Arizona Debate Institute 2014
Opening Topic Lecture
“Dr. Dave” Hingstman
Resolved: The United States
should legalize all or nearly
all of one or more of the
following in the United States:
marihuana, online gambling,
physician-assisted suicide,
prostitution, the sale of
human organs.
Affirmative cases and Topicality
• An affirmative case on the legalization topic will contain
initial arguments (reasons and support) for the topic.
• Topicality is an issue that relates arguments to the topic
being debated, even if only by metaphor.
• When preparing an affirmative case, think about how your
arguments and key topic words will relate to each other.
Nearly all women band
Structure of affirmative cases –
critical and policy
Critical affirmative cases
question the assumptions
that support existing social
and political institutions and
their indifference to needs
& interests of people
Policy affirmative cases
look to alternative
governmental actions and
what their costs and
benefits, both direct and
indirect, might be
United States vs. US Federal Government
• The Tenth Amendment to the US Constitution says that “the powers
not delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the people.”
Some meaning questions for affirmative topicality arguments
1. Is the “United States” that legalizes
the US federal government?
2. Is/are the “United States” that
legalizes the states acting
together?
3. Is/are the “United States” that
legalizes the people themselves?
Legalization vs. Decriminalization
• Affirmative teams should expect that some negative teams will
advocate removing criminal penalties on a topic activity rather than
repealing the laws that make those activity crimes.
Some meaning questions for affirmative topicality
arguments
1. To what extent does
legalizing an activity allow
regulation or restriction of it?
1. How far does the process of
legalizing an activity have to
extend? Is decriminalizing an
activity also legalizing it?
“Legalization entails the state regulating a particular practice––here the practice
of prostitution. Decriminalization is when the state has no laws related to the
practice.” http://wclcriminallawbrief.blogspot.com/2012/10/legalizing-prostitution.html
All or Nearly All
• Affirmative teams should expect that some negative teams will
advocate that part of a topic activity should not be legalized. For
example, that recreational marijuana sales should remain illegal.
Some meaning questions for affirmative topicality arguments
1. Should “nearly all” be measured by numbers or by importance?
2. Are words like “marihuana,” “prostitution,” and “online gambling”
collective nouns?
3. Since “nearly all” does not appear next to other topic words in the
context of legalizing, what is an appropriate analogous usage?
Critical/Project metaphors to the topic words
Enslavement – the lack of legitimation for sex work may
encourage trafficking of oppressed peoples
Exclusion – overly rigid and biased moral judgments
have been used to make people ineligible for
recognition
Imprisonment – people who are poor or identified with
racial, ethnic, gender or other minorities are more likely
to be imprisoned for topic-related reasons
“Marihuana” legalization
Marihuana = Marijuana minus Hemp (less than 1.4% THC)
(Marihuana Tax Act of 1937 defines marihuana as "all parts of the plant Cannabis
sativa L., whether growing or not; the seeds thereof; the resin extracted from any
part of such plant; and every compound, manufacture, salt, derivative, mixture, or
preparation of such plant, its seeds or resin. Such term does not include the mature
stalks of such plant, fiber produced from such stalks, oil or cake made from the
seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or
preparation of such mature stalks (except the resin extracted therefrom), fiber, oil,
or cake, or the sterilized seed of such plant which is incapable of germination”).
http://www.levellers.org/cohip/PAGES/POLITICS/LAWREV.HTM#federal
Marihuana legalization: Where we are
now (stock issue of inherency)
“Since 1996 twenty states have legalized marijuana for medical purposes and,
in November 2013, Colorado and Washington state went even further,
legalizing marijuana for adult recreational use. And, while the Obama
administration has thus far utilized its enforcement discretion to allow those
state policy experiments to play out, marijuana remains a prohibited
substance under federal law.” Cooperative Federalism and Marijuana
Regulation, UCLA Law Review (forthcoming, 2015) Chemerinsky et al.,
http://http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2411707.
Marihuana: Why legalize it?
(stock issues of harm, significance, and solvency)
• Values of autonomy. Even for moral reasons, governments should
not be allowed to take away the power of persons to decide
whether to use marijuana unless that use causes harm to others.
19th century social philosopher John Stuart Mill
Some places where clash
may occur:
• Smoke is harmful and has
no medical benefits?
• Driving while stoned?
• Underage users?
• More potent pot and
increased use?
• Gateway to hard drugs?
• Stoners are a drain on
society?
Marihuana: Why legalize it?
