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CONFINEMENT
Topicality
US Department of Justice - February 10th 2016
Not all segregation is truly solitary, and many prison systems, including the Bureau, often house two
segregated inmates together in the same cell, a practice known as double-celling. For the purposes
of this report, we define restrictive housing as any type of detention that involves: (1) removal from
the general inmate population, whether voluntary or involuntary; (2) placement in a locked room or
cell, whether alone or with another inmate; and (3) inability to leave the room or cell for the vast
majority of the day, typically 22 hours or more. Even this definition, however, leaves substantial room
for variation. Restrictive housing takes many forms, and an inmates experience in segregation can
vary considerably depending on certain external factors, such as the length of stay, conditions of
confinement, and degree of social isolation, as well as factors specific to each inmate, such as age and
psychological resiliency. As this report makes clear, it is not enough to say that an inmate is in
restrictive housing (or solitary confinement, for that matter); it is just as important to know the
details of the placement.
Extra T
Effects T
CX Questions:
-
If they say that it is effects t because of the need for violating an amendment in the
plan text, than say that you cannot make a court case without the violation of an
amendment and that because we pass through courts it needs to be in our plan
text. We put how we pass in the plan text to help the aff be understood, I think it
makes us more topical to prove why it should be passed through courts.
The Federal Bureau of Prisons was established in 1930 to provide more progressive and
humane care for federal inmates, to professionalize the prison service, and to ensure consistent and centralized administration of the 11 Federal prisons in
operation at that time. Today, the Bureau includes 121 institutions, 6 regional offices, a Central Office (headquarters), and 26 offices that oversee
residential reentry centers. The regional offices and Central Office provide oversight and administrative support to the institutions and offices. The Bureau
is responsible for the care and custody of more than 208,000 federal inmates, as of spring 2015.1 About 81 percent of these inmates are confined in
federal correctional institutions or detention centers, and the remainder are held in secure privately managed or community-based facilities and local jails
under contract with the Bureau. The Bureau protects society by confining offenders in prisons and community-based facilities that are safe, humane, costefficient, and appropriately secure, and by providing inmates with programs and services to assist them in becoming proactive law-abiding citizens when
Substantial
Curtail
We Meet: We are getting rid of solitary confinement as a method of surveillance by
the federal government, however we cannot guarantee that the government wont
surveil inmates in another way. With this aff, we have to think of just curtailing
solitary not prisons as a whole.
Domestic
Surveillance
Counter definition: Oxford 2016
noun
Close observation, especially of a suspected spy or criminal: he found himself
put under surveillance by military intelligence
Surveillance is, simply put, the observation and/or monitoring of a person. Coming from the
French word for "looking upon," the term encompasses not only visual observation but also
the scrutiny of all behavior, speech, and actions. Prominent examples of surveillance include
surveillance cameras, wiretaps, GPS tracking, and internet surveillance. One-way
observation is in some ways an expression of control. Just as having a stranger stare at you
for an extended period of time can be uncomfortable and hostile, it is no different from being
under constant surveillance, except that surveillance is often done surreptitiously and at the
behest of some authority. Todays technological capabilities take surveillance to new levels;
no longer are spyglasses and "dropping" from the eaves of a roof necessary to observe
individuals - the government can and does utilize methods to observe all the behavior and
actions of people without the need for a spy to be physically present. Clearly, these
advances in technology have a profound impact with regards to the ethics of placing
individual under surveillance&emdash;in our modern society, where so many of our actions
are observable, recorded, searchable, and traceable, close surveillance is much more
intrusive than it has been in the past.
Surv. Tech/Cams
Extend sub point A of advantage 1, which says quote technological advances, such as
the development of intercoms and video surveillance cameras, have made possible a level
of social isolation that was simply unthinkable in earlier times and A video camera rather
than a human eye monitors the inmate's movements
Inherency Extensions
Solitary has had a rapid expansion in federal prisons
David Cole 2015 September
David Cole is the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center
George Ruiz, a seventy-two-year-old inmate in California, has spent the last thirty-one years
in solitary confinement, most of it in Pelican Bay State Prison. He has been held in a
windowless cell, with virtually no human contact and no phone calls absent an emergency.
He is let out for, at most, sixty to ninety minutes each day, during which periods he is kept in
complete isolation. Ruiz has endured this inhuman treatment not for any prison misconduct,
but solely because he is said to be affiliated with a Mexican gang. One expert who studied
these conditions aptly termed them social death. Since the rapid expansion of highsecurity prisons in the 1980s, solitary confinement has become pervasive across the United
States in both state and federal prisons, involving, according to recent estimates, more than
75,000 inmates at any given time. It is imposed by prison officials for security and
disciplinary reasons, but often with little oversight and on the basis of minor infractions. In
California, it is often based, as in Ruizs case, on suspected gang ties, on the theory that
gangs are the source of much prison violence. It is a preventive measure, but its preventive
effects are unproven. Many other countries maintain secure prisons without resorting to prolonged solitary confinement. Now, thanks to the case of George Ruiz,
along with recent criticism of the practice by Supreme Court Justice Anthony Kennedy, President Barack Obama, and prison officials themselves, America may finally be changing its
ways. In 2011, before the Center for Constitutional Rights took on a lawsuit on behalf of Ruiz and a number of other inmates, California had been holding more than five hundred
prisoners in solitary confinement for more than ten years at a single facility, Pelican Bay State Prison. Seventy-eight of them had been in solitary for more than two decades. Across
California, thousands of inmates were held in such isolation. Last week, in a landmark settlement of Ruizs class action lawsuit, California agreed to fundamentally change its system,
which is one of the most severe in the nation. Where it previously relegated prisoners to solitary confinement indefinitely for gang affiliation, it now will limit solitary confinement to
defined periods of time, not to exceed five years. It will do so not on the basis of suspected status as a gang member, but only on the basis of serious prison misconduct, such as murder,
violent assault, attempted escape, weapons possession, and the like, which must be adjudicated in a hearing that satisfies due process requirements. California also agreed to release
immediately into the general prison population nearly all of the inmates, like Ruiz, who had been in solitary confinement for more than ten years. And it agreed to transfer to the general
prison population all those currently confined on the basis of gang affiliations, unless they have committed one of the serious infractions that is now a prerequisite to solitary
confinement. In response to the lawsuit, the state has already released more than one thousand inmates from solitary, and it expects to release many more. Californias settlement does
not create a binding precedent for other states, but it does offer a model for reform. And it comes on the heels of a groundswell of criticism of Americas overreliance on solitary
confinement, which is increasingly out of step with incarceration practices in nearly every other advanced country. In early May, a court in Ireland blocked the extradition to the United
States of Ali Charaf Damache, wanted on charges of providing support to terrorism, citing the risk that he would face solitary confinement in the federal supermax facility in Florence,
Colorado. As the Irish court found, relying on the Irish Constitution: The institutionalization of solitary confinement with its routine isolation from meaningful contact and communication
with staff and other inmates, for a prolonged pre-determined period of at least 18 months and continuing almost certainly for many years, amounts to a breach of the constitutional
requirement to protect persons from inhuman and degrading treatment and to respect the dignity of the human being. Damache, who had been held for two years while he fought
extradition, has now been released. In June, Supreme Court Justice Anthony Kennedy, who had previously criticized solitary confinement in testimony to Congress, took the highly
unusual step of writing a [separate opinion](http://www.supremecourt.gov/opinions/slipopinions.aspx under 6/18/15) in a case involving another matter entirely to condemn solitary
confinement and invite a constitutional challenge. He predicted that the Court may be required to determine whether workable alternative systems for long-term confinement exist, and
if so, whether a correctional system should be required to adopt them. And since Kennedy is very often the decisive swing vote on the Court, his predictions are worth taking seriously.
In July, President Obama ordered the Justice Department to review the federal prisons use of the punishment. In a speech at the NAACP annual convention, Obama asked: Do we really
think it makes sense to lock so many people alone in tiny cells for 23 hours a day, sometimes for months or even years at a time? That is not going to make us safer. Thats not going to
make us stronger. And if those individuals are ultimately released, how are they ever going to adapt? Its not smart. Even American prison officials themselves have begun to question
the practice. Last week, one day after the California settlement was announced, the Association of State Correctional Administrators, which includes the directors of all the state prison
systems and many jails in large cities, called for ending or radically limiting the use of extended solitary confinement. In doing so, they followed the lead of Colorados prison director,
Rick Raemisch, who last year introduced major reforms in his state after voluntarily spending twenty hours in a seven-foot-by-thirteen-foot prison cell. Since then, the state has cut its
solitary prison population by 50 percent. All of this is welcome news. Depriving people of all human contact for extended, and in Californias case, often indefinite periods of time is by
any modern standard inhumane. Human beings are social by nature; we are defined by our families, friends, and communities. To be deprived of any contact with other human beings is
to be denied an essential element of ones identity and humanity. It can also literally drive men mad, as Justice Kennedy told Congress last year. Consider this example, cited by the
Irish court, drawing on an Amnesty International report: Quite disturbingly, they report a lawsuit on behalf of an inmate sent to the ADX who repeatedly self-harmed but after brief
periods of referral to the federal medial facility for psychiatric review was returned to the Control Unit at the ADX. He variously lacerated his scrotum with a piece of plastic, bit off his
finger, inserted staples into his forehead, cut his wrists and was found unconscious in his cell. After 10 years and 5 months in the Control Unit, he was placed in the General Population
Unit in the ADX where he sawed through his Achilles tendon with a piece of metal. He later was placed on anti-psychotic medication following mutilation of his genitals. In many cases,
the extreme isolation seems gratuitous. Why, for example, would prisons deprive individuals in solitary confinement of the ability even to talk to another human being? Yet even phone
calls to family members are strictly limited. One inmate in the California case had been permitted to speak to his mother only twice in twenty-two years. Merely attempting to
communicate with other inmatesfor example by yelling through thick concrete walls or ventshas been treated as a prison infraction. If deemed an attempt to converse with another
putative gang member, it has been used as evidence to support continued solitary confinement as a suspected gang member. So far, many of the reforms voluntarily adopted by prison
officials involve cutting back on, not eliminating, solitary confinement. The practice has unquestionably been overused, like incarceration itself, and the easiest solutions are to end it for
those who pose the least danger. But what about those who are a demonstrable threat to other members of a prison population and have repeatedly violated prison rules or endangered
fellow inmates? If solitary confinement is prohibited by the Eighth Amendment and by international principles of human rights because it is cruel and inhumane, isnt it equally cruel and
inhumane when imposed on the hardened violent inmate? Here, too, the California settlement might provide a way forward. The state has agreed to modify conditions even for those
who, because of serious violence and the like, require heightened security. These prisoners will be permitted more phone calls and visits with family in which they are permitted human
contact. And they will be allowed to exercise in small groups when let out of their cells. Ohio adopted such an approach for its most problematic prisoners some years ago, and found
that it was more effective in maintaining security, precisely because inmates had something valuable to lose. But solitary confinement is only a small part of the challenge. Its roots lie in
Americas unduly harsh approach to criminal justice. And from those roots grow a multitude of problems: police forces that too often resort to violence because they have forfeited
legitimacy in the communities they serve; mandatory minimum and three strike life sentences for drug and other felony offenses that warehouse people for far too long; mass
imprisonment, which makes us the world leader in locking up human beings; and the death penalty, a sanction every other Western country has long abandoned as barbaric. Even
without solitary confinement, conditions for many jail and prison inmates are extraordinarily and unnecessarily severe; most of the general population in Californias prisons are locked
down in their cells for twenty-two hours a day. Whats needed is a sea change, not an isolated fix
Solvency Extensions
ensure mentally ill prisoners are fit for trial. Once the prisoners are convicted, they are cut off from all services. The stories of prisoners mental
health declining in prison are predictable but awful. According to the Treatment Advocacy Center report, a mentally ill man held in Montana tried to
drown himself in the jail toilet, and in California, inmates tried to escape by smearing themselves with their own feces and flushing themselves
down the toilet. A schizophrenic man in Georgia, who was jailed after wandering into traffic and knocking on doors late at night, gouged out his
own eyes in his cell. Sexual abuse is rampant. A 2007 prison survey revealed that about 1 in 12 inmates with a mental disorder reported at least
one incident of sexual victimization by another inmate over a six-month period, compared with 1 in 33 male inmates without a mental disorder.
Among female inmates with a mental disorder, almost 1 in 4 are sexually victimized. Suicides and suicide attempts are common. A study of 132
attempted suicides in the King County, Washington, jail system found that 77 percent of the prisoners had a chronic psychiatric problem,
compared with a rate of 15 percent among the rest of the jail population. Prison time does nothing but exacerbate the underlying problem. This
2015 study from the Urban Institute cautions that mentally ill inmates, who are typically jailed for trivial offenses such as trespassing, disorderly
conduct, or drug use, tend to stay in jail longer than nonimpaired inmates, recidivate and return to jail more frequently, and cost local jurisdictions
more to incarcerate. The crisis has become particularly horrifying in the U.S. Virgin Islands, where more than 25 percent of the prison population is
reportedly mentally ill. An NPR report from 2007 notes that the U.S. Virgin Islands also has the distinction of incarcerating people who were found
not guilty by reason of insanitywhich means they were too mentally ill to be convicted. As the American Civil Liberties Union points out, the
Virgin Islands is unique in its treatment of the mentally ill: In other systems they are hospitalized, so they can receive a level of treatment that
[they] simply cannot get at a jail. In St. Thomas, these men remain prisoners, housed in a unit plagued with prisoner-on-prisoner assaults, as
overworked and undertrained staff members are overwhelmed by a toxic mix of predatory and acutely ill prisoners. The government of the U.S.
Virgin Islands has been involved in a protracted class-action lawsuit, filed by the ACLU more than two decades ago, called Carty v. Mapp,
challenging unconstitutional conditions at two correctional facilities. The parties entered into a settlement agreement in October 1994. The court
order required the Virgin Islands Bureau of Corrections to hospitalize acutely and chronically mentally ill prisoners. Again, that was in 1994. Since
that time, the court has held the defendants in contempt four times. The territory continues to pledge to fix the problems but has made no
substantial progress. At this point, the government has finally begun to formalize some changes to a handful of policies. According to Prison Legal
News, back in December 2003 the court ordered the not-guilty-by-reason-of-insanity (NGRI) prisoners to be moved to a forensic facility. Thats when
it got even more Kafkaesque: What has transpired since can only be described as more than three years of subterfuge and unfulfilled promises. First,
territory officials said they were seeking a psychiatric facility outside the Island because no adequate facility existed on the Island. While they made
inquiries with a few facilities, they made no actual transfers despite a Puerto Rico facility agreeing to accept two of the NGRIs. Territory officials have
since promised the court that they were near completion of their own forensic facility. On the eve of a February 2005 contempt hearing, the NGRI
patients were transferred to a psychiatric unit at the Juan E. Luis Hospital (JLH) on St. Croix. In January 2006, the NGRIs were moved back to [the
adult correctional facility] without notice to the court or class counsel. While at JLH the NGRIs conditions improved drastically; one was even
recommended to be discharged. After returning to ACF they began to deteriorate and again became a threat to themselves and others. In March
2006, the court ordered territory officials to move the NGRIs to a psychiatric forensic facility. By February 27, 2007, however, the defendants still had
not taken any action on the order. The governor of the U. S. Virgin Islands, Kenneth Mapp, declared in his State of the Territory address on Jan. 27: It
is no secret that this territory has taken a backward step on the issue of mental health, leaving those who need care to walk the streets, languish in
our prisons, or enter the revolving door of a criminal justice system that is ill-prepared to address their needs. As a community, we have earned an
F-minus in the care and services we provide to the mentally ill. A year later, almost nothing has changed. A new expert report was filed in August in
this same class-action suit by the court-appointed psychiatrist, Kathryn Burns. It makes for chilling reading and paints a picture that evokes
Victorian-era brutality. Burns, who had assessed the same facilities a year earlier, noted that despite her earlier recommendations, No medical or
mental health care policies or procedures had been adopted. She writes: There is no appropriate safe housing for mentally ill inmates or those
requiring placement on suicide precautions. Actual therapeutic treatment space for individual and group interventions is lacking. Incident reports
and logbooks continue to reflect the use of use physical force, steel restraints and lock down for persons with serious mental illnessalmost always
without consultation from mental health to de-escalate situations and often without notifying mental health staff even after the fact to determine
whether a treatment intervention would be helpful. Burns concluded at the time that the government had failed to comply with every mental
health provision, more than 60 in all, in the settlement agreement it entered into a year earlier. Perhaps most heartbreaking, Burns details the
suicide of a woman who was mentally ill, delusional, and who went without treatment for nearly two years before she was found hanging in her cell a
year ago. The womans name was Heather Turfley. She was 38. She had a history of bipolar disease and schizophrenia and of saying she was born to
be Jesus and that God spoke to her. She had twice been placed on suicide watch. Yet seemingly nobody was watching her before she committee
suicide, as Burns wrote: For many of the days on watch, there is no officer observation sheet at all. The amount of brutality experienced by the
mentally ill prisoners is also set forth in Burns reports. She writes that the prisons mental health unit is filled with reports of inmate-on-inmate
physical fights, assaults and attacks requiring emergency transport to the outside hospital for physical care. Some of these incidents involve the use
of shanks and other weapons. Eric Balaban, senior staff counsel with the National Prison Project of the ACLU, who represents these prisoners, warns
in an email that this violence will only worsen: This violence is directly related to the territorys failure to hospitalize the most seriously mentally ill.
The longer they stay at the jail, the more at risk they are of being beaten by fellow prisoners or staff. I asked Balaban how its possible for a U.S.
territory to be under a court order to protect its most vulnerable prisoners for more than two decades, yet nothing changes. He points out that there
is a new judge presiding in the case and a newly appointed Bureau of Corrections director who shows some sense of urgency to fix the lifethreatening problems. But, Balaban cautions, This will require a new mindsetone that sees that torturing the seriously mentally ill through neglect
not only places their lives at risk, but endangers the officers who work at that jail, and the citizens on St. Thomas, if these seriously ill men and
women are released untreated. This is not just about a handful of seriously mentally ill prisoners in the U.S. Virgin Islands, however. The abuse,
neglect, and tragic lack of foresight in that system is emblematic of a problem that exists throughout this country. Its a problem that will only
worsen unless we distinguish between mental illness and criminality and return to policies that actually treat inmates who are ill, rather than
brutalize them.
Spare Harms:
Biopower Bad:
This biopolitical structure created by the aff establishes a killto-live mentality that justifies massive conflict and violence in
the name of protection and promotion of life.
Lundborg and Vaughn-Williams, 2011
[Tom, Swedish Institute of International Affairs, and Nick, Associate Professor of
International Security at the University of Warwick, Resilience, Critical
Infrastructure, and Molecular Security: The Excess of Life in Biopolitics.
International Political Sociology, Vol. 5. Issue 4. December 2011, 367-383, Accessed
Online via Wiley Online Library
liberalism as a systemic regime of... power
relations, which, although committed to peace-making, is nevertheless marked by an
equal commitment to war, continuous state of emergency, and constant preparedness for conflict (Dillon
and Reid 2009:7). From this perspective, war and society are mutually constitutive and the liberal way of
rule can be understood as: a war-making machine whose continuous processes of
war preparation prior to the conduct of any hostilities profoundly, and pervasively, shape the liberal
way of life (Dillon and Reid 2009:9). As such, the liberalismwar complex acts as a grid for
the production of knowledge, preoccupations, and political subjectivitie s. Taking their
lead from Foucaults later work, Dillon and Reid argue that the basic referent object of liberal rule is
life itself. From this perspective, the liberal way of rule/war is inherently biopolitical: its referent object is
biological being and its governmental practices are themselves, in turn, governed by the
properties of species existence (Dillon and Reid 2009:20). They stress, however, that [they] the
properties of species existence are not givens, but rather subject to changes in
power/knowledge. Over the last 20 years, the Revolution in Military Affairs, accompanied by developments in
the life sciences, has changed the way that life is viewed and understood. The move to
informationalize life has led to the reduction in what it means to be a living being
to a code, and as a result: the very boundaries which long distinguished living from
not living, animate from inanimate and the biological from the non-biological have
been newly construed and problematized... (Dillon and Reid 2009:22). The corollary of this account
Dillon and Reid begin their book by characterizing
is that the informationalization of life has, in turn, changed the way in which war is waged by liberal rule: The
new
knowledge about the complex emergent adaptive processes and properties of open living systems,
has transformed the ways in which liberal regimes have come to understand that
very nature of war, and of the relation of war to complex adaptive evolutionary models of rule and order.
development of the life sciences in general, and of complexity science in particular, comprising
(Dillon and Reid 2009:111) The military is as interested now... in life-creating and life-adaptive processes as it is in
killing, because, like the liberal way of rule and war more generally, it locates the nature of the threat in the very
becoming-dangerous of the vital signs of life itself. (Dillon and Reid 2009:125) In other words, development in the
life sciences has been embraced by liberal regimes, which, in turn, has affected the way that they view and fight
The move in life sciences away from Newtonian physics to complexity has enabled new
biopolitical technologies of governance . Complexity science stresses the anteriority of radical
wars.
relationality, the dynamic and mobile nature of existence and the contingencies of bodies-in-formation (Dillon
and Reid 2009:72). Liberal biopolitical rule takes these problematizations of life as a starting point for securing its
Thus, in a development of Foucaults account of biopolitics as making live and letting die, Dillon
that liberalism only promotes the kind of life that is productive for its
own enterprise in light of new power/knowledge relations . A liberal biopolitical
own existence.
Biopower Link:
This type of surveillance is a panopticon, which is biopower
Taunton 08
Taunton, Matthew. "Escape From Panopticon." New Statesman 137.4889 (2008): 48.
Academic Search Premier. Web. 10 Feb. 2016.
Michael Foucault was influential in propagating the notion that power in modern
societies is based on surveillance, and his work remains a cause of acute paranoia
and depression among countless humanities students. In Discipline 0711 Punish,
Foucault argues that Jeremy Bentham' Panopticon -a prison designed so that all
inmate are potentially under constant surveillance b} an unseen official - is a
template for modern society, "a society penetrated through and through with
disciplinary mechanisms".
Bentham's prisoner gradually internalizes the feeling of being watched, and in effect
begins to police himself; he "becomes the principle of his own subjection". Foucault
uses this to argue that liberal societies are at heart profoundly authoritarian: even
when we think we are acting freely, we are probably obeying the tenets of
oppressive power structures that we have unwittingly absorbed through
surveillance.
Biopower Impacts
Disciplinary Power:
The expansion of biopower via disciplinary power is what
triggers genocide
Goodhart 01 Michael Goodhart, U Pittsburgh, 2001 (POLITY, Winter 2001 v34 i2
p241(17))
Foucault's own discourse maintains an ambivalent relationship to this "war of the races." On the one hand, it
serves as an example of a subjugated knowledge to be resurrected. This is a discourse of opposition and
represents an alternative to the still dominant discourse of sovereignty visible, according
to Foucault, in Hobbes and Machiavelli, and persisting in many Marxist notions of power circulating during
must understand, then, in these conditions, how and why the most murderous states are, at the same time,
necessarily, the most racist. Surely, here we must refer to the example of Nazism. Here, the role of the Nazi regime
is clear in Foucaults discourse: You must understand, then, in these conditions, how and why the most murderous
states are, at the same time, necessarily the most racist. Surely, we must refer to the example of Nazism. For
instantiation of regimes of power: Nazism was doubtless the most cunning and the most nave (and former
A
eugenic ordering of society, with all that implied in the way of extension and intensification of micropowers, in the guise of an unrestricted state control (etatisation) was accomplished by the generic
because of the latter) combination of the fantasies of blood and the paroxysms of a disciplinary power.
explanation of a superior blood; the latter implied both the systematic genocide of theirs and the risk of exposing
oneself to total sacrifice. The fantasies of blood incarnated in
massively lethal a form because of the technologies of domination, and the biopower, within which they were firmly ensconced.
