization, of the actual,” so what we are seeking to resolve on the basis of “thought” is in fact incomplete, incorrect, or ultimately irrelevant to the actual problems which our “theories” seek to address. Our attempts to situate social disparity cannot simply appeal to the ontologization of social phenomenon—meaning we cannot suggest that the various complexities of social problems (which are constantly emerging and undisclosed beyond the effects we observe) are totalizable by any one set of theories within an ideological frame be it our most cherished notions of Afro-pessimism, feminism, Marxism, or the like. At best, theoretical endorsements make us aware of sets of actions to address ever developing problems in our empirical world, but even this awareness does not command us to only do X, but rather do X and the other ideas which compliment the material conditions addressed by the action X. As a whole, debate (policy and LD) neglects the need to do X in order to remedy our cast-away-ness among our ideological tendencies and politics. How then do we pull ourselves from this seeming ir-recoverability of thought in general and in our endorsement of socially actualizable values like that of the living wage? It is my position that Dr. Martin Luther King Jr.’s thinking about the need for a living wage was a unique, and remains an underappreciated, resource in our attempts to impose value reorientation (be it through critique or normative gestures) upon the actual world. In other words, King aims to we must reformulate the values which deny the legitimacy of the living wage, and those values predicated on the flawed views of the oppressed worker, Blacks, and the colonized (dignity, justice, fairness, rights, etc.) used to currently justify the living wages in under our contemporary moral parameters.
8		-2. Non-natural moral facts are epistemology inaccessible.
9		-Papineau 07 David Papineau is an academic philosopher. He works as Professor of Philosophy of Science at King's College London, having previously taught for several years at Cambridge University and been a fellow of Robinson College, Cambridge, “Naturalism”. http://plato.stanford.edu/entries/naturalism/ 2007)
10		-Moore took this argument to show that moral facts comprise a distinct species of non-natural fact. However, any such non-naturalist view of morality faces immediate difficulties, deriving ultimately from the kind of causal closure thesis discussed above. If all physical effects are due to a limited range of natural causes, and if moral facts lie outside this range, then it follow that moral facts can never make any difference to what happens in the physical world (Harman, 1986). At first sight this may seem tolerable (perhaps moral facts indeed don't have any physical effects). But it has very awkward epistemological consequences. For beings like us, knowledge of the spatiotemporal world is mediated by physical processes involving our sense organs and cognitive systems. If moral facts cannot influence the physical world, then we can’t it is hard to see how we can have any knowledge of them.
11		-It is a natural fact that pain is bad.
12		-Nagel 86 Thomas Nagel, The View From Nowhere, HUP, 1986: 156-168.
13		-I shall defend the unsurprising claim that sensory pleasure is good and pain is 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 sensory experiences in relation to which we are fairly passive, but something oward 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 backed up by any further reasons.
14		-Inherency
15		-Previously, to disregard qualified immunity, courts first determined if officers violated clearly established constitutional law and then determined if it was reasonable for the officer to act the way they did. Pearson v Callahan in 2009 allowed lower courts to decide the order in which they answered those questions, which has led to lower courts skipping the first question—stats prove.
16		-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
17		-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.
18		-
19		-Plan
20		-Thus the plan text—Resolved: Using White v. Pauly, a case in that is currently in the 10th circuit court of appeals, the Supreme Court of the United States ought to limit qualified immunity for police officers by forcing lower courts to give reason for exercising Pearson 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
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		-
24		-To clarify, the aff forces courts to explain why they are skipping the first question of constitutionality if they choose to when granting qualified immunity.
25		-
26		-Advantage 1: Decision-Making
27		-A requirement would lead to better judicial rulings-multiple warrants
28		-Walker 3 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
