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PostPosted: Wed Feb 17, 2016 9:47 pm 
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Neg thoughts on this one? It seems like a pretty solid idea.

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PostPosted: Wed Feb 17, 2016 9:55 pm 
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What are the specs? Are they abolishing strict liability or just implying mens rea if the law doesn't explicitly say strict liability?

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PostPosted: Wed Feb 17, 2016 11:26 pm 
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They claim that there are too many regulatory laws and many people are punished without knowing that that law even existed in the first place.

Their plan is to institute a Mistake of Law Defense so that in any case in which the person did not know a regulatory law existed (in other words they did not willfully violate the regulation) that they are acquitted. The people then have a certain "grace period" to comply with the regulation they had "violated." This plan includes an extra mandate to punish recidivism (if someone violates the same regulation again).

There are a few really good arguments (which are in a brief I have available for trade if anyone is interested :P )
1. Inherency: Overly complex regulatory law NOT the courts are the problem (links nicely to counter-plan)
2. Solvency: Willfulness is impossible to define (i.e. the plan is unenforceable!)
3. Disadvantage: Encourages Ignorance of the Law/Enables Evasion of the Law
- Because they will not be punished unless knowing violating a regulation two things will occur: 1) it will encourage people to STAY ignorant so they cannot be punished, and 2) it will enable people to evade the law because they can argue they didn't know a law existed.
4. Counter-plan: Simplify Regulatory Law (my brief has the full detailed plan for how to do this)

Hope that helps! :)

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PostPosted: Thu Feb 18, 2016 6:48 am 
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How do they defend topicality?

It seems like they'd be reaching for FX T at best.

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PostPosted: Thu Feb 18, 2016 2:41 pm 
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The problem they want to solve for (over-regulation) is certainly not a problem with the federal courts (as my partner and I argued in our first Inherency point) but the mandate... They institute a Mistake of Law standard IN THE COURTS. I guess I just assumed instituting a new "standard" which would change court procedure was a topical reform. Correct me if I am wrong on that (LITERALLY I would love to refine be neg strategy on this case :) ).

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PostPosted: Fri Feb 19, 2016 12:23 am 
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So does this effectively abolish strict liability?

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PostPosted: Fri Feb 19, 2016 2:40 am 
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jacksonmin wrote:
So does this effectively abolish strict liability?

When we hit this case they did not specify that they abolish strict liability. Their mandate (as I remember it) was that in all cases of regulatory crime (people violating a regulation) the government (who are the one's prosecuting) must first prove that the person knowingly violated the regulation. If they cannot prove knowing violation then the accused offender gets a 1-year grace period to comply (although they will be punished for failing to comply with that same regulation a second time). So it kinda has the effect of abolishing strict liability (as I understand it) but that wasn't their actual mandate when we hit them. Make sense?

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PostPosted: Fri Feb 19, 2016 4:54 am 
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Seabass00 wrote:
They institute a Mistake of Law standard IN THE COURTS. I guess I just assumed instituting a new "standard" which would change court procedure was a topical reform. Correct me if I am wrong on that (LITERALLY I would love to refine be neg strategy on this case :) ).

Ah, so they're contriving their topicality. I figured they would at least try to do it properly and just claim FX T.

First, there's no such thing as a "judicial standard" in the sense that they mean. Courts exist to interpret and decide when to apply laws that are written by a legislative body, occasionally referring to pre-existing case law to assist in interpreting the statute to retain consistency in how they rule. There's no such thing as a "judicial standard" which governs how courts decide outside of case law or statutory law.

Secondly, courts don't just decide "we're not going to apply this statute if there's a mistake of law" without some legislative guidance to that end. Judicial activism much? Legislating from the bench?