Panopticon POC
The scientific panopticon preys on POC without their consent
in the name of better managing life the 1AC enactment of
surveillance is an endorsement of that oppression
Kim 14 Social Media and Academic Surveillance: The Ethics of Digital Bodies
by Dorothy Kim for Model View Culture; Assistant Professor at Vassar College,
Fullbright Fellow, Ford Foundation Fellow, Frankel Fellow at U of Michigan;
https://modelviewculture.com/pieces/social-media-and-academic-surveillance-theethics-of-digital-bodies
The scientific and academic history of disregarding rights and ethics in relation to the
bodies of minorities and especially women of color is seen in other high profile lawsuits. For
example, Nature has reported that the use of patients biological information for previously
undisclosed purposes has been the subject of several high-profile cases. There is the incredibly
famous case of the Tuskegee Syphilis Study in which 600 black men were used as
medical subjects to study syphilis without consent, information, and even medical
treatment for their actual illnesses. The article US agency updates rules on sharing genomic data describes
yet another case: In 2010, the Havasupai tribe of Arizona won a US $700,000 settlement
against Arizona State University when blood samples originally provided for a study
on diabetes were used in mental-illness research and population studies . More
recently, and in relation to digital bodies, there has been a major ethical and procedural outcry about Facebooks
experimentation with users in relation to Facebook posts and mood. As this article discusses, there were major
violations of IRB and ethics that even when dealing with a corporation and the authoritative journal the Proceedings
of the National Academy of the Sciences of the United States (funded by the US Government), the consent of any of
the users in the experiment (over 600,000 unsuspecting Facebook users) in order to research mass-scale
academics
are looked upon as part of the academic-industrial-government-military panopticon
experimenting (without permission or consent) on their public citizens ? Why should
digital bodies on Twitter trust academics and their ethics and methodologies when the methodologies
and ethics (particularly of government-funded and thus government-vetted projects) continue
to think of Twitter as a way to enact surveillance on their future research subjects?
emotional contagion sounds straight out of a twisted dystopian movie. So is it any surprise that
but it has always been part of abusive dynamics. As opting into surveillance becomes increasingly
mandatory to participate in societies and platforms, surveillance has been woven into the fabric of our lives in ways
Crockett points out how black women online have constantly been portrayed as raving amazons, one of the
The lack of black participation can be unintentional or intentional, but usually ends in gross appropriation, clumsy
admiration, willful erasure or a troublesome combo of all three. Combined with historical blindness, racist
Disadvantages
Remember, framework answers all impact oriented DAs if
counter framework is not run.
Politics:
No Uniqueness:
No Link:
Extend Sub point B of solvency, which says prisoners have little voice in the political
process making it so Solitary Confinement wouldnt affect the political capital or any
process of politics.
No tradeoff between courts and prez: This aff is built on the constitutional
right against cruel and unusual punishment. It would be wrong to let one person decide the
fate of thousands and to decide what is constitutional. This job is preserved for the courts.
No Impacts:
No Political Capital:
Obama has no political capital as of 2016, and barely ever did
Jared Keller 2016 pacific standard
Jared Keller is a journalist living in Brooklyn, NY. His work has appeared in the Atlantic, Bloomberg Business week, Al
Jazeera America, the Los Angeles Review of Books, and the Verge.
The presidential farewell has no real precedent in America's political history outside of George Washington's legendary letter to the nation. Published in
Daved Claypole's American Daily Advertiser on September 19, 1796, and later re-worked into a pamphlet, Washington used his "farewell address" after
nearly 20 years of service to remind the young nation of the pitfalls and possibilities facing the republic: the divisiveness of political factions, the
importance of the separation of powers, the necessity of avoiding foreign entanglementsall topped by a request that he be forgiven by the American
people for his failings in office. Washington, who'd already set an informal rule of the American executive branch by declining to seek the presidency for a
third term, resigned to his plantation like the one-time Roman dictator Lucius Quinctius Cincinnatus, his obligation to faithfully protect the republic met
with one final, tender rallying cry. There have been few memorable presidential farewells since then. Outgoing presidents rarely deliver final homilies like
Washington's ahead of their successor on Inauguration Day, and late-term joshing in the White House press poolor even George W. Bush's poignant East
Room farewelllack the same gravitas and panache as a joint session of Congress. Nixon's departure from the White House is the most vivid in recent
but politically insouciant amid the cacophony of the presidential and congressional contests on the horizon.
Unencumbered by political calculus, the president, cloaked in the apex of his constitutional power (minus standing
on the battlefield), can leave the American polity with one final swan song on the future of the republic.
President Obama recognized this on Tuesday evening when he told the assembled
members of Congress that he didn't want to discuss a slate of policy proposals (a
comment that, if accidentally, diminished the criminal justice platform that's been in the national conversation for
the last year). "I don't want to talk just about the next year," Obama said. "I want to focus on the next five years, 10
years, and beyond." Despite Obama's emphasis on the future, his subsequent address made clear that the days of
It was expected
that Obama, politically emboldened by a hot streak on disparate issues from Cuba
to international trade to LGBT rights, would take something of a victory lap around
the United States Capitol. And he did: His tone was relaxed and casual, jokey but impassioned,
Washington's finale, where the State of the Union was once a political treatise, are long past.
cognizant of his limitations as a lame-duck president while still patently aspirational, with an authenticity that
echoed a Kennedy or a Clinton. We sort of expected Barack Obama, inspiration figure; if not that, at least Barack
despite his accomplishments, Obama still faces the question of his legacyand,
more importantly, the task of bringing closure to the political message that put him in
the White House in 2008. This is the same politician who, eight years after "hope and
change," has found his inspirational rhetoric deflated by the realities of politics in
Washington, from the lack of political capital in the aftermath of his health-care reform
fight to the weight of crisis after political crisis . Al Jazeera's Gregg Levine puts it best: Appearing before the nation
Obama, orator. But
unburdened, Obama faced questions about both if "change is still possible in the final year of his presidency, and whether anyone in the voting public
believes he changed anything at all." Obama had one final chance to make the case for his legacy, a long goodbye from a weary but hopeful servant
praying that he fulfilled his rhetorical promise to the nation. This was painfully obvious in Obama's appeal to the singular force that helped get him elected
the message of change: We live in a time of extraordinary changechange that's re-shaping the way we live, the way we work, our planet and our place
in the world. It's change that promises amazing medical breakthroughs, but also economic disruptions that strain working families. It promises education
for girls in the most remote villages, but also connects terrorists plotting an ocean away. It's change that can broaden opportunity, or widen inequality. And
whether we like it or not, the pace of this change will only accelerate. America has been through big changes beforewars and depression, the influx of
immigrants, workers fighting for a fair deal, and movements to expand civil rights. Each time, there have been those who told us to fear the future; who
claimed we could slam the brakes on change, promising to restore past glory if we just got some group or idea that was threatening America under
control. And each time, we overcame those fears. We did not, in the words of Lincoln, adhere to the "dogmas of the quiet past." Instead we thought anew,
and acted anew. We made change work for us, always extending America's promise outward, to the next frontier, to more and more people. And because
we didbecause we saw opportunity where others saw only perilwe emerged stronger and better than before. Yes, the Obama administration has been
consequential on an impressive slate of matters both foreign and domestic, but only time will tell what its long-term consequences actually are. Yes, the
Obama administration has created 14.1 million jobs in the past seven years, but American wages remain stagnantand an entire subset of society has been
left adrift by the decimation of manufacturing jobs. Yes, the uninsured rate has fallen from 15.4 percent to 8.8 percent, but Obamacare will always be
remembered for its bungled rollout and the long-term impacts on the deficit are still unclear. Yes, the number of troops in Iraq and Afghanistan dropped
from more than 180,000 to less than 14,000, but how many militant Islamists have joined the Islamic State since then? And even if American soldiers have
been replaced by drones, the Obama administration's hidden regime of death from above leaves much to be desired in the way of moral and legal
legitimacyespecially when 90 percent of the people killed by drone strikes are not the target. This isn't to condemn President Obama as a Machiavellian
liar, or even as a hypocrite; after all, all politicians are hypocrites, especially when they have the privilege of Teddy Roosevelt's infamous Bully Pulpit. But
his appeal to the politics of hope and change baked into a desperate victory lap feels hollow and empty, an attempt to shore up his legacy by convincing
America that he delivered on his impossible rhetorical promises of the 2008 election. We can see this in his appeal, toward the end of his address, to a
better form of politics, the "politics of hope": A better politics doesnt mean we have to agree on everything. This is a big country, with different regions
and attitudes and interests. That's one of our strengths too. Our founders distributed power between states and branches of government, and expected us
to argue, just as they did over the size and shape of government, over commerce and foreign relations, over the meaning of liberty and the imperatives of
security. But democracy does require basic bonds of trust between its citizens. It doesn't work if we think the people who disagree with us are all
motivated by malice, or that our political opponents are unpatriotic. Democracy grinds to a halt without a willingness to compromise; or when even basic
facts are contested, and we listen only to those who agree with us. Our public life withers when only the most extreme voices get attention. Most of all,
democracy breaks down when the average person feels their voice doesn't matter; that the system is rigged in favor of the rich or the powerful or some
narrow interest. Too many Americans feel that way right now. It's one of the few regrets of my presidencythat the rancor and suspicion between the
parties has gotten worse instead of better. There's no doubt a president with the gifts of Lincoln or Roosevelt might have better bridged the divide, and I
guarantee I'll keep trying to be better so long as I hold this office. But this transcendent form of politics that's infused Obama's optimism indicates that he
learned the wrong lesson.
It's
Obama's naivete, his coolness, his ambivalence to the muck of Washington politics, that
have hamstrung his legislative ambitions. Blowing all his political capital on health-care reform ,
despite the legislation's myriad benefits, doomed the Obama administration to a cycle of thrust and parry with the
Republican Congress on everything from budgets to immigration reform,
president by the end of his second year in office . Where most presidents enjoy a 100-day mandate (thanks, FDR)
and an embattled lull before the freedom of their twilight months, Obama has spent the majority of his presidency protecting his mantra of "hope and
change" and his legacy of transcending politics to the point of political intransigence. Yes, Obama has accomplished a lotopening relations with Cuba,
forging the TPP, fighting Ebola in West Africa, killing Osama bin Laden, striking a deal with Iranbut time will tell how these projects turn out. With his final
State of the Union, Obama demanded his legacy now, early, like the Nobel Peace Prize he never should have been awarded as an incentive. Despite the
soaring rhetoric, the narrative was clear: You voted for the messiah, and I sort of delivered. It resembled the "Mission Accomplished" banner George W.
Bush flew on the USS Abraham Lincoln in 2003. This brings me back to George Washington. Yes, any comparison to Washington is inherently nonsense,
because it's like comparing a president to Jesus Christ. But where Washington used his final "address" to the nation as a moment of political philosophy,
Obama's return to the language of hope and change betrays a modern selfishness that undermines the noble intentions of rising above the dirty politics of
D.C. A better use of the State of the Union would have been to say, well, less: to recognize and analyze the constraints of the executive, the realities of
politics (beyond allusions to the hateful rhetoric of Donald Trump), and make a Washingtonian plea rather than litigate the veracity of hope and change in
the context of his accomplishments. President Obama delivered a full-throated defense of his legacy in lieu of a slate of policy proposals, as he should
have; according to Al Jazeera, the White House "long ago acknowledgedinternally and eventually externallythat his tenure is in a post-legislative
control in recent weeks, more fiery speeches on the routineness of mass shootings, and more rawness and realness
But
in an effort to deliver a Washingtonian farewell, the president's message of progress
fell flat. History will be the final judge of Barack Obama but if his final speech is any
than we've ever seen from our commander-in-chief as a reminder that, yes, he is hope and change embodied.
indication, history might find that the president's mantra of change left us filled more with doubt than hope.
hes
going to use a good deal of his last years political capital in order to tweak a few minor rules
around the edges? Why? Even if were generous and presume that every single one of these regulations finds
played; a man who is supposed to reflexively refuse to be taken in by the emotion of the moment. And yet
its way permanently into the law, he will nevertheless have done nothing substantial to further universal
background checks; he will have instituted none of his coveted magazine limits; and he will have banned none of
to have pleased his base and to have convinced the most ignorant parts of the electorate that he has finally stuck
his finger into the NRAs eye. Were these serious measures, I would be squealing. Instead, Im amused. These are
neither here nor there. He needs the applause line both now, and in his retirement and hes determined to get
it. When I say he did nothing of note, of course, I mean nothing of note to advance his agenda. As it happens,
the president has done something of note tonight:
Prez Powers:
No Uniqueness:
No Link:
Judicial Power is placed upon the Supreme Court to prevent concentration of power
and to maximize freedom. Since the president is a single person, they should not be
the one to decide what is constitutional and it is not his power to extend.
No Impacts:
US power is sustainable no challengers
Noah Berlatsky, writer at the Atlantic, 6-17-2014, The Moral Argument for
American Restraint in Iraq and Beyond,
http://www.theatlantic.com/international/archive/2014/06/the-moral-argument-forrestraintin-iraq-and-around-the-world/372933/
Barry Posen, a professor of political science at MIT and a foreign-policy realist,
advocates a different approach. The title of his new book, Restraint, succinctly
expresses his policy recommendation. The U.S., he argues, needs to stop trying to
do more and more. Instead, it needs to do less. Or, as he puts it, "Efforts to defend
everything leave one defending not much of anything." Posen rests his discussion
on two basic arguments. The first is that the United States is, by any reasonable
metric, an incredibly secure nation. It is geographically isolated from other great
powersa position that makes invading or even attacking the U.S. mainland
prohibitively difficult. U.S. conventional forces are by far the most powerful in the
world. Posen notes that the U.S. "accounted for a little more than a third of all the
military spending in the world during the 1990s," and has increased the percentage
to about 41 percent of all military spending in the world today. On top of that, the
U.S. has a massive nuclear deterrent. It is simply not credible to argue that Iran,
North Korea, Iraq, Pakistan, or even Russia or China have the combination of
dangerous capabilities and malign intentions to pose a serious existential threat to
the United States in anything but the most paranoid neocon fantasies.
the 1991 Gulf Wars risks were worth it, they comment, in retrospect it might seem
that he was clearly right. Had that war been avoided, though, there would have
been no mass presence of U.S. troops on Saudi soil Osama bin Ladens principal
recruiting device, according to Paul Wolfowitz and perhaps no 9/11. Posner and
Vermuele are slightly more perceptive when it comes to the home front, letting drop
as an aside the observation that because of the easy-money policy that helped
inflate the housing bubble, the Fed is at least partly responsible for both the
financial crisis of 2008-2009 and for its resolution. Oh, well I guess were even,
then. Sometimes, the authors are so enamored with the elegant economic models
they construct that they cant be bothered to check their work against observable
reality. At one point, attempting to show that separation of powers is inefficient,
they analogize the Madisonian scheme to a market in which two firms must act in
order to supply a good, concluding that the extra transaction costs of
cooperation make the consumer (taxpayer) no better off and probably worse off
than she would be under the unitary system. But the government-as-firm metaphor
is daffy. In the Madisonian vision, inefficiency isnt a bug, its a feature a check on
the facility and excess of law-making the diseases to which our governments are
most liable, per Federalist No. 62. If the firm in question also generates public
bads like unnecessary federal programs and destructive foreign wars and if the
consumer (taxpayer) has no choice about whether to consume them he
might well favor constraints on production. From Franklin Roosevelt onward, weve
had something close to vertical integration under presidential command. Whatever
benefits that system has brought, its imposed considerable costs not least over
100,000 U.S. combat deaths in the resulting presidential wars. That system has also
encouraged hubristic occupants of the Oval Office to burnish their legacies by
engaging in humanitarian war an oxymoron, according to Posner. In a sharply
argued 2006 Washington Post op-ed, he noted that the Iraq War had killed tens of
thousands of innocents and observed archly, polls do not reveal the opinions of
dead Iraqis.
war will help trigger the appreciation for the gravity of war and assist in unifying
the nation behind a strategic military intervention, resulting in more positive
outcomes for the United States.
Rights Malthus DA
No Uniqueness
CO2 emissions prevent the next Ice Age which would inevitably
lead to extinction
Didymus 12(John Thomas Didymus, journalist from the Digital Journal, Human
carbon dioxide emissions could prevent next Ice Age, Digital Journal, January
2012.)Accessed online at:
http://digitaljournal.com/print/article/317605#ixzz1w2W7dBCR
A team of scientists say that
next Ice Age. The scientists say that even if carbon emissions stopped today, enough has accumulated in
the atmosphere to prevent the next Ice Age glaciation. The Telegraph reports that according to the team of
scientist, in a study published in Nature Geoscience, high levels of
has been source of concern among environmental scientists could prevent glaciation. The scientists
said that at the next Ice Age, the climate will cool down, but not as severely it could have with normal carbon
dioxide levels. According to scientists, the Earth will probably not experience glaciation. The team included
scientists from University College London, the University of Florida and Norway's Bergen
University. BBC reported that paleoclimatologist Luke Skinner, from Cambridge University, said: "At current
levels of CO2, even if emissions stopped now we'd probably have a long interglacial duration determined by
whatever long-term processes could kick in and bring [atmospheric] CO2 down." The current level of carbon
dioxide in the atmosphere is 390 parts per million. The scientists say that carbon dioxide levels in the
atmosphere will need to drop down to 240 parts per million for glaciation to take place. Some groups, according
to BBC, are citing the study as evidence that
Sir Fred Hoyle and Chandra Wickramasinghe, that said: " The
The paper
double-checked their work by making sure that the readjusted buoy readings matched ships recordings of nighttime air temperatures.
came out last week, and there has not been time for skeptical scientists to independently check the adjustments, but some are questioning it because of
how much the adjusted data vary from other independent measurements. First, it
than 3,000 ARGO buoys, which are specifically designed to float around the ocean and measure temperature. Some scientists view
their data as the most reliable. The ARGO buoy data do not show much warming in surface temperature since they were introduced in 2003. But Karls
team left them out of their analysis, saying that they have multiple issues, including lack of measurements near the Arctic. In an email, Karl told
FoxNews.com that the ARGO buoy readings may be added to his data if scientific methods can be found to line up these two types of temperatures
together (of course after correcting the systematic offsets) This is part of the cumulative and progressive scientific process. Karls study also clashes
with satellite measurements. Since 1979, NOAA satellites have estimated the temperature of Earths atmosphere. They show almost no warming in recent
years and closely match the surface data before Karls adjustments. The satellite data is compiled by two separate sets of researchers, whose results
match each other closely. One team that compiles the data includes Climate Professors John Christy and Roy Spencer at the University of Alabama in
The study is one more example that you can get any
answer you want when the thermometer data errors are larger than the global
warming signal you are looking for, Spencer told FoxNews.com.
Huntsville, both of whom question Karls adjusted data.
raised by the research is whether other global temperature datasets will see similar adjustments. One, kept by the Hadley Center of the UK Met Office,
we find some big problems. The most important data adjustments by far are in ocean temperature measurements. But anyone who has been following this
debate will notice something about the time period for which the adjustments were made. This is a time in which the measurement of ocean temperatures
has vastly improved in coverage and accuracy as a whole new set of scientific buoys has come online. So why would this data need such drastic
correcting? As climatologist Judith Curry puts it: The greatest changes in the new NOAA surface temperature analysis is to the ocean temperatures since
1998. This seems rather ironic, since this is the period where there is the greatest coverage of data with the highest quality of measurementsARGO buoys
and satellites dont show a warming trend. Nevertheless, the NOAA team finds a substantial increase in the ocean surface temperature anomaly trend
has been acknowledged by numerous scientists, the engine intake data are clearly contaminated by heat conduction from the engine itself, and as such,
never intended for scientific use. On the other hand, environmental monitoring is the specific purpose of the buoys. Adjusting good data upward to match
bad data seems questionable. Thats putting it mildly. They also point to another big change in the adjusted data: projecting far northern land
temperatures out to cover gaps in measurement over the Arctic Ocean. Yet the land temperatures are likely to be significantly warmer than the ocean
the warmists are desperate, but they might not have thought through
the overall effect of this new adjustment push. Weve been told to take very, very
seriously the objective data showing global warming is real and is happeningand
then they announce that the data has been totally changed post hoc. This is meant
to shore up the theory, but it actually calls the data into question. Anthony Watts, one of the chief
questioners of past adjustments, points out that to make the pause disappear, they didnt just increase
temperatures since 1998. They also adjusted downward the temperatures
immediately before that. Starting from a lower base of temperature makes the
adjusted increase look even bigger. Thats a pattern that invariably shows up in all these adjustments: the past is always
temperatures. I realize
adjusted downward to make it cooler, the present upward to make it warmeran amazing coincidence that guarantees a warming trend. All of this fits into
the global warming theory has been awful at making predictions about the
data ahead of time. But it has been great at going backward, retroactively reinterpreting the data and
a wider pattern:
retrofitting the theory to mesh with it. A line I saw from one commenter, I cant remember where (update: it was David Burge), has been rattling around in
my head: once again, the theory that predicts nothing explains everything. There is an important difference between prediction before the fact and
explanation after the fact. Prediction requires that you lay down a marker about what the data ought to be, to be consistent with your theory, before you
actually know what it is. Thats something thats very hard to get right. If your theory is going to be able to consistently predict data before it is gathered,
But explanations of
data after the fact are a lot easier. As they say, hindsight is 20/20. Its a lot easier to
tweak your theory to make it a better fit to the data, or in this case, to tweak the
way the data is measured and analyzed in order to make it better fit your theory.
And then you proclaim how amazing it is that your theory explains the data. The whole
it has got to be pretty darned good. Global warming theories have a wretched track record at making predictions.
political cause of global warming is based on the theorys claim to make predictions before the fact. If this difference between prediction and explanation
seems merely technical, remember that the whole political cause of global warming is based on the theorys claim to make predictions before the fact
way before the fact, projecting temperatures for the next century. Were supposed to base the whole organization of our civilization, at a cost of many
trillions of dollars, on those ultra-long-term predictions. So exulting that they can readjust the data for the last few years to jibe with their theory after the
credulity and even pre-emptively inoculate us against the sin of doubt. The Washington Post report/press-release-transcription has a nice little passiveaggressive twist, sneering that The details of the data adjustments quickly get complicatedand will surely be where global warming doubters focus their
criticism. Those global warming doubters, always finding something to kvetch about! What are you gonna do? Worse, the Post ends by passing along a
criticism of mainstream scientists for even discussing the global warming pause before now. Harvard science historian Naomi Oreskes recently coauthored a paper depicting research on the hiatus as a case study in how scientists had allowed a seepage of climate skeptic argumentation to affect
the formal scientific literature. Of the new NOAA study, she said in an e-mail: I hope the scientific community will do a bit of soul searching about how
they got pulled into this framework, which was clearly a contrarian construction from the start. Remember that everybodys data was showing a plateau
in global temperatures, and many of the studies focused on this were attempting to uphold the global warming theory in the face of that evidence. Yet
now some of the theorys own supporters are going to be thrown under the bus for showing too much faith in the data and too little faith in the cause.
Global
. Now, before you spit out your fair trade coffee and start yelling about carbon emissions, let me assure you that this is not a conclusion that came easily to me. I
thought about it a lot. Just this morning I was in the shower for a good two hours debating the pros and cons of dating someone with a giant global footprint. Once the water went cold and I dried myself off with a hair dryer, I knew I
everyone to pat you on the back and say, Oh, look who saved the planet! Well, I have news for you.
for the sins of homosexuality and shellfish consumption. God hates Shrimp Scampi, but He
doesnt seem to have a problem with littering. (Leviticus 10:10) I wish people would stop incessantly asking, Dont we care what kind of planet were going to leave our children? First of all, Im pretty sure any child psychologist
would agree that leaving a whole planet to a kid is an appalling idea. I wouldnt dream of spoiling my daughter with an entire planet. You dont have to give your kids the world; just spend some time with them once in a while. Thats
isnt enough to sway you, Ive got other anecdotal evidence that should be plenty convincing. For
example:
In fact, my sister didnt see any live polar bears at all, so there.
. If they could put a gun to each of our heads individually and say, Vote for me or else you die, I think they would. Thats why,
speech and religion. State prisoners have no rights to particular classifications under state law.
Courts are extremely reluctant to limit the discretion of state prison officials to classify prisoners. (Classification, as
it is used here is meant to describe the custodial classification of a prisoner once he or she is convicted -- i.e.:
maximum vs. minimum security, solitary confinement, etc.) Congress has given federal prison officials full
discretion to control prisoner classification as affecting conditions of confinement. Generally, such matters are left
to the control of the Federal Bureau of Prisons. Courts tend to give deference to prison officials regarding prisoners'
rights. So long as the conditions or degree of a prisoner's confinement are within the sentence and not otherwise
violative of the Constitution, the due process clause does not require judicial oversight. For prison regulations that
do impinge on inmates' constitutional rights, the strict scrutiny test does not apply. Rather, the rational relationship
test is used (the lowest level of judicial scrutiny -- the test is whether there is a rational relation to a legitimate
state interest). THIS FILE IS NOT USED AND IS HERE AS A STARTING POINT FOR CUSTOMIZATION ONLY. See
http://api.drupal.org/api/function/theme_field/7 for details. After copying this file to your theme's folder and
customizing it, remove this HTML comment.
Dehumanization Outweighs
Extend the Berube card dehumanization outweighs the impact
of the DA, and we get solvency for the worst impact in the
round. Vote Neg on this issue
No Impact
No impact to the environment
Easterbrook 95 (Gregg, Distinguished Fellow @ The Fullbright Foundation and
Reuters Columnist, A Moment on Earth, p. 25, 1995)
In the aftermath of events such as Love Canal or the Exxon Valdez oil spill, every reference to the environment is
prefaced with the adjective "fragile." "Fragile environment" has become a welded phrase of the modern lexicon, like
rearrangement of continents; transformation of plains into mountain ranges and of seas into plains; fluctuations of
ocean currents and the jet stream; 300-foot vacillations in sea levels; shortening and lengthening of the seasons
caused by shifts in the planetary axis; collisions of
nuclear arsenals; and the years without summer that followed these impacts.
petals unfold still. Were the environment fragile it would have expired many eons before the advent of the
industrial affronts of the dreaming ape. Human assaults on the environment, though mischievous,
are pinpricks compared to forces of the magnitude nature is accustomed to
resisting.
