Round 2 v. Liberty CE
1AC
Plan: The United States should establish an interstate compact legalizing nearly all
online gambling in the United States.
1AC – Advantage - Trade
Intra-state legalization’s inevitable after the Wire Act reinterpretation- states are
willing to issue licenses without threat of federal prosecution
Rose 13
[I. Nelson Rose, J.D. Harvard Law School, is a Full Professor with Tenure at Whittier Law School in Costa
Mesa, California and a Visiting Professor at the University of Macau. Professor Rose is an internationally
known scholar, author, and public speaker, and is recognized as one of the world's leading experts on
gaming law, Spring, 2013 UNLV Gaming Law Journal 4 UNLV Gaming L.J. 1, “The DOJ Gives States a Gift”,
lexis//wyo-tjc]
The impact of the announcement was felt across the nation. The American Virgin Islands and Nevada
had already passed legislation allowing their regulators to issue licenses for Internet casinos . However,
no licenses were issued because both jurisdictions received letters from the DOJ threatening to arrest any of
their operators who dared take bets online. The threat is now gone. Even before the DOJ's reversal, the Nevada State
Legislature had passed a bill ordering the state's regulators to prepare for licensing Internet poker. In June 2012, [*7] the Nevada
Gaming Commission issued the first two licenses in the nation for Internet gaming to two of the
largest slot machine manufacturers: International Game Technology and Bally Technologies, Inc. A week later, on June 28,
2012, Gov. Jack Markell (D.-DE) signed a bill allowing the Delaware State Lottery to operate full-scale casinos
online. n46 Part of the money that will be raised will go to the state's racinos, to help them market and expand. The bill was rushed through
because the racinos in Delaware were hurting from the increased competition from expanded casino gambling in Atlantic City, Maryland, New
York, and Pennsylvania. In fact, more money is now bet on the slot machines in Pennsylvania than in New Jersey. n47 In addition, the state of
New York takes in more gaming tax revenue than Nevada, helped mightily by the Aqueduct racino, the first legal casino in New York City.
However, it will take some time for other state legislatures to react. The
opening of Internet gambling in Delaware and
Nevada, and, to a lesser extent, the American Virgin Islands, will push states near the tipping point.
New Jersey will likely be first. The Democratic-controlled legislature approved intrastate online gaming in 2011, but the bill was
vetoed by Gov. Chris Christie (R.-NJ). n48 Christie was afraid the Internet gambling storefronts would open throughout the state, which the
Atlantic City casinos were not about to let happen. He did point out a true legal problem: the state's constitution limits all casino gambling to
Atlantic City. Christie is working with the legislature's leading advocate, state senator Ray Lesniak (D.-Union), to correct these problems. Iowa
may well be next. The Iowa legislature mandated a study concluding that intra-state Internet poker
can be operated safely and will raise money, although not as much as many predicted. n49 A bill passed in the democratically
controlled State Senate, but was not even brought up for a vote in the Republican-controlled House. n50 This was the third year the legislature
had considered the issue. California
and many other states are so desperate for any source of revenue that
they will jump on the bandwagon once the political compromises are reached. Gambling is seen as a
painless tax, and even economic conservatives like it because it can raise revenue without raising
taxes.
And that sends the perception that the United States is illegally discriminating against
foreign online operators, destroying WTO credibility and threatening trade friction
Murawski 8
[Mattia V. Corsiglia, J.D. Candidate 2008, Santa Clara University School of Law, Santa Clara Law Review,
THE ONLINE GAMBLING WAGER: DOMESTIC AND INTERNATIONAL IMPLICATIONS OF THE UNLAWFUL
INTERNET GAMBLING ENFORCEMENT ACT OF 2006, 2008, p. lexis//wyo-tjc]
The passage of the UIGEA leads the United States down a number of problematic paths. The United States has a
significant economic interest in the WTO. n274 By ignoring the WTO ruling, the United States hurts its relationships
with its foreign partners and conveys the message that it is not bound by the rules of foreign
regulatory bodies. n275 In addition, the UIGEA puts the United States in direct conflict with more
economically powerful countries like Australia and the United Kingdom. n276 Australia has already legalized
Internet [*467] gambling and is a "pioneer" in online gambling. n277 The United Kingdom has expressed its interest in legalizing and regulating
online gambling sites and recently passed legislation supporting that interest. n278 Both
countries have an increased interest
in the global propagation of online gambling. n279 Inevitably their economic interests will collide with
U.S. antigambling laws. n280 If and when that occurs, the United States will be under a greater
obligation to consider changing its laws or be subject to trade penalties from some of their closest
economic partners. n281 The UIGEA may also violate WTO principles. The WTO's ruling stands for the
proposition that the United States can restrict gambling, but must do so without discriminating
against foreign operators. n282 Therefore, any new U.S. law cannot allow domestic operators to run gambling sites without also
permitting foreign operators to take part in the market. n283 The UIGEA, however, may violate this principle because it
has carved out an exception for states n284 that the WTO may find discriminatory. n285 If the UIGEA violates WTO
antidiscrimination laws, the U.S. government will be required to either amend the law or enter protracted discussions with the international
community over ways to compromise. n286 For example, The
UIGEA expressly allows operators in states that have
legalized online gambling to be involved in intrastate gambling transactions. n287 This has the effect
of allowing online gambling within a state to the possible exclusion of foreign operators. n288 Whether
or not intrastate gambling exceptions have the effect of discriminating against foreign operators is debatable,
n289 but past WTO rulings [*468] indicate that the argument has gravitational force. n290 Therefore, the
WTO could rule the intrastate exception is discriminatory because it allows intrastate betting to take
place while excluding foreign operators. n291 As of yet, most states are not expressly licensing and
regulating online gambling beyond horse racing but it could occur in the not so distant future. n292 For
example, Nevada could begin to license and regulate online gambling, as it has shown a desire to do. n293 In addition, states could also begin
selling their lottery tickets on the Internet. n294 If
this occurs, the argument that the United States is discriminating
against foreign operators from a market that local operators enjoy might have better results. n295 Much
of this opposes the United States' argument that legislation banning foreign operators is needed in order to exclude significant social harms.
n296 The
argument that online gambling threatens a fundamental societal interest is unlikely to carry
great weight because virtually all U.S. states permit or promote licensed or commercial gambling and
have no specific prohibition against some form of online gambling. n297 Instead, the perception is that
the United States is more concerned with excluding foreign operators from the U.S. market than with
upholding moral opposition to gambling. n298 Thus, the international community will view perceive
the United States' actions as contradictory and self-serving .