Thirdly, it sounds like they're trying to fiat ALL of the courts for ALL eternity and just say that they'll never rule against a defendant where a mistake of law is present. But unless they have some mechanism for this (i.e. Congress making this law, or SCOTUS taking a test case (for which they'd have to name one currently being litigated...) and somehow ruling that strict liability for regulatory criminal offenses is unconstitutional) they have literally no solvency. It's just them magically making courts rule differently. There's something to be said for entrenchment (the idea that in a debate round we should assume a plan doesn't get repealed/overturned) but that doesn't mean that we should give the aff a free pass and allow them to fiat their solvency.

Heck, run a CP and make Congress do it. It's not topical, so no controversy there, and you can claim literally all of the aff's advantages. Always be aware of places where an aff's strategy seems contrived or tries to shoehorn in a policy change, because they'll usually be vulnerable to more elegant CPs. This is a beautiful example of why you shouldn't shoehorn cases in from previous resolutions.

EDIT: I don't think T really applies here since they (apparently?) don't actually do anything except wave the magic wand of fiat power. And you can't test the topicality of a magic wand.

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PostPosted: Fri Feb 19, 2016 2:58 pm 
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Sharkfin wrote:
Ah, so they're contriving their topicality. I figured they would at least try to do it properly and just claim FX T.

So just for my own future reference... what does the "FX" stand for in "FX T?" I haven't heard of it before but would love to learn. :)

Sharkfin wrote:
First, there's no such thing as a "judicial standard" in the sense that they mean. Courts exist to interpret and decide when to apply laws that are written by a legislative body, occasionally referring to pre-existing case law to assist in interpreting the statute to retain consistency in how they rule. There's no such thing as a "judicial standard" which governs how courts decide outside of case law or statutory law.

Secondly, courts don't just decide "we're not going to apply this statute if there's a mistake of law" without some legislative guidance to that end. Judicial activism much? Legislating from the bench?

Thirdly, it sounds like they're trying to fiat ALL of the courts for ALL eternity and just say that they'll never rule against a defendant where a mistake of law is present. But unless they have some mechanism for this (i.e. Congress making this law, or SCOTUS taking a test case (for which they'd have to name one currently being litigated...) and somehow ruling that strict liability for regulatory criminal offenses is unconstitutional) they have literally no solvency. It's just them magically making courts rule differently. There's something to be said for entrenchment (the idea that in a debate round we should assume a plan doesn't get repealed/overturned) but that doesn't mean that we should give the aff a free pass and allow them to fiat their solvency.

I think I see what you mean. Are we saying that for this plan to actually work that Congress would have to abolish strict liability? Or pass legislation requiring the court to use a mens rea test in regulatory cases?

I appreciate you dealing with my questions! :D

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PostPosted: Fri Feb 19, 2016 4:35 pm 
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Seabass00 wrote:
Sharkfin wrote:
Ah, so they're contriving their topicality. I figured they would at least try to do it properly and just claim FX T.

So just for my own future reference... what does the "FX" stand for in "FX T?" I haven't heard of it before but would love to learn. :)

Ah! FX is short for effects. Effects topicality is a theory that a mandate is not topical if it only affects what the resolution asks us to reform and does not reform the thing itself, since it mixes the burdens of solvency and topicality. I wish I could lay out an example, but I'm short ontime at the moment.

Quote:
I think I see what you mean. Are we saying that for this plan to actually work that Congress would have to abolish strict liability? Or pass legislation requiring the court to use a mens rea test in regulatory cases?

Either of those would work. The real focus is that the affirmative has to show *how* they're going to do their plan. In the American judicial system, there's only two ways to change how courts apply laws: (1) court precedent (requiring a test case for SCOTUS to take up, which they won't have)(and also incurring judicial activism DAs), and (2) legislative changes made by Congress (which probably won't be topical, since no changes are being made to the system--just to the laws the system applies). They have to do one or the other or they're just wand-waving.