29		-The reasons for reason giving discussed above should have a great deal of purchase in the context of qualified immunity. Where there is an “explicit grant of discretion”—which is Pearson to a tee—and “an explicit list of policies” at play—which again reflects Pearson—then a court should be required to “give reasons on the record for its decision.”272 Such a requirement would encourage more rational decision making by ensuring that all the relevant pros and cons for exercising Pearson discretion are considered; it would facilitate further judicial review and external dialogue with interested parties; and it would encourage the development of and better governing standards. For all the reasons that reason giving makes sense in the context of administrative law, there is good cause to think reason giving also makes sense in the context of qualified immunity. For instance, reason giving would help alleviate a number of the potential problems with the current broad discretion provided by Pearson. It is reasonable to think that the potential asymmetries discussed above would be lessened as judges more carefully think about the reasons for exercising Pearson discretion and fear more searching judicial review. Similarly, latent ideological biases would be better uncovered as “the introspection that often attends the reason-giving process may reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work.”273 Likewise, discrepancies across circuits may be reduced as judges in all circuits give more attention to the problem. In this way, Pearson’s pathologies can be somewhat mitigated.
30		-
31		-Reason giving creates clear legal standards for future cases
32		-Walker 4Christopher 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
33		-At the same time, giving reasons does not simply improve the outcome of a particular case. It also fosters the development of general principles that guide decision making in subsequent cases: “To provide a reason in a particular case is thus to transcend the very particularity of that case.”270 As Professor Beermann explains, “even if no standard is created immediately to guide the decision of whether to reach the merits, a requirement that courts give reasons could foster the development, in a common law manner, of a set of practices that could ultimately crystallize into governing standards.
34		-Lack of clarification allows lower courts to expand qualified immunity unchecked, which means that there is empirical proof that the aff puts more cases in court- that’s also our Walker evidence from inherency.
35		-De Stefan 16 Lindsey De Stefan, J.D. Candidate, 2017, Seton Hall University School of Law; B.A., Ramapo College of New Jersey, “No Man Is Above the Law and No Man Is Below It:” How Qualified Immunity Reform Could Create Accountability and Curb Widespread Police Misconduct" (2017). Law School Student Scholarship. Paper 850
36		-One problem with qualified immunity results from the so-called two-pronged inquiry. In 2001, concerned that disposing of cases based solely on the “clearly established” prong would “stunt the development” of constitutional law, the Court mandated that lower courts first decide whether there was a constitutional violation before determining whether the right was clearly established.76 The decision in Saucier v. Katz was, to say the least, unpopular,77 and in 2009, the Court unanimously overruled the decision and once again left the procedural sequence to the discretion of lower courts.78 But because courts are no longer required to address the two-part inquiry in any particular order, the practical effect has been precisely what the Court feared in its Saucier decision: frequent disposal of cases based on the perceived lack of a "clearly established" right without ever addressing the merits of the constitutional claim.79 A recent survey of circuit court cases decided since Pearson v. Callahan in 2009 demonstrates the frequency with which lower courts are disposing of cases based on a lack of a clearly established law.80 The study, which analyzed 844 published and unpublished Courts of Appeal opinions decided between 2009 and 2012, encompassing 1,460 total claims, found that qualified immunity was granted in 1,055 of the claims, or approximately 72 percent of the time.81 In 534 (or nearly 51 percent) of the claims in which the court granted immunity, the court concluded that the right asserted was not clearly established.82 So in more than half of the claims in which immunity was granted, the basis for the court’s holding was the absence of clearly established law But perhaps somewhat ironically, the concept of a “clearly” established right is in and of itself less than clear, and a great deal of confusion exists over what rights fall within this vague classification. 83 In essence, approximately 50 percent of the time, a court’s decision to grant immunity to an official is based on a muddled and uncertain legal precept. In order to qualify as clearly established, “a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right." 