Continued non-compliance destroys DSM credibility, tanking the WTO causing
runaway trade disputes and war
Castel-Fodor 13
[Kennan J. Castel-Fodor, J.D. Candidate (2014) at Case Western Reserve University School of Law, CASE
WESTERN RESERVE LAW REVIEW, “Providing a Release Valve: The U.S.-China Experience with the WTO
Dispute Settlement System,” vol. 64, no. 1, pp. 201-238, 2013, accessed 6.5.2014: academic search
premiere//wyo-tjc]
As with any mechanism for resolving disputes between diverse parties, the efficacy and viability of the
DSB is subject to limitations. One limitation is the particular political conditions that can prove to be extremely volatile. Another
limitation is that the system can only be effective insofar as both the People’s Republic and the United
States continue to subjectively believe the DSB is legitimate, fair, and impartial. The involved parties must have
confidence in the dispute settlement process for the benefits discussed in Parts III.A and III.B to accrue and for the DSB to have long-term
success. If either country begins to feel as though it is the target of arbitrary or capricious DSB determinations, the country’s willingness to
utilize the dispute settlement mechanism may drastically wane. Furthermore, persistent
noncompliance with DSB
determinations, from either Washington or Beijing, may undermine the DSB’s legitimacy and cause a
reciprocal pattern of noncompliance . Persistent noncompliance would have a rippling effect throughout
the WTO as an effective enforcement mechanism is necessary to protect and ensure the
commitments and expectations of member states. The extreme of these limitations is that either China or the United States
could lose complete faith in the DSB. This result would diminish the DSB’s long-term effectiveness as countries refuse to
resort to WTO litigation. Such diminishment would be evidenced by: (1) plummeting compliance rates, (2) more
unilateral trade retaliations, and (3) increased potential for a full-blown trade war. While the extreme scenario
is highly improbable, both countries should be wary of the potential for a slippery slope of system abuse. Although the increased litigation
between the United States and China in the DSB has effectively managed trade frictions between the parties, bestowing both direct and
indirect benefits,
the operation of the DSB as an international dispute settlement mechanism is subject to
potential erosions in legitimacy.
Credible WTO dispute mechanism is key to manage U.S.-China relationsand facilitate
CCP political and economic reforms
Castel-Fodor 13
[Kennan J. Castel-Fodor, J.D. Candidate (2014) at Case Western Reserve University School of Law, CASE
WESTERN RESERVE LAW REVIEW, “Providing a Release Valve: The U.S.-China Experience with the WTO
Dispute Settlement System,” vol. 64, no. 1, pp. 201-238, 2013, accessed 6.5.2014: academic search
premiere//wyo-tjc]
The Sino-American relationship remains a salient political issue within the United States, with the
People’s Republic often vilified. A number of subjects tend to ignite the ire of the American public and
Congress, including human rights, currency manipulation, and trade frictions. The U.S. administration’s
engagement of China through DSB litigation conveys a strong political stance position in instances of
perceived violations of China’s international obligations. This litigation strategy toward China helps to
placate the American public’s anger as well as the calls for tougher legislation from Congress. The
saber rattling from Congress can prove potentially catastrophic for U.S.-Chinese relations as
protectionist trade legislation can spark damaging retaliatory policies from China. The U.S.
administration can use WTO litigation to address issues preemptively before protectionist elements in
Congress can act. For the American government, WTO litigation provides a unique ability to diffuse
political tensions that could have deleterious ramifications for the long-term benefit of the SinoAmerican relationship. While the Chinese government is not subject to the same democratic
undulations, domestic pressure within China is of great concern to the Chinese Communist Party’s
(CCP) political stability. Economic concerns are always at the forefront of the CCP’s domestic and
foreign policy, as demonstrated through the maintenance of the currency policy that has caused much
contention. Sometimes, China’s initiation of WTO litigation is the direct result of domestic concerns
toward particularly prominent trading partners. Like the United States, the Chinese government can
utilize DSB determinations to implement or speed up reforms that may not be particularly popular
domestically. This is particularly true in situations in China where reform, without DSB determinations,
would be untenable. The prospect of WTO litigation and the permeation of DSB norms throughout
China can provide the CCP domestic credibility for instituting reformist policies. Increasing WTO
litigation and improving Chinese legal savvy can also provide the indirect benefit of bolstering the
Chinese public’s faith in not only the WTO and DSB but also other international organizations. This
provides the CCP with a stronger trade dispute mechanism that would have more support from the
Chinese domestic populace. A dedication to resolving trade disputes through the DSB provides the
governments in Beijing and Washington both clout and political protection. Given the complex political
landscape, using the DSB allows both the United States and China to vent domestic frustrations
through an international legal forum. The use of the DSB as a third-party intermediary allows both
governments to deflect losses while still resolving tense political frictions. The DSB allows the United
States and the People’s Republic to diffuse political tensions that can arise within a domestic market,
especially with the public, media, and political figures.
Relations collapse goes nuclear
Goldstein, 13
– Avery, David M. Knott Professor of Global Politics and International Relations, Director of the Center for the Study of Contemporary China,
and Associate Director of the Christopher H. Browne Center for International Politics at the University of Pennsylvania (“First Things First: The
Pressing Danger of Crisis Instability in U.S.-China Relations,” International Security, vol. 37, no. 4, Spring 2013, Muse //Red)
Two concerns have driven much of the debate about international security in the post-Cold War era. The first is the potentially deadly mix of nuclear proliferation,
rogue states, and international terrorists, a worry that became dominant after the terrorist attacks against the United States on September 11, 2001.1 The second
concern, one whose prominence has waxed and waned since the mid-1990s, is the potentially disruptive impact that China will have if it emerges as a peer
competitor of the United States, challenging an international order established during the era of U.S. preponderance.2 Reflecting this second concern, some
analysts have expressed reservations about the dominant post-September 11 security agenda, arguing that China could challenge U.S. global interests in ways that
terrorists and rogue states cannot. In this article, I raise a more pressing issue, one to which not enough attention has been paid. For
at least the next
decade, while China remains relatively weak, the gravest danger in Sino-American relations is the possibility the two
countries will find themselves in a crisis that could escalate to open military conflict. In contrast to the long-term
prospect of a new great power rivalry between the United States and China, which ultimately rests on debatable claims about the intentions of the two countries
and uncertain forecasts about big shifts in their national capabilities, the
danger of instability in a crisis involving these two
nuclear-armed states is a tangible, near-term concern.3 Even if the probability of such a war-threatening crisis and its escalation to
the use of significant military force is low, the potentially catastrophic consequences of this scenario provide good
reason for analysts to better understand its dynamics and for policymakers to fully consider its implications. Moreover, events since
2010—especially those relevant to disputes in the East and South China Seas—suggest that the danger of a
military confrontation in the Western Pacific that could lead to a U.S.-China standoff may be on the rise. In what
follows, I identify not just pressures to use force preemptively that pose the most serious risk should a Sino-American confrontation unfold, but also related, if
slightly less dramatic, incentives to initiate the limited use of force to gain bargaining leverage—a second trigger for potentially devastating instability during a
crisis.4 My discussion proceeds in three sections. The first section explains why, during the next decade or two, a
serious U.S.-China crisis may be
more likely than is currently recognized. The second section examines the features of plausible Sino-American crises that may make them so
dangerous. The third section considers general features of crisis stability in asymmetric dyads such as the one in which a U.S. superpower would confront an
increasingly capable but still thoroughly overmatched China—the asymmetry that will prevail for at least the next decade. This more stylized discussion clarifies the
inadequacy of focusing one-sidedly on conventional forces, as has much of the current commentary about the modernization of China's military and the
implications this has for potential conflicts with the United States in the Western Pacific,5 or of focusing one-sidedly on China's nuclear forces, as a smaller slice of
the commentary has.6 An
assessment considering the interaction of conventional and nuclear forces indicates
why escalation resulting from crisis instability remains a devastating possibility. Before proceeding, however, I
would like to clarify my use of the terms "crisis" and "instability." For the purposes of this article, I define a crisis as a confrontation between states involving a
serious threat to vital national interests for both sides, in which there is the expectation of a short time for resolution, and in which there is understood to be a
sharply increased risk of war.7 This definition distinguishes crises from many situations to which the label is sometimes applied, such as more protracted
confrontations; sharp disagreements over important matters that are not vital interests and in which military force seems irrelevant; and political disputes involving
vital interests, even those with military components, that present little immediate risk of war.8 I define instability as the temptation to resort to force in a crisis.9
Crisis stability is greatest when both sides strongly prefer to continue bargaining; instability is greatest when they are strongly tempted to resort to the use of
military force. Stability, then, describes a spectrum—from one extreme in which neither side sees much advantage to using force, through a range of situations in
which the balance of costs and benefits of using force varies for each side, to the other extreme in which the benefits of using force so greatly exceed the costs that
striking first looks nearly irresistible to both sides. Although the incentives to initiate the use of force may not reach this extreme level in a U.S. China crisis, the
capabilities that the two countries possess raise concerns that escalation pressures will exist and that
they may be highest early in a crisis, compressing the time frame for diplomacy to avert military conflict.