(stock issues of harm, significance, and solvency)
• Justice. Marijuana possession and sale is used by the police as an
excuse to oppress people, especially poor people and people of color.
Some places where clash may occur:
• Is police abuse unique to marijuana?
• Hard drug law enforcement depends on
informants; physical violence results from
narco-terrorism?
• Arbitrary marijuana law enforcement
spurs social opposition and change?
• Decriminalizing marijuana solves abuse
better?
• Freeing up criminal justice system time
will lead to new abuses?
Marihuana: Why legalize it?
(stock issues of harm, significance, and solvency)
• End jurisdictional conflicts (federalism). The tension between state
and federal marijuana laws undermines cooperation in a number of
areas.of a decision by Congress to drop
“Short
marijuana from the Controlled Substances Act
entirely – an unlikely political outcome, even
given the majority of Americans who might
favor it – a more modest federal legislative
solution is needed. The cooperative federalism
solution that we suggest is both feasible and
effective – it will allow state experimentation to
proceed while giving the federal government the
ability to influence the direction of that legal
change.” Cooperative Federalism and Marijuana
Regulation, UCLA Law Review (forthcoming, 2015)
Chemerinsky et al.,
http://http://papers.ssrn.com/sol3/papers.cfm?abstract
_id=2411707.
Some places where clash
may occur:
• Obama policy of implicit
federal (non)-enforcement is
more desirable?
• Does marijuana policy spill
over to other areas?
• Is stronger federalism
desirable?
• Will legalizing hurt US
relations with other countries?
Marihuana: Why legalize it?
(stock issues of harm, significance, and solvency)
• Economic improvement. Legalization would create a new industry
and yield tax revenues that would help state and federal economies.
Some places where clash may
occur:
• Marijuana industry would cause
environmental and other problems?
• Organized narcotic crime would
shift to replace lost markets or
circumvent new regulations?
• Marijuana tax revenue would be
wasted?
• Economic growth is undesirable?
Marihuana legalization as a strategic policy or
critical affirmative case
1.
2.
3.
Offense and defense against standard negative case attacks and
disadvantages is strong. The policy is already changing rapidly due to
public attitude shifts. Critical cases can talk about the War on Drugs and
legal discrimination.
There is more literature on this part of the topic than each of the others
(maybe combined). Evidence will need to be updated regularly, and
teams will spend a lot of time on researching new positions.
There are lots of alternatives available for dealing with marijuana policy,
so intricate negative exception counterplans will be common.
Online gambling legalization
Online gambling involves placing wagers by using the Internet,
as opposed to traditional casino-style gaming involving physically
present patrons at specified locations.
“Following the federal Unlawful Internet Gambling Enforcement Act ("UIGEA''),
for purposes of this opinion, Online Gambling means "to place, receive, or
otherwise knowingly transmit a bet or wager by any means which involves the use,
at least in part, of the Internet ...." 31 U.S.C. § 5362(10)(A).”
https://www.coloradoattorneygeneral.gov/sites/default/files/ag_opinions/2013/12_1
3_13_online_gambling_13_02.pdf
“Online gambling [in the EU] includes sports
betting and poker, casinos and lotteries, with
a market of 6.8 million consumers
participating in one or more types of
games.”
http://www.timesofmalta.com/articles/view/20130911/lo
cal/Maltese-MEPs-oppose-online-gamblingresolution.485632
Online gambling legalization: Where we are
now (stock issue of inherency)
“The proposed legislation is called the Restoration of America’s Wire Act,
and if passed it would reverse a 2011 Justice Department decision that
allowed individual states to permit online gambling with the addition of horse
racing, fantasy sports and other games, which were already permitted under
the law. http://www.online-casinos.com/news/12900-online-gambling-bill-concernsfantasy-sports-industry, July 22, 2014.” “However, if a federal bill banning
gambling and poker on the Internet is passed, all the state debates become
moot, including those in Nevada, Delaware, and New Jersey, where these
operations are already taking place. They would be forced to abide by federal
law, shutting down any and all current operations.”
http://www.cardschat.com/news/sen-lindsey-graham-to-introduce-anti-onlinegambling-and-poker-bill-1236, March 3, 2014.
Online gambling: Why legalize it?
(stock issues of harm, significance, and solvency)
• Economic improvement. Legalization would keep online gambling
in the US and yield tax revenues, helping state and federal economies.
Some places where clash may
occur:
• Society would have to pay for
increased problem gambling?
• Online gambling would simply
tradeoff with casino gambling?
• Native American groups would be
hurt by tribal gambling losses?