Although one may agree with ecologists such as Ehrlich and Raven that the earth stands on the brink
of an episode of massive extinction, it may not follow from this grim fact that human beings
will suffer as a result. On the contrary, skeptics such as science writer Colin Tudge have challenged biologists to explain
why we need more than a tenth of the 10 to 100 million species that grace the earth. Noting that "cultivated systems often out-
Tudge declared that "the argument that humans need the variety of other
elimination of all but a
tiny minority of our fellow creatures does not affect the material well-being of humans one iota." n344
species is, when you think about it, a theological one." n343 Tudge observed that "the
This skeptic challenged ecologists to list more than 10,000 species (other than unthreatened microbes) that are essential to
ecosystem productivity or functioning. n345 "The
of our
fellow creatures went extinct, provided only that we retained the appropriate 0.1% that we need." n346 [*906] The
monumental Global Biodiversity Assessment ("the Assessment") identified two positions with respect to redundancy of species.
"At one extreme is the idea that each species is unique and important, such that its removal or loss will have demonstrable
consequences to the functioning of the community or ecosystem." n347 The authors of the Assessment, a panel of eminent
ecologists, endorsed this position, saying it is "unlikely that there is much, if any, ecological redundancy in communities over
time scales of decades to centuries, the time period over which environmental policy should operate." n348 These eminent
ecologists rejected the opposing view, "the notion that species overlap in function to a sufficient degree that removal or loss of a
species will be compensated by others, with negligible overall consequences to the community or ecosystem."
miserable world depicted in the movie Blade Runner could provide a "sustainable" context for the human economy as long as
people forgot their aesthetic and moral commitment to the glory and beauty of the natural world. n351 The Assessment makes
this point. "Although any ecosystem contains hundreds to thousands of species interacting among themselves and their physical
environment, the emerging consensus is that the system is driven by a small number of . . . biotic variables on whose
interactions the balance of species are, in a sense, carried along." n352 [*907] To make up your mind on the question of the
functional redundancy of species, consider an endangered species of bird, plant, or insect and ask how the ecosystem would
fare in its absence. The fact that the creature is endangered suggests an answer: it is already in limbo as far as ecosystem
processes are concerned. What crucial ecological services does the black-capped vireo, for example, serve? Are any of the
species threatened with extinction necessary to the provision of any ecosystem service on which humans depend? If so, which
ones are they? Ecosystems and the species that compose them have changed, dramatically, continually, and totally in virtually
every part of the United States. There is little ecological similarity, for example, between New England today and the land where
the Pilgrims died. n353 In view of the constant reconfiguration of the biota, one may wonder why Americans have not suffered
more as a result of ecological catastrophes. The cast of species in nearly every environment changes constantly-local extinction
is commonplace in nature-but the crops still grow. Somehow, it seems, property values keep going up on Martha's Vineyard in
spite of the tragic disappearance of the heath hen. One might argue that
creatures available to any ecosystem buffers that system against stress. Accordingly, we should be
concerned if the "library" of creatures ready, willing, and able to colonize ecosystems gets too small. (Advances in genetic
engineering may well permit us to write a large number of additions to that "library.") In the United States as in many other
parts of the world, however, the number of species has been increasing dramatically, not
decreasing, as a result of human activity. This is because the hordes of exotic species coming into ecosystems in the United
States far exceed the number of species that are becoming extinct. Indeed, introductions may outnumber extinctions by more
than ten to one, so that the United States is becoming more and more species-rich all the time largely as a result of human
action. n354 [*908] Peter Vitousek and colleagues estimate that over 1000 non-native plants grow in California alone; in Hawaii
there are 861; in Florida, 1210. n355 In Florida more than 1000 non-native insects, 23 species of mammals, and about 11 exotic
birds have established themselves. n356 Anyone who waters a lawn or hoes a garden knows how many weeds desire to grow
there, how many birds and bugs visit the yard, and how many fungi, creepy-crawlies, and other odd life forms show forth when it
rains. All belong to nature, from wherever they might hail, but not many homeowners would claim that there are too few of
them. Now, not all exotic species provide ecosystem services; indeed, some may be disruptive or have no instrumental value.
n357 This also may be true, of course, of native species as well, especially because all exotics are native somewhere. Certain
exotic species, however, such as Kentucky blue grass, establish an area's sense of identity and place; others, such as the green
crabs showing up around Martha's Vineyard, are nuisances. n358 Consider an analogy [*909] with human migration. Everyone
knows that after a generation or two, immigrants to this country are hard to distinguish from everyone else. The vast majority of
Americans did not evolve here, as it were, from hominids; most of us "came over" at one time or another. This is true of many of
our fellow species as well, and they may fit in here just as well as we do. It is possible to distinguish exotic species from native
ones for a period of time, just as we can distinguish immigrants from native-born Americans, but as the centuries roll by,
species, like people, fit into the landscape or the society, changing and often enriching it. Shall we have a rule that a species
had to come over on the Mayflower, as so many did, to count as "truly" American? Plainly not. When, then, is the cutoff date?
Insofar as we are concerned with the absolute numbers of "rivets" holding ecosystems together, extinction seems not to pose a
general problem because a far greater number of kinds of mammals, insects, fish, plants, and other creatures thrive on land and
in water in America today than in prelapsarian times. n359 The Ecological Society of America has urged managers to maintain
Levin
observed, "much of the detail about species composition will be irrelevant in terms of influences on ecosystem properties."
biological diversity as a critical component in strengthening ecosystems against disturbance. n360 Yet as Simon
n361 [*910] He added: "For net primary productivity, as is likely to be the case for any system property, biodiversity matters
estimated 80,000 types of plants [we] know to be edible," a U.S. Department of the Interior document says, "only about 150 are
extensively cultivated." n363 About twenty species, not one of which is endangered, provide ninety percent of the food the
world takes from plants. n364 Any new food has to take "shelf space" or "market share" from one that is now produced.
Corporations also find it difficult to create demand for a new product; for example, people are not inclined to eat paw-paws,
even though they are delicious. It is hard enough to get people to eat their broccoli and lima beans. It is harder still to develop
consumer demand for new foods. This may be the reason the Kraft Corporation does not prospect in remote places for rare and
unusual plants and animals to add to the world's diet. Of the roughly 235,000 flowering plants and 325,000 nonflowering plants
(including mosses, lichens, and seaweeds) available, farmers ignore virtually all of them in favor of a very few that are
profitable. n365 To be sure, any of the more than 600,000 species of plants could have an application in agriculture, but would
they be preferable to the species that are now dominant? Has anyone found any consumer demand for any of these half-million
or more plants to replace rice or wheat in the human diet? There are reasons that farmers cultivate rice, wheat, and corn rather
than, say, Furbish's lousewort. There are many kinds of louseworts, so named because these weeds were thought to cause lice
in sheep. How many does agriculture really require? [*911] The species on which agriculture relies are domesticated, not
naturally occurring; they are developed by artificial not natural selection; they might not be able to survive in the wild. n366
This argument is not intended to deny the religious, aesthetic, cultural, and moral reasons that command us to respect and
protect the natural world. These spiritual and ethical values should evoke action, of course, but we should also recognize that
they are spiritual and ethical values. We should recognize that ecosystems and all that dwell therein compel our moral respect,
our aesthetic appreciation, and our spiritual veneration; we should clearly seek to achieve the goals of the ESA. There is no
reason to assume, however, that these goals have anything to do with human well-being or welfare as economists understand
that term. These are ethical goals, in other words, not economic ones. Protecting the marsh may be the right thing to do for
moral, cultural, and spiritual reasons. We should do it-but someone will have to pay the costs. In the narrow sense of promoting
human welfare, protecting nature often represents a net "cost," not a net "benefit." It is largely for moral, not economic,
reasons-ethical, not prudential, reasons- that we care about all our fellow creatures. They are valuable as objects of love not as
objects of use. What is good for [*912] the marsh may be good in itself even if it is not, in the economic sense, good for
mankind. The most valuable things are quite useless.
is good enough. We can still do even better. Take, for example, starvation and the population explosion. In 1968,
one of the leading environmentalists, Dr Paul R Erlich, predicted in his bestselling book, The Population Bomb, that
"the battle to feed humanity is over. In the course of the 1970s, the world will experience starvation of tragic
proportions - hundreds of millions of people will starve to death." This did not happen. Instead, according to the UN,
agricultural production in the developing world has increased by 52% per person. The daily food intake in
developing countries has increased from 1,932 calories in 1961 - barely enough for survival - to 2,650 calories in
1998, and is expected to rise to 3,020 by 2030. Likewise, the proportion of people going hungry in these countries
has dropped from 45% in 1949 to 18% today, and is expected to fall even further, to 12% in 2010 and 6% in 2030.
Food, in other words, is becoming not scarcer but ever more abundant. This is reflected in its price. Since 1800,
food prices have decreased by more than 90%, and in 2000, according to the World Bank, prices were lower than
ever before. Erlich's prediction echoed that made 170 years earlier by Thomas Malthus. Malthus claimed that,
unchecked, human population would expand exponentially, while food production.
(Matt Ridley is the author of The Rational Optimist, a columnist for the Times (London)
and a member of the House of Lords. He spoke at Ideacity in Toronto on June 18., PCC commissioned models to see
if global warming would reach dangerous levels this century. Consensus is no , [ http://tinyurl.com/mgyn8ln ] ,
//hss-RJ)
The debate over climate change is horribly polarized. From the way it is
conducted, you would think that only two positions are possible: that the
whole thing is a hoax or that catastrophe is inevitable. In fact there is room
for lots of intermediate positions, including the view I hold, which is that
man-made climate change is real but not likely to do much harm, let alone
prove to be the greatest crisis facing humankind this century. After more
than 25 years reporting and commenting on this topic for various media
organizations, and having started out alarmed, thats where I have ended up.
But it is not just I that hold this view. I share it with a very large international
organization, sponsored by the United Nations and supported by virtually all
the worlds governments: the Intergovernmental Panel on Climate Change
(IPCC) itself. The IPCC commissioned four different models of what might happen to the
world economy, society and technology in the 21st century and what each would mean for the climate, given a
certain assumption about the atmospheres sensitivity to carbon dioxide. Three of the models show a moderate,
slow and mild warming, the hottest of which leaves the planet just 2 degrees Centigrade warmer than today in
2100. Curious to know what assumptions lay behind this model, I decided to look up the original papers describing
primary energy from coal, compared with about 30% today. Indeed, because oil is assumed to have become scarce,
a lot of liquid fuel would then be derived from coal. Nuclear and renewable technologies contribute little, because of
a slow pace of innovation and hence fossil fuel technologies continue to dominate the primary energy portfolio
over the entire time horizon of the RCP8.5 scenario. Energy efficiency has improved very little.
These are
highly unlikely assumptions. With abundant natural gas displacing coal on a huge scale in the United
States today, with the price of solar power plummeting, with nuclear power experiencing a revival, with gigantic
methane-hydrate gas resources being discovered on the seabed, with energy efficiency rocketing upwards, and with
population growth rates continuing to fall fast in virtually every country in the world, the one thing we can say
climate sensitivity based on observational data and they all converge on the conclusion that it is much lower than
assumed by the IPCC in these models. It has to be, otherwise global temperatures would have risen much faster
than they have over the past 50 years. As Ross McKitrick noted on this page earlier this week, temperatures have
not risen at all now for more than 17 years. With these much more realistic estimates of sensitivity (known as
transient climate response), even RCP8.5 cannot produce dangerous warming. It manages just 2.1C of warming
by 2081-2100. That is to say, even if you pile crazy assumption upon crazy assumption till you have an edifice of
vanishingly small probability, you cannot even manage to make climate change cause minor damage in the time of
our grandchildren, let alone catastrophe. Thats not me saying this its the IPCC itself. But what strikes me as truly
fascinating about these scenarios is that they tell us that globalization, innovation and economic growth are
unambiguously good for the environment. At the other end of the scale from RCP8.5 is a much more cheerful
scenario called RCP2.6. In this happy world, climate change is not a problem at all in 2100, because carbon dioxide
emissions have plummeted thanks to the rapid development of cheap nuclear and solar, plus a surge in energy
efficiency. The RCP2.6 world is much, much richer. The average person has an income about 15 times todays in real
terms, so that most people are far richer than Americans are today. And it achieves this by free trade, massive
globalization, and lots of investment in new technology. All the things the green movement keeps saying it opposes
worry
now in 2014 about a very small, highly implausible set of circumstances in
2100 that just might, if climate sensitivity is much higher than the evidence
suggests, produce a marginal damage to the world economy, makes no
sense. Think of all the innovation that happened between 1914 and 2000. Do we really think there will be less in
because they will wreck the planet. The answer to climate change is, and always has been, innovation. To
this century? As for how to deal with that small risk, well there are several possible options. You could encourage
innovation and trade. You could put a modest but growing tax on carbon to nudge innovators in the right direction.
You could offer prizes for low-carbon technologies. All of these might make a little sense. But the one thing you
should not do is pour public subsidy into supporting old-fashioned existing technologies that produce more carbon
dioxide per unit of energy even than coal (bio-energy), or into ones that produce expensive energy (existing solar),
or that have very low energy density and so require huge areas of land (wind). The IPCC produced two reports last
year. One said that the cost of climate change is likely to be less than 2% of GDP by the end of this century. The
other said that the cost of decarbonizing the world economy with renewable energy is likely to be 4% of GDP. Why
do something that you know will do more harm than good?
regulations, etc.)are based). Under the adjustments to the observed global temperature history put together by Cowtan and Way,
the models fare a bit better than they do with the unadjusted temperature record. That is, the observed temperature trend over the
past 34 years (the period of record analyzed by Cowtan and Way) is a tiny bit closer to the average trend from the collection of
climate models used in the new report from the U.N.s Intergovernmental Panel on Climate Change (IPCC) than is the old
temperature record. Specifically, while the trend in observed global temperatures from 1979-2012 as calculated by Cowtan and Way
is 0.17C/decade, it is 0.16C/decade in the temperature record compiled by the U.K. Hadley Center (the record that Cowtan and
Way adjusted). Because of the sampling errors associated with trend estimation, these values are not significantly different from one
another. Whether the 0.17C/decade is significantly different from the climate model average simulated trend during that period of
0.01C/decade in
the global trend measured over more than 30 years is pretty small beer and
doesnt give model apologists very much to get happy over. Instead, the
attention is being deflected to The Pausethe leveling off of global surface
temperatures during the past 16 years (give or take). Here, the new results
from Cowtan and Way show that during the period 1997-2012, instead of a
statistically insignificant rise at a rate of 0.05C/decade as is contained in the
old temperature record, the rise becomes a statistically significant
0.23C/decade is discussed extensively below. But, suffice it to say that an insignificant difference of
0.12C/decade. The Pause is transformed into The Slowdown and alarmists rejoice because global warming hasnt
stopped after all. (If the logic sounds backwards, it does to us as well, if you were worried about catastrophic global warming,
wouldnt you rejoice at findings that indicate that future climate change was going to be only modest, more so than results to the
contrary?) The science behind the new Cowtan and Way research is still being digested by the community of climate scientists and
(more so than the Antarctic) is warming faster than the global average, the lack of data there may mean that the global average
temperature trend may be underestimated. Cowtan and Way developed a methodology which relied on other limited sources of
temperature information from the Arctic (such as floating buoys and satellite observations) to try to make an estimate of how the
surface temperature was behaving in regions lacking more traditional temperature observations (the authors released an
informative video explaining their research which may better help you understand what they did). They found that the warming in
the data-sparse regions was progressing faster than the global average (especially during the past couple of years) and that when
they included the data that they derived for these regions in the computation of the global average temperature, they found the
global trend was higher than previously reportedjust how much higher depended on the period over which the trend was
calculated. As we showed, the trend more than doubled over the period from 1997-2012, but barely increased at all over the longer
period 1979-2012. Figure 1 shows the impact on the global average temperature trend for all trend lengths between 10 and 35
years (incorporating our educated guess as to what the 2013 temperature anomaly will be), and compares that to the distribution of
climate model simulations of the same period. Statistically speaking, instead of there being a clear inconsistency (i.e., the observed
trend value falls outside of the range which encompasses 95% of all modeled trends) between the observations and the climate
mode simulations for lengths ranging generally from 11 to 28 years and a marginal inconsistency (i.e., the observed trend value falls
outside of the range which encompasses 90% of all modeled trends) for most of the other lengths, now the observations track
closely the marginal inconsistency line, although trends of length 17, 19, 20, 21 remain clearly inconsistent with the collection of
making sure it is well mixed. The water surface temperature must hover around 33F until all the ice melts. Given that the nearsurface temperature is close to the water temperature, the limitations of land data become obvious. Considering all of the above, we
advise caution with regard to Cowtan and Ways findings. While adding high arctic data should increase the observed trend, the
nature of the data means that the amount of additional rise is subject to further revision. As they themselves note, theres quite a
bit more work to be done this area. In the meantime, their results have tentatively breathed a small hint of life back into the climate
models, basically buying them a bit more timetime for either the observed temperatures to start rising rapidly as current models
expect, or, time for the modelers to try to fix/improve cloud processes, oceanic processes, and other process of variability (both
Terror
No Uniqueness
Curtailing solitary confinement isnt something that links to a generic DA, opponents
must have a unique DA that deals with prisons.
No Link
Security cameras in solitary arent necessary to prevent
terrorist threats
Rosen 10 (Jeffrey, Law Professor @ George Washington University, "Times
Square, Bombs, and Big Crowds" The New York Times, May 3rd 2010)
Heres what we know about surveillance cameras. Theyre more or less useless in
deterring terrorism before it occurs. The best peer reviewed studies in Britain and
America find no connection between the proliferation of cameras and the
deterrence of serious crime or terrorism. Theyre also not useful in preventing
attacks in progress: the Times Square bombing was detected by alert street vendors
who saw the smoke and called the police. Cameras sometimes play a supporting
role in identifying the perpetrators after an attack has occurred. But in all the major
terrorist attacks since 9/11, including the London bombings, the perpetrators would
have been identified without the cameras. In the Times Square case, there was so
much forensic evidence at the crime scene that the police were able to identify the
former owner of the Pathfinder through the vehicle identification number, leading to
the arrest of the suspect on Monday night without necessarily relying on the
footage from more than 80 surveillance cameras.
No Internal Link
No Impacts
Impact Turn
Fem (Legalism)
No Uniqueness
No Link
Link Turn
No Internal Link
No Impacts
Impact Turn
Counter Plans
Court Extensions
Judicial independence key to SOP Courts have to act alone.
Center for Justice and Accountability 4 Amici Curiae in support of
petitioners in Al Odah et al. v USA, "Brief of the Center for Justice and
Accountability, the International League for Human Rights, and Individual Advocates
for the Independence of the Judiciary in Emerging Democracies," 3-10,
http://www.jenner.com/files/tbl_s69NewsDocumentOrder/FileUpload500/82/AmiciCuri
ae_Center_for_Justice_Int_League_Human_Rights_Adv_For_Indep_Judiciary2.PDF
Many of the newly independent governments that have proliferated over the past
five decades have adopted these ideals. They have emerged from a variety of less-than-free contexts,
including the end of European colonial rule in the 1950's and 1960's, the end of the Cold War and the breakup of the former Soviet
Union in the late 1980's and 1990's, the disintegration of Yugoslavia, and the continuing turmoil in parts of Africa, Latin America and
southern Asia.
others hang in the balance, struggling against the onslaught of tyrants to establish
stable, democratic governments. In their attempts to shed their tyrannical pasts and
to ensure the protection of individual rights, emerging democracies have
consistently looked to the United States and its Constitution in fashioning frameworks that
safeguard the independence of their judiciaries . See Ran Hirschl, The Political Origins of Judicial
Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions, 25 Law & Soc. Inquiry 91, 92 (2000)
(stating that of the [m]any countries . . . [that] have engaged in fundamental constitutional reform over the past three decades,
(2d Cir. 1995) (Calabresi, J., concurring) (Since World War II, many countries have adopted forms of judicial review, which though
different from ours in many particulars unmistakably draw their origin and inspiration from American constitutional theory and
practice. See generally Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989).). It is a
trend that continues to this day. It bears mention that the United States has consistently affirmed and encouraged the establishment
of independent judiciaries in emerging democracies. In September 2000, President Clinton observed that "[w]ithout the rule of law,
Remarks at Georgetown University Law School, 36 Weekly Comp. Pres. Doc. 2218 (September 26, 2000), available at
http://clinton6.nara.gov/2000/09/2000-09-26- remarks-by-president-at-georgetown-international-lawcenter. html. The United States
acts on these principles in part through the assistance it provides to developing nations. For example, the United States requires
that any country seeking assistance through the Millenium Challenge Account, a development assistance program instituted in
Judicial Review The best-known power of the Supreme Court is judicial review, or the
ability of the Court to declare a Legislative or Executive act in violation of the
Constitution, is not found within the text of the Constitution itself. The Court
established this doctrine in the case of Marbury v. Madison (1803). In this case, the
Court had to decide whether an Act of Congress or the Constitution was the
supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original
jurisdiction to issue writs of mandamus (legal orders compelling government
officials to act in accordance with the law). A suit was brought under this Act, but
the Supreme Court noted that the Constitution did not permit the Court to have
original jurisdiction in this matter. Since Article VI of the Constitution establishes the
Constitution as the Supreme Law of the Land, the Court held that an Act of Congress
that is contrary to the Constitution could not stand. In subsequent cases, the Court
also established its authority to strike down state laws found to be in violation of the
Constitution. Before the passage of the Fourteenth Amendment (1869), the
provisions of the Bill of Rights were only applicable to the federal government. After
the Amendment's passage, the Supreme Court began ruling that most of its
provisions were applicable to the states as well. Therefore, the Court has the final
say over when a right is protected by the Constitution or when a Constitutional right
is violated. Role The Supreme Court plays a very important role in our constitutional
system of government. First, as the highest court in the land, it is the court of last
resort for those looking for justice. Second, due to its power of judicial review, it
plays an essential role in ensuring that each branch of government recognizes the
limits of its own power. Third, it protects civil rights and liberties by striking down
laws that violate the Constitution. Finally, it sets appropriate limits on democratic
government by ensuring that popular majorities cannot pass laws that harm and/or
take undue advantage of unpopular minorities. In essence, it serves to ensure that
the changing views of a majority do not undermine the fundamental values
common to all Americans, i.e., freedom of speech, freedom of religion, and due
process of law.
Congress
Everything the congress passes must go through the courts eventually, if we save
time and go to the courts directly than we save time and solve for impact time
frame.
Executive Order
Obama is spending the small amount of political capital he has
left on gun control
Charles C.W. Cooke 2016
Charles C. W. Cooke is a writer at National Review and a graduate of the University of Oxford, at which he studied
modern history and politics. His work has focused especially on Anglo-American history, British liberty, free speech,
the Second Amendment, and American exceptionalism. He is the co-host of the Mad Dogs and Englishmen podcast,
and has broadcast for HBO (Real Time with Bill Maher), the BBC, MSNBC, Fox News, The Blaze, CNBC, CTV, ABC, Sun
News, and CBS. He has written for National Interest, the Washington Times, and the New York Post.
hes
going to use a good deal of his last years political capital in order to tweak a few minor rules
around the edges? Why? Even if were generous and presume that every single one of these regulations finds
played; a man who is supposed to reflexively refuse to be taken in by the emotion of the moment. And yet
its way permanently into the law, he will nevertheless have done nothing substantial to further universal
background checks; he will have instituted none of his coveted magazine limits; and he will have banned none of
the weapons that he disdains. Further,
whatsoever. In other
words: Even if he wins this round, he will have done precisely nothing of merit except perhaps
to have pleased his base and to have convinced the most ignorant parts of the electorate that he has finally stuck
his finger into the NRAs eye. Were these serious measures, I would be squealing. Instead, Im amused. These are
neither here nor there. He needs the applause line both now, and in his retirement and hes determined to get
it. When I say he did nothing of note, of course, I mean nothing of note to advance his agenda. As it happens,
the president has done something of note tonight:
Executive Rollback
Huge leeway for future presidents to roll back executive orders
Conor Friedersdorf, staff writer at the Atlantic, 5-28-2013, Does Obama Really
Believe He Can Limit the Next President's Power?
http://www.theatlantic.com/politics/archive/2013/05/does-obama-really-believe-hecan-limit-the-next-presidents-power/276279/
Obama doesn't seem to realize that his legacy won't be shaped by any
perspicacious limits he places on the executive branch, if he ever gets around to
placing any on it. The next president can just undo those "self-imposed" limits with
the same wave of a hand that Obama uses to create them. His influence in the
realm of executive power will be to expand it. By 2016 we'll be four terms deep in
major policy decisions being driven by secret memos from the Office of Legal
Counsel. The White House will have a kill list, and if the next president wants to add
names to it using standards twice as lax as Obama's, he or she can do it, in secret,
per his precedent.