Chinese internal instability leads to a catastrophic meltdown and World War III as it
takes East Asia down with it
Plate 3
[Thomas Plate, Professor at UCLA, STRAITS TIMES, “Neo-Cons a Bigger Risk to Bush than China”, June 28, 2003, p.
lexis]
But, while China's prosperity may be good for Americans, is it necessarily the same for the totalitarians running
China? After all, having created a runaway economic elephant, will the Communist Party leaders be able
to stay in the saddle? Before long, the Chinese middle class alone may approach the size of the entire
population of America. It will want more freedom, not less - bet on it. But imagine a China disintegrating on its own, without neo-conservative or Central Intelligence Agency prompting, much less outright military
invasion - because the economy (against all predictions) suddenly collapses. That would knock Asia into
chaos. A massive flood of refugees would head for Indonesia and other places with poor border controls,
which don't want them and can't handle them; some in Japan might lick their lips at the prospect of World War II
Revisited and look to annex a slice of China. That would send Singapore and Malaysia - once occupied by
Japan - into nervous breakdowns. Meanwhile, India might make a grab for Tibet, and Pakistan for
Kashmir. Then you can say hello to World War III, Asia-style. That's why wise policy encourages Chinese
stability, security and economic growth - the very direction the White House now seems to prefer.
Next, solvency: American leadership on gambling is key to sustain the overall
credibility of the GATS agreement- failure will cause states to opt out of the dispute
settlement process and pursue unilateral trade remedies
Codd 7
[Kathryn B. Codd, J.D. Candidate 2008, William & Mary School of Law, William & Mary Law Review,
December, 2007 49 Wm. & Mary L. Rev. 941, “BETTING ON THE WRONG HORSE: THE DETRIMENTAL
EFFECT OF NONCOMPLIANCE IN THE INTERNET GAMBLING DISPUTE ON THE GENERAL AGREEMENT ON
TRADE IN SERVICES (GATS),” lexis//wyo-tjc]
Over the past decade, Internet gambling has become a global force. In 2003, the projected industry revenues
summed five billion dollars worldwide. n1 With the click of a button, bettors could link up with counterparts in other parts of the globe for a
poker tournament or a game of blackjack. As other countries embraced the operators of this new recreational activity, recognizing it as an
opportunity to spur economic growth and bring in valuable tax revenue, the
United States began to crack down on the
industry. n2 As part of this crackdown, the U.S. federal government and the states started to pass and enforce regulations prohibiting
Internet gambling, resulting in the arrest and conviction of executives of foreign gambling operations who dared to set foot on U.S. soil. n3 This
onslaught against the foreign gaming industry did not go unnoticed, however, and eventually, one small country, Antigua and Barbuda,
attempted to fight back against what it perceived as unfair discrimination against one of its primary sources of income. Antigua
brought
a complaint against the United States to the World Trade Organization (WTO), alleging violations of U.S.
obligations under the General Agreement on Trade in Services (GATS). n4 The WTO found the United States to be in violation of a
specific provision of GATS and ordered the United States to bring federal law into [*944] conformity with its GATS obligations. n5 Though
many scholars consider the violation to be minor and the fix relatively uncomplicated, n6 thus far the
United States has failed to comply with the WTO's recommendations. n7 The Dispute Settlement
Understanding (DSU) governs disputes, such as this one, that arise under GATS, as well as disputes under other WTO
agreements. n8 The DSU vests adjudicatory power in the WTO for all disputes that arise under WTO
agreements. n9 Although WTO member nations have failed to comply on occasion with WTO
decisions involving violations under other agreements-such as the General Agreement on Trade in Tariffs (GATT) or TradeRelated Aspects of Intellectual Property Rights (TRIPS)-this lack of compliance has not proved fatal to these agreements.
GATS, however , is a fairly young multinational trade agreement, and some scholars argue that
GATS has struggled to shape its identity amidst problems with overly flexible provisions and lack of attention from WTO
ministers. n11 Although most countries are likely to acknowledge that the agreement has been a relative
success thus far, n12 it has yet [*945] to weather any serious tests to its legitimacy. Because it was
instrumental in the formation of GATS, n13 other countries will likely look to the United States as an
example when deciding whether to comply with WTO decisions under GATS. The outcome of the
n10
gambling dispute may prove to be a bellwether for the success or failure of the agreement as a
mechanism for regulating trade in services . This Note argues that if the United States fails to respond
appropriately to the recommendations made by the WTO, the legitimacy of GATS as a mechanism for
regulating trade in services disputes will be undermined. Without legitimacy, GATS becomes nothing
more than symbolic lip service to the importance of liberalization in the service trade. Member nations will
perceive the agreement as a weak guarantor of rights and, as a result, will be less likely to resort to the
GATS dispute mechanism should a service trade dispute arise. This in turn may compel WTO members to
take unilateral action to enforce their rights, leading to elevated hostilities and possible trade wars.
To avoid these devastating results and to preserve GATS, the United States should adopt the WTO
recommendations proffered in the gamblingdispute.
Legalization restores compliance and wards off major trade conflicts.
Carbajales 10
[Noe Hamra Carbajales, J.D. candidate 2011, Tulane University Law School, Winter, 2010 Tulane Journal
of International and Comparative Law 19 Tul. J. Int'l & Comp. L. 397, “No More Bets: The United States
Rolls the Dice One More Time Regarding International Relations and Foreign Internet Gambling
Services,” lexis//wyo-tjc]
An analysis of U.S. laws regarding Internet gambling demonstrates the past and future conflicts in this area of the law. The ambiguity of the
laws and their interpretation by federal agencies caused the United States to be defeated in the WTO against Antigua. The
WTO
Appellate Body decision has opened the floodgates for future litigants, including major players such as
the EU. Until now, the United States has utterly disregarded its GATS commitments regarding the crossborder supply of gambling and betting services, whether the United States admits this or [*419] not. An attitude of
defiance and disregard for international law only fosters an environment of distrust, encouraging
other member states to follow suit by refusing to comply with their own commitments. No one denies
that the United States is a major, if not the biggest, player in the world economy and an essential pillar of the WTO. But
with leadership also come responsibilities. Accordingly, the United States will have to reconcile the
current situation by confronting the challenges ahead. A few options are available to the United States when addressing
the mess created by its inept Internet gambling laws. First, the United States should acknowledge the problem that it
has created by carving out exceptions for domestic providers of Internet gambling and betting services in the
IHA and the UIGEA. The United States could address it by either leveling the playing field for all foreign
Internet service providers or by banning these providers altogether without taking any discriminatory measures. n143 Second,
the United States could modify or withdraw its commitments pursuant to article XXI of the GATS. The viability of this
option would depend on how many members exercise their right to claim benefits for any loss they may suffer as a consequence of U.S.
actions. It is
no secret that the EU is considering the option to commence proceedings against the United
States in the WTO should the United States decide to withdraw its commitments. This means that the
United States could be exposed to potentially substantial damages should the EU and/or any other
countries decide to sue for any loss. As a last resort, the United States has the option of ignoring the
issue and maintaining the position of the DOJ regarding its compliance with the WTO. However, even this option is starting to
crumble. A possible suit by the EU would pin the United States to the ropes. To be successful, the EC
must simply avoid the same mistakes committed by Antigua. Considering the weight of the EU in the
world economy, the United States might want to think twice before addressing the issue of Internet
gambling. In today's modern society, it is almost unthinkable that a country could forbid the existence of a global Internet gambling market.