84 There are few unambiguous bright-line rules in modern constitutional jurisprudence, and most doctrines are instead articulated as relatively vague standards or balancing tests.85 In addition, because there are considerable distinctions in terms of the structure, aim, and available alternative remedies of various constitutional rights, the general-purpose nature of qualified immunity is problematic.86 Defining a clearly established law is straightforward when the right is laid out in a stable and fairly specific doctrine, but when the rule changes, the new law only becomes clearly established when a clarifying court decision is handed down.87 When such constitutional rights are violated, qualified immunity allows officials to avoid liability because of a failure to anticipate developments in the law. 88 And although the Court held in 2002 that there need not be a case on point in order to find clearly established law,89 it has nevertheless continued to grant qualified immunity in the absence of similar precedent.90 Unsurprisingly, lower courts struggle with the question of whether a right is clearly established, and the circuits have developed markedly varying approaches to the inquiry.91 Finally, year after year, despite attempts to clarify the doctrine, it seems that the Supreme Court has only further added to the confusion of lower courts. Indeed, almost without fail, Supreme Court cases since Pearson have apparently further expanded the qualified immunity doctrine by upholding its application in all manner of diverse situations—seemingly in every set of circumstances with which it has been presented. 92
37		-Setting clear standards is key to creating a legal precedent that restores community coalitions and creates trust. De Stefan 2 De Stefan, Lindsey, (J.D. Candidate, 2017, Seton Hall University School of Law) “No Man Is Above the Law and No Man Is Below It:” How Qualified Immunity Reform Could Create Accountability and Curb Widespread Police Misconduct" (2017). Law School Student Scholarship
38		-By beginning to mend the qualified immunity doctrine in these ways, the Court will allow¶more civil suits for the vindication of constitutional rights to succeed. This will help to reduce the public mentality—strengthened by recent events—that cops get away with everything, in every¶regard. Civil suits avoid subjecting law enforcement to any criminal liability that, because of¶recent events, many laypersons believe is warranted. While this may be true in select¶circumstances, reality demonstrates that criminal charges are highly unlikely to stick against a¶police officer. But allowing more civil suits to go forward will serve as an important reminder to¶both civilians and law enforcement that the police are not above the law, and that they are held¶accountable for their wrongdoings. In turn, this accountability will begin to heal the relationship between law enforcement and communities by serving as the first step on what will surely be a¶long path to rebuilding the trust that is so crucial.
39		-Meta-studies prove that police accountability and legitimacy stops the culture of fear and spillovers to decrease overall violence.
40		-Mazerolle et al 13, Lorraine, Sarah Bennett, Jacqueline Davis, Elise Sargeant and Matthew Manning, 2013, Legitimacy in Policing: A Systematic Review, http://thecapartnership.org/cms/assets/uploads/2016/02/Mazerolle_Legitimacy_Review-1.pdf
41		-The systematic search found 163 studies that reported on police led interventions, and a final set of 30 studies contained data suitable for meta-analysis. The direct outcomes analyzed were legitimacy, procedural justice, and citizen cooperation/compliance and satisfaction/confidence in the police. In addition, an indirect outcome, reoffending, was also analyzed. The main finding of this review is that police interventions that comprised dialogue with a procedural justice component (or stated specifically that the intervention sought to increase legitimacy) did indeed enhance citizens’ views on the legitimacy of the police, with all direct outcomes apart from legitimacy itself being statistically significant. Our review shows that by police adopting procedurally just dialogue, they can use a variety of interventions to enhance legitimacy, reduce reoffending, and promote citizen satisfaction, confidence, compliance and cooperation with the police.
42		-
43		-Advantage 2: Judicial Legitimacy
44		-Judicial Legitimacy is \low now- the court is in danger.
45		-Posner 15, Eric, The Supreme Court’s Loss of Prestige, 2015, http://www.slate.com/articles/news_and_politics/view_from_chicago/2015/10/the_supreme_court_is_losing_public_approval_and_prestige.html
46		-The Supreme Court begins its term this year with a smorgasbord of ideologically tasty morsels, including cases on affirmative action, labor rights, the death penalty, religion, and probably abortion. The court has never been more aggressive about resolving the country’s political debates. And yet it is ideologically polarized and more unpopular than it has been in quite a while. This seems like a paradox, but it is a paradox with an explanation: The public distrusts Congress and the executive branch even more than it distrusts the court. Even with lifetime appointments, the justices cannot afford to anger the public too much—since the public can demand that Congress strip the court of power if the justices go too far. But as long as the justices annoy people less than Congress and the president do, they needn’t worry about such repercussions. The court has suffered a long slide in public approval. Gallup has announced that for the first time in many years, more people disapprove (50 percent) than approve (45 percent) of its performance. Fifteen years ago approval hovered in the 50–60 percent range. A majority of people (53 percent) still trust the Supreme Court, but that number used to be in the 70 percent range.