Evidence:
Future presidents will roll back the CP empirics
Vanessa K. Burrows, Legislative Attorney for Congressional Research Service, 425-2010, Executive Orders: Issuance and Revocation,
http://assets.opencrs.com/rpts/RS20846_20100325.pdf
Illustrating the fact that executive orders are used to further an administrations
policy goals, there are frequent examples of situations in which a sitting President
has revoked or amended orders issued by his predecessor.37 This practice is
particularly apparent where Presidents have used these instruments to assert
control over and influence the agency rulemaking process. President Ford, for
instance, issued Executive Order 11821, requiring agencies to issue inflation impact
statements for proposed regulations.38 President Carter altered this practice with
Judicial rollback:
Courts can rule executive orders unconstitutional
Phillip Cooper, Professor of Public Administration at Portland State University,
2002, By Order of the President: The Use and Abuse of Executive Direct Action pg.
77
Despite the apparent deference by the judiciary to the president's orders, this
chapter has plainly demonstrated any number of instances in which the White
House has lost in court. Executive orders, both legal and illegal, can expose officials
to liability. It is an old argument, developed long before the battle over the so-called
Nuremberg defense, that illegal orders do not insulate a public official from liability
for his or her actions. The classic example harks back to Little v. Barreme 13 1
during the Washington administration. Even legal orders can expose the
government to liability. Though the federal courts have often upheld dramatic
actions taken by the president during difficult periods, they have not been hesitant
to support claims against the government later. The many cases that were brought
involving the U.S. Shipping Board Emergency Fleet Corporation after World War I
provide examples of just how long such postorder legal cleanup can take and how
much it can Cost. 112 Later, in a 1951 case, the Supreme Court subjected
government to claims by business for the damages done to their interests during
the government's operation of the coal mines during World War II after FDR seized
the mines in 1943.133 Thus, the legal issues that may arise are concerned with
both the validity of orders and with addressing the consequences of admittedly
legitimate decrees.
Judicial Review The best-known power of the Supreme Court is judicial review, or the
ability of the Court to declare a Legislative or Executive act in violation of the
Constitution, is not found within the text of the Constitution itself. The Court
established this doctrine in the case of Marbury v. Madison (1803). In this case, the
Court had to decide whether an Act of Congress or the Constitution was the
supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original
jurisdiction to issue writs of mandamus (legal orders compelling government
officials to act in accordance with the law). A suit was brought under this Act, but
the Supreme Court noted that the Constitution did not permit the Court to have
original jurisdiction in this matter. Since Article VI of the Constitution establishes the
Constitution as the Supreme Law of the Land, the Court held that an Act of Congress
that is contrary to the Constitution could not stand. In subsequent cases, the Court
also established its authority to strike down state laws found to be in violation of the
Constitution. Before the passage of the Fourteenth Amendment (1869), the
provisions of the Bill of Rights were only applicable to the federal government. After
the Amendment's passage, the Supreme Court began ruling that most of its
provisions were applicable to the states as well. Therefore, the Court has the final
say over when a right is protected by the Constitution or when a Constitutional right
is violated. Role The Supreme Court plays a very important role in our constitutional
system of government. First, as the highest court in the land, it is the court of last
resort for those looking for justice. Second, due to its power of judicial review, it
plays an essential role in ensuring that each branch of government recognizes the
limits of its own power. Third, it protects civil rights and liberties by striking down
laws that violate the Constitution. Finally, it sets appropriate limits on democratic
government by ensuring that popular majorities cannot pass laws that harm and/or
take undue advantage of unpopular minorities. In essence, it serves to ensure that
the changing views of a majority do not undermine the fundamental values
common to all Americans, i.e., freedom of speech, freedom of religion, and due
process of law.
States
No link:
No Net Benefit because politics DA doesnt link
Perm:
Perm is an example of cooperative federalism
Salkin and Ostrow 9
Patricia, Touro College - Jacob D. Fuchsberg Law Center, and Ashira, Hofstra
University - Maurice A. Deane School of Law, COOPERATIVE FEDERALISM AND
WIND: A NEW FRAMEWORK FOR ACHIEVING SUSTAINABILITY, HOFSTRA LAW REVIEW
Vol. 37:1049
Thus, rather than adopt preemptive national policies, federal regulatory
programs have long embraced cooperative regimes that utilize a mix of
federal, state, and local agencies to implement federal law.194 As Philip
Weiser explains: Cooperative federalism programs set forth some uniform
federal standardsas embodied in the statute, federal agency regulations, or
bothbut leave state agencies with discretion to implement the federal law,
supplement it with more stringent standards, and, in some cases, receive an
exemption from federal requirements. This power allows states to experiment
with different approaches and tailor federal law to local conditions.195 By
using a combination of federal, state, and local actors, cooperative federalism
captures the benefits of diversity in regulatory policy within a federal
framework.196
Courts Check
Courts check
Nagel 1- Robert F. Nagel, Law Professor, University of Colorado, March 2001,
ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE, p. 53
the
Supreme Court has recently issued a series of rulings that limit the power of the
national government. Some of these decisions, which set boundaries to Congress's power to regulate
commerce and to enforce the provisions of the Fourteenth Amendment, establish areas that are
subject (at least in theory) only to state regulation. Others protect the autonomy of
state governments by restricting congressional authority to expose state
governments to suit in either state or federal courts and to "commandeer"
state institutions for national regulatory purposes. Taken together, these
decisions seem to reflect a judgment held by a slight majority of the justices that the
dramatic expansion of the national government during the twentieth century
has put in jeopardy fundamental principles of constitutional structure .
In what appears to be an ambitious campaign to enhance the role of the states in the federal system,
Since the Edward Snowden leaks to The Guardian began last year, the National Security Agency (NSA) has been a
political hot potato. Yet, whatever you think of
authorized by federal
Some lawmakers in the state of Marylandhome to the NSAs headquarters in Ft. Meadehave
proposed an unconstitutional fix: They want to cut off electricity and water to
the building. This scheme forgets the basics of our constitutional system. Changes to the NSA must come at
statute.
recently
the federal level: Congress can direct legislative changes; the President can manage the agency consistent with
statute and his Article II authority; federal courts can ensure that the NSAs actions comply with statute and the
Constitution. States, however, have no business discriminating against federal agencies.
Article VI, clause 2 of the Constitutionthe Supremacy Clausereads: This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound
since 1819,
in a case called McCulloch v. Maryland, the Supreme Court of the United States has held that
the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner
control the operations of the constitutional laws enacted by Congress to carry into execution
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Ever
the powers vested in the General Government. Nearly 200 years later it seems Maryland has still not learned that
attempts to
interfere with the NSA by state legislators are clearly unconstitutional . These attempts
are so plainly out of bounds that the taxpayers of the state of Maryland might even be on the hook for
Department of Justice (DOJ) attorneys fees when the DOJ inevitably sues in federal court to
keep the power on and the water running.
lesson. If the law authorizing the NSA is constitutionally valid, then such direct, obvious
President Barack Obamas State of the Union address illustrated what a dead letter
federalism is among Democrats. Not that further illustration was necessary.
Federalism holds that the national government should limit itself to things of truly
national scope. Things that are primarily of local concern should be left to state and
local governments. Federalism was a big deal to the founders. They wanted an
energetic national government, but one that was confined to enumerated national
functions. The founders also envisioned a bright line between the federal and state
governments, each sovereign within their own spheres. We are a long way from
that. Today, the Democratic Party sees virtually nothing as outside the purview of
the federal government. The Republican Party talks a good game about federalism,
but usually ends up undermining the principle when it acquires national power.
Today, the lines between the federal government and state and local governments
are hopelessly blurred. The federal government spends over $600 billion a year on
grants to state and local governments. Arizona state government receives more in
federal funds than it raises in general-fund taxes. Today, state governments operate
principally as service delivery mechanisms for federal social-welfare programs. This
means that there is no real political accountability for the programs, which is why
they grow and function like a blob. If Medicaid costs are spinning out of control,
whos to blame and who should do something about it? The federal government
that provides most of the funding and sets up the basic rules, or the state
governments that actually administer the program? The food stamp program has
grown astronomically of late. Purely a function of a bad economy, or is there
something else going on? Whose job is it to figure that out? President Ronald
Reagan wanted to sort out the blob with his new federalism initiative, clearly
making some functions, such as Medicaid, fully federal, while making other
functions, including most welfare programs, fully state and local. There were some
Democratic governors at the time, including Arizonas Bruce Babbitt, who were also
interested in a sorting out of responsibilities. But agreement was never reached,
nothing of significance happened. So, the blob endured and grew. Obama proposes
to feed it even more. The federal government should establish manufacturing
innovation institutes in economically distressed areas and provide incentive grants
to states to increase the energy efficiency of homes and businesses. The federal
government should fix 70,000 bridges and create a federal fund to modernize ports
and pipelines. The federal government should have a new grant program to get
high-school graduates better ready for high-tech jobs. And, according to Obama, the
federal government should make sure that every kid has access to high-quality
preschool. The federal government, however, does not have a greater interest in the
recovery of economically distressed areas than the states in which they are located,
or greater insight into how to turn them around. Every bridge in America is located
in a state and local community that has a greater interest in its condition than the
federal government. Every port and pipeline in the United States is located in a
state and local community. If there are gains to be had from modernizing them,
local governments have a greater incentive to get it done and done right than the
federal government. Every kid in America lives in a state and local community that
is more interested in his education and workplace preparedness than the federal
government. What do we really have to show for the increased federal involvement
in education, under George W. Bush or Obama? The federal government is broke,
and broke in a way that threatens the American economy. Proposals that it do even
more are surreal, even if they are supposedly paid for. If theres loose change to be
had, the federal government should use it to reduce the deficit, not further expand
its reach.
Kritiks
end, rising affluence, democracy, and complexity can empower partisanship, but they can also destabilize it.
Perm Kritik:
The perm is net beneficial to the alt only the perm
establishes a praxis for sustainable rethinking
Bilgin 5 (Pinar, Department of International Relations Bilkent University,
Regional Security in the Middle East)
Although Devetak's approach to the theory/practice relationship echoes critical approaches'
conception of theory as a form of practice, the latter seeks to go further in shaping global
practices. The distinction Booth makes between 'thinking about thinking' and 'thinking about
doing' grasps the difference between the two. Booth (1997:114) writes: Thinking about
thinking is important, but, more urgently, so is thinking about doing. Abstract ideas
about emancipation will not suffice: it is important for Critical Security Studies to
engage with the real by suggesting policies, agents, and sites of change, to help
humankind, in whole and in part, to move away from its structural wrongs. In this sense,
providing a critique of existing approaches to security, revealing those hidden
assumptions and normative projects embedded in Cold War Security Studies, is only a first
(albeit crucial) step. It is vital for the students of critical approaches to re-think
security in both theory and practice .
Ableism
Agamben
Only the permutation is able to realize productive changethe
critique already informs policy
Chandler, IR professor at the University of Westminster, 10
[David, October 2010, The Uncritical Critique of Liberal Peace, Review of
International Studies, Volume: 36, p. 17-1, YGS]
the same time as claiming to stake everything on the assumed meaning and stakes involved in the critique of the
liberal peace.68
Feminism
Analytics:
The Gift
Marxism
**** Use the NeoLib stuff here it is pretty much the same stuff
Link Turn
Re-articulating existing institutions is more effective than
withdrawal their abstract goals ignore contingent
manifestations of violence that can be solved by the plan
Mouffe 9 (Chantal, Political Theory Prof @ Westminster, Westminster political
theory professor, The Importance of Engaging the State)
It is clear that, once we envisage social reality in terms of hegemonic and counterhegemonic practices, radical politics is not about withdrawing completely from
existing institutions. Rather, we have no other choice but to engage with hegemonic practices, in order to challenge
them. This is crucial; otherwise we will be faced with a chaotic situation . Moreover, if we do
not engage with and challenge the existing order, if we instead choose to simply escape the state
completely, we leave the door open for others to take control of systems of authority
and regulation. Indeed there are many historical (and not so historical)
examples of this. When the Left shows little interest, Right-wing and
authoritarian groups are only too happy to take over the state. The strategy of exodus
could be seen as the reformulation of the idea of communism, as it was found in Marx. There are many points in common between
the two perspectives. To be sure, for Hardt and Negri it is no longer the proletariat, but the Multitude which is the privileged political
subject. But in both cases the state is seen as a monolithic apparatus of domination that cannot be transformed. It has to wither
away in order to leave room for a reconciled society beyond law, power and sovereignty. In reality, as Ive already noted, others are
often perfectly willing to take control. If my approach supporting new social movements and counterhegemonic practices has
To
acknowledge the ever present possibility of antagonism to the existing order implies
recognising that heterogeneity cannot be eliminated . As far as politics is concerned, this means the
been called post-Marxist by many, it is precisely because I have challenged the very possibility of such a reconciled society.
need to envisage it in terms of a hegemonic struggle between conflicting hegemonic projects attempting to incarnate the universal
place in a field criss-crossed by antagonisms. A properly political intervention is always one that engages with a certain aspect of
the existing hegemony. It can never be merely oppositional or conceived as desertion, because it aims to challenge the existing
Multitude. For they seem to believe that the Multitude possesses a natural unity which does not need political articulation. Hardt and
Negri see the People as homogeneous and expressed in a unitary general will, rather than divided by different political conflicts.
perpetuated by a state, or when environmentalists, feminists, anti-racists and others come together to challenge dominant models
way, the construction of political demands is dependent upon the specific relations
of power that need to be targeted and transformed, in order to create the conditions for a new
hegemony. This is clearly not an exodus from politics. It is not critique as
withdrawal, but critique as engagement. It is a war of position that needs to
be launched, often across a range of sites, involving the coming together of a range
of interests. This can only be done by establishing links between social movements ,
political parties and trade unions, for example. The aim is to create a common bond
and collective will, engaging with a wide range of sites, and often institutions, with
the aim of transforming them. This, in my view, is how we should conceive the nature of radical politics.
fund research into HIV/AIDS, malaria, and TB, for example, in developing countries. That is a quarter of what all
nonviolent dispute resolution.66 This might be called the anti-Thrasymachus view of law. Early in Platos Republic (before Socrates
has tamed him), a young man called Thrasymachus describes justice as the advantage of the stronger.67 The claim is that might
makes right, and Western political and legal thought has produced many efforts to prove Thrasymachus and his heirs wrong. If
law distinguishes right from might, then it becomes important to say what
law is, and to show that it exists. Hence, many ongoing jurisprudential debates
about the criteria for a valid and functional system of law (including worries about legal
indeterminancy) are motivated by worries about arbitrary power and violence .68 To show
Thrasymachus to be mistaken, we want to show that the rule of law is really
different from the rule of (the strongest ) men. In legal theory, we could view John Austins positivism
law as commands backed by threats of punishmentas a descendant of Thrasymachuss claim.69 Here, I want to
examine briefly one of the most influential, and most plausible, efforts to show that law is something more and
different from the commands of a gunman: H. L. A. Harts response to Austin. Hart framed his discussion around the
question, What is law?.70 But perhaps, as the Stoppard passage that opened this essay suggests, beginning with
this question led us to conjure an image of law with various predicates that do not, as it turns out, include
existence. A second form of existential anxiety, one that I suspect shapes present talk of crisis, is the anxiety thast
Thrasymachus and Austin were right and law, if it is anything more than command and force, does not exist. For my
purposes here, the critical features of Harts account are the rule of recognition and the internal point of view. Since, in most of The Concept of Law, Hart
takes laws existence for granted, it is helpful to look at the passages where laws existence, or at least the existence of a particular form of law, is up for
grabs. In his classic discussion of the question, Is international law really law?, H. L. A. Hart deployed the concepts of a rule of recognition and the
internal point of view to conclude that international law was at most in a state of transition toward fully legal law, moving toward law properly so called but
certainly not yet there.71 At the time he wrote The Concept of Law, Hart believed that international law departed from domestic (or municipal) law in
that it lacked a widely accepted rule of recognition and in that states could not be said to take the internal point of view toward international obligations.
(Harts argument has been challenged by many contemporary scholars of international law, but that particular dispute need not occupy us here.72) For
law qua law to exist, Hart argued, there must be a rule of recognition under which the authoritative status of other rules was accepted or denied, and the
officials who would apply the rule of recognition must themselves take the internal point of view toward it. That is, the officials needed to view the rule of
recognition as a binding, authoritative guide to their own decisions. Suppose Hart was right and the rule of recognition and the internal point of view are
conditions for the existence of law. Two questions arise: what is the rule of recognition for constitutional law, and who must hold the internal standpoint
toward that rule? The Constitution itself initially seems a candidate for the rule of recognition, though the fact that the Constitution must itself be
interpreted leads some theorists to amend this account and say that the rule of recognition must include authoritative statements of the meaning of the
Constitution, under prevailing interpretive standards.73 As for the internal point of view, we might hope that all state officials would take this point of view
toward constitutional rules.74 In other words, we might hope that every state actor would comply with the U.S. Constitution because it is the Constitution,
not simply to avoid injunctions, or judicial invalidation of legislative action, or liability under 42 U.S.C. 1983. But Harts theory does not demand universal
adherence to an internal point of view. Even if legislators and other public officials complied with First or Fourth or Fourteenth Amendment doctrine only to
avoid invalidation or 1983 liability even if these public officials were the equivalent of Holmess bad manHart might find that constitutional law still
existed in a meaningful sense so long as the judges applying constitutional rules believed themselves to be bound by a constitutional rule of
recognition.75 Here is a possibility, one I believe we must take seriously and one that prompts anxiety about the existence of constitutional law itself:
there is no common rule of recognition toward which judges and other officials take an internal point of view.76 Individual judges may adhere to their
particular understandings of the rule of recognition the Constitution as interpreted by proper originalist methods, for example, or the Constitution as
elucidated by popular understandings. But the fact that individual state actors follow their own rules of recognition in good faith does not satisfy Harts
account of law, and it does not provide a satisfying alternative to Thrasymachus. (There is no reason, on the might-makes-right account, that the mighty
cannot hold the good faith belief that they are pursuing a common good or acting pursuant to rule-governed authority. What matters is that their power is
in fact traceable to their superior strength.) There is reason for academic observers to doubt the existence of a single rule of recognition in American
constitutional law. There are too many core interpretive disputes, as discussed in Part I, and it is now widely accepted that constitutional rules are at least
underdeterminatc. Should there be doubt about this claim, consider this feature of constitutional law textbooks: they include majority and dissenting
opinions, and questions after each case frequently ask the reader which opinion was more persuasive. Those questions are not posed as rhetorical. For
most constitutional decisions, we can say, it could have been otherwise. With a few votes switched, with a different line-up of Justices, the same
precedents (and in some cases, the same interpretive methodology) could have produced a different outcome. Moreover, these suspicions of
indeterminancy or underdetermi-nancy are not the unique province of the academy. Think of the discussions of Supreme Court appointments in
presidential elections. Many voters, law professors or not, understand their vote for president to be also a vote for a certain kind of Justice and for certain
kinds of constitutional outcomes. Discussions of Supreme Court appointments are often framed in terms of judicial methodology I will appoint judges
who are faithful to the text of the Constitution but that language may be more a matter of decorum than of real constitutional faith. Judges, of course,
are not ignorant of the charges of indeterminancy or of the politicization of judicial appointments. And it seems possible that the erosion of constitutional
faith has reached the judiciary itself.771 claim no special insight into judicial psychology, but it seems implausible that the reasons for constitutional
skepticismthe discussions of underdetermined rules, the contingency of outcomes based on 5-4 votes, and the great attention to swing justices such as
Sandra Day OConnor or Anthony Kennedyhave not influenced judges themselves. Here again it seems worthwhile to consider dissenting opinions.
Justice Scalias polemics come to mind immediately; he has often accused his colleagues of acting lawlessly.78 Yet he keeps his post and continues to
participate in a system that treats as law the determinations of five (potentially lawless) Justices. It is possible, I suppose, that Justice Scalias dissents
express earnest outrage, that he is shocked (shocked) by decisions like Lawrence v. Texas79 and Boumediene. It is possible that he believes himself to be
the last best hope of constitutional law properly so called. But it seems more likely that he shares the skepticism of academic observers of the Court.
Though one cant help but wonder whether judges are still constitutionally devout, I should emphasize here that my argument does
not turn on a claim that judges are acting in good or bad faith. Individual judges may well take the internal point of view, in Harts
not just a matter of Justice Scalias flair for colorful rhetoric. Consider Scott v. Harris, the recent decision granting
summary judgment (on the basis of qualified immunity) to a police officer who had rammed a passenger car during
a high-speed chase, causing an accident that left the driver a quadriplegic.80 Like most use-of-force opinions, the
decision applies a deferential Fourth Amendment standard that gives police officers wide leeway. What is unusual
about Harris is that, because the case arose as a civil suit under 42 U.S.C. 1983, the critical question (whether the
driver, Victor Harris, posed a sufficient threat to others bodily safety such that the use of deadly force was
reasonable) was nominally a jury question, and at summary judgment, the court should have taken the facts in the
light most favorable to the non-moving partythe injured driver. Thus, in earlier use-of-force cases that reached the
Court as 1983 claims, the Court articulated the Fourth Amendment standard and then remanded the case to the
trial court.81 But in Harris, the Court had access to videotapes of the chase recorded by cameras on the dashboards
of the police vehicles involved.82 In the view of the eight-Justice majority, the videotape spoke for itself: it made
Harriss threat to the public so clear that no reasonable juror could conclude that the officers use of force was
unreasonable.83 Accordingly, the Supreme Court found the officer to be entitled to summary judgment.84
Doubtless there are many instances in which a court grants summary judgment to one party though non-judicial
observers believe a reasonable juror could find for the other party. Harris is of particular interest, though, because
the reasonable juror who might have found in favor of Victor Harris was clearly visible to the majorityin fact, this
juror had a spokesman on the Court. Justice Stevens, the lone dissenter in Scott v. Harris, viewed the same
videotape and found it to confirm the factual findings of the district court (which had denied the police offic-ers
motion for summary judgment).85 Though Justice Stevens was careful not to base his argument on an actual
determination of the substantive Fourth Amendment question (chiding his colleagues for doing just that and
thereby acting as jurors rather than judges),86 he viewed the video evidence and explained how one might
conclude, perfectly reasonably, that Scott had used excessive force.87 In order for the eight Justices in the Harris
majority to believe their own opinion, they would have to conclude that Justice Stevens lived outside the realm of
reason. Harris is nominally a dispute about what reasonable jurors could conclude, rather than a direct argument
about the meaning of a particular constitutional provision. But the two reactions to the videotape should call to
mind Larry Tribes worry that American constitutional law is plagued by deep and thus far intractable divisions
between wholly different ways of assessing truth and experiencing reality.88 It is not just abortion and assisted
suicide that reveal profound disagreement about what is true and real. A videotape that speaks for itself in the
eyes of eight Justices says something entirely different to the ninth. Looking beyond the judiciary, consider the
consequences of constitutional disagreement and constitutional indeterminancy for other government officials and
for would-be critics of those officials. Earlier I noted that with sufficient constitutional indeterminancy, theres no
with sufficient
legal indeterminancy, theres no such thing as illegality . When John Yoo wrote
the Office of Legal Counsel memos that defend practices formerly known as torture, he
was simply doing to bans on torture what critics had long argued it was possible to
do for any law: he was trashing them.89 This was the spawn of CLS put to work in
the OLC; deconstructions on the left are now deconstructions on the
right.90 And that, of course, is cause for anxiety among those who would like to argue that George W. Bush or
members of his administration acted illegally. As I suggested in the Introduction, this may be the
Pyrrhic victory of critical legal studies: If the crits were correct, then there
is no distinctively legal form of critique. About torture, indefinite
detention, warrantless wiretapping, and so on, we can say I don't like it or
it doesnt correspond to my vision of the good, but we cannot say its
illegal. To argue that the Bush administration violated the rule of law, we need to
believe that the rule of law exists . But for 30 years or more, we have found reasons to doubt that it
such thing as an unconstitutional president. A more extreme version of this argument is that
does.91 Perhaps it will seem that I am overstating the influence of legal realism and critical legal studies, or the doubts about
laws existence. Im willing to entertain those possibilities, but I do want to emphasize that the focus is on constitutional law. Its
easy enough to believe in law when we see it applied and enforced by figures of authority in a recognized hierarchy. That is, the
sentencing judge or the prison warden can believe in lawhe has applied it himself. And the criminal should believe in law he has
felt its force. But these examples illustrate Austinian law: commands backed by force. What remains elusive, on my account, are
laws that are truly laws given to oneself, and especially law given by a state to itself.92 That is why, in Part I of this essay, I
use of force, but its absence: a system of law truly based on consent and independent of sanction. The Constitution, in theory, is a
each
successive generation must give the Constitution to itself: each generation
must adopt the internal point of view toward the Constitution in order for it to be
effective. Even once we have accepted the written text as authoritative, all but the strictest constructionists acknowledge that
law given unto oneself. By this I mean not simply that the Founders gave the Constitution to future generations, but that
many meanings can plausibly be extracted from that text. (And even the strict constructionists must acknowledge that as a factual
matter many meanings have been extracted; they deny only the plausibility of those varied readings.) Any law given unto oneself
requires what Hart called the internal point of view, and what one more cynical might describe as self-delusion: it requires a belief
that one is bound though one could at any minute walk away. It is possible, I think, that we have outwitted the Constitution: that
we have become too clever, too quick to notice indeterminancy, even too postmodern to believe ourselves bound. A third possible explanation for contemporary references to crisis
is professional malaise. It could be, as I suggested earlier, that after too many years of chewing what judges had for
breakfast, professors have lost their appetites. It could be that the problems of originalists and historicists and
popular constitutionalists dont amount to a hill of beans in this crazy world. And if these possibilities have not
crossed the law professors mind, they probably should. We might consider again Larry Tribes explanation of his
decision to stop work on his treatise of American constitutional law. There are two questions of meaning there, one
of which Tribe confronts directly and the other which he brushes off quickly. Most obviously, there is the search for
constitutional meaning, as Tribe acknowledges, a search that cannot be concluded within the Constitutions own
text. I see no escape from adopting some perspective... external to the constitution itself from which to decide
questions not indisputably resolved one way or the other by the text and structure--------9* Tribe goes on to
wonder where these extra-constitutional criteria come from, and who ratified the meta-constitution that such
external criteria would comprise?.94 Supreme Court Justices (and other judges) must struggle with these
questions, given the public authority that they have the enormous responsibility and privilege to wield.95 But
Tribe need not. He can simply decline to finish the treatise. If he declines to finish the treatise, though, we cant
help asking ourselves what was at stake, and what remains at stake. If the law professor lacks the responsibility of a
judge, is his constitutional theory just an amusing hobby? What was the point of the constitutional law treatise, or of
other efforts to discern coherent principles of constitutional law? The significance of a treatise is the question of
meaning that Tribe brushes off quickly: he says a treatise is an attempt at a synthesis of some enduring value and
insists that his decision is not based on doubts about whether constitutional treatises arc ever worthwhile.96 But
Tribes letter leaves the enduring value of a treatise rather underspecified, and it is possible that current
references to constitutional crisis in the academy stem from uncertainty about such questions of value. Is
constitutional theory good for absolutely nothing? Only if we believe that the effort
to resist Thrasymachus is futile or pointless. Constitutional theory is a species of legal and political theory,
and the most intriguing forms of such theory are produced by worries that law and violence are too closely intertwined.97 Thus I
suggested at the outset of this essay that existential anxiety is not always to be regretted, cured, or mocked. Such
anxiety
struggles to defend the irreducible fact of goodness,100 the possibility of a moral conscience, and the claim that there is more
Jumpers.102 The current discourse of crisis is the latest manifestation of an old struggle between faith and doubt, and it is not one
we
are determined to have law, even if we must make it ourselves. There was at least a smidgen of
truth in John Finniss claim that scholars of critical legal studies were disappointed ... absolutists.103 But it is not just
crits that are disappointed when they look for law and see nothing . Few scholars of
any stripe want to vindicate Thrasymachus. All of this is just to reiterate the
difficulty, and perhaps the necessity, of giving a law unto oneself. If constitutional
law did not exist, it would be necessary to invent it.