Based on technology's role in the economy, it might be best to begin by regulating a future Internet
gambling market rather than banning it outright. Past experiences with complete bans suggest that these measures only
drive the targeted activity underground. n144 A policy of licensing and regulation, however, has proven to be a
successful method [*420] of dealing with the issue of Internet gambling. n145 There is no doubt that the Internet has revolutionized
the world we live in. With this new revolution also come new challenges. The manner in which the United
States deals with these challenges will dictate the place it will occupy in the future. But in a world
moving towards globalization, a position advocating protectionism and isolationism has no place .
Now is key for WTO- a strong signal from the United States is necessary to re-inject
momentum into multilateral trade liberalization
Dieter 9
[Heribert Dieter, senior fellow at the German Institute for International and Security Affairs, Berlin, and
teaches at the University of Potsdam, GLOBAL GOVERNANCE, “The Multilateral Trading System and
Preferential Trade Agreements: Can the Negative Effects Be Minimized?,” vol. 15, 2009, pp. 393-408,
accessed 6.5.2014: academic search premiere //wyo-tjc]
It is widely recognized that preferential agreements are a suboptimal way to organize world trade. The
discrimination that is endemic in these arrangements is economically inefficient. Moreover, the
deepening of international production networks, through the sourcing of inputs from a broad range of countries, raises
the costs of preferential agreements. Now that the WTO membership has been unable to reach an agreement on modalities that
would have significantly progressed the Doha Round in July 2008,WTO members face a choice. They can either continue
to observe the spread of preferential agreements without changing the rules, or they can address the problem
by trying to minimize their negative effects. At a quite general level, one way of reducing the attractiveness of preferential
agreements would be to further reduce most-favored-nation (MFN) tariffs. If these tariffs are below 5 percent, the costs associated with
establishing origin in a preferential agreement are equal to or even greater than the tariff, so the interest in preferential agreements would
probably fade away quickly. However, the uneven structure of tariff lines has to be considered. Although many tariff lines are already quite low
today, there continue to be high tariffs on specific products in both developing and developed economies. Given
the paralysis
inaction in multilateral negotiations and the limited willingness of policymakers to unilaterally
liberalize much further at this point, the question is whether a political initiative by important countries could
send a signal against the further spreading of preferential agreements . The Warwick Commission has suggested
that the major industrialized countries as well as large developing countries should refrain from
establishing PTAs with each other. This recommendation was made with the worst-case scenario in mind in which the EU, United
States, and major Asian economies negotiated PTAs among themselves. Were such a situation to eventuate, the WTO
would face the prospect of irrelevance . Although not likely today, we have seen some developments in that direction, including
South Korea’s bilateral negotiations with the United States and the EU, and negotiations for a transatlantic marketplace between the United
States and the EU.
1AC – Advantage – Illicit Gambling
First, There is a legal vacuum after the Wire Act opinion and Dicristina decision
regarding online gambling and making a surge in unregulated gambling inevitable
Rosomer 2013
[James Romoser, J.D. candidate at Georgetown University Law Center, Summer, 2013 American Criminal
Law Review 50 Am. Crim. L. Rev., UNSTACKING THE DECK: THE LEGALIZATION OF ONLINE POKER,
lexis//wyo-tjc]
The legal landscape for online poker is now a clean slate. The Wire Act opinion, the Dicristina decision,
and the limitations of the UIGEA interlock to make clear that no federal law directly criminalizes
either playing online poker or running an online poker business. This reality creates both a risk and an
opportunity. The risk is that unscrupulous foreign companies, unchecked by American oversight, may
fill the void--just as the market was dominated by three apparently fraudulent companies before the 2011 indictments. n149 The
opportunity is that Congress, the states, or both, can confidently set up a safe, licensed, revenuegenerating online poker regime. A well-regulated regime would have numerous benefits. First,
government regulators can monitor for cheating and ensure that online poker games are fair. Second,
a regulatory regime can prevent minors from playing by requiring strict age-verification software. Third, regulations
can guard against compulsive betting by mandating in-game features that allow players to restrict
their own play or limit excessive losses. Fourth, mandatory geo-location software can ensure that legal
poker sites accept players only from jurisdictions in which online poker is legal. Fifth, government
monitoring would prevent poker sites from becoming fronts for money laundering or other criminal
activity. Sixth, U.S.-based poker companies would boost the economy--one study anticipates 10,000 new poker-based
jobs. n150 Seventh, for the first time the government would be able to collect billions of dollars in tax
revenue from online poker companies and from individual players' winnings. n151
And, online gambling is a game-changer for money laundering and terrorism
Sparrow 9 [Malcolm K. Sparrow (Professor of the Practice of Public Management—Harvard's John F.
Kennedy School of Government); “Can Internet Gambling Be Effectively Regulated? Managing the
Risks”; December 2, 2009; http://financialservices.house.gov/media/file/hearings/111/sparrow.pdf]
E.
Money Laundering by Players A major concern of law-enforcement authorities is money laundering
facilitated by online gambling . However, many financial analysts believe that the risks of money laundering in online gambling is low because
electronic transactions are closely monitored and recorded. A combination of anti-money-laundering regulations, currently in place for bricks-and-mortar
casinos as well as other financial institutions, and the use of technology would
provide the online gambling environment with better
opportunities for detecting money laundering by players than those available in land- and river-based casinos. 1.
The Issue of Money Laundering by Players Money laundering is a process through which proceeds derived from illegal activity
are legitimized. Money laundering is typically accomplished in three stages: (1) the placement stage, (2) the
layering stage, and (3) the integration stage. The placement stage is defined as the first entry of illegal money into
financial institutions or the retail economy. The layering stage consists of activities meant to hide the trail of money , generally
involving the transfer of money among multiple entities. The final stage, the integration stage, is
when the illegal funds are reintroduced
into the economy to appear as though they were legitimate. It is difficult for law enforcement to detect this
reintroduction of illicit funds into the economy without an audit trail established during the first two stages of the
laundering process. The following (hypothetical) example demonstrates how online gambling websites can be used to launder money: A customer could
establish an Internet gambling account under a false name and use illicit funds to conduct a minimal amount of betting. After a few
losses, the customer could request repayment from the Internet gambling site and claim them as winnings, thereby
creating a legitimate source for the remaining funds. The U.S. Department of Justice is concerned that online gambling offers
criminals an
easy vehicle for money laundering because of its anonymous nature, use of encryption, volume,
speed, international reach, and offshore locations.142 In his testimony before Congress in 2003, Deputy Assistant Attorney General John G.