• Economic growth is undesirable?
Online gambling: Why legalize it?
(stock issues of harm, significance, and solvency)
• Allows better regulation to stop black markets. “Those who support
allowing states to legalize online gambling also note the prohibition opens the
door to black markets. Gambling sites that are unregulated can more easily prey
on consumers without any legal recourse available to those who are cheated.”
http://heartland.org/policy-documents/research-commentary-regulation-onlinegambling, April 14, 2014
Some places where clash may occur:
• Online US gambling may increase
criminal/terrorist money laundering?
• Online US gambling would entice
minors to play?
• Online regulation never can be as
effective as land-based casino control?
Online gambling: Why legalize it?
(stock issues of harm, significance, and solvency)
• End jurisdictional conflicts (federalism). “[NCSL] believed that the 2011
US Department of Justice Wire Act decision “provided states with the authority
to determine if they want to legalize intra-state online gambling,” adding that
any effort by Congress to “preempt state authority over Internet gaming” was
unnecessary and overstepping its bounds.” http://www.cardschat.com/news/statelawmakers-group-latest-to-challenge-wire-act-restoration-2352, April 8, 2014.
Some places where clash may occur:
• Would the states acting together through an
interstate compact be more desirable?
• Is online gambling really important for
federal-state relations?
• Is cooperative federalism desirable?
• Will legalizing stop cooperation with other
countries in regulating online gambling?
Online gambling legalization as a strategic
policy or critical affirmative case
1.
2.
3.
This is the kind of case that some teams will argue because they know
that a lot of other teams will not. There are complicated issues of
federal-state relations here that a team well-versed in the specifics
could use to their advantage.
We sometimes refer to this kind as a “small policy case” because its
harms seem minor but there are good answers to general negative
disadvantages and case attacks. It probably wouldn’t work well as a
critical case because it legitimizes a new industry.
A well-constructed negative attack with a specific counterplan could
beat most affirmative online gambling cases, but this could change
during the debate season.
Physician-assisted suicide legalization
Physician-assisted suicide (PAS) or physician-assisted death
(PAD) is different from euthanasia.
“Although many people may consider euthanasia and physician assisted suicide
one and the same this assumption has no merit. ‘Physician assisted suicide’ means
a physician supplies a patient with information or the means to commit suicide and
easily end their life, but does not actually end the patient's life.”
https://geminienglish.pbworks.com/w/page/12137599/Euthanasia%20and%20Phys
ician%20Assisted%20Suicide, 2008.
“Currently, physician-assisted suicide is legal in
five countries: Belgium, Germany, Luxembourg,
the Netherlands and Switzerland. In the United
States, Montana, Oregon, Vermont &
Washington allow physician-assisted suicide. [&
New Mexico in 2014]
http://health.usnews.com/healthnews/news/articles/2013/09/11/most-doctorsoppose-physician-assisted-suicide-poll-finds, Sept
11, 2013.
Physician-assisted suicide legalization: Where
we are now (stock issue of inherency)
“With no federal law concerning euthanasia or assisted suicide, the
legalization of such practices lies within state boundaries. Between 1994 and
2012, there have been more than 126 legislative bills to legalize PAS in at
least 25 states, yet all failed to become law. Fifty percent of the states in our
country are proposing to permit PAS; nonetheless only Washington, Oregon,
Montana, [New Mexico] and Vermont residents have the option of assisted
suicide. . .” http://www.breezejmu.org/opinion/article_9d8ea3a4-23e2- 11e3-8d08001a4bcf6878.html, September 23, 2013.
“Responding to the attempts of several states to
pass assisted suicide legislation, Congress
enacted law prohibiting the use of any federal
financial assistance in support or promotion of
assisted suicide, euthanasia, or mercy killing.
Congress enacted this law shortly after Oregon
passed a ballot measure allowing assisted
suicide.”
http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1574
&context=student_scholarship, May 1, 2014.
Physician-assisted suicide: Why legalize it?
(stock issues of harm, significance, and solvency)
• Values of autonomy and the right to die. “I don’t understand what
gives lawmakers the power to decide a terminally ill patient’s last
day of life, [59-year-old ALS patient Craig] Ewert said.”
http://www.breezejmu.org/opinion/article_9d8ea3a4-23e2-11e3-8d08001a4bcf6878.html.
Philosophers John
Rawls, T. M.
Scanlon, Robert
Nozick, Thomas
Nagel, Judith Jarvis
Thomson and
Ronald Dworkin file
a 1997 court brief for
a constitutional right
to seek physicianassisted death.