that we will resolve. On one hand, we have observed too much to believe (in law) unquestioningly. And on the other hand,
Perm
PERM do both - Reformism from with-in solves
Dixon 1 Activist and founding member of Direct Action Network Summer, Chris,
Reflections on Privilege, Reformism, and Activism, Online
To bolster his critique of 'reformism,' for instance, he critically cites one of the examples in my essay: demanding
or "structural" reforms. He contends, "a struggle for non-reformist reforms--for anti-capitalist reforms--is one which
does not base its validity and its right to exist on capitalist needs, criteria, and rationales. A non-reformist reform is
amnesty for undocumented immigrants, socialized health care, expansive environmental protections, indigenous
(Pierre-Guy, Independent journalist writing for the Von Mises Institute, 5/2, Cheer for the Environment,
Cheer for Capitalism, http://www.mises.ca/posts/blog/cheer-for-the-environment-cheer-for-capitalism/)
How can such a negligence have happened? Its simple: no one was
the legitimate owner of the resources (water, air, ground). When a property is stateowned as was the case under communism government has generally little incentive to
sustainably exploit it. In communist Europe, governments wanted to industrialize
their country in order, they hoped, to catch up with capitalist economies. Objectives were
set, and they had to be met no matter what. This included the use of brown coal,
high in sulfur and that creates heavy smoke when burned[4], and questionable farming
methods, which depleted the soil. This lack of vision can also be seen in the public sector of capitalist countries. In the US, the Department of
No Ownership, No Responsibility
Defense creates more dangerous waste than the top five chemical product companies put together. In fact, pollution is such that cleanup costs are
estimated at $20 billion. The same goes for agriculture, where Washington encourages overfarming or even farming not adapted for the environment its
property! In conclusion, I have to mention that I agree with environmentalists that it is importance to preserve the environment in order to protect mother
nature and humans. However, I strongly disagree with their means, i.e. government intervention. Considering it very seldom has a long-term vision, it is
the worst thing that can happen. In fact, one could says that
caused
many apparently knowledgeable people also seem to believe that, in the modern
world, most wars are caused by America; this impression is based on my experience of presenting
work on the frequency of wars to academic seminars in several European countries. According to the
evidence, however, these beliefs are mistaken. We are all aware of Americas wars,
but they make only a small contribution to the total . Counting all bilateral conflicts
involving at least the show of force from 1870 to 2001, it turns out that the countries
that originated them come from all parts of the global income distribution (Harrison and
educational status,
Countries that are richer, measured by GDP per head, such as America do
not tend to start more conflicts, although there is a tendency for countries with larger GDPs to do
so. Ranking countries by the numbers of conflicts they initiated, the United States,
with the largest economy, comes only in second place; third place belongs to China.
In first place is Russia (the USSR between 1917 and 1991). What do capitalist institutions
contribute to the empirical patterns in the data? Erik Gartzke (2007) has re-examined the
hypothesis of the democratic peace based on the possibility that, since capitalism and
democracy are highly correlated across countries and time, both
democracy and peace might be products of the same underlying cause,
the spread of capitalist institutions. It is a problem that our historical datasets have measured
the spread of capitalist property rights and economic freedoms over shorter time spans or on
Wolf 2011).
fewer dimensions than political variables. For the period from 1950 to 1992, Gartzke uses a measure of external
Countries
that share this attribute of capitalism above a certain level, he finds, do
not fight each other, so there is capitalist peace as well as democratic
peace. Second, economic liberalization (of the less liberalized of the pair of countries) is a more
powerful predictor of bilateral peace than democratization, controlling for the level
of economic development and measures of political affinity.
financial and trade liberalization as most likely to signal robust markets and a laissez faire policy.
Global warming may soon get a saviour more effective than Al Gore and his doomsday
Power-Point presentations: capitalism. The former U.S. vice-president, who was awarded the Nobel
Peace Prize last year for his work on climate change, is credited with bringing widespread attention to
the issue. But the huge moneymaking opportunity in going green will be the big driver
that leads to the reining in of the release of greenhouse gasses, experts say. Money
already is pouring into environmental initiatives and technologies in the U nited States.
Experts expect investment in the area to explode over the next few years if, as
anticipated, the government here imposes restrictions on the release of gases
believed to be behind climate change. "Capitalism will drive this, " said Vinod Khosla,
founding chief executive of Sun Microsystems and a longtime venture capitalist. Mr. Khosla, speaking
on a panel at a recent investment summit on climate change at United Nations headquarters here,
said getting consumers to curb their energy use has never worked -- unless they've
had a financial incentive. "If we make it economic, it will happen," he said. The expected
government-mandated cap on carbon emissions already is fueling innovation. Venture capitalists,
for instance, are investing in new technologies that would make cement -- a major
producer of carbon emissions -- actually absorb carbon instead. Cement makers could
practically give the product away and reap the financial reward from government carbon credits.
Alt Solvency
alt doesnt solve - Capitalism is inevitablereforms, not
revolution, are the only option.
Wilson, 2000 Editor and Publisher of Illinois Academe 2000 (John K. Wilson,
How the Left can Win Arguments and Influence People p. 15- 16)
Capitalism is far too ingrained in American life to eliminate. If you go into the most
impoverished areas of America, you will find that the people who live there are not
seeking government control over factories or even more social welfare programs;
they're hoping, usually in vain, for a fair chance to share in the capitalist wealth.
The poor do not pray for socialism-they strive to be a part of the capitalist system .
They want jobs, they want to start businesses, and they want to make money and
be successful. What's wrong with America is not capitalism as a system but
capitalism as a religion. We worship the accumulation of wealth and treat the
horrible inequality between rich and poor as if it were an act of God. Worst of all, we
allow the government to exacerbate the financial divide by favoring the wealthy: go
anywhere in America, and compare a rich suburb with a poor town-the city services,
schools, parks, and practically everything else will be better financed in the place
populated by rich people. The aim is not to overthrow capitalism but to overhaul it.
Give it a social-justice tune-up, make it more efficient, get the economic engine to
hit on all cylinders for everybody, and stop putting out so many environmentally
hazardous substances. To some people, this goal means selling out leftist ideals for
the sake of capitalism. But the right thrives on having an ineffective opposition. The
Revolutionary Communist Party helps stabilize the "free market" capitalist system
by making it seem as if the only alternative to free-market capitalism is a return to
Stalinism. Prospective activists for change are instead channeled into pointless
discussions about the revolutionary potential of the proletariat. Instead of working
to persuade people to accept progressive ideas, the far left talks to itself (which
may be a blessing, given the way it communicates) and tries to sell copies of the
Socialist Worker to an uninterested public.
Nietzsche Morality
Analytics: Aff solves Alt
Solitary confinement exists because of morals within prisons and the need to punish
the inmates for wrong doings, once solitary confinement is removed then morals
will be removed from prisons. Thus solving for the alt and making the prison
atmosphere immoral
end, rising affluence, democracy, and complexity can empower partisanship, but they can also destabilize it.
Security
No Link
Dogmatic realism leads us to universal truth- security threats
exist.
Kwan and Tsang 1 (Kai-Man, Department of Religion and Philosophy, Hong
Kong Baptist University, Kowloon Tong, Hong Kong, Eric W. School of Business
Administration, Wayne State University, Detroit, Michigan, U.S.A, December,
Strategic Management Journal, Vol. 22, No. 12 (Dec., 2001), pp. 1163-1168,
Realism and Constructivism in Strategy Research: A Critical Realist Response to Mir
and Watson,) CH
The problem with Mir and Watson here is again their failure to distinguish
different kinds of real- ism. It is important to distinguish a dogmatic realist from a critical realist.
Both believe that theories can be true or false, and rigorous scientific research can move us progressively
towards a true account of phenomena. Dogmatic realists further believe that current theories correspond
(almost) exactly to reality, and hence there is not much room for error or critical scrutiny. This attitude
is inspired by (but does not strictly follow from) a primitive version of positivism which
believes in indubitable observations as raw data and that an infallible scientific method can safely lead us
from these data to universal laws. In contrast, critical realists, though believing in the possibility of progress
towards a true account of phenomena, would not take such progress for granted. Exactly because they believe
that reality exists independently of our minds, our theories, observations and methods are all fallible. Critical
realists also insist that verification and falsification are never conclusive, especially in social sciences. So critical
testing of theories and alleged universal laws need to be carried out continuously. A more detailed description of
critical realism, which is now a growing movement transforming the intellectual scene.
Link Turn
States are the key actors who solve violence plan accesses
this best.
Weingast 9 (Barry, senior fellow at the Hoover Institution and \Professor in the
Department of Political Science at Stanford U, Why are developing countries so
resistant to the rule of law, February 2009, accessed 7/10/09,
http://cadmus.eui.eu/dspace/bitstream/1814/11173/1/MWP_LS_2009_02.pdf )
All states must control the fundamental problem of violence. In natural states, a dominant coalition of the
powerful emerges to solve this problem. The coalition grants members privileges, creates
rents through limited access to valuable resources and organizations, and then
uses the rents to sustain order. Because fighting reduces their rents, coalition
members have incentives not to fight so as to maintain their rents. Natural states
necessarily limit access to organizations and restrict competition in all systems.
Failing to do so dissipate rents and therefore reduces the incentives not to fight.
We call this order the natural state because for nearly all of the last 10,000 years of human
history indeed, until just the last two centuries the natural state was the only solution to
the problem of violence that produced a hierarchical society with significant wealth. In comparison
with the previous foraging order, natural states produced impressive economic
growth, and even today we can see the impressive wealth amassed by many of
the early civilizations. In contrast to open access orders, however, natural states
have significant, negative consequences for economic growth.
process that associates largely without single critical moments of decision.7 Decisions are taken all the time, but
they are dispersed, and it is relatively difficult to assign critically significant actions to particular actors or to
aggregate sets of actions into a limited group of actors who have the capacity to create an assemblage of security .
speech acts of security to concepts and methodologies that facilitate studying practices and processes of dispersed
associating. From the perspective of speech acts, this associating will mostly look unspectacular, unexceptional,
continuous and repetitive; instead of speech acts, we get the securitizing work of a multiplicity of little security
nothings. To briefly illustrate the shift in perspective that is implied here, let us re-read Daniel Neylands (2009)
example of how letters, as everyday objects, are transformed into an object of danger.8 In his analysis of mundane
terror, Neyland mentions a webpage on letter bombs that the British security service MI5 had temporarily set up.
The website was one device through which MI5 was securitizing letters. In setting out what a letter bomb is, how to
recognize a suspicious letter, how to deal with it, MI5 appropriated a mundane object in a securitizing process. The
letter bomb is not simply appropriated by a security agency, however. It also stands for a whole set of banal, little
connections (e.g. postal delivery, postal sorting, explosive or incendiary substances, posting, unusual place of
origin, couriers, recipients, the place of origin of the sender, police). Interpreting the website as an action by MI5 to
securitize letters by setting out a set of criteria and guidelines would focus attention on the gravitational force of
this moment and somehow disconnect it from the network of connections in which the website operates as a
mediator. Taking the website as a mediating device connecting things and people among whom suspicion of letters
might or might not already circulate would draw attention immediately to the diffuse associating that is taking
place. The website can be the starting point of the analysis, but it remains one particular thing and moment in a set
of connections and mediations that took place simultaneously, before and after. In the end, the analytics places the
website not as a securitizing moment with critical gravity that is, a moment in which one had a non-security
situation before and a security situation after but as one of several relatively small moments and actions that
invest insecurity in everyday objects and relations .
processes of securitizing challenge the boundary between security practice and daily life. The letters move through
a wide set of banal relations. Many surveillance practices can be read in a similar way. They are often strongly
embedded in everyday actions and relations, thus coming across as routine and banal, a banality that is reinforced
by the strong technological mediation of data and practice. Writing algorithms is central to the functioning of data
mining. Introducing loyalty cards to track consumption patterns, promoting credit-card payments as the obvious
form of payment thus making it possible to profile cash payments as suspicious, and developing many other datagathering devices are central to turning transactional traces into insecurity profiles. Many of these practices come
about in piecemeal fashion, slip into daily life without much ado and, when connected to the rendition and dispersal
of risks, precaution and control of dangers, fade out the distinction between the everyday and security practice.
The governing of sites and lives through risk calculation, for example, often
operates in diverse areas of life, meshing policing with insurance practice, business
with national security, etc.9 In these securitizing processes, daily life as a realm upon which security
professionals practice protection is folded into the security practice itself . Risk management,
surveillance and precautionary methods work within daily life, as much as upon it.
Credit cards, CCTV, filling in forms for a myriad of services, monitoring workers, consumer data, advertising that
sustains precautionary dispositions and products associated with risks (e.g. fertilizers) intertwine profiling, control
between the everyday and the exceptional challenges the notion of exceptionalist rupture that is embedded in the
speech act of security. The concept of rupture draws attention to a fixed frame of reference, a given order that has
been able to aggregate a multiplicity of practices, subjects and objects into a whole, expressing a particular
rationale. The rupture is an event that demonstrates the existence of order and its limits by breaking the habitual.
In exceptionalist readings of rupture, power consists in the capacity and practice of aggregating and fixing
multiplicity into a global practice and in the capacity to disrupt the aggregation so as to make new aggregations
possible.
Yet, decisional speech acts and ruptures lose much of their critical
significance in a securitizing process that creates insecurities mainly through
dispersing, through continuously associating, reassociating, tweaking and
experimenting with materials, procedures, regulations, etc. The scene of securitizing is then
not one of expressing or disrupting a given order but of creating things, meanings, subjects in habitual, everyday
innovation in meetings, discussions, regulations, programming, etc. Power is then to be understood as infinitesimal
mediations, as little nothings, dispersed in a continuously developing security bricolage that takes place in practices
of sketching, trials, meetings, regulations, etc. (Latour, 2005). Exceptional rupture gives way to innovations and
controversies that are worked in dispersed sites and habitual every day, ordinary practices of associating.11 In
relation to such processes, decisional speech acts with gravitas have at best limited analytical relevance and at
worst misconstrue the analysis by assigning excessive significance to actions that have limited power that are
themselves simply another little security nothings.
No Impact
No Alt Solvency
The transition from state structure to global cosmopolitanism
inevitably causes civil backsliding into neo-medievalism and
fails to eliminate power politics
Buzan 4 (Barry , December, Montague Burton Prof. of International Relations @
the London School of Economics and honorary prof. @ the University of
Copenhagen, "Realism vs. Cosmopolitanism" http://www.polity.co.uk/global/realismvs-cosmopolitanism.asp) JC
A.Mc.: Barry, I detected in your argument about globalization and the
democratization of world order that it is not only a question of feasibility, but also
there is a sense in which there are very important normative issues at stake.
Cosmopolitan or global democracy, even if it was feasible, may not be the best way
to proceed in terms of human political organization. Would that be an adequate
representation of your position? B.B.: That is a difficult question. I think that David is
right that posing the counterfactual requires me to sharpen the implications of my
argument. I am not advocating a world of fascists states or totalitarians or whatever
- of course not! I am merely pointing out that democratization should not be seen as
some kind of universal good; it also carries with it a set of problems. I do not claim
to have the answers to these problems, but I would like to comment a little on the
kind of picture that David is painting. It does seem to me (and I am taking my realist
hat off here because at this point I am leaving behind the great bulk of realists) that
there are two things to say. First, as the process of globalization unfolds, deepens
and strengthens - and I don't dispute that this is the world we are living in and
therefore that this is a time of transformation - this is going to raise serious
questions for political structure. I think these questions are going to be answered in
different ways in different parts of the global system. My sense is that in the most
developed and most democratic parts of the system, like western Europe and North
America, there is probably going to be a layering of power so that there will be, if
you like, an unpacking or disaggregation of sovereignty. Political authority will move
upwards and downwards, and will exist simultaneously on several different levels.
Hedley Bull once referred to this as neo-medievalism and that is not a bad
metaphor in some ways. This, however, only accounts for those most developed
parts of the system because what you are looking at here is the interplay between
the political units of the system and the system itself. And what globalization is
telling us is that the system is becoming stronger and stronger in relation to the old
political units within it. Now, the strong political units within the system may survive
by adapting and adopting some kind of neo-medieval framework, but what about
the rest? There are a lot of weak states in the international system and these are
going to have much more difficulty dealing with life in the strong system. Some of
them are already falling to pieces and it would not surprise me, putting on a futurist
hat, if a number of quite substantial unstable zones opened up and became semipermanent features of the system - perhaps one centring on Afghanistan, one in
West Africa, and one in Central Africa. One could imagine there being no effective
state structures, indeed no effective political structures at all in such places except
being about economics and society and many issues like the weather and
disease. And because of the change in the importance of the different sectors that I mentioned earlier,
this becomes problematic for realism. But the realists have been fairly agile. The realist line of
defence would be that in most areas of world politics - again the emphasis on politics - states are still the
principle authorities. And there is nothing that stops them from co-operating with each other. Thus, realists, or at least a
good proportion of realists, can live quite comfortably with the idea of international regimes in which states, as the basic holders
of political authority in the system, get together sometimes with other actors, sometimes just with other states, to discuss
issues of joint concern, and sometimes they can hammer out of a set of policies, a set of rules of the game, which enable them
this certainly does not feel like traditional power politics realism. You can
think of it to some extent in terms of power politics by looking at issue power; who are the big players in
relation to any big issue? Who are the people who have any kind of control? Who loses out?, etc..
to co-ordinate their behaviour. Now,
There is, therefore, an element of power politics in this whole notion of regimes,
and it does retain a strong element of state centrism. I think the realist would say: if you
discount the state, where is politics? Where is it located? You cannot eliminate politics, as some
liberals sometimes seem to do. To wish the state away, to wish politics away, is not going to generate
results. The good dyed-in-the-wool realist would argue that power politics is a permanent condition of human
existence. It will come in one form or another, in one domain or another, in relation to one issue or another, but it
will always be there. It will be politics and it will be about relative power. And at the moment the state is still an
important player in the game.
Permutations
Perm Do both
Perm Do plan then Alt
Perm- Do Alt then Plan
Perm- Do plan and all non conflicting parts of the alternative
Even highly critical studies of security are open to articulating
alternative visions of security We can perm do both to
effectuate reconstruction of security.
McDonald & Browning 2011 (Matt, Reader in International Relations, Coeditor, Australian Journal of Politics and History, Christopher, Reader of Politics and
International Studies, The future of critical security studies: Ethics and the politics of
security, pp. 240, http://www.bristol.ac.uk/medialibrary/sites/spais/migrated/documents/cssreading.pdf) WH
While articulating a foundational vision of security and advancing a fundamental
critique of traditional approaches, however, human security is ultimately better
understood (in Coxian terms) as problem-solving in orientation (Christie, 2010;
Newman, 2010). Indeed, critical security scholars have been particularly suspicious
of human security, not least given the compromises its advocates have been
prepared to make with state power and established structures of governance . As
Booth (2007: 324) puts it, human security has taken on the image of the velvet
glove on the iron hand of hard power. In this respect, critics suggest that human
security has been co-opted by Western states as a guise for the continued
promotion of liberal forms of governance around the world. Human security has, in
this sense become part of the ideological trappings which have helped foster the
linking together of security and liberal development policies by many Western
states and which at their most pernicious have become a cover and support for neoimperialist policies of military intervention in the developing world (Christie, 2010;
Duffield, 2007; Newman, 2010). As such, some scholarship which directly articulates
a vision of the good regarding security (such as human security) falls outside
reasonable limits of the critical security studies project, while some approaches
within this project (most notably critical constructivism and post-structuralism)
appear reluctant to articulate even a notion of progress regarding security. Despite
the unwillingness of the latter to articulate an explicit conception of progress , such a
conception is evident in the expressed commitment to opening up space for
communities to articulate alternative visions of security in the case of critical
constructivism, or in the commitment to resist the logic of security altogether in the
case of post-structuralism. The latter also largely applies to the Copenhagen
Schools commitment to desecuritization, a point we will return to later. In these
senses, we can indeed talk about engagement with the ethics of security as a core
component of a critical security studies project, even while such engagement has
oriented towards more pragmatic visions of progress than foundational claims
regarding the constitution of the good.
on to security as a concept for scholarly studies while scrutinizing its use in practice. The divide between the two
schools on this issue (whether to seek desecuritization or to use security for raising and addressing the concerns
of referents other than the state/regime) is not one of objectivist vs. constitutive understandings of theory, since
both approaches understand theorizing as a form of practice (see Chapter 5, this volume).