Malcolm noted that e-casinos
are an excellent vehicle for money laundering because in addition to using the
gambling services offered to hide or transfer money, online gambling websites offer a wide variety of
financial services to their customers, including credit accounts, fund transmittal services, check
cashing services, and currency exchange services.143 There is little documentation by which to gauge the extent of actual money
laundering in online gambling. In 2002, the U.S. General Accounting Office (GAO) examined the vulnerability of online gambling to money laundering and concluded
that the "views on the vulnerability of Internet gambling to money laundering are mixed."144 Its report provides only hypothetical examples of how online
gambling sites could be used to launder money and does not describe any actual cases. A 2005 report prepared for the Interactive Gaming Council in Canada calls
evidence of the existence of money laundering in online gambling "scant" and claims that the Internet Crime Complaint Center had never logged a complaint of
money laundering through gambling sites.145 It goes on to claim that "Internet gaming does not, in and of itself, contribute to money laundering. Rather, it is the
financial transactions that are used to move money on the Internet that may be susceptible to money laundering."146 One
can understand money
laundering patterns that might occur in online gambling by extrapolating from the patterns of money
laundering seen in bricks-and-mortar casinos. Various betting patterns associated with money laundering in bricks-and-mortar casinos
have been identified, including the use of hedged bets by colluding players, light betting or minimal play (i.e., using bets that are small relative to the size of deposits
and withdrawals), splitting transactions up into units smaller than reporting thresholds, splitting transactions across reporting "days," and pressuring staff to not
problem related to money laundering is that of terrorist financing , in which
funds that are intended for terrorist groups are moved through the financial system in an apparently legitimate
way. Effective anti-money-laundering provisions must specifically address the risks of terrorist financing, although many techniques to combat money laundering
comply with their reporting obligations.147 A
are also effective against terrorist financing.148 The only known case of money laundering through gambling sites was related to terrorist financing: in
2007, a
suspected terrorist named Al-Daour used stolen credit cards to deposit funds at 43 different gambling
sites and then withdrew the winnings to various online bank accounts.149 2. Existing Controls in Other Jurisdictions
Congress has enacted legislation to detect money laundering. Under the Bank Secrecy Act (BSA) of 1970, all U.S. financial institutions, including banks, credit unions,
securities firms, and casinos, are required to report large currency transactions and suspicious activities.150 The Financial Crimes Enforcement Network (FinCEN)
administers these regulations. The casino gambling industry has been covered by the BSA since 1985, and FinCEN has specific regulations that pertain to casino
gaming. The BSA requires the reporting of any currency transactions exceeding $10,000 in a single gaming day on a Currency Transaction Report (CTR). 151 Because
money launderers can structure transactions such that they never result in a CTR being filed, all land- and river-based casinos are also required to file Suspicious
Activity Reports (SARs). Casinos have to file SARs if they know, suspect, or have reason to suspect that a transaction involving $5,000 or more meets certain criteria,
including involvement of illicit funds, intention to avoid or prevent proper reporting, exhibiting of abnormal behavior, or use of the casino to facilitate criminal
activity.152 The
leading online gambling jurisdictions have created regulatory structures that resemble traditional regulation for
land- and river-based casinos in the United States. These
jurisdictions require some form of anti-money-laundering monitoring, ranging
from restricting customers to a single account to identifying and reporting suspicious transactions or
players' abnormal betting patterns.153 In addition to regulation that combats money laundering in its financial services sector, the Isle of Man
has put in place the Anti-Money Laundering Code to prevent money laundering through gambling websites. 154 Operators
are required to comply with strict anti-money-laundering procedures, which include identification of
prospective customers, evidence of identity, changes to patterns of transactions, record keeping,
records of transactions, retention of records, reporting suspicious transactions, and training. In
addition, site operators are legally required to report any suspicious transactions to the Financial
Crime Unit (FCU). Specialized software can flag these transactions. Similarly, to combat money laundering, Alderney requires
operators of online gambling websites to implement business risk assessments, customer due diligence procedures, monitoring of transactions and other activity,
suspicious activity reporting procedures, employee screening and training procedures, and record-keeping procedures. 3. Relevant Technologies for Risk Mitigation
An anti-money-laundering regulatory regime for online gambling may be modeled on the current regulatory
structure for traditional bricks-and-mortar casinos. A regulatory framework for online gambling may leverage
the technological environment for online gambling and require (1) preservation of an audit trail of transactions for
analysis by federal authorities; (2) implementation of customer identification standards; (3) controls to prevent anonymous ,
structured transactions; (4) establishment of an anti-money-laundering compliance program; (5) training for all
appropriate personnel; and (6) compliance with all relevant BSA requirements. The IGC notes that "online gambling,
with a combination of regulatory oversight and use of technology—while facing the same threats as
real-world gambling facilities—is in a better position to address these risks." For example, all electronic fund
transfers can be electronically recorded, thus providing a detailed and automatic transaction trail not currently available
in land- and river-based casinos. The IGC further notes that a basic requirement to combat money laundering is to "know your
customer." Stringent player registrations and ongoing verification processes combined with
appropriate regulatory oversight and banking regulations help fulfill this requirement. Italy's regulatory regime,
for example, requires a potential customer to submit a signed contract along with a copy of his or her identification. Tasmania requires strong identity
verificationprocedures to be in place on player accounts. Moreover, technology
can equip site operators with tools to scrutinize
player behavior , and then capture and report the transaction. Another essential anti-moneylaundering measure noted by the IGC is to require that gamblers be paid any winnings in the same way in which the
inconsistent
money was originally deposited. This system allows an audit to track transfers of funds much more easily and
removes the ability of launderers to use an account as a pass-through for funds. Also, care must be taken when allowing
transfers of funds between players, which could potentially be a conduit for money laundering . Alderney's money
laundering guidance suggests that transferred funds be allowed only for gambling and not for withdrawal or that site operators undertake
further due diligence on players involved in transfers. In
addition to a system modeled on requirements for bricks-andmortar gambling, a regulator can require the same procedures that are required of online merchants,
banks, and payment providers. In Europe, online gambling operators have been bound by these requirements since 2003 under the Third
European Money Laundering Directive. U.S.
licensed operators would also be bound by relevant anti-money-laundering
requirements. Most nations are also subject to the recommendations of the Financial Action Task Force, an
international body formed to combat money laundering and terrorist financing. Each nation may also have its own money laundering regulations, such as the United
Kingdom's Money Laundering Regulations, which cover both financial and nonfinancial businesses. Although financial businesses are still subject to the most
of these regulations use a risk-based approach , in which the level of scrutiny of transactions
is commensurate with the risk of money laundering in those transactions . The most important aspects of financial companies'
stringent regulation, all
risk mitigation involve three broad activities: (1) "know your customer" procedures, (2) monitoring for
suspicious activity, and (3) procedures for reporting suspicious activity. Identity verification can
involve both paper and electronic identification, and the level of additional identification required
rises with the risk in the particular industry and transaction. Suspicious activity monitoring involves standard
procedures that are designed to reveal signs of monitoring while retaining privacy protection. All
suspicious activity must be reported to law enforcement, which takes over the investigation immediately .