47		-
48		-Providing reasons is the keystone of court legitimacy
49		-Walker 5 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
50		-Not only does reason giving facilitate judicial review and public scrutiny, but it also provides greater assurance to litigants that the most important arguments have gotten a full hearing. Hence, Professor Mashaw explains that requiring reasons “increases the power of participants . . . to force decisionmakers to consider problems and issues that they raise by submitting comments.”265 It also improves the dialogue both within the government and between the government and the public.266 In so doing it “demonstrates respect for the governed subject.”267 Such respect may take on added importance in the qualified immunity context, where federal courts exercise discretion to decide the constitutionality of acts committed by state officials against the backdrop of federalism concerns (or federal officers against the backdrop of separation of powers). Reason giving also provides assurances to the public at large “that decisionmaking processes are fair such that the process for reaching a decision is relatively predictable, even if the outcome of every decision is not.”268 This demonstrated rationality is considered by many administrative law scholars to be “the touchstone of legitimacy in the liberal, administrative state.”269
51		-
52		-Judicial Legitimacy is key to the Court’s power
53		-Gibson et al 14, James Gibson, Department of Political Science Professor of African and African American Studies Director, Program on Citizenship and Democratic Values Weidenbaum Center on the Economy, Government, and Public Policy and Michael Nelson, Ph.D. Candidate, Department of Political Science Graduate Student Associate, Center for Empirical Research in the Law, 2014, http://mjnelson.wustl.edu/papers/AnnualReview.pdf
54		-The Supreme Court has little meaningful inherent or constitutional jurisdiction; instead, it gets its power to decide issues from ordinary legislation. What Congress giveth, Congress can taketh away. Even the fundamental structure of the institution – e.g., the number of justices on the Court – can change (and has throughout American history). Without legitimacy, the Supreme Court can be punished for the disagreeable decisions it makes, and/or those decisions can be ignored (for an important analysis of the Court/Congressional relations, see Clark 2011). The justices of Court are keenly aware of the importance of legitimacy to their institution, often discussing the concept in their rulings. For example, Justices O’Connor, Souter, and Kennedy, in their well-known opinion in Planned Parenthood v. Casey (1992) write: The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means, and to declare what it demands. . . The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation (865-866).
55		-
56		-2 Impacts:
57		-A) Court power is key to check back the legislator from hugely oppressive laws- Brown v. Board proves.
58		-Somin 16, Ilya, The Supreme Court Is a Check on Big Government, Protection for Minorities, 2016, http://www.nytimes.com/roomfordebate/2015/07/06/is-the-supreme-court-too-powerful/the-supreme-court-is-a-check-on-big-government-protection-for-minorities
59		-The Supreme Court gets many things wrong. Yet America would be a far worse society without it. If judicial review were seriously curtailed, the executive and legislative branches of government could ignore most constitutional limits on their powers. This is a particularly grave danger in a world where government is as large and powerful as it is today – spending nearly 40 percent of our gross domestic product, and regulating almost every aspect of human activity. Without an independent judiciary to check their vast powers, federal and state governments would often be free to use their full might to censor opposition speech, confiscate property and otherwise persecute those they disapprove of. Avoiding that is well-worth the price of putting up with a good many flawed judicial rulings. Public opinion imposes some constraints on oppressive policies. But with a government as large and complex as ours, many of its abuses are little-known to voters, who generally pay scant attention to public policy. Moreover, some of the worst abuses target groups disliked by mainstream public opinion, such as unpopular ethnic and religious minorities. Absent judicial protection for political rights, political incumbents could even use their powers to insulate themselves against future electoral competition – as has happened in some other countries that