Some places where clash
may occur:
• Continuous sedation avoids
complicity with suicide?
• Pressure from profit-driven
medical providers?
• Fear of disability rather than
pain motivates suicide?
• Temporary depression leads
to bad decisions?
Physician-assisted suicide: Why legalize it?
(stock issues of harm, significance, and solvency)
• Values of personal dignity. “Physician assisted suicide is thought
of as the last remaining option that keeps the individual in control
when so many other things are fading away.”
http://physicianassistedsuic.weebly.com/reasons-for-pas.html, 2013.
Some places where clash may occur:
• Continuous sedation & other pain
relief allows for a dignified death?
• Dignity is too subjective to justify
suicide?
• Fear of medical expenses is not
personal dignity?
• Mercy killing is never ethically
justified?
Physician-assisted suicide legalization as a
strategic policy or critical affirmative case
1.
2.
3.
Since the main benefits of legalizing PAS are heavily value-laden,
teams who like critical philosophical arguments will move in this
direction to focus debates on those issues.
Some teams may be discouraged from a policy-oriented PAS case by
the absence of a federal law that prevents, rather than discourages,
state legalization. Debates on such a case might focus on topicality
and theory questions where the negative may have the upper hand,
since the affirmative usually can’t win on topicality and theory alone.
The question of physician involvement in suicide is a complicated one
which would require a lot of preparation by the affirmative.
Legalization of Prostitution
Prostitution and sex work are not necessarily equivalent.
“‘Sex worker’ is a term often equated with prostitution, but it is a broader term that
refers to all workers in the sex industry, such as strippers, call girls and
pornography actors. Certain forms of sex work, such as prostitution and sexual
massage parlors, are prohibited in most states, while others, such as pornography
and stripping, are not explicitly prohibited but are highly regulated. Prostitution is
generally understood narrowly as sexual activity for hire.” Plasencia, 9
Georgetown Journal of Gender & Law 699 (2008).
“Essentially, these terms are interchangeable
considering that people who are against sex
work call it prostitution and people who are
supportive of prostitution call it sex work.”
http://youngmormonfeminists.org/2014/04/22/sexpositive-anti-sex-work-changing-hearts-and-mindson-prostitution/
Legalization of Prostitution: Where we are now
(stock issue of inherency)
“There is no federal law in the U.S. that specifically regulates
prostitution; instead, there are several laws relating to
trafficking in persons that generally treat prostitution as sex
trafficking.”
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1
256&context=djglp, 2014
“. . . the Trafficking Victims Protection Act does not actually criminalize sex
trafficking unless it involves “trafficking of children” or is “effected by force, fraud, or
coercion.” Thus, arguably, the TVPA would not preempt any state attempt to legalize
prostitution. There are, however, other significant federal obstacles that Oregon would
have to consider, such as denial of federal grants to NGOs.”
http://willamette.edu/wucl/resources/journals/review/pdf/Volume%2050/501%20RAYBORN.pdf, 2013.
“According to ProCon.org’s review of laws in 100 countries, 61% have legalized at
least some kind of prostitution. Since 1971, it has been legal in rural counties in
Nevada, where about 300 women work in brothels regulated by local ordinances.”
http://globalpublicsquare.blogs.cnn.com/2012/04/23/why-prostitution-should-be-legal/
Prostitution: Why legalize it?
(stock issues of harm, significance, and solvency)
• Economic improvement. Legalization would yield tax revenues,
helping state and federal economies.
Some places where clash may occur:
• Society would have to pay for problems
related to increased sexual activity?
• Other places that have legalized
prostitution found revenue limited?
• Prostitutes from other countries would be
encouraged to migrate?
• Economic growth from immoral activity is
undesirable?
Prostitution: Why legalize it?
(stock issues of harm, significance, and solvency)
• Allows better regulation to prevent harm to prostitutes. “Legalization is
also characterized by a high degree of government control, although less than
criminalization, and uses licensing, registration, and mandatory health checkups to regulate prostitution.” ”
http://willamette.edu/wucl/resources/journals/review/pdf/Volume%2050/501%20RAYBORN.pdf, 2013.
Some places where clash may occur:
• Prostitutes will contract and spread
STDs between health checks?
• Licensed brothels are expensive &
most prostitutes will work with pimps?
• Rapes of prostitutes are common in
places where prostitution is legal?
Prostitution: Why legalize it?