Suspicious activity reporting, as part of the regulations, is the responsibility of all company staff members, who must be trained in the signs of money laundering
and be able to report their suspicions expeditiously. In the United Kingdom, not reporting suspected money laundering is a criminal offense with a maximum
sentence of two years in prison.171 4. Conclusion Players
or groups of players acting in concert may attempt to use legitimate
gambling operations for money laundering. To curb such activities, regulators could subject online gambling
operators to anti-money-laundering regulations that are currently in place for bricks-and-mortar casinos and for
online merchants, banks, and payment providers. The online environment provides better
opportunities for detecting money laundering by players or player groups than do bricks-and-mortar
casinos. In an effective anti-money-laundering regime, site operators would be required to retain
comprehensive data on all deposits, withdrawals, and betting transactions and to make these available to regulators for examination
and analysis. Given
complete data, most patterns related to money laundering (such as light betting or matched bets placed by
collaborators) would
be easier to detect than they are in a physical environment (where complete transaction histories are
available only in the form of video recordings).172 Software
for detecting anomalies and suspicious behavior may be
operated easily and routinely on digital databases by operators, regulators, or both. The site operators'
obligations with respect to their own detection of money laundering would form a part of their ordinary
compliance obligations under such a licensing regime. Because of the absence of cash in online gambling
transactions, the auditable record that is created, and the regulator-imposed reporting requirements for most
transactions, it is likely that site operators can prevent money laundering
as
by players
and terrorist financing at least
effectively as can bricks-and-mortar casinos.173 In contrast, the current prohibitions related to online gambling
force s players to use unconventional forms of payment that leave harder-to-follow audit trails, and may
therefore increase the risk of money laundering .
Cyberlaundering uniquely key to global terrorism
Hunt 11
[John Hunt (Lawyer—Florida Fifth District Court Of Appeal); “The new frontier of money laundering: how
terrorist organizations use cyberlaundering to fund their activities, and how governments are trying to
stop them”; Information & Communications Technology Law Volume 20, Issue 2, 2011;
http://www.tandfonline.com/doi/full/10.1080/13600834.2011.578933#.VBCPjfldWSo]
For a terrorist organization seeking to launder money, the Internet and electronic currency provide excellent
tools for committing the crime efficiently. 26 As one author has stated, ‘[ c]yberlaundering is the safest way for
to launder dirty money if the government cannot reconstruct the transactions of an audit trail’. 27 The
process of cyberlaundering mirrors the traditional methods, with the launderer ordinarily using the three
stages discussed above (i.e. placement, layering, and integration). 28 In addition to efficiency , cyberlaundering
presents other benefits as well. One such benefit is that electronic currency allows terrorists to avoid the problems
associated with physically transferring large sums of money, and allows criminal organizations to make lightning
fast transfers anywhere in the world. 29 Perhaps the greatest advantage cyberlaundering offers over
traditional methods of money laundering is anonymity, since individuals may transfer electronic cash from one location
to another without ever having to complete a transaction in person. 30 This section will examine the concept of
criminals
cyberlaundering, and discuss what role it will play in the future of money laundering. Before going into detail about cyberlaundering, it is
helpful to provide a brief explanation of electronic currency, since the use of such currency is likely to increase in the coming years, and thus
play an even more important role in future laundering schemes. 31 Electronic currency, as its name suggests, holds the same status as
traditional hard currency in the world economy, except that it does not exist in a tangible form. 32 Some authors therefore call such currency
the ‘greenback of the Internet’. 33 One method that allows individuals to take advantage of the benefits of electronic currency is through the
use of stored value cards (SVCs), also known as ‘smart cards’, which are tangible cards (similar in appearance to phone cards) on which the user
can store vast amounts of cash. 34 Individuals can load electronic currency onto their SVC at specialized vending machines, at the bank, at
compatible ATMs, through the Internet, and even over the phone. 35 Electronic cash comes in three forms: one that operates within traditional
financial institutions, such as banks; one that operates in a ‘tokenized’ system; and one that operates as a hybrid system. 36 Credit and debit
cards continue to dominate online commerce in the US, but companies are beginning to develop a system for SVCs that could gain worldwide
popularity. 37 Although this discussion provides only a cursory explanation of electronic currency and SVCs, it lays the foundation for a better
understanding of cyberlaundering. In terms of the traditional three stages of money laundering, electronic currency and the Internet provide
ideal conditions for cyberlaunderers. 38 At the placement stage, cyberlaunderers
benefit from the anonymity of the
Internet and electronic currency, as there is no need for face-to-face transactions. 39 Launderers may thus make it past the
placement stage undetected, since they are able to avoid the strict reporting requirements imposed on
traditional financial institutions. 40 At the layering stage, the cyberlaunderer has the biggest use for the
Internet and its advantages over the traditional forms of layering in a laundering scheme. 41 If the
criminal can find an institution (e.g. a bank or online gambling site ) that will permit him to set up an account
without face-to-face contact or without providing documentary evidence of identity , then it would be extraordinarily
difficult for the authorities to trace the account back to the cyberlaunderer. 42 The Internet provides an almost
instantaneous method of transfer of electronic cash, and the transaction can occur anywhere in the world where
there is an Internet connection. 43 If the launderer can transfer electronic currency between banks via the Internet, then authorities may find it
nearly impossible to trace the funds back to the source. 44 Finally, the
Internet also makes the integration of the
cyberlaundered funds easier. For instance, an individual could establish an online gambling site and transfer
funds from an online bank account (established using a false identity) to the online gambling site; any proceeds of the
gambling website would thus appear legitimate to authorities tracing the audit trail of the profits. 45 This is the
modern version of what the New York Mafia did in the 1920s when they opened Laundromats as
fronts for their criminal activities. 46 The cyberlaunderer may also use legitimate bankers and lawyers to aid in the integration
stage. 47 It is also possible that the cyberlaunderer could take advantage of debit cards issued by offshore banks, real estate transactions, and
‘fake loans from offshore companies’ to integrate the laundered funds back into the legitimate economy. 48 Once the laundered money
passes through these stages, the criminal organization is free to use the funds to further its aims . The next section
will focus on how terrorist organizations utilize the Internet and cyberlaundering techniques to fund their activities. This paper will then turn to
the topic of how the US government, the UN, the G7, the OAS, and the COE have attempted to stem the laundering of money by terrorist
organizations, and finally will discuss the future of measures aimed at stopping cyberlaundering. Given the threats posed by cyberlaundering to
the financial industry and national security, it is vital that governmental organizations take steps to stem the use of new technologies by
terrorist organizations. 49 4 Online terrorism: how terrorist organizations use the Internet and cyberlaundering to fund their activities Jump to
section 1. Introduction 2 A brief history of money laundering and... 3. The new frontier of money laundering 4 Online terrorism: how terrorist
organizations... 5 Attempts by national governments and... 6 The future of cyberlaundering: what... 7 Conclusion Despite
efforts by the
governments of the US and its allies, terrorist organizations such as al Qaeda, Hezbollah, and Hamas still
maintain the ability to coordinate attacks and fund their activities. 50 One medium that terrorist organizations are increasingly
taking advantage of is the Internet. 51 There is evidence that terrorist organizations
rely on the Internet and related technologies
laundering money to legitimize their funds. 52 Indeed, some observers believe that
cyberlaundering and cyberterrorism may pose just as great a threat to the stability of the global economy and
to conduct their activities, which likely includes
global security as traditional weapons of mass destruction . 53 Although terrorist organizations may use the Internet for
recruitment, training, and planning purposes as well, this section will focus on how such organizations raise funds and legitimize those funds
through cyberlaundering. 54 The Internet, with its anonymity, ease of use, and accessibility, permits terrorist organizations
to avoid some of the dangers of conducting financial transactions through traditional channels. 55 To take
one example of how successful terrorist organizations are in raising funds, consider the case of al Qaeda. It is difficult to state with any
certainty how much money al Qaeda raises every year; one estimate put the figure at $30 million in 2004, but that number is likely lower today.