lack strong judicial review. The court’s historical record is mixed. But it has had a major beneficial impact in helping protect the rights of racial minorities – not only in iconic cases like Brown v. Board of Education, but in lesser-known decisions, like Buchanan v. Warley, an underappreciated 1917 ruling that struck down laws preventing blacks from moving into majority-white neighborhoods. There is also little doubt that unpopular speech and religious worship has far greater protection than would exist in the court’s absence. The same is true of the rights of criminal defendants, another vulnerable group that tends to get short shrift from the political process. In recent years, the court has done much to curtail uncompensated takings of private property by both federal and state officials. This June, it struck down a program that seized large quantities of raisins from their producers to facilitate a cartel that raises prices for the benefit of politically connected agribusiness interests. Many Americans have reason to be grateful for this little-known aspect of the court’s work. Historically, many of the court’s worst decisions were cases where it chose not to strike down an oppressive unconstitutional policy – cases like Plessy v. Ferguson, which permitted racial segregation, and Korematsu v. United States, which permitted the expulsion of Japanese-Americans from the West Coast during World War II. Weakening the court would increase the incidence of such outrages.
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61		-B) Judicial review can empirically hold government officials accountable- legalism is wrong in the instance, the plan specifically accounts for it.
62		-Chemerinsky 04 Erwin, Alston and Bird Professor of Law, Duke University, “David C. Baum Memorial Lecture: In Defense of Judicial Review: The Perils of Popular Constitutionalism,” UNIVERSITY OF ILLINOIS LAW REVIEW, 2004, p. 685-687.
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64		-Fourth, there are Court decisions that require compliance by others in government, but that the judiciary can enforce through its contempt power. This is typified by the classic negative injunction. The court issues an injunction and punishes violations by contempt. Usually, the threat of contempt is sufficient to gain the government's compliance. If an employer is sued for using a racially discriminatory test in hiring, then the court, upon finding a violation of the law, can enjoin future use of the test. If the employer is recalcitrant and continues to use the test, then the court can hold the employer in contempt of court. Fifth, there are Court decisions that are enforced through the award of money damages that are likely to change government conduct. An obvious example is the law of the Takings Clause. If the Supreme Court were to hold that a taking occurs whenever a government regulation decreases the value of a person's property, then the judiciary could enforce this by awarding money damages in the future. There is no doubt that this would profoundly *687 alter government as it would have to pay compensation for a wide array of laws, from zoning statutes to environmental regulations. More generally, damages can deter wrongful government conduct. Section 1983 litigation has as part of its purpose deterring government from violating constitutional rights. For instance, the possibility of money damages for sexual harassment provides strong encouragement for government employers to refrain from such behavior. Sixth, there are Court decisions that require substantial actions by government in compliance and implementation and therefore continuing judicial monitoring and enforcement. The most obvious example is the school desegregation litigation. Changing the government laws that segregated parks or water fountains simply required taking down the "whites only" sign. If the government failed to do this, then the court could impose contempt. Although there was a period of massive resistance in the mid-1950s, compliance with the court orders was obtained in a relatively short period of time. Desegregating schools, however, was a far more daunting challenge because it required affirmative steps ranging from changing pupil assignments, to redrawing attendance zones, to busing. The above six categories are not exhaustive, but they are instructive of the many ways in which courts can change government.In some of the categories, there is a very high likelihood that judicial action will succeed in altering government conduct. Denying the government an injunction or invalidating a criminal statute virtually always will succeed in changing government behavior. In some of the categories government compliance is less certain. When the Court awards money damages against the government, particularly against the federal government, there is relatively little that the judiciary can do except hope for voluntary compliance. When the Court issues an affirmative injunction, such as for school desegregation, compliance might be a more lengthy and uncertain process. Those who criticize the impact of Court decisionstend to pick their examples from the most problematic categories. Recognizing the range of situations where the judiciary can change government helps in properly assessing the ability of courts to make a difference.