(stock issues of harm, significance, and solvency)
• Values of autonomy and women’s rights. “Criminalizing prostitution
infringes upon the individual liberty a woman has to decide whom to have
sex with and to choose the employment that she desires. The state should
not be in the business of regulating how an individual uses her body.”
http://wclcriminallawbrief.blogspot.com/2012/10/legalizingprostitution.html
Some places where clash may occur:
• Most prostitutes have no genuine choice &
sex trafficking will increase?
• Prostitution dehumanizes women?
• Prostitution decrease the quality of life for
those who participate?
• Prostitution hurts the families of
participants?
Legalization of Prostitution as a strategic policy
or critical affirmative case
1.
2.
3.
This kind of case has some of the strengths of, but more weaknesses
than, marijuana legalization. It has policy advantages, but also links to
negative disadvantages. It involves critical arguments, but those
arguments work both ways because of ambivalence about prostitution
among feminists and opponents of sex trafficking.
There is a large literature in this area pro and con to research, but a lot
of it is repetitive.
A well-constructed negative attack with a specific counterplan could
beat most legalizing prostitution cases, but if this case is not popular
many teams won’t prepare such an attack until late in the school year.
Legalization of the Sale of Organs
Organs can be distinguished from tissues
“According to van den Berg, some people do not understand the difference
between organs and tissues. Organs refer to heart, lungs, liver, kidneys and
pancreas. Tissue refers to bone, cartilage, tendons, heart valves, skin and cornea.
Organs are removed from people when they are declared brain dead in hospital and
tissue may be removed several hours and even days after a person has already
reached the mortuary.”
http://www.tut.ac.za/News/Pages/CTEurgespeopletobecomedonors.aspx, August
18, 2010.
Legalization of Organ Sales: Where we are
now (stock issue of inherency)
“The current organ donation system in the United States relies exclusively on
the altruism of donors. NOTA [National Organ Transplantation Act] prohibits
the receipt of any form of valuable consideration in exchange for organs to be
used for transplantation. State statutes also prohibit the sale of certain organs
and tissue for transplantation and other listed purposes; however, state laws
vary widely as to what body parts are covered, and for what purposes sale is
prohibited.” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2418514
Sale of organs: Why legalize it?
(stock issues of harm, significance, and solvency)
• Improve health care and quality of life by speeding transplantation.
“However, many individuals die waiting for transplants due to an insufficiency of
organs. Currently more than 120,000 individuals are waitlisted for organs in the
United States. Additionally, due to financial and other barriers to getting on the
waitlist, the actual number of Americans requiring organs is likely higher.6 This gap
between available organs and the need for organs continues to widen.”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2418514, 2014
Some places where clash may occur:
• Only rich people will afford organ transplants?
• Poor people will feel compelled to sell organs to
survive ?
• Organ trafficking will hurt people in other
countries?
• The increase in organ donations will overwhelm
quality control and matching?
Sale of organs: Why legalize it?
(stock issues of harm, significance, and solvency)
• Values of bodily autonomy. People should have the right to make
their own choices about what to do with their organs. “We currently
accept the legitimacy of noncommercial solid-organ donations. We also accept
the legitimacy of the sale of blood, semen, ova, hair, and tissue. By doing so
we accept the idea that individuals have the right to dispose of their organs and
other bodily parts if they so choose. By recognizing such a right we respect the
bodily autonomy of individuals, that is, their capacity to make choices about
how their body is to be treated by
others.http://spot.colorado.edu/~heathwoo/phil1200,SP08/dworkin.pdf, from
Morality, Harm and the Law, 1994, p. 196
Some places where clash may occur:
• Autonomy is respected by organ donation?
• Autonomy will make organs unaffordable?
• Organ trafficking dehumanizes people?
• Organ donation is more defensible morally
than the freedom to sell organs?
Legalization of organ sales as a strategic policy
or critical affirmative case
1.
2.
3.
This kind of case is a “small policy” case that has some of the strengths
and weaknesses of the online gambling case. It has a strong health
care policy advantage, but it links to general negative disadvantages.
There are many alternatives that the government could pursue to
encourage organ donation or find synthetic substitutes, but there is also
good evidence saying that this will not be enough to meet the demand.
A critical version of this case might use the critical anthropological
literature about “the gift” that reveals the limits of altruism. But a plan
that uses market mechanisms would open the case up to neoliberalism
criticisms.
There is a large literature in this area both pro and con to research.
Choosing and writing an affirmative case
on this topic is a gamble, online or not
• Good luck and thanks for reading!