56 Although certainly not all of the funds raised by al Qaeda pass through the Internet, it is likely that the organization significantly
relies
on the Internet and cyberlaundering to help distribute its wealth. 57 Al Qaeda and other terrorist organizations excel
at adapting to changing circumstances, and of maintaining their core financial stability, despite the best efforts of
authorities. 58 In order to make these adaptations and to take advantage of the Internet and other
technologies, however, terrorist organizations must have reliable sources of funding. 59 Terrorist organizations rely on
several sources to fund their activities. To provide some perspective, the CIA estimates that al Qaeda spent $30 million in the years leading up
to the September 11 attacks for planning, recruitment, and other supportive purposes. 60 The CIA believes that much of the $30 million came
from contributions from religious and charitable organizations. 61 One organization that provides a significant amount of support to al Qaeda is
the Muslim Brotherhood, which ‘was founded in Egypt in 1928 as a religious organization’. 62 In addition to al Qaeda, the Muslim Brotherhood
also has ties to the Tamil Tigers, the Afghan mujahidin, and is considered by the US Treasury to be the ‘parent’ of Hamas. 63 More recently,
terrorist organizations have turned to conventional crimes such as extortion, the selling of narcotics, and arms trafficking to fund their
activities. 64 According to Mr David S. Cohen, the Assistant US Treasury Secretary for Terrorist Financing, the move into traditional criminal
activities makes terrorist organizations ‘more vulnerable to detection by international law enforcement agencies … ’ 65 Although terrorist
organizations have different motives than those who traditionally take part in the drug trade, there are many similarities between the activities
of the two groups when one looks at their reliance on drug trafficking for funding. 66 Terrorist groups also receive funds from investments in
legitimate business. 67 Once
the terrorist organizations receive the funds, they must ensure that they can
spend the proceeds in economies around the world. Given that some of the funds obtained be terrorists come from
legitimate sources, authorities may have difficulty in tracing the funds or proving that the groups are committing the crime of money
laundering. 68 Cyberlaundering and the use of the Internet allow the organizations to launder and transfer money easily
and quickly, and provide an alternative to traditional informal financial networks, such as hawalas. 69 The widespread availability of the
Internet creates a convenient method for terrorist organizations to transfer funds, both illegal and legal, to cells across the globe. 70
Using the cyberlaundering techniques described above, terrorist groups can ensure that their coffers do not
run dry . Although traditional informal financial institutions are fast, inexpensive, reliable, convenient, and discreet, they do not
share the Internet’s relative lack of regulation and law enforcement observation. 71 In addition, the Internet allows
terrorist financers to transfer funds from the location of their choosing, without ever having to make a face-to-face
transaction . 72 It is difficult to say with certainty to what extent terrorist organizations use the Internet and cyberlaundering techniques to
further their causes, but it is certain that the groups are taking full advantage of modern technology. 73 Although outside the scope of this
paper, terrorist organizations may also use the Internet for cyberterrorist attacks on governmental and financial infrastructures. 74 As one
author stated, ’[t]errorists are able to do more damage with a keyboard than a bomb ’. 75
That risks devastating cyber-attacks --- they’re highly motivated and it overwhelms
defenses
Bucci 9
Dr. Steven P. Bucci is IBM's Issue Lead for Cyber Security Programs and a part of the Global Leadership
Initiative, the in-house think tank for IBM's public-sector practice. He most recently served as Deputy
Assistant Secretary of Defense, Homeland Defense and Defense Support to Civil Authorities. Dr. Bucci
delivered these remarks at a meeting of The Heritage Foundation's Cyber Security Working Group, The
Confluence of Cyber Crime and Terrorism, http://www.heritage.org/research/lecture/the-confluenceof-cyber-crime-and-terrorism
If a cash-rich terrorist group would use its wealth to hire cyber criminal botnets for their own use, we
would have a major problem. A terrorist group so enabled could begin to overwhelm the cyber
defenses of a specific corporation, government organization, or infrastructure sector and do much
damage. They could destroy or corrupt vital data in the financial sector, cripple destroy
communications over a wide area to spread panic and uncertainty. Similar to the nation-state attack
scenarios discussed earlier, terrorists could use botnet-driven DDoS attacks to blind security forces at a
border crossing point as a means of facilitating an infiltration operation, or a cyber attack in one area of
a country to act as a diversion so a "conventional" kinetic terrorist attack can occur elsewhere. They
could even conduct SCADA attacks on specific sites and use the system to create kinetic-like effects
without the kinetic component. A good example would be to open the valves at a chemical plant near a
population center, creating a Bhopal-like event. The permutations are as endless as one's imagination .
The cyber capabilities that the criminals could provide would in short order make any terrorist
organization infinitely more dangerous and effective. Some have opined that cyber attacks are not
suitable as terror tactics because they lack the drama and spectacular effect of, say, a suicide bomber.
This does not take into account the ability of the terrorists to adapt. As our intelligence and law
enforcement agencies continue to effectively combat the terrorists, they will continue to evolve. The
terrorists' old methods will be augmented and improved. They will need to develop more imagination
and versatility if they are to conduct successful operations. This evolutionary capability has not been in
short supply among the terrorist leadership. They will not define "spectacular" so narrowly. Imagine the
operational elegance of simply hitting the return key and seeing thousands of enemies die a
continent away, or watching a bank go under due to the destruction of all its data by an unknown
force . This will be enormously attractive to terrorist groups. Additionally, the combination of cyber
methods and kinetic strikes could be spectacular regardless of one's definition. Criminals, for their
part, are motivated by greed and power. Few of the leaders of the enormous cyber organized crime
world would hesitate at selling their capabilities to a terrorist loaded with cash. That fact, combined
with the ever-growing terrorist awareness of cyber vulnerabilities, makes this set of scenarios not just
likely, but nearly inevitable .
Guarantees nuclear exchange
Lawson 9
[Sean Lawson is an assistant professor in the Department of Communication at the University of Utah,
MAY 13, 2009, “Cross-Domain Response to Cyber Attacks and the Threat of Conflict Escalation”,
http://www.seanlawson.net/?p=477, Date accessed 9/20/14, wyo-jf]
At a time when it seems impossible to avoid the seemingly growing hysteria over the threat of cyber war,[1] network security expert Marcus
Ranum delivered a refreshing talk recently, “The Problem with Cyber War,” that took a critical look at a number of the assumptions underlying
contemporary cybersecurity discourse in the United States. He addressed one issue in partiuclar that I would like to riff on here, the issue of
conflict escalation–i.e. the possibility that offensive use
of cyber attacks could escalate to the use of physical
force.