Whereas the
Copenhagen School makes a case for desecuritization (taking issues outside of the security
agenda and addressing them through normal political processes), the Welsh School re-theorizes
security as a derivative concept and calls for politicizing security . Welsh School
scholars preference for politicizing security as opposed to desecuritization rests
on three main arguments. The first argument is strategic. Desecuritization, they
argue, would amount to leaving security as a tool with a high level of mobilization
capacity in the hands of state elites who have not, so far, proven to be sensitive
towards the security concerns of referents other than the state and/or regime. While
the Copenhagen School makes a case for desecuritization for exactly this reason, the Welsh School turns
that argument around and asks: Are existential threats to security simply to be
abandoned to traditional, zero-sum, militarized forms of thought and action? (Wyn
Jones1999: 109). Viewed as such, politicizing security facilitates questioning of the
state elites uses of security and the merits of policies based on zero-sum, statist
and militaristic understandings. The second argument is ethico-political .The fact
that security has traditionally been about the state and its concerns does not mean
it has to remain that way. When defined by the state elite, the definition of security
could include anything and everything depending on their policy agenda. Depending on
the historico-political context, security agendas of states may indeed translate into zero-sum, militarist, statist and,
role of the scholar is viewed, in Edward Saids terms, as one of amplifying the voices of those who otherwise go
unheard (Said 1994; Enloe1996).The
critical project which has motivated my own research over the last decade. This
project requires walking a tricky path between what Matthew McDonald has called
the reconstructive and deconstructive agendas in security studies. 50 Many writers
argue that they simply cannot be reconciled. From the reconstructive end, Booth
has been sharply critical of some poststructuralist work on security which he thinks
fails to acknowledge, or create space for, an agenda which resignifies security in
terms of social justice or emancipation. He comments that : the poststructuralist approach
seems to assume that security cannot be common or positive-sum but must always be zero-sum, with
somebodys security always being at the cost of the insecurity of others. [Hence] security itself is questioned as
desirable goal They also tend to celebrate insecurity, which I regard as a middle-class affront to the truly
insecure.51 In some ways this critiquewhich cites writings by Michael Dillon and
James Der Derian as examplesis appropriate. He might also have included in this
list an article published in 2000 by Costas Constantinou. 52 While in some ways he
misunderstands what they are searching for (a route out of generalised politics of
alienation and fear, which make them as critical of realism as he is) it is important
to remind ourselves of the legitimate and almost universal concern of individuals
and communities for secure and stable lives. It is for this reason that in my own
work I have often endorsed the normative arguments of the Welsh School, Tickner,
the Secure Australia Project or the UNDPs 1994 Human development report. It
might be possible to read Booths comments as a critique of my argument in the
introduction to In fear of security, which challenges realist policy discourses for
generating Orwellian practices of security that sacrifice the security of others. I,
however, am implicitly working with a contrasting human security ideal. This,
manifestly, is not a celebration of insecurity. The power of statist ontologies of
security nevertheless led me to wonder if it might be better to speak of the human
needs and priorities named by security in their specificity: conflict prevention and
resolution, human rights, land and womens rights, the right to control ones own
economic destiny, etc. My concern was, and remains, that securitys perversion
authority (Kratochwil, 1989; Mearsheimer, 1994/95; Risse Kappen, 1994)? More specifically, which norms, and
whose, come to constitute the games nations play (Finnemore, 1996a; Katzenstein, 1996a; Klotz, 1995)? Finally,
how and why do certain collective expressions of human understanding, neither valid nor true a priori, develop into
social practices, become firmly established within social and political systems, spread around the world and become
of the selection of states, neorealism suggests that states must choose to survive or be marked for destruction by
powerful systemic constraints. George Modelskis long-cycles evolutionary theory (1990, 1996) is not very helpful
either, because it highlights the selection of global political systems by systemic war, that is, only by material
Neoliberals, on the other hand, are not oblivious to institutional selection and
ideas. Following rational choice theory, however, they concentrate on institutional efficiency in providing material
power.
benefits (Krasner, 1983; Stein, 1983). For example, although Peter Hall (1989) develops an elegant explanation of
why Keynesian economic ideas became politically, administratively and economically viable, he remains firmly
grounded in rational choice, because he aims at determining the structural conditions that affected the choice of
Keynesian ideas in different countries. Hendrik Spruyt (1994a, 1994b) suggests a different neoliberal explanation of
institutional selection. Trying to overcome the fallacy that the existence of the institution derives from the functions
it performs (Spruyt, 1994a: 532), he focuses on the selection of the sovereign territorial state from among its rivals.
Spruyt contends that the sovereign state was selected because it proved more effective at preventing defection by
its members, reducing internal transaction costs, and making credible commitments to other units (Spruyt, 1994a:
527).
A history of the
selection of institutions should include an account of the agents, the innovators, the carriers of collective
understandings who socially construct the alternatives, and the proofs that legitimate the choices. It also should
study the institutions that promote and socialize other actors to collective understandings and help to create social
order to answer at least some of the questions raised at the beginning of this section, we need to know how
cognitive and institutional variants make their appearance in the first place, how they display their merits as
solutions to international problems and how given favorable conditions they spread and establish themselves.
1991a)44 means that at any point in time and place of a historical process, institutional or social facts may be
socially constructed by collective understandings of the physical and the social world that are subject to
evolutionary theory is structurationist to the extent that individual and social actors successfully introduce
innovations that help transform or even constitute new collective understandings, which, in turn, shape the
Collective understandings,
such as norms, are not sufficient cause for actions; individual agents must act
according to their identities and as their interests dictate. Domestic and international politics,
identities and interests, and consequently the expectations, of social actors.
however, may sometimes keep them from acting in this way. Sometimes domestic politics is the arena in which
cognitive structures are politically and institutionally empowered, before they can make their mark on the
international scene. At other times, cognitive structures develop at the international level before leaving their mark
The capacity of institutions in different countries to learn and to generate similar interests will depend not only on
the acquisition of new information, but also on the political selection of similar epistemic and normative premises.
The political importance of these premises lies not in their being true, but in their being intersubjectively shared
ago there was no political value, and thus no interest, in arms control, sustainable development and universal
human rights. Today, both the value of and interest in all three are intersubjectively taken for granted
international security has come to depend on arms control practices. Domestic and international economic and
environmental decisions are increasingly shaped by our relatively recent discovery of the finite nature of our
global environment. Human rights have become a central factor in the interests of democratic nations because they
increasingly define their social identities. Because we invent concepts and categories that we use to carve up the
world . . . and find ourselves categorized as well (Kauffman, 1995: 300), the key demand made of the theory of
cognitive evolution is to explain how institutional facts become taken for granted. To be taken for granted,
institutional facts need to be naturalized, that is, to be taken as part of the natural order of the universe. Thus, to
be politically selected an institution must gain legitimacy by being grounded in nature and reason. Next, it
provides its members with a set of analogues with which to explore the world and justify the naturalness and
reasonableness of the institutionalized rules (Douglas, 1986: 112). The taken-for-grantedness process implies that
as certain ideas or practices become reified, competing ideas and practices are delegitimized. Second, unlike
rationalist thought,
best-fitted ideas, nor the most efficient institutions, that become naturalized or
reified, but those that prove most successful at imposing collective meaning and
function on physical reality. I have in mind ideas that help produce a balance
or temporary consensus between competing trends within governments
and societies, and between them, and that may serve as a rallying point
for the formation of dominant coalitions. Third, to be taken for granted, institutional
facts must be backed by power; in other words, intersubjective ideas must have
authority and legitimacy and must evoke trust .45 Institutional facts are more likely to become
established when agents, acting on their behalf, manage to frame reality around authoritative meanings (scientific
or not) and/or gain control of the social support networks of politics, making it too difficult and costly for opponents
political selection is driven by political leaders intersubjective expectations of progress, that is, by ideas and
institutions that conform to concepts that have been brought to public awareness as involving new and/ or
progressive solutions to critical political problems. Expectations of progress can be based on experience, scientific
understandings and even myths. Thus political selection becomes a function of what is collectively regarded as
better or worse, which in turn depends on intersubjective understandings and prior social agreements about
good and bad. What leaders can see or not see depends on collective normative and causal understandings
institutional
facts acquire prominence when people are collectively aware of the problem in
practical terms. Institutions dispose individuals to follow the rules because they can
intervene in the world to solve a problem. It is only in and through practice that
social facts acquire self-criticism and transformation procedures that
make the whole process rational (Toulmin, 1972). Finally, institutional facts
collectively emerge both from socialization processes that involve the diffusion of
meanings from country to country and from political and diplomatic processes that
include negotiation, persuasion and coercion. Particularly noteworthy is the role of persuasion.
about what is needed and about which needs should be promoted to the level of interests. Sixth,
Persuasion is a struggle to define mutual understandings that underpin identities, rights, grievances, . . . interests,
[and] attempts to control behavior through a wide range of social sanctions, only one of which is the use of force
(Klotz, 1992: 11). When political actors interact, cooperatively or otherwise, they may be able to affect each others
understanding so that they can have a shared definition of their situation; they can collectively identify beneficial
courses of action and recognize them as norms; and they can try to persuade each other to enact such norms
through symbolic communication that threatens or enhances face or dignity (Barnes, 1995: 77). For example, one
of the most relevant roles of the Conference on Security and Cooperation in Europe during the Cold War was to
serve as a forum where shared meanings between East and West were socially constructed by means of
persuasion.
recent scholarship that emphasizes the cultural aspects of decisions about the
use of force in war (Legro, 1995), military doctrine (Kier, 1996, 1997), military strategy
(Johnston, 1995) and war proneness (Ross, 1993) suggests a fruitful research direction for
constructivists to take. Military strategy is a particularly promising field for constructivist research because
the structural situation in which the actors find themselves in a strategic game
situation characterized by interdependent reciprocal expectations (Schelling, 1960:
207) results not only from material objects or independent subjective beliefs, but
also from dynamic intersubjective understandings based on shared historical
experience, epistemic criteria, expectations of proper action and, most important,
the existence or lack of mutual trust. A constructivist reading of Schellings theory should emphasize
issue,
the role played by social communication and by the transfer from nation to nation of meanings, concepts and
norms in socially constructing the intersubjective understandings and the focal points that make a peaceful
solution to the strategic game possible. As Schelling himself remarked the
theoretical
knowledge was neither just reasoning about an external reality, as positivists
would have it, nor simply a practice produced to discipline society to the rituals of
power, as postmodernists might interpret it. Rather, strategic theory, by contributing
to intersubjective understandings about strategic and arms control practices,
provided reasons to actors and thus affected the material world. It is also remarkable how
little appreciation there is in the International Relations literature of the fact that, like any other social institution,
war is socially constructed and consequently partly depends for its persistence on
collective ideas about the inevitability of war and its desirability for achieving
political gain, riches and glory. Constructivists should be able to test John Muellers theory of the
obsolescence of major war (Mueller, 1989) by showing whether, as a practice, war is collectively being
redefined as inefficient, undesirable and normatively unacceptable. Constructivists
can try to show whether and how changes in nuclear technology (Jervis, 1988) and
values of war (Mueller, 1989) are helping to constitute anti-war identities that promote
the development of war-prevention national interests and strategies (Adler, 1991b).
Finally, although the notion that the social construction of an enemy (the other) is part of the development of
identities of self has been validated by social identity theory (Mercer, 1995) and analysed by postmodern scholars
(Campbell, 1996), constructivists have yet to develop research projects that can show how enemies and military
threats are socially constructed by both material and ideational factors.
say that security studies needs to move away from studying the role of ideas, institutions, and instruments of
organized violence in political life. In this respect, the continuing defenders of traditional strategic/security studies
But if we are to
understand these realities, we must take them more seriously than the abstractions
of neorealism allow. We must grasp the genesis and structure of particular security
problems as grounded in concrete historical conditions and practices, rather than in
abstract assertions of transcendental rational actors and scientific methods. We
must understand the genesis of conflicts and the creation of the dilemmas of
security as grounded in reflexive practices rather than as the outcome of timeless structures.56 An
approach to security that begins from the foundation of practice provides new ways
of understanding the nature and genesis of particular conflicts and security
challenges. It also, however, provides new ways of thinking about solutions to those
conflicts, and about the conditions of stability, peace, and security. Rather than
remaining within the theory of hegemonic stability or the balance of power,
structures of cooperation and security can be seen as underpinned by deeper
commonalities. They need not depend on the existence of external threats, nor on
the presence of a hegemon in the neorealist sense.
are correct (although this formulation will probably leave them uncomfortable).
experience of Western policy makers in dealing with socalled ethnic conflicts highlights one aspect of this issue.
Equally,
strategic/security studies has hardly provided understanding or guidance for
achieving security in the post-Cold War world. Thinking about security in light of
these alternative conceptions moves the inquiry far afield from the supposed
certainties of neorealist strategic studies, but it is a path that must be followed
further (and with much more sophistication) if we are to develop understandings of
security more adequate to human survival and well-being.
the earth itself as the latest bearer of the historical task are not yet particularly convincing either.
addressed by asking not just how we study security, but what it is that is being
secured. In the dominant (neorealist) conception, the primary referent for security has been the state. While
many current arguments challenge the adequacy of this state centric conception,
they have rarely examined systematically the implications of so doing. Two
elements are necessary in such a reconsideration. First, one must come to terms with the
reasons why the state centric conception still holds such sway and exercises such
disciplinary authority. To challenge it necessarily involves understanding its claims at
a deeper level, especially because defenders of the neorealist conception have
mounted a spirited defense of the prevailing intellectual order. Second, the construction
of different conceptions of security also requires a retheorization. While many
analyses provide useful insights into areas traditionally ignored, or into new challenges that
need to be taken account of, they have rarely reflected fully on their own foundations. A result
of this disciplinary turmoil is that reconceptualizing security has often come to resemble a grab bag of different
issue areas, lacking a cohesive framework for analyzing the complementary and contradictory themes at work.
While he agrees that economic, ecological and social questions represent issues
of real concern, Dorff denies that they represent security issues : There is no
conceptual thread in the Kegley list that holds them all together except that they are
problems. This is not to downplay the serious nature of some of these problems, but
problems is not a concept. It does not help us organize the content of what we teach let alone how we
teach. Problems provides us with no ordering of reality that we can use to create a
common understanding of what it is that we are talking about and the range of
possible policy approaches to addressing those problems. 11
10
Security Good
Security is necessary, it has emancipatory effects that frees
one up to peaceful cooperation.
Bilgin, 2008
(Pinar, Ph.D. in International Politics from the University of Wales, Aberystwyth,
Critical Theory, Security Studies: An Introduction, Routlege, pp. [91-92]) AV
Understanding security as a derivative concept, thereby recognizing its culturebound character, does not render the search for security any more difficult. This is
because security is also an instrumental value ... that frees people(s) to
some degree to do other than deal with threats to their human being (Booth
2005a: 22). While no single universal definition of security may be possible, working definitions are
nevertheless needed to inform our practices. Notwithstanding their differences, all
philosophical worldviews agree on the human need for security, since it
frees possessors to a greater or lesser extent from life-determining
constraints and so allows different life possibilities to be explored (Booth
2005a: 22). Recognizing security as an instrumental value also guards against the
tendency to treat it as an end-point rather than as a process through which human
beings find anchorages ... as [they] contemplate navigating the next stage of
history (Booth 1995: 119). This, in turn, opens up the possibility for people with
different political outlooks to negotiate with each other and to work
towards finding ways of coexistence without depriving the others of their
life chances (Alker 2005: 203207).
Neolib
Permutation
Rejection fails-leaves people politically immobile due to lack of
vision. Perm solves best because it pragmatically incorporates
neoliberal elements for social good AND our framework is
superior because it promotes experimentation over theoretical
rejection (also a reason to default to specificity)
Ferguson, Stanford anthropology chair and professor, 2010
(James, Toward a left art of government: from Foucauldian critique to Foucauldian
politics,History of the Human Sciences 2011 24: 61, SAGE)
One of the founding premises of this special issue and the conference with which it began is that Foucault has been read, and used,
in different ways in different academic disciplines. In this article I will discuss one common way of using Foucaults thought in my
own discipline of anthropology.
critique power (as it is often put) has frequently led to a rather sterile form of political engagement. Attention
to some of Foucaults own remarks about politics hints at a different political sensibility, in which empirical experimentation rather
than moralistic denunciation takes center place. I will reference some examples of such experimentation that come out of my
current research on the politics of social assistance in southern Africa (though I do not have space here to give a full exposition of
these). The sort of use of Foucault that I have in mind is well represented in the anthropology of development (and the related field
or that it was illegitimate for someto seek to govern the conduct of others.On the contrary, he repeatedly insisted that it made no sense
(in his scheme of things) to wish for a world without power.1 Naive readings of Foucault turned his skeptical analytics of power into a simple denunciation. Thus the question (once posed to him by an interviewer) of whether it would
be an intolerable use of power for a parent to prevent a child from scribbling on the walls of a house. Foucaults instructive answer was: If I accepted the picture of power that is frequently adopted namely, that its something
horrible and repressive for the individual its clear that preventing a child from scribbling would be an unbearable tyranny. But thats not it. I say that power is a relation. A relation in which one guides the behavior of others. And
theres no reason why this manner of guiding the behavior of others should not ultimately have results which are positive, valuable, interesting, and so on. If I had a kid, I assure you he would not write on the walls or if he did, it
would be against my will. The very idea! (Foucault, 1988a: 1113) In the same interview, he complained of those who . . . think Im a sort of radical anarchist who has an absolute hatred of power. No! What Im trying to do is to
approach this extremely important and tangled phenomenon in our society, the exercise of power, with the most reflective, and I would say prudent, attitude. . . . To question the relations of power in the most scrupulous and
) In fact, Foucault
was as fascinated and attracted by power as he was by resistance, and his
fundamental concern was with how (not whether) power is exercised. This led him,
naturally enough, to the problem of government, which he inevitably took up as a
pragmatic puzzle. Some contemporary practitioners of what I have termed Foucauldian critique seem to
think it is some sort of scandal that people should be governed at all supposing it to be
attentive manner possible, looking into all the domains of its exercise, thats not the same thing as constructing a mythology of power as the beast of the apocalypse. (ibid.: 1113
somehow illegitimate that some should seek to guide the conduct of others. But Foucault took a deep and largely sympathetic
failure to develop an autonomous governmentality comparable to liberalism (Foucault, 2008: 934). This observation leads to a
question that must be a central one for what I am here terming Foucauldian politics. That is :
First, in much of the world (and especially in the poorest parts of it), formal wage labor does not
play the central role that so much left thought ascribes to it .
this.
heart of ideologies of state socialism, even as the extraction of labor was foundational to its political economy. But the able bodied worker was hardly less central to the workings of social democracies and welfare states, where
Keynesian policies implied a kind of pact between capital and labor, mediated by the state. Society, in such a scheme, was grounded on the (normatively male) wage earning worker and his family, while social welfare
intervention was available for those left outside the security of labor (whether through injury, old age, or periodic dips in the business cycle). Insurance rationality provided the technical means for universalizing certain sorts of social
citizenship (at the level of the nation-state) on the basis of the non-universal (but sufficiently widespread) social condition of wage labor. This template never really applied very well to Africa, where wage laborers have always been a
. And it applies even less well today, when economic restructuring and
de-industrialization have meant that formal wage employment is ever more the
exception than the rule.
small minority of the population
In the rapidly expanding cities of todays Africa, the great mass of the population is not employed in the usual sense of the word, and increasingly lacks connections
(or rights) to land as well. Neither workers nor peasants, they dwell in the socalled informal economy, eking out a meagre survival through an impressive range of improvised bits of this and that (cf. Davis, 2007). The poverty of our
analytical vocabulary in describing such people and their way of life (Are they the lumpen? The youth? The informal whatever that means?) ismatched by our inability to conceive of forms of politics that would given them a
central place. Certainly, the old left strategy of dismissing such people as a residual and degenerate fringe (Marxs lumpenproletariat) can hardly suffice when we are talking (as we often are today) about the majority of the
. The second challenge I wish to note to conventional left thinking is the rise of
forms of social assistance that bypass nation -states.
population
The usual left stance identifies neo-liberalism as the enemy of the state, and thus of
such social goods as welfare and pensions. But in much of Africa, most forms of social assistance are funded and implemented by non-state agencies. This has long been the case, in many areas, thanks to the key role of Christian
missions in providing education, health care and other social services from the colonial era onward. The NGO revolution of the recent decades has only accentuated the pattern, to the point where many of the key governmental
imagined as being (at least potentially) the agents of development and resistors of imperialism.
been justified, but they have not led to very effective forms of politics. Might another sort of left
politics not be possible one that would look forward and try to identify new
possibilities and openings in the current transnational regime , instead of looking back to an
(often misremembered or idealized) era of sovereign developmental states ? And (crucially for my
purposes here), might it not be possible to identify or discover new arts of
government that might take advantage of (rather than simply fighting against)
recent transformations in the spatial organization of government and social
assistance? This is the sort of rethinking that will be necessary if we are to get beyond the politics of the anti and arrive at a
convincing response to Foucaults challenge to develop a true left art of government. Such rethinking will have to
be willing to decenter the two sacred touchstones of 20th-century progressive
politics the worker and the nation-state while finding or reinventing techniques
of government that can gain traction in settings where most of the masses are not
workers, and most social services are not delivered by state s. In such circumstances, simply
attacking neo-liberalism and defending the welfare state is not terribly helpful. What is needed instead is a revitalized
notion of the political good and of what social assistance might mean in a world where so many of the assumptions of the
Keynesian welfare state no longer obtain. In matters of social policy, Foucaults 1983 observation remains true nearly a quartercentury later: We are still bound up with an outlook that was formed between 1920 and 1940, mainly under the influence of
Beveridge, a man who was born over a hundred years ago. For the moment . . . we completely lack the intellectual tools necessary
to envisage in new terms the form in which we might attain what we are looking for. (Foucault, 1988b: 166) My recent work is
concerned with empirical domains in which some of the conceptual innovation that Foucault called for may be under way.
Perhaps the most provocative finding to date is that some of the most interesting
and promising new forms of government being devised seem to be taking market
mechanisms that we are used to associating with neo-liberalism , and putting them
to new political uses.
Consider, for instance, new anti-poverty programs in southern Africa that seek to provide cash support for incomes, and thus (in theory) harness markets to the task of
meeting the needs of the poor. This is happening in several African countries, but also in a great many other postcolonial states from Brazil and Venezuela to Mexico and Bangladesh where leftist and rightist regimes alike have
seen fit to introduce policies that transfer cash directly into the hands of the poor (Fiszbein and Schady, 2009; cf. Ferguson, 2010). The South African Basic Income Grant campaign is the example I know best. This involves a proposal
to deal with a crisis of persistent poverty by providing a small unconditional minimum monthly payment to all. The argument goes like this: markets are not working for poor people because they are too poor to participate in them.
Government programs are not working for them because the state is inefficient. So: provide income support directly, in the form of cash, then say to the poor: You are now empowered to solve your own problems in the way you see
best. In contrast to older forms of welfare assistance, the claim is that such grants rely on poor peoples own ability to solve their own problems, without imposing the policing, paternalism and surveillance of the traditional welfare
state. The social of the social welfare state is largely discarded, in this scheme. Assistance is largely decoupled from familistic assumptions and insurance rationality alike, while the state is imagined as both universally engaged (as
a kind of direct provider for each and every citizen) and maximally disengaged (taking no real interest in shaping the conduct of those under its care, who are seen as knowing their own needs better than the state does). (See
Standing and Samson, 2003; Barchiesi, 20007; Ferguson, 2007.) Similar new lines of thought are visible in recent campaigns for an increased role for direct cash transfers in many forms of social and humanitarian policy. For instance,
an increasingly influential argument in the area of humanitarian assistance maintains that hunger is best dealt with by boosting the purchasing power of those at risk, rather than by distributing food aid. The current international
food aid system involves taking excess grain (produced under subsidized conditions in rich countries) and transporting it to places (largely in Africa) where people are at risk of hunger. Following Amartya Sen, critics have long noted
the perverse effects of this: depressing producer prices for local farmers, and damaging the local institutions for producing and distributing food crops. Once food aid has arrived, local food production often never recovers, and the
temporary crisis becomes permanent. As an alternative, Sens followers have pushed for cash payments to be made directly to those at risk of food deficit. People with money in their pockets, Sen points out, do not starve. And the
economic chain of events that is set in motion by boosting purchasing power leads (through market forces) to increased capacity for local production and distribution (Sen, 1983; Dreze and Sen, 1991). The argument recalls Jane
Guyers groundbreaking work on feeding African cities (1989). Consider, Guyer suggests, how food ends up in bellies in the vast mega-cities of West Africa such as Lagos. The logistical task of moving thousands of tons of food each
day fromthousands of local producers to millions of urban consumerswould be beyond the organizational capacity of any state (to say nothing of the less-than-exemplary Nigerian one). Here, market mechanisms, drawing on the
power of vast self-organizing networks, are very powerful, and very efficient. Such forms of organization must appear especially attractive where states lack capacity (and let us remember how many progressive dreams in Africa
Why should relying on this sort of mechanism be inherently rightwing? Well, the answer is obvious: markets serve only those with purchasing power. But the
food aid example shows a way of redirecting markets toward the poor , by intervening not to
restrict the market, but to boost purchasing power. I have become convinced that (at least in the case
of food aid) this is good public policy. Is it also neo-liberal? Perhaps that is not the
right question. Let us rather ask: Are there specific sorts of social policy that might draw on
characteristic neo-liberal moves (like using markets to deliver services) that would also be
genuinely pro-poor? That seems to me a question worth asking. It seems clear that the
governmental programs I have discussed here do draw on recognizably neo-liberal
elements (including the valorization of market efficiency, individual choice and autonomy; themes of entrepreneurship; and
skepticism about the state as a service provider).2 But those who advocate and fight for these policies
would insist that they are, in fact pro-poor , and that they are ways of fighting against (rather than
have crashed on the rocks of low state capacity).
capitulating to) the growing inequality that recent neo-liberal economic restructuring has produced. These claims, I think, are not
And this, in turn, raises the fascinating possibility that the neo-liberal and the pro-poor may
not be so automatically opposed as we are used to supposing. What is of special interest here is the
easily dismissed.
way that certain sorts of new progressive initiatives may involve not simply
opposing the neo-liberal project, but appropriating key mechanisms of neo-liberal
government for different ends. This does not mean that these political projects are therefore suspect
contaminated by their association with neo-liberal rationality. Rather, it means that they are appropriating
certain characteristic neo-liberal moves (and I think of these discursive and programmatic moves as
analogous to the moves one might make in a game) that while recognizably neo-liberal, can be used
for quite different purposes than that term usually implies.