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PostPosted: Fri Feb 19, 2016 5:51 pm 
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Seabass00 wrote:
Ah! FX is short for effects. Effects topicality is a theory that a mandate is not topical if it only affects what the resolution asks us to reform and does not reform the thing itself, since it mixes the burdens of solvency and topicality. I wish I could lay out an example, but I'm short ontime at the moment.

Oh! Now I know what your talking about. :D And yes, that argument makes sense.

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PostPosted: Mon Feb 22, 2016 1:21 am 
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DA1: Regulatory Crimes More Difficult to Prosecute
Link1: Hard to prove intent for Regulatory Crimes
IL1: Aff increases difficulty to prove
Uniqueness1: SQ allows prosecution for Recklessness and Negligence
IL1: Mens Rea Removes
Impact1: Crime Increase
Sub1: Death
Sub2: Economy
Sub3: Rule of Law

DA2: Ignorance Encouraged
Link1: Aff Allows Ignorance Defense
IL1: Aff requires defendants to have knowledge of law to be eligible for prosecution
IL2: Defendants Incentivized to be Ignorant
Impact1: Prosecution more difficult
Sub1-3: (Same impacts as DA1)

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PostPosted: Mon Feb 22, 2016 8:44 pm 
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OOC, how does the affirmative define "regulatory crimes"?

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PostPosted: Sat Feb 27, 2016 10:50 pm 
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Recently got a hold of the flow for another case that appears to have Congress do it.

Quick T argument for that case, since I hinted at it earlier but never really outlined it fully.

Interp:
The court system exists to decide how to apply the laws the legislature writes. A case should be considered topical if the affirmative changes how the courts apply the laws that already exist. A case should not be considered topical if the affirmative changes the laws themselves because the case wouldn't affect how courts apply laws, it affects what laws the court applies.

Standard:
Fair division of ground (or brightline)

Violation:
Yes. Impossible to research every possible legislative proposal to change what laws the aff applies because any law that's relevant to a decision would be considered and might change outcomes. In short, if our interp is wrong, aff ground explodes.

Impact:
Fairness. Equal research burden=good and so on.

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PostPosted: Thu Mar 10, 2016 12:06 am 
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Sharkfin wrote:
First, there's no such thing as a "judicial standard" in the sense that they mean. Courts exist to interpret and decide when to apply laws that are written by a legislative body, occasionally referring to pre-existing case law to assist in interpreting the statute to retain consistency in how they rule. There's no such thing as a "judicial standard" which governs how courts decide outside of case law or statutory law.

Can't Aff just make a new Federal Rule of Criminal Procedure instituting a "mistake of law is an excuse" standard? SCOTUS can just modify the FRCP to mandate it. Meaning the courts could do it, not Congress. :P

Quote:
The court system exists to decide how to apply the laws the legislature writes. A case should be considered topical if the affirmative changes how the courts apply the laws that already exist. A case should not be considered topical if the affirmative changes the laws themselves because the case wouldn't affect how courts apply laws, it affects what laws the court applies.

I don't really agree with this, because Aff isn't really changing what laws are applied. They're changing HOW laws are applied, which does seem to be a procedural court reform. Maybe I'm missing something though.

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PostPosted: Thu Mar 10, 2016 6:17 am 
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Cyberknight wrote:
Sharkfin wrote:
First, there's no such thing as a "judicial standard" in the sense that they mean. Courts exist to interpret and decide when to apply laws that are written by a legislative body, occasionally referring to pre-existing case law to assist in interpreting the statute to retain consistency in how they rule. There's no such thing as a "judicial standard" which governs how courts decide outside of case law or statutory law.