As I will show, his concerns are entirely legitimate as current U.S. military cyber doctrine assumes the possibility of what I call “crossdomain responses” to cyberattacks. Backing Your Adversary (Mentally) into a Corner Based on the premise that completely blinding a potential
adversary is a good indicator to that adversary that an attack is iminent, Ranum has argued that “The
best thing that you could possibly do
if you want to start World War III is launch a cyber attack. [...] When people talk about cyber war like it’s a practical thing,
what they’re really doing is messing with the OK button for starting World War III. We need to get them to sit the f-k down and shut the f-k
up.” [2] He is making a point similar to one that I have made in the past: Taking away an adversary’s ability to make rational decisions could
backfire. [3] For example, Gregory Witol cautions that “attacking the decision maker’s ability to perform rational calculations may cause more
problems than it hopes to resolve… Removing the capacity for rational action may result in completely unforeseen consequences,
including longer and bloodier battles than may otherwise have been.” [4] Cross-Domain Response So, from a theoretical standpoint, I
think his concerns are well founded. But the current state of U.S. policy may be cause for even greater concern. It’s not just worrisome that a
hypothetical blinding attack via cyberspace could send a signal of imminent attack and therefore trigger an irrational response from the
adversary. What is also cause for concern is that current U.S. policy
indicates that “kinetic attacks” (i.e. physical use of force)
are seen as potentially legitimate responses to cyber attacks. Most worrisome is that current U.S. policy implies that a
nuclear response is possible, something that policy makers have not denied in recent press reports. The reason, in part, is that the U.S. defense
community has increasingly come to see cyberspace as a “domain of warfare” equivalent to air, land, sea, and space. The definition of
cyberspace as its own domain of warfare helps in its own right to blur the online/offline, physical-space/cyberspace boundary. But thinking
logically about the potential consequences of this framing leads to some disconcerting conclusions. If cyberspace is a domain of warfare, then it
becomes possible to define “cyber attacks” (whatever those may be said to entail) as acts of war. But what happens if the U.S. is attacked in
any of the other domains? It retaliates. But it usually does not respond only within the domain in which it was attacked. Rather, responses are
typically “cross-domain responses”–i.e. a massive bombing on U.S. soil or vital U.S. interests abroad (e.g. think 9/11 or Pearl Harbor) might lead
to air strikes against the attacker. Even more likely given a U.S. military “way of warfare” that emphasizes multidimensional, “joint” operations
is a massive conventional (i.e. non-nuclear) response against the attacker in all domains (air, land, sea, space), simultaneously. The possibility of
“kinetic action” in response to cyber attack, or as part of offensive U.S. cyber operations, is part of the current (2006) National Military Strategy
for Cyberspace Operations [5]: (U) Kinetic Actions. DOD will conduct kinetic missions to preserve freedom of action and strategic advantage in
cyberspace. Kinetic actions can be either offensive or defensive and used in conjunction with other mission areas to achieve optimal military
effects. Of course, the possibility that a cyber attack on the U.S. could lead to a U.S. nuclear reply constitutes possibly the ultimate in “crossdomain response.” And while this may seem far fetched, it has not been ruled out by U.S. defense policy makers and is, in fact, implied in
current U.S. defense policy documents. From the National Military Strategy of the United States (2004): “The term WMD/E relates to a broad
range of adversary capabilities that pose potentially devastating impacts. WMD/E includes chemical, biological, radiological, nuclear, and
enhanced high explosive weapons as well as other, more asymmetrical ‘weapons’. They may rely more on disruptive impact than destructive
kinetic effects. For example, cyber attacks on US commercial information systems or attacks against transportation networks may have a
greater economic or psychological effect than a relatively small release of a lethal agent.” [6] The authors of a 2009 National Academies of
Science report on cyberwarfare respond to this by saying, “Coupled
with the declaratory policy on nuclear weapons
the United States will regard certain kinds of cyberattacks against the United
States as being in the same category as nuclear, biological, and chemical weapons, and thus that a
nuclear response to certain kinds of cyberattacks (namely, cyberattacks with devastating impacts) may be possible. It also sets a
described earlier, this statement implies that
relevant scale–a cyberattack that has an impact larger than that associated with a relatively small release of a lethal agent is regarded with the
same or greater seriousness.” [7]
Regulations solve- safeguards
D'Addario 12
[Shylene B. D'Addario, J.D. Candidate, 2012, Rutgers School of Law – Newark, Rutgers Computer and
Technology Law Journal, THE LEGALIZATION OF INTERNET GAMBLING: WHY THE CLOCK IS TICKING ON
PROHIBITION, 2012, p. lexis//wyo-tjc]
There are currently millions of Americans who engage in Internet gambling with illegal offshore
operators "with no oversight, no regulation, or no consumer protections." n119 Protecting consumers
against abuses can be effectively controlled and regulated. n120 Legalization and regulation appears to be
the only [*108] way to ensure that players are not cheated and that vulnerable citizens are
protected. n121 With websites being run from all over the world, Americans who take it upon themselves to gamble
on international sites are exposed to great abuses, such as game rigging, the house unfairly winning and non-payment of
winnings. One way to effectively regulate and protect against fraud is through the payment systems. n122
Congress aimed to do just that through the UIGEA, although it hasn't exactly worked as planned. The credit card system in the
United States is well established and effectively policed to thwart fraudulent and criminal behavior.
n123 Because money laundering and corruption are major concerns for the legislature, Congress has
also made it a goal to work with foreign nations to help identify occurrences of criminal operations
involving Internet gambling. n124 Ironically, one way to help foster criminal behavior is by not
regulating an industry that many Americans are involved with. n125 Under recently proposed legislation, licensed
operators would be required to comply with mandated safeguards to help combat fraud and money
laundering. n126 Some of these safeguards include: tracing the money used on licensed Internet
gambling websites to a bank account; cross-checking transactions with existing databases used in antimoney laundering, anti-fraud, and anti-terrorism [*109] efforts; and holding payments in escrow to
allow consumers time to contest unauthorized transactions. n127 By imposing these safeguards for gambling website
operators, Americans will be better protected from fraud. The concerns for protections against fraud apply to both federal and state regulation.
In New Jersey, the Attorney General makes it very clear that Internet gambling is illegal and if a person is defrauded in any way there will likely
be no remedy. n128 With the veto of the recent New Jersey bill, New Jersey citizens are left to their own devices when it comes to Internet
gambling, as is the case with the citizens of every other state. There
is significant public interest in protecting Americans
from being defrauded and the only way to do that is through effective regulation. Until new
legislation is enacted, Americans will continue to be subjected to fraud from unregulated website
operators as well as have no legal course of action to remedy any potential problems.
Legalization solves money-laundering- moves revenue into safer domestic sites
Abovitz 8
[Ian Abovitz, Associate and member of Stark & Stark’s Accident & Personal Injury Group in the Yardley,
Pennsylvania office and J.D. Temple University, Fall, 2008 Temple International & Comparative Law
Journal 22 Temp. Int'l & Comp, WHY THE UNITED STATES SHOULD RETHINK ITS LEGAL APPROACH TO
INTERNET GAMBLING: A COMPARATIVE ANALYSIS OF REGULATORY MODELS THAT HAVE BEEN
SUCCESSFULLY IMPLEMENTED IN FOREIGN JURISDICTIONS, lexis//wyo-tjc]
The final social concern raised by those in opposition to internet gambling is the potential for the use
of money laundering to facilitate terrorist activity, as well as a variety of other crimes. n174 "Money laundering is a process
through which criminals legitimize proceeds derived from illegal activity." n175 Offshore internet gambling operations make it easy for
criminals to launder their money simply by depositing illegally obtained funds onto a gambling website, then using the funds to gamble and
cashing out the remaining funds. n176 The internet provides the protections of encryption and anonymity, n177 allowing criminals to use this
method to disguise the origin of their money so that it does not appear to have been obtained through illegal activity. n178 The
internet
is conducive to money-laundering activities in part because of the inherent anonymity of the internet,
and a lack of uniform oversight and regulation. n179 As a commentator has explained, "the challenge to oversight
authorities remains to find ways to prevent illicit activities while allowing legitimate gambling operators and players to conduct their business in
If regulations were put
into place