As I have argued in a related paper (Ferguson, 2010), this situation
may be analogous to the way that statistical techniques that were developed in the 19th century for calculating the probabilities of workplace injuries eventually became building blocks of the insurance techniques that enabled the
rise of the welfare state. Such techniques were originally developed in the 19th century by large employers to control costs, but they eventually became the technical basis for social insurance, and ultimately helped enable
unprecedented gains for the working class across much of the world (Ewald, 1986). Techniques have no necessary loyalty to the political program within which they were developed, and mechanisms of government that were
invented to serve one purpose can easily enough be appropriated for surprising other uses. Market techniques of government such as those I have discussed were, like workplace statistics, undoubtedly conservative in their original
To be sure: we need to
be skeptical about the facile idea that problems of poor people can be solved simply
by inviting them to participate in markets and enterprise . Such claims (which often ascribe almost
uses. But it seems at least possible that they may be in the process of being creatively appropriated, and repurposed for different and more progressive sorts of ends
magical transformative powers to such unlikely vehicles as social entrepreneurship or microcredit) are almost always misleading,
devices. These devices originated within a neo-liberal project that deserves all the criticism it gets. But they may be in the process
The political demands and policy measures I have mentioned here (whether conditional cash transfers, basic income, or cash-based food aid) do not merit, I
think, either wholesale denunciation or uncritical acceptance. Instead, they call on us to remain skeptical and vigilant, but also curious and hopeful. They leave us less with strong opinions than with the sense that we need to think
about them a bit more, and learn a bit more about the specific empirical effects that they may produce. Are cash transfers, for instance, a device for demobilizing the poor (as some traditional Marxists claim) effectively buying the
political quiescence of those who have the most to gain from radical social change for a paltry sum? Or do they have the contrary effect, as many proponents of basic income argue opening up a new space of mobilization and
political demand by radically decoupling labor and consumption and opening a new domain of decommodification? This is not a question to be answered theoretically or ideologically; the only answer that really convinces is the
insisted that what was required for a progressive rethinking of social policy was not a theoretically derived line, but, as he put it, a
certain empiricism. We have to transform the field of social institutions into a vast experimental field, in such a way as to decide
which taps need turning, which bolts need to be loosened here or there, to get the desired change. . . . What we have to do . . . is to
increase the experiments wherever possible in this particularly interesting and important area of social life. (Foucault, 1988b: 165)
What this implies is a form of politics that has less to do with critique and denunciation than with
experimentation and assessment. It is a matter not of refusing power, but rather exercising it in a way that would be
provisional, reversible, and open to surprise.
Sanchez, Machado Borges Neto and Marques demonstrate in Chapter 2, monetarist economists and other neo-liberal reformers are
firmly entrenched within the Central Bank, the Ministry of Economics, and the Finance Ministry of Brazil. It is for this reason that the
Lula government has maintained an orthodox monetary and fiscal policy that sets these members of the socalled economic team
against members of the PT's political team, who occupy other positions in the government and the party, and who prefer (or
preferred) a decided shift away from neo-liberalism. In this way, in Pierre Bourdieu's terms (1999), the legacy of neoliberalism in the
region is felt today in the tension between a 'right hand' of the state, charged with maintaining economic orthodoxy, and a 'left
hand', generally represented by the ministries of education, health, labour and social welfare, seeking to push policy in a post-neoliberal direction. The Venezuelan case, as Edgardo Lander demonstrates in Chapter 3, vividly illustrates both the presence of these
national and international restrictions and how circumstances can make them less restrictive. Lander points out that Chavez's Fifth
Republic Movement government has generated an unprecedented increase in social spending, channelled primarily through the socalled misiones: programmes to expand the coverage, and improve the quality, of basic public services (health, education, infant
nutrition, etcetera) in poor areas. This social policy~ whose popularity has been evident in the many elections in which marginalised
classes have consistently voted for Chavez, including a recall referendum (see Lopez Maya, 2004) ~ was made possible by the
reorientation toward social spending of Venezuela's oil revenue, which has been exceptionally high in recent years and is without
parallel in other countries of the region. This extraordinary source of foreign exchange has diminished the influence of international
financial institutions and the restrictions burdening other leftist governments that are dependent on international capital. At the
same time, the Venezuelan experience illustrates the tight restrictions produced by national resistance to changes in economic
policy. The redirection of oil income towards social investment took place only after a prolonged strike by the Venezuelan business
class, who were joined by the personnel of the state-owned oil company. While these and other obstacles are recognised by the
parties, governments and movements of the new left, there are profound debates and divisions over the possible room for
manoeuvre within the indicated limits, and the capacity of governments, whether on their own or with the support of social
movements, to go beyond those limits and increase the possible range of economic policies. As Daniel Chavez asks in his chapter on
Uruguay, to what extent are the narrow margins for manoeuvre a product of the decisions of the governments themselves? To what
extent are these governments being more 'fundist' than the International Monetary Fund? Judging by the intense controversy
surrounding the Lula government, both internal and external to the PT - which even led to the December 2003 expulsion of PT
members of Congress who had criticised the government - these questions trace deep lines of division within the new left.6 While
the government and the PT leadership contend that prudence and orthodoxy are necessary conditions for opening space for postneo-liberal policies, their critics call for a change of course and assert that the imperatives of macroeconomic stability are equivalent
to a permanent conversion to neo-liberalism.
aspirations costitute the essential points of reference on the left's navigation rule.
Link Turns
Re-articulating existing institutions is more effective than
withdrawal their abstract goals ignore contingent
manifestations of violence that can be solved by the plan
Mouffe 9 (Chantal, Political Theory Prof @ Westminster, Westminster political
theory professor, The Importance of Engaging the State)
It is clear that, once we envisage social reality in terms of hegemonic and counterhegemonic practices, radical politics is not about withdrawing completely from
existing institutions. Rather, we have no other choice but to engage with hegemonic practices, in order to challenge
them. This is crucial; otherwise we will be faced with a chaotic situation . Moreover, if we do
not engage with and challenge the existing order, if we instead choose to simply escape the state
completely, we leave the door open for others to take control of systems of authority
and regulation. Indeed there are many historical (and not so historical)
examples of this. When the Left shows little interest, Right-wing and
authoritarian groups are only too happy to take over the state. The strategy of exodus
could be seen as the reformulation of the idea of communism, as it was found in Marx. There are many points in common between
the two perspectives. To be sure, for Hardt and Negri it is no longer the proletariat, but the Multitude which is the privileged political
subject. But in both cases the state is seen as a monolithic apparatus of domination that cannot be transformed. It has to wither
away in order to leave room for a reconciled society beyond law, power and sovereignty. In reality, as Ive already noted, others are
often perfectly willing to take control. If my approach supporting new social movements and counterhegemonic practices has
To
acknowledge the ever present possibility of antagonism to the existing order implies
recognising that heterogeneity cannot be eliminated . As far as politics is concerned, this means the
been called post-Marxist by many, it is precisely because I have challenged the very possibility of such a reconciled society.
need to envisage it in terms of a hegemonic struggle between conflicting hegemonic projects attempting to incarnate the universal
place in a field criss-crossed by antagonisms. A properly political intervention is always one that engages with a certain aspect of
the existing hegemony. It can never be merely oppositional or conceived as desertion, because it aims to challenge the existing
Multitude. For they seem to believe that the Multitude possesses a natural unity which does not need political articulation. Hardt and
Negri see the People as homogeneous and expressed in a unitary general will, rather than divided by different political conflicts.
perpetuated by a state, or when environmentalists, feminists, anti-racists and others come together to challenge dominant models
way, the construction of political demands is dependent upon the specific relations
of power that need to be targeted and transformed, in order to create the conditions for a new
hegemony. This is clearly not an exodus from politics. It is not critique as
withdrawal, but critique as engagement. It is a war of position that needs to
be launched, often across a range of sites, involving the coming together of a range
of interests. This can only be done by establishing links between social movements ,
political parties and trade unions, for example. The aim is to create a common bond
and collective will, engaging with a wide range of sites, and often institutions, with
the aim of transforming them. This, in my view, is how we should conceive the nature of radical politics.
nonviolent dispute resolution.66 This might be called the anti-Thrasymachus view of law. Early in Platos Republic (before Socrates
has tamed him), a young man called Thrasymachus describes justice as the advantage of the stronger.67 The claim is that might
makes right, and Western political and legal thought has produced many efforts to prove Thrasymachus and his heirs wrong. If
law distinguishes right from might, then it becomes important to say what
law is, and to show that it exists. Hence, many ongoing jurisprudential debates
about the criteria for a valid and functional system of law (including worries about legal
indeterminancy) are motivated by worries about arbitrary power and violence .68 To show
Thrasymachus to be mistaken, we want to show that the rule of law is really
different from the rule of (the strongest ) men. In legal theory, we could view John Austins positivism
law as commands backed by threats of punishmentas a descendant of Thrasymachuss claim.69 Here, I want to
examine briefly one of the most influential, and most plausible, efforts to show that law is something more and
different from the commands of a gunman: H. L. A. Harts response to Austin. Hart framed his discussion around the
question, What is law?.70 But perhaps, as the Stoppard passage that opened this essay suggests, beginning with
this question led us to conjure an image of law with various predicates that do not, as it turns out, include
existence. A second form of existential anxiety, one that I suspect shapes present talk of crisis, is the anxiety thast
Thrasymachus and Austin were right and law, if it is anything more than command and force, does not exist. For my
purposes here, the critical features of Harts account are the rule of recognition and the internal point of view. Since, in most of The Concept of Law, Hart
takes laws existence for granted, it is helpful to look at the passages where laws existence, or at least the existence of a particular form of law, is up for
grabs. In his classic discussion of the question, Is international law really law?, H. L. A. Hart deployed the concepts of a rule of recognition and the
internal point of view to conclude that international law was at most in a state of transition toward fully legal law, moving toward law properly so called but
certainly not yet there.71 At the time he wrote The Concept of Law, Hart believed that international law departed from domestic (or municipal) law in
that it lacked a widely accepted rule of recognition and in that states could not be said to take the internal point of view toward international obligations.
(Harts argument has been challenged by many contemporary scholars of international law, but that particular dispute need not occupy us here.72) For
law qua law to exist, Hart argued, there must be a rule of recognition under which the authoritative status of other rules was accepted or denied, and the
officials who would apply the rule of recognition must themselves take the internal point of view toward it. That is, the officials needed to view the rule of
recognition as a binding, authoritative guide to their own decisions. Suppose Hart was right and the rule of recognition and the internal point of view are
conditions for the existence of law. Two questions arise: what is the rule of recognition for constitutional law, and who must hold the internal standpoint
toward that rule? The Constitution itself initially seems a candidate for the rule of recognition, though the fact that the Constitution must itself be
interpreted leads some theorists to amend this account and say that the rule of recognition must include authoritative statements of the meaning of the
Constitution, under prevailing interpretive standards.73 As for the internal point of view, we might hope that all state officials would take this point of view
toward constitutional rules.74 In other words, we might hope that every state actor would comply with the U.S. Constitution because it is the Constitution,
not simply to avoid injunctions, or judicial invalidation of legislative action, or liability under 42 U.S.C. 1983. But Harts theory does not demand universal
adherence to an internal point of view. Even if legislators and other public officials complied with First or Fourth or Fourteenth Amendment doctrine only to
avoid invalidation or 1983 liability even if these public officials were the equivalent of Holmess bad manHart might find that constitutional law still
existed in a meaningful sense so long as the judges applying constitutional rules believed themselves to be bound by a constitutional rule of
recognition.75 Here is a possibility, one I believe we must take seriously and one that prompts anxiety about the existence of constitutional law itself:
there is no common rule of recognition toward which judges and other officials take an internal point of view.76 Individual judges may adhere to their
particular understandings of the rule of recognition the Constitution as interpreted by proper originalist methods, for example, or the Constitution as
elucidated by popular understandings. But the fact that individual state actors follow their own rules of recognition in good faith does not satisfy Harts
account of law, and it does not provide a satisfying alternative to Thrasymachus. (There is no reason, on the might-makes-right account, that the mighty
cannot hold the good faith belief that they are pursuing a common good or acting pursuant to rule-governed authority. What matters is that their power is
in fact traceable to their superior strength.) There is reason for academic observers to doubt the existence of a single rule of recognition in American
constitutional law. There are too many core interpretive disputes, as discussed in Part I, and it is now widely accepted that constitutional rules are at least
underdeterminatc. Should there be doubt about this claim, consider this feature of constitutional law textbooks: they include majority and dissenting
opinions, and questions after each case frequently ask the reader which opinion was more persuasive. Those questions are not posed as rhetorical. For
most constitutional decisions, we can say, it could have been otherwise. With a few votes switched, with a different line-up of Justices, the same
precedents (and in some cases, the same interpretive methodology) could have produced a different outcome. Moreover, these suspicions of
indeterminancy or underdetermi-nancy are not the unique province of the academy. Think of the discussions of Supreme Court appointments in
presidential elections. Many voters, law professors or not, understand their vote for president to be also a vote for a certain kind of Justice and for certain
kinds of constitutional outcomes. Discussions of Supreme Court appointments are often framed in terms of judicial methodology I will appoint judges
who are faithful to the text of the Constitution but that language may be more a matter of decorum than of real constitutional faith. Judges, of course,
are not ignorant of the charges of indeterminancy or of the politicization of judicial appointments. And it seems possible that the erosion of constitutional
faith has reached the judiciary itself.771 claim no special insight into judicial psychology, but it seems implausible that the reasons for constitutional
skepticismthe discussions of underdetermined rules, the contingency of outcomes based on 5-4 votes, and the great attention to swing justices such as
Sandra Day OConnor or Anthony Kennedyhave not influenced judges themselves. Here again it seems worthwhile to consider dissenting opinions.
Justice Scalias polemics come to mind immediately; he has often accused his colleagues of acting lawlessly.78 Yet he keeps his post and continues to
participate in a system that treats as law the determinations of five (potentially lawless) Justices. It is possible, I suppose, that Justice Scalias dissents
express earnest outrage, that he is shocked (shocked) by decisions like Lawrence v. Texas79 and Boumediene. It is possible that he believes himself to be
the last best hope of constitutional law properly so called. But it seems more likely that he shares the skepticism of academic observers of the Court.
Though one cant help but wonder whether judges are still constitutionally devout, I should emphasize here that my argument does
not turn on a claim that judges are acting in good or bad faith. Individual judges may well take the internal point of view, in Harts
not just a matter of Justice Scalias flair for colorful rhetoric. Consider Scott v. Harris, the recent decision granting
summary judgment (on the basis of qualified immunity) to a police officer who had rammed a passenger car during
a high-speed chase, causing an accident that left the driver a quadriplegic.80 Like most use-of-force opinions, the
decision applies a deferential Fourth Amendment standard that gives police officers wide leeway. What is unusual
about Harris is that, because the case arose as a civil suit under 42 U.S.C. 1983, the critical question (whether the
driver, Victor Harris, posed a sufficient threat to others bodily safety such that the use of deadly force was
reasonable) was nominally a jury question, and at summary judgment, the court should have taken the facts in the
light most favorable to the non-moving partythe injured driver. Thus, in earlier use-of-force cases that reached the
Court as 1983 claims, the Court articulated the Fourth Amendment standard and then remanded the case to the
trial court.81 But in Harris, the Court had access to videotapes of the chase recorded by cameras on the dashboards
of the police vehicles involved.82 In the view of the eight-Justice majority, the videotape spoke for itself: it made
Harriss threat to the public so clear that no reasonable juror could conclude that the officers use of force was
unreasonable.83 Accordingly, the Supreme Court found the officer to be entitled to summary judgment.84
Doubtless there are many instances in which a court grants summary judgment to one party though non-judicial
observers believe a reasonable juror could find for the other party. Harris is of particular interest, though, because
the reasonable juror who might have found in favor of Victor Harris was clearly visible to the majorityin fact, this
juror had a spokesman on the Court. Justice Stevens, the lone dissenter in Scott v. Harris, viewed the same
videotape and found it to confirm the factual findings of the district court (which had denied the police offic-ers
motion for summary judgment).85 Though Justice Stevens was careful not to base his argument on an actual
determination of the substantive Fourth Amendment question (chiding his colleagues for doing just that and
thereby acting as jurors rather than judges),86 he viewed the video evidence and explained how one might
conclude, perfectly reasonably, that Scott had used excessive force.87 In order for the eight Justices in the Harris
majority to believe their own opinion, they would have to conclude that Justice Stevens lived outside the realm of
reason. Harris is nominally a dispute about what reasonable jurors could conclude, rather than a direct argument
about the meaning of a particular constitutional provision. But the two reactions to the videotape should call to
mind Larry Tribes worry that American constitutional law is plagued by deep and thus far intractable divisions
between wholly different ways of assessing truth and experiencing reality.88 It is not just abortion and assisted
suicide that reveal profound disagreement about what is true and real. A videotape that speaks for itself in the
eyes of eight Justices says something entirely different to the ninth. Looking beyond the judiciary, consider the
consequences of constitutional disagreement and constitutional indeterminancy for other government officials and
for would-be critics of those officials. Earlier I noted that with sufficient constitutional indeterminancy, theres no
with sufficient
legal indeterminancy, theres no such thing as illegality . When John Yoo wrote
the Office of Legal Counsel memos that defend practices formerly known as torture, he
such thing as an unconstitutional president. A more extreme version of this argument is that
was simply doing to bans on torture what critics had long argued it was possible to
do for any law: he was trashing them.89 This was the spawn of CLS put to work in
the OLC; deconstructions on the left are now deconstructions on the
right.90 And that, of course, is cause for anxiety among those who would like to argue that George W. Bush or
members of his administration acted illegally. As I suggested in the Introduction, this may be the
Pyrrhic victory of critical legal studies: If the crits were correct, then there
is no distinctively legal form of critique. About torture, indefinite
detention, warrantless wiretapping, and so on, we can say I don't like it or
it doesnt correspond to my vision of the good, but we cannot say its
illegal. To argue that the Bush administration violated the rule of law, we need to
believe that the rule of law exists . But for 30 years or more, we have found reasons to doubt that it
does.91 Perhaps it will seem that I am overstating the influence of legal realism and critical legal studies, or the doubts about
laws existence. Im willing to entertain those possibilities, but I do want to emphasize that the focus is on constitutional law. Its
easy enough to believe in law when we see it applied and enforced by figures of authority in a recognized hierarchy. That is, the
sentencing judge or the prison warden can believe in lawhe has applied it himself. And the criminal should believe in law he has
felt its force. But these examples illustrate Austinian law: commands backed by force. What remains elusive, on my account, are
laws that are truly laws given to oneself, and especially law given by a state to itself.92 That is why, in Part I of this essay, I
use of force, but its absence: a system of law truly based on consent and independent of sanction. The Constitution, in theory, is a
each
successive generation must give the Constitution to itself: each generation
must adopt the internal point of view toward the Constitution in order for it to be
effective. Even once we have accepted the written text as authoritative, all but the strictest constructionists acknowledge that
law given unto oneself. By this I mean not simply that the Founders gave the Constitution to future generations, but that
many meanings can plausibly be extracted from that text. (And even the strict constructionists must acknowledge that as a factual
matter many meanings have been extracted; they deny only the plausibility of those varied readings.) Any law given unto oneself
requires what Hart called the internal point of view, and what one more cynical might describe as self-delusion: it requires a belief
that one is bound though one could at any minute walk away. It is possible, I think, that we have outwitted the Constitution: that
we have become too clever, too quick to notice indeterminancy, even too postmodern to believe ourselves bound. A third possible explanation for contemporary references to crisis
is professional malaise. It could be, as I suggested earlier, that after too many years of chewing what judges had for
breakfast, professors have lost their appetites. It could be that the problems of originalists and historicists and
popular constitutionalists dont amount to a hill of beans in this crazy world. And if these possibilities have not
crossed the law professors mind, they probably should. We might consider again Larry Tribes explanation of his
decision to stop work on his treatise of American constitutional law. There are two questions of meaning there, one
of which Tribe confronts directly and the other which he brushes off quickly. Most obviously, there is the search for
constitutional meaning, as Tribe acknowledges, a search that cannot be concluded within the Constitutions own
text. I see no escape from adopting some perspective... external to the constitution itself from which to decide
questions not indisputably resolved one way or the other by the text and structure--------9* Tribe goes on to
wonder where these extra-constitutional criteria come from, and who ratified the meta-constitution that such
external criteria would comprise?.94 Supreme Court Justices (and other judges) must struggle with these
questions, given the public authority that they have the enormous responsibility and privilege to wield.95 But
Tribe need not. He can simply decline to finish the treatise. If he declines to finish the treatise, though, we cant
help asking ourselves what was at stake, and what remains at stake. If the law professor lacks the responsibility of a
judge, is his constitutional theory just an amusing hobby? What was the point of the constitutional law treatise, or of
other efforts to discern coherent principles of constitutional law? The significance of a treatise is the question of
meaning that Tribe brushes off quickly: he says a treatise is an attempt at a synthesis of some enduring value and
insists that his decision is not based on doubts about whether constitutional treatises arc ever worthwhile.96 But
Tribes letter leaves the enduring value of a treatise rather underspecified, and it is possible that current
references to constitutional crisis in the academy stem from uncertainty about such questions of value. Is
constitutional theory good for absolutely nothing? Only if we believe that the effort
to resist Thrasymachus is futile or pointless. Constitutional theory is a species of legal and political theory,
and the most intriguing forms of such theory are produced by worries that law and violence are too closely intertwined.97 Thus I
suggested at the outset of this essay that existential anxiety is not always to be regretted, cured, or mocked. Such
anxiety
After so much talk of crisis and anxiety, consider an illustration from the dramatic genre. Tom
features a troupe of philosophy professors who double as acrobats: Logical positivists, mainly, with a linguistic
analyst or two, a couple of Benthamite utilitarians ... lapsed Kantians and empiricists generally... and of course the usual
Behaviorists... a mixture of the more philosophical members of the university gymnastics team and the more gymnastic members of
struggles to defend the irreducible fact of goodness,100 the possibility of a moral conscience, and the claim that there is more
Jumpers.102 The current discourse of crisis is the latest manifestation of an old struggle between faith and doubt, and it is not one
we
are determined to have law, even if we must make it ourselves. There was at least a smidgen of
truth in John Finniss claim that scholars of critical legal studies were disappointed ... absolutists.103 But it is not just
crits that are disappointed when they look for law and see nothing . Few scholars of
any stripe want to vindicate Thrasymachus. All of this is just to reiterate the
difficulty, and perhaps the necessity, of giving a law unto oneself. If constitutional
law did not exist, it would be necessary to invent it.
that we will resolve. On one hand, we have observed too much to believe (in law) unquestioningly. And on the other hand,
unfortunate and generally overlooked truth is that capitalists are often neither supporters nor practitioners of
capitalism. Businessmen frequently violate the principles of capitalism. They often yelp for tariffs and other
protectionist restrictions; seek monopolistic governmental franchises; look for subsidies and corporate bailouts;
clamor for anti-trust legislation and other legal constraints to be imposed on their competitors. On a regular basis,
they call for governmental initiation of force to violate the rights of both their actual and prospective competitors.
To take one example: that some businessmen support tariffs (or trade barriers) does not make it a policy congruent
with capitalist principles nor would that change even if all businessmen favored protectionism. Honest individuals
and companies have the moral right to trade freely with other honest individuals or companies regardless of the
specific nationalities involved. No consensus of businessmen could alter the nature of tariffsthat they involve
governments forcing foreign producers to pay a tax on their exportsand thereby impose higher prices on those
who choose to buy imported goods. Similarly, that these same individuals oppose international free trade does not
mitigate, much less negate, that free trade is a direct consequence of the moral principles that constitute the
essence of capitalism. What is or is not capitalistic is a matter of political, economic and, above all, moral principles,
instead of globalization
marginalizing certain regions, it is the regions that stand back from
globalization that become marginalized.1
between these groups of countries are increasing. Clearly,
fund research into HIV/AIDS, malaria, and TB, for example, in developing countries. That is a quarter of what all
Impact Turns
Neolib inevitable: knowledge production
Dieter Plehwe (Two-time guest prof at Yale. Rsch Fllw @ NYU, Research Fellow,
Social Science Research Center Berlin) and Bernhard Walpen (The Forschungsund Beratungsstelle Arbeitswelt (FORBA) is an independent research institute
specialising in social-science research on work and employment) Neoliberal
Hegemony: A Global Critique. Between network and complex organization: The
Making of Neoliberal: Knowledge and Hegemony. 12/8/20 05.
http://www.forba.at/data/downloads/file/300-Plehwe-Walpen.pdf
a widening and deepening of neoliberal networks of intellectuals
and advocacy think tanks, a considerable increase in reach and scope around the globe as well
as specific national and supranational arenas and discourse areas. 21 Neoliberal
knowledge production and dissemination certainly has not declined in the most
recent period, rather the opposite: A very solid intellectual force and constitutive
part of historical power blocs that defend and maintain neoliberal hegemonic
constellations is strongly entrenched in many (civil and political) societies around
the globe, capable of working on almost any subject of concern, and able to
strategically develop capacities and competencies if needed. Reliable and tested
channels of communication can be used to eventually disseminate the result of the
work, and the neoliberal networks are capable to rapidly change tactics .