Can't Aff just make a new Federal Rule of Criminal Procedure instituting a "mistake of law is an excuse" standard? SCOTUS can just modify the FRCP to mandate it. Meaning the courts could do it, not Congress. :P

Four broad things:
1. This links straight into a huge judicial activism DA. No way this is in the Court's purview.
2. Completely 100% dies to the (nontopical) counterplan discussed earlier (just make Congress to do it). Competes by judicial activism DA, gets all aff advantages.
3. The FRCPs have nothing even remotely close to a mens rea requirement. Yeah, the Court *could* add this to the FRCPs, but there's not one criminal lawyer who wouldn't go "huh? how does that make sense?"
4. Realism. SCOTUS would never do this. Ever. The test for determining if someone has committed a crime is always from statutory law. If there's an egregious miscarriage of justice, the court either rules it unconstitutional or just says "this sucks, but you're guilty. hey lege, draft a better law next time."

Quote:
Quote:
The court system exists to decide how to apply the laws the legislature writes. A case should be considered topical if the affirmative changes how the courts apply the laws that already exist. A case should not be considered topical if the affirmative changes the laws themselves because the case wouldn't affect how courts apply laws, it affects what laws the court applies.

I don't really agree with this, because Aff isn't really changing what laws are applied. They're changing HOW laws are applied, which does seem to be a procedural court reform. Maybe I'm missing something though.

Here's an example of a criminal statute.

Code:
Sec. 42.14.  ILLUMINATION OF AIRCRAFT BY INTENSE LIGHT.  
--------
(a)  A person commits an offense if:
(1)  the person intentionally directs a light from a laser pointer or other light source at an aircraft; and
(2)  the light has an intensity sufficient to impair the operator's ability to control the aircraft.
---------
(b)  It is an affirmative defense to prosecution under this section that the actor was using the light to send an emergency distress signal.
---------
(c)  An offense under this section is a Class C misdemeanor unless the intensity of the
light impairs the operator's ability to control the aircraft, in which event the offense is a Class A misdemeanor.


This is the framework for all criminal statutes. It defines the offense based on conditions which must be met, states any affirmative defenses, and defines it as one of a certain category of offenses. I suggest that cases which change those conditions should not be topical.

Any action that Congress takes basically just adds in the "intentionally" to each statute--it's changing the set requirements which the prosecutor must prove to win the conviction. They're not changing how the same laws are applied, they're changing the laws which are applied.

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PostPosted: Thu Mar 10, 2016 7:16 pm 
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Quote:
1. This links straight into a huge judicial activism DA. No way this is in the Court's purview.

Well, SCOTUS has modified the FRCP many times, and they actually have a Congressional mandate saying they can do so whenever they feel like it. Plus, if Congress disagrees with their reform, they can veto it. So I don't see how this is judicial activism.

Quote:
Any action that Congress takes basically just adds in the "intentionally" to each statute--it's changing the set requirements which the prosecutor must prove to win the conviction. They're not changing how the same laws are applied, they're changing the laws which are applied.

Okay, that does make sense. But that would only be if Aff changed the statutes. If they made a FRCP (and granted, they never would in real life), it would be more topical I think.

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PostPosted: Thu Mar 10, 2016 11:26 pm 
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Cyberknight wrote:
Quote:
1. This links straight into a huge judicial activism DA. No way this is in the Court's purview.

Well, SCOTUS has modified the FRCP many times, and they actually have a Congressional mandate saying they can do so whenever they feel like it. Plus, if Congress disagrees with their reform, they can veto it. So I don't see how this is judicial activism.

To be clear, it's not activism because they're modifying the FRCP, it's activism because this is totally outside of what the FRCPs are supposed to do. There are rules of evidence that change how prosecutors must prove their case, there are not rules of law that change what prosecutors must prove to prove their case.

Just because Congress can correct it doesn't mean it's not judicial activism. If the President declares war without Congressional authorization, that's still executive overreach even though Congress can force the President to stop (by cutting the purse strings/not allocating money to the war effort).

Quote:
Okay, that does make sense. But that would only be if Aff changed the statutes. If they made a FRCP (and granted, they never would in real life), it would be more topical I think.

I agree. I think a neg could still argue T, but I also think a neg's time would be better spent elsewhere.

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