65		-
66		-K Underview
67		-3. Policy analysis is particularly empowering for marginalized bodies even if you’re not a policymaker. Shulock 99 Nancy, PROFESSOR OF PUBLIC POLICY ~-~-- professor of Public Policy and Administration and director of the Institute for Higher Education Leadership and Policy (IHELP) at Sacramento State University, The Paradox of Policy Analysis: If It Is Not Used, Why Do We Produce So Much of It?, Journal of Policy Analysis and Management, Vol. 18, No. 2, 226–244 (1999) In my view, none of these radical changes is necessary.
68		-As interesting as our politics might be with the kinds of changes outlined by proponents of participatory and critical policy analysis, we do not need these changes to justify our investment in policy analysis. Policy analysis already involves discourse, introduces ideas into politics, and affects policy outcomes. The problem is not that policymakers refuse to understand the value of traditional policy analysis or that policy analysts have not learned to be properly interactive with stakeholders and reflective of multiple and nontechnocratic perspectives. The problem, in my view, is only that policy analysts, policymakers, and observers alike do not recognize policy analysis for what it is. Policy analysis has changed, right along with the policy process, to become the provider of ideas and frames, to help sustain the discourse that shapes citizen preferences, and to provide the appearance of rationality in an increasingly complex political environment. Regardless of what the textbooks say, there does not need to be a client in order for ideas from policy analysis to resonate through the policy environment.10¶ Certainly there is room to make our politics more inclusive. But those critics who see policy analysis as a tool of the power elite might be less concerned if they understood that analysts are only adding to the debate—they are unlikely to be handing ready-made policy solutions to elite decisionmakers for implementation. Analysts themselves might be more contented if they started appreciating the appropriation of their ideas by the whole gamut of policy participants and stopped counting the number of times their clients acted upon their proposed solutions. And the cynics disdainful of the purported objectivism of analysis might relax if analysts themselves would acknowledge that they are seeking not truth, but to elevate the level of debate with a compelling, evidence-based presentation of their perspectives. Whereas critics call, unrealistically in my view, for analysts to present competing perspectives on an issue or to “design a discourse among multiple perspectives,” I see no reason why an individual analyst must do this when multiple perspectives are already in abundance, brought by multiple analysts. If we would acknowledge that policy analysis does not occur under a private, contractual process whereby hired hands advise only their clients, we would not worry that clients get only one perspective.¶ Policy analysis is used, far more extensively than is commonly believed. Its use could be appreciated and expanded if policymakers, citizens, and analysts themselves began to present it more accurately, not as a comprehensive, problem-solving, scientific enterprise, but as a contributor to informed discourse.
69		-
70		-
71		- For years Lindblom 1965, 1968, 1979, 1986, 1990 has argued that we should understand policy analysis for the limited tool that it is—just one of several routes to social problem solving, and an inferior route at that. Although I have learned much from Lindblom on this odyssey from traditional to interpretive policy analysis, my point is different. Lindblom sees analysis as having a very limited impact on policy change due to its ill-conceived reliance on science and its deluded attempts to impose comprehensive rationality on an incremental policy process. I, with the benefit of recent insights of Baumgartner, Jones, and others into the dynamics of policy change, see that even with these limitations, policy analysis can have a major impact on policy. Ideas, aided by institutions and embraced by citizens, can reshape the policy landscape. Policy analysis can supply the ideas.

EntryDate

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1		-2016-12-03 04:28:34.0

Judge

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1		-V Mambapoor

Opponent

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1		-Village AP

ParentRound

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1		-21

Round

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1		-1

Team

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1		-Strake Jesuit Chen Aff

Title

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1		-ND - SCOTUS AC v2

Tournament

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1		-UT