We can thus observe both
World Banks
discovery that institutions matter and ubiquitous references to the importance of good or global
governance, which pervade the international financial institutions discourse today,
should not be interpreted as evidence for neoliberalisms defeat. In fact, many of
the recent critiques of neoliberalism and the proposed reforms, which arise from them, turn out to
be consistent with a pluralist neoliberal agenda . Many neoliberals agree that the state should be
a post-Washington Consensus, representing a kinder, gentler version of globalization. The
strengthened in order to secure the institutional foundation of a market economy. A close look at the statement of
Polachek 1980, 1997; Polachek, Robst and Chang 1999). Still, it is difficult to imagine that trade losses would be
large relative to the material and subjective costs of fighting. Warfare is already expensive, even among states with
autarkic markets. Typically, states at war want to impose costs on an opponent. A more plausible set of
policymaking may or may not involve conflict (both nations may want the same thing). Adversaries can be allies
when facing a common problem. If instead two governments have different agendas, then relations can become
fractious. The importance of differences grows with the size of a nation's exposure to the international arena. Table
1 summarizes the admittedly complex processes discussed above. Three types of dyadic relationships are identified
in the left column, developed, developing, and heterogeneous (one developed and one developing state). Each of
the remaining columns in the table refers to a type of good over which conflict might occur. Property disputes are
unlikely among developed states.
developed states (which can fight aggressive wars against weaker developing nations if they want to)
have no desire to acquire more territory, while developing countries (which may covet
land or other tangible property assets) are typically too weak or distant to prosecute conflicts
against developed countries. Exceptions occur most often in contiguous heterogeneous dyads, and
dyads,
where developing countries are wealthy. Agenda control can lead to conflict, but only when states disagree about
preferred policies.
victory yields similar policies to those imposed in defeat . Thus, the column for Similar
Interests contains only PEACE. Fighting is possible when national interests differ, though bargains are still common,
as warfare is costly and fighting typically ends in a bargain in any case. Developed states may be more likely to
Alt Solvency
No alternative-left has no credibility
Fukuyama, SAIS Foreign Policy Institute Senior Fellow, 2012
(Francis, The Future of History, Foreign Affairs; Jan/Feb2012, Vol. 91 Issue 1,
ebsco)
One of the most puzzling features of the world in the aftermath of the financial crisis is that so far,
primarily a right-wing form, not a left-wing one . In the United States, for example, although the Tea Party
is anti-elitist in its rhetoric, its members vote for conservative politicians who serve the interests of precisely those financiers and
corporate elites they claim to despise. There are many explanations for this phenomenon. They include a deeply embedded belief in
equality of opportunity rather than equality of outcome and the fact that cultural issues, such as abortion and gun rights, crosscut
authority as a voice for the majority of citizens who feel betrayed by their elites. Multiculturalism validates the victimhood of
virtually every out-group. It is impossible to generate a mass progressive movement on the basis of such a motley coalition: most of
the working- and lower-middle-class citizens victimized by the system are culturally conservative and would be embarrassed to be
has followed a social democratic program that centers on the state provision of a variety of services, such as pensions, health care,
be more than custodians of a welfare state that was created decades ago; none has a new, exciting agenda
around which to rally the masses.
This brings us neatly finally to the third problem with PWG: politics. Jackson does have some discussion of the need for our old
favourite political will towards the end of the book, and there are some examples of concrete ideas (e.g. shorter working week,
ban advertising aimed at children), but
framed in terms of the need for social and economic change and governance,
but not politics at all. The key question is how we are supposed to get from where
we are to where he wants us to be. Jackson acknowledges that at the moment, many people want
growth (or more precisely, economic stability) and so demand it of politicians, who then have a political
incentive to deliver it. The quandary (not really acknowledged) is which strategy to adopt in this situation. Do you first reshape
the economy to deliver economic stability without growth (e.g. by a shorter working week), which then demonstrates to people
socially and politically that growth isnt necessary for a good life, or do you first have to bring about major social change, moving
people away from consumerism, as a precondition for transforming the economy and making the end of growth politically feasible?
The discussion in chapter 11 of the book sort of implies that Jackson is thinking in terms of the latter route, but it actually has no
strategy. He lays out (some quite conventional, even dare I say it, already proposed by economists) policies like carbon taxation and
the aforementioned shorter working week but there is nothing on political narrative. The closest we get to a strategy for social
transformation is banning advertising aimed at children (also a theme of Tom Cromptons) and policies to drive greater durability of
products. A counterview might be that all these changes are needed, and it doesnt matter so much what happens first, that they all
Thats why a good initial step for a more sustainable economy might be a set of good old-fashioned social democratic policies on tax
and spend. Prosperity without Growth raises some very important questions, and Tim Jackson shows how tight a squeeze we are in.
a small role. In the absence of radical technological change, only serious de-growth, what Kevin Anderson and Alice Bows call
planned economic recession would be sufficient to bring about the cut in emissions needed. With rapid growth in poor countries
compared with the political challenge of replacing capitalism with a new steady state system either lacking
innovation or with a disappearing working week. Perhaps the most fundamental, indeed philosophical issue here is that, despite the
his
underlying message is (pace Obama): No, we cant. But beyond the environmentalist
camp, this message will not work. In the face of the biggest collective challenge that humanity has faced, we need a
fact that Jackson has made a good effort to make an argument about limits into an argument about quality of life,
narrative that has the human potential to solve problems, and overcome apparently unbeatable odds, at its heart.
Economic analysis has been one of the weakest and least developed areas of
broadly green/sustainable development thinking. For example, whatever analysis
there is within the green political canon is largely utopian usually based on an argument for the
complete transformation of modern society and economy as the only way to deal with ecological catastrophe, an often linked to a
critique of the socioeconomic failings of capitalism that echoed a broadly radical Marxist/socialist or anarchist analysis; or
underdeveloped due, in part, to the need to outline and develop other aspects of green political theory. However, this gap within
green thinking has recently been filled by a number of scholars, activists, think tanks, and environmental NGOs who have outlined
various models of green political economy to underpin sustainable development political aims, principles and objectives. The aim of
this article is to offer a draft of a realistic, but critical, version of green political economy to underpin the economic dimensions of
radical views about sustainable development. It is written explicitly with a view to encouraging others to think through this aspect of
starts with the point that we cannot build or seek to create a sustainable economy ab nihlo, but
some of the current institutions, principles and structures underpinning the dominant economic model are the very causes of
unsustainable development.
through in the terms of the original German Green Partys slogan of marching through the institutions)
structures, as well as change and reform and in some cases, abandon them as either unnecessary or positively harmful to the
creation and maintenance of a sustainable economy and society. Equally, this article also recognises that an alternative
economy and society must be based in the reality that most people (in the West) will not democratically
vote for a completely different type of society and economy. That reality must also accept that a green
economy is one that is recognisable to most people and that indeed safeguards
and guarantees not just their basic needs but also aspirations (within limits). The realistic
character of the thinking behind this article accepts that consumption and materialistic lifestyles are here to stay (so long as they do
appeal to realism is in part an attempt to correct the common misperception (and selfperception) of green politics and economics requiring an excessive degree of self-denial and a puritanical asceticism
(Goodin, 1992, p.18; Allison, 1991, p.170178). While rejecting the claim that green political theory calls for the complete disavowal
of materialistic lifestyles, it is true that green politics does require the collective reassessment of such lifestyles, and does require a
degree of shared sacrifice. It does not mean, however, that we necessarily require the complete and across-the-board rejection of
Legalism
Permutation
Permutation do Both
Permutation do the aff and the alt in all non-mutually exclusive
instances
Prefer a legal pragmatic approach. Only reform through policy
decisions can effectively reform the legal system all other
approaches fail.
Butler 02 - Thomas Howerton Distinguished Professor of Humanities at
University of North Carolina Asheville (Brian E., Essays in Philosophy, Legal
Pragmatism: Banal or Beneficial as a Jurisprudential Position?, Vol. 3 Iss. 2, Article
14)//DWB
The worry that motivated this paper was that legal pragmatism as a doctrine might be so banal as to be
is legal pragmatism
practical as a jurisprudential position? The first step in answering this question was the identification
uninteresting or functions as a cover for personal agendas. Hence the question -
of a core set of claims made by the legal pragmatist that were explicit enough and strong enough to actually
eliminate or oppose other possible jurisprudential stances. A traditional or classical picture of law was developed
as a model to contrast with the pragmatic conception. Through a survey of legal pragmatist literature I came to a
question became which of the two models (classical v. legal pragmatism) was more descriptively accurate. The
equally plausible. These models, though, dont rest upon use of the paradigm rule of law picture of legal tools as
much as they highlight the less isolated position the courts have in the greater context of political and social life. If
the court functions as a consensus maker or political legitimator the legal model is not only false, but also a
pernicious ideology masking the real function of the court. This was Sheingolds argument.
Legal
pragmatism can adapt to these criticisms and has the descriptive capacity to acknowledge all these
factors and/or roles of Another type of study that vindicates the pragmatists stance over the traditional legal model
many of
the ideals within a law as integrity or legal model are inseparable and contingent
upon context. Whether neutrality becomes an attractive prospect because of the problems with other
political stances or it is the case that law can be used to encourage dominant interests in society , the legal
model once again becomes false and the legal pragmatist is vindicated as to his or
her descriptive accuracy. Finally, empirical studies have shown that adherence to
precedent by judges in making decisions is much less pervasive than the legal
model would require. Factors thought extrinsic under the legal model are much more controlling than
is historical treatment of the legal enterprise. It appears from the conclusions of historical studies that
precedent and legal analysis. The legal pragmatist explains that this is because reasoning, just like the legal
enterprise, is a much more varied and heterogeneous process than usually imagined. The rule of law advocate just
has to claim that really, really, precedent matters; though we just cannot show how it works. So, from a survey of
the legal
pragmatists stance is empirically superior to the stance advocated by the law as
integrity theorist or any other variation on the classical picture of legal reasoning.
But maybe the legal model functions better as a normative stance. This claim was easily disproved as well. The
legal model so distorts what is actually happening in the court system that it results
in lack of effectiveness and unforeseen consequences . The idea that every controversy has a
empirical data analyzing courts' functioning and judicial decisionmaking it seems clear that
"controlling issue" is a legalistic type of reductionism that really amounts to concept mongering. The simplification
such an ideology allows rules out admission of information that could help the court better see the situation at
adherence to the
legal model encourages the judge to adopt a picture of reasoning that ignores the
largely probabilistic nature of life events, therefore further limiting the type of reasoning and
information thought legitimate. The legal pragmatist, because of a lack of one controlling
picture of the legal process, can allow in such considerations and therefore has
tools available to deal with such issues. If litigation goes on in a context where many people in
hand, and would help the court acknowledge future results of any decision. Furthermore,
addition to just the named parties to the action are effected then the admission of more information, and the
to the rule of law model, then the chances that its remedy will be effective are reduced. As Gerald Rosenberg has
shown, the court must have allies from outside its own institutional limits in order to be effective when mandating
significant social change. The strict follower of the rule of law or law as integrity model, though, will not be able to
face such issues and therefore might be completely ineffective. What this means is that even if the court could use
rule of law methods to get to a "correct" decision, not facing institutional limits of the court as a political entity
could have fatal effects upon the implementation of the decision .
worshipping an idealized
conception of Law and Legal Professionalism can get in the way of bringing about a
more effective legal system, characterized as one of many humanly created social
systems aimed at the resolution of social conflicts and the pursuit of justice.
Reason can get in the way of furthering the quest for more reasonable results,
Alt Fails
The alternative jettisons questions of policy because of a risk
of a link, this causes poor decision making and ruins the
process of debate
Pozen 2015 (David E [Associate prof @ Columbia Law]; Privacy-Privacy tradeoffs;
Early draft June 28, 2015 83 U. CHI. L. REV. (2015);
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2624281; kdf)
Although it only scratches the surface of debates over surveillance reform, the discussion in Part III demonstrates
privacy-privacy tradeoffs are deeply (if sometimes inconspicuously) woven into the fabric
of these debates. We would find the same thing, Parts I and II indicate, in virtually any area of information
policy. How might we build on these observations? If privacy-privacy tradeoffs cannot be
avoided, how might they be managed? Some basic suggestions emerge from the analysis
above. First, scholars, advocates, and government officials could do a much better job of
identifying and confronting privacy-privacy tradeoffs as tradeoffs. Unless
decisionmakers consider the full set of outcomes associated with each effort to
reduce risk, policy theorists have warned, they will systematically invite [risk-]risk
tradeoffs.76 This warning applies equally in the privacy context. Managing privacy- privacy
tradeoffs requires attention to, and information about, the full range of privacy interests that
may be affected by a decision, the potential conflicts and congruities among those interests, and the
expected distribution and degree of privacy gains and losses. It cannot just be
assumed that because a certain measure causes privacy harm , even serious harm,
privacy would be enhanced overall by jettisoning the measure . Privacy policies and
that
problems cannot be assessed in isolation. Second, the pluralistic turn in privacy theory may need to be qualified or
supplemented in certain respects to accommodate the reality of privacy-privacy tradeoffs .
Pluralistic
theories of privacy, recall, maintain that there are many different valid understandings
of privacy and that none has priority over the others .77 The ability to control ones intimate
relationships is no more or less central to the right of privacy than is the ability to keep secrets or to keep
some cases, this information may be attainable. Researchers and regulators can ask people whether and to what
extent they believe an anticipated privacy-privacy tradeoff would be desirable, or design mechanisms that induce
people to reveal their true privacy preferences, and then feed the results into a marginal cost analysis. 79 A pair
of computer scientists recently tried this and found, through a simple survey, that many social network users seem
eager to trade certain forms of personal information for greater control over photographs in which they appear. 80
The very asking of such questions , moreover, may have the salutary effect of raising
anticipated tradeoffs salience and fostering debate .
theoretical and normative justification of a democratic rule of law, here I make only passing reference to these
matters. My intention is to contribute to a discussion concerning if and how something called the rule of law, or
the
concluding section of this essay proposes a set of variables for the exploration of
this dimension. Please note that what follows has been formulated with contemporary Latin America centrally
the democratic rule of law, may be conceptualized and, insofar as possible, empirically gauged. To this end,
in mind; it is of course an open question how well it might apply outside this region. The rule of law (like
partially concurrent expressions such as Rechsstaat, tat de droit, or estado de derecho) is a disputed term. For
judiciary (though other state institutions can be involved as well). By fairly applied I mean that the administrative
application or judicial adjudication of legal rules is consistent across equivalent cases; is made without taking into
consideration the class, status, or relative amounts of power held by the parties in such cases; and applies
procedures that are preestablished, knowable, and allow a fair chance for the views and interests at stake in each
case to be properly voiced. The following is a minimal but significant criterion: If A is attributed the same generic
rights (and, at least implicitly, the same legal personhood and agency) as the more powerful B with whom A
enters into a crop-sharing arrangement, employment contract, or marriage, then it stands to reason that A has
the right to expect equal treatment from the state institutions that have, or may
acquire, jurisdiction over such acts. This implies formal equality, in two senses. First, it is established in and
by legal rules that are valid (at least1 ) in that they have been sanctioned following previously and carefully
the individual in question has reached competent legal adulthood and has not been proven to suffer from some
(narrowly defined and legally prescribed) disqualification. These rights support the claim of equal treatment in the
legally defined situations that underlie and may ensue from the kind of acts above exemplified. Equality
[of
participatory rights to vote and run for office in fair elections, I am thinking of the freedoms (of expression,
association, movement, and the like) that are usually considered necessary to the existence of a democratic
superior to a Hobbesian state of nature or the creation and application of rules at the whim of a despot. Yet it is not
certain actions, whether of public or private actors, are secundum legem, that is, in
(interpreted) conformity with what a given law prescribes . For as I illustrate below, an act that
is formally according to law may nonetheless entail the application of a rule that is
invidiously discriminatory or violates basic rights. Or such an act may involve the
selective use of a law against some, even as privileged sectors are enjoying arbitrary exemptions.
enough that
The first possibility entails the violation of moral standards that most countries write into their constitutions and
that nowadays, usually under the rubric of human rights, countries have the internationally acquired obligation to
respect. The second possibility entails the violation of a crucial principle of fairnessthat like cases be treated
alike. Still another possibility is that in a given case the law is applied properly, but by an authority that does not
feel obligated to proceed in the same manner on future equivalent occasions. These cases may be construed as
being ruled by law, but they do not meet the criteria we normally have in mind when using the term rule of
central tenets in international institutions policies on good governance and empowerment (IMF 1997, World
Bank 2000, 2001). International bodies are careful to acknowledge that reform programs need to be attentive to
national cultures yet fail to specify ways to achieve this goal. This study seeks to identify the foundations of these
social institutions, in particular, their roots in national culture.
individuals pursuit of their own preferences, we will find greater compliance with
formal legal rules, exercise of discretionary power undistorted by bribes, and
feedback mechanisms of accountability. Societies characterized by such a culture provide a more
transparent normative environment and enable individuals better to plan their moves. But can we measure culture
reliably? To test this broad hypothesis, this study advances a new framework for the discourse of culture and
social institutions. We adopt established theories and empirical data from cross-cultural psychology to
operationalize the cultural profiles of nations. We examine whether profiles of nations on cultural dimensions can
predict perceived national differences in adherence to governance norms. Consistent with our theorizing, we find
economic inequality and a history of British rule yields a parsimonious model remarkably predictive of governance
address the issue of causal relations among the various factors considered, though we cannot fully resolve it
because these factors interact with one another to engender large-scale social equilibria. We argue, however, that
for better understanding the dynamics of social institutions and for informing policy-making it is crucial to identify
factors that may be more or less susceptible to change. Cultural orientations are relatively stable. They can
therefore impede reform and induce path-dependence in social change. This has implications for development and
reform programs, some of which we discuss.
When we disregard
customary international law in our own courts, and allow the Executive to constitutionally violate,
unchecked, international customs with actions like the U.S. missile strikes, we will suffer the
consequences of the precedents we create . As Oscar Schachter has commented, once we
make decisions about the use of force, those decisions "become part of the law-shaping
process, influencing expectations as to the acceptability of future actions influencing
will make a declaration to the world that it has only limited respect for international law.
use of force." 169 The dissent in Alvarez-Machain recognized the risk of treating international law so lightly. The
dissent emphasized the Court's duty to decide according to the rule of law, and cautioned that courts in other
nations would follow the majority's example. 7' It then quoted Justice Brandeis, author of the Erie opinion which
Bradley and Goldsmith rely on so heavily, who foresaw the consequences of a position such as theirs: "In
a
government of laws, existence of the government will be imperilled if it fails to
observe the law scrupulously... . If the Government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto himself; it invites
anarchy."'
law professors. This section of the article discusses the benefits to law students. 1. Teaching social justice issues
encourages a diverse student body. Some of the benefits of having a diverse student body accrue not only to
members of underrepresented or outsider groups, but also to members of the dominant group or Aingroup.A
Students attend law school for a variety of reasons and with differing career aspirations. Even so, most law students
cannot see the connection between first-year mandatory courses and their ultimate careers.
By introducing
issues of social justice early in law school, professors introduce students who entered law school with an
interest in practicing public interest law to situations they will face as attorneys. They especially will begin to
realize the importance of legal writing and research to practitioners by being
exposed to some of the types of writing attorneys engage in on behalf of their
clients. While this is extremely important to professors in schools, such as City University of New York School of
Law, which are devoted to training public interest lawyers, some students in other law schools also desire to
practice public interest law. In addition, law students who come from backgrounds other than white, middle class
backgrounds may find little in law school that bears out their life experiences. In a law review article on his
experiences in school, one Ivy League law school graduate has remarked on "how little of the legal academic world
intersects even with the everyday world of even middle class African-Americans." n9 Although he wrote this in the
context of his property law course, the observation is true in many law school courses. Law professors typically
incorporate in their courses the usually unstated assumption of common experiences that everyone has shared.
However, many outsider students do not share in these "common experiences." 3. Teaching social justice raises and
experiences and concerns have value in the legal profession. n13 4. Teaching social justices supports the creation of
legal writing,
should be reviewed to ensure that course content prepares students to serve a
more sensitive and understanding attorneys. All aspects of the law school curriculum, including
diverse client base. n14 To that end, students must [*67] become more sensitive to, and understanding of,
various cultures and social groups. n15 This sensitivity can arise from making the study of the needs and problems
of clients from underserved communities an essential component of legal education. n16 5. Teaching social justice
broadens students' exposure. In raising social justice issues, a professor helps students develop a broader sense of
the themselves and of the world. Law students are adult learners, and adult learners are in the best position
psychologically to develop a broader sense of self. n17 One of the intellectual challenges of law school should be
students' reassessing their vision of what social justice means to them now and what social responsibility will mean
to them later as attorneys. Raising social justice issues in the classroom is problem-posing education, which is an
adult education theory of challenging learners to critically perceive the world in which they live and their values.
voices. Some of the alternative pedagogies that can be used in teaching social justice, such as journals, diaries, or
personal narratives, can provide an outlet for students who feel silenced by traditional legal education. n21
Using
alternative approaches in legal writing teaches the value of both the legal voice and
the personal voice, especially the voice of "outsiders." n23 Perhaps raising multicultural issues
Addressing social justice issues can also minimize the potential for, and damage, of muting. n22
will help those students who, because of their status as outsiders, lose their identity, self-esteem and will to
succeed in law school. n24 Multicultural law students often feel that they are socially isolated in law schools, that
they are invisible, and that they have concerns which are considered unimportant. n25 This has a negative impact
on students' acclimation to law school, their self-confidence, and their academic performance. n26 A number of
articles have discussed the alienation that white women, people of color, gays and lesbians, and other outsiders
face in law schools. n27 One of the manifestations of this alienation is the silencing of alternative voices. n28
Incorporating issues of [*69] importance to these outsider groups in the curriculum will not only encourage ingroup
students to examine the law from another perspective but will also encourage students who are members of
outsider groups to express their ideas and share their experiences in writing, even if they hesitate to speak up in
By
incorporating social justice issues into legal writing classes, legal writing professors will
afford students from outsider groups the opportunity to feel included in law school
class. n29 Students who are members of outsider groups often are made to feel unwelcome in law school.
without a transparent overt effort to do so. The theme of the 2000 Legal Writing Institute Conference was preparing
students for life after the first year of law school. Many schools offer upper level courses on women and the law, on
race relations law, or on legal perspectives, such as critical race theory and feminist jurisprudence. Incorporating
social justice issues into the firstyear legal writing course can help broaden students' perspectives for these courses
by providing a broader foundation for these jurisprudence courses. Moreover, an introduction to alternative schools
of thought on jurisprudence may encourage students to take one of these elective courses. Even students who do
not take one of these elective courses will benefit from an introduction to alternative legal perspectives in the
Writers enthusiastic about their topics are more likely to produce a better
product. Incorporating issues of social justice into legal writing assignments is more
likely to increase student interest in the writing assignment , especially when problems are
curriculum.
based on current events. Examples include the issues of racial profiling by law enforcement officials, or gays in the
teaching
legal writing try to encourage students to focus on the audience who will read the
documents. This approach focuses on predicting how judges and other attorneys expect to receive information;
military and the "don't ask, don't tell" policy. Those professors who use the "process" approach n30 to
however, this focus frequently results in what has been called "regnant" lawyering. n31 Regnant lawyering, the
opposite of client-centered lawyering, puts the attorney's professional expertise ahead of the client's interests. In
teaching law students to think "like lawyers," [*70] professors frequently overlook the client's role in the process.
Some professors try to compensate for this omission by having students draft client letters; however, even in a
client letter, the attorney's expertise is still the focus. Although a client-centered approach may still require
attorneys to translate their clients' stories for other attorneys or judges, this approach encourages attorneys to
focus more on the client as a person rather than solely as a legal issue. However, focusing on the client may result
in a conflict between the client's desires and the attorney's social justice mission. For example, a client's desire to
have his day in court and tell his story may conflict with his attorney believes is the best legal strategy to prevail.
n32 It is never too early to assist students in developing strategies to deal with this type of conflict, including
deciding whether to represent a client and whether to join a particular law firm, law office or other legal
many students will have assimilated the language of the law and will be unable or unwilling to see the biases in the
Teaching social justice in legal writing will train students to see the social,
political, and economic implications of the law and the various legal arguments they
make. 7. Teaching social justice introduces students to attorneys' role in developing law. As practitioners,
law. n33
legislators, or judges, attorneys play an important role in developing law, primarily through their writing. Many
people believe that attorneys have a moral obligation to advance the law's justice mission to alleviate the effects of
No Link
The Greenwald card only talks about things specific to NSA
surveillance, no specific link to the court. Even if there is a link
to the courts in the card it doesnt matter because it is not in
terms of solitary confinement its in terms of NSA surveillance.
Make them read a specific link card about solitary confinement
and the courts or else dont give them the K.
Alt Turn
Constantly demanding that we become critical warriors, that
we join in their game of intellectual masturbation is the nature
of rhetorical criticism. We are never relieved of the duty to
fight the good fight, but because it all exists in our heads,
because the moral spaces and post-modern borders that we
speak of exist only on the pages of books, the K becomes a
method of entrapment and an END to politics.
Mann, 1996, The Nine Grounds of Intellectual Warfare, Postmodern Culture Vol 6 No 2
It would be a mistake to assume that this metamorphosis of discourse as war into discourse on war has occurred
I were right? -- is not proof of the politicization of criticism but an after-image of its quite peripheral integration with
forms of geopolitical conflict that are, in fact, already being dismantled and remodeled in war rooms, defense
equivalent of thought beyond all these petty contentions, of realizing the truth of discourse as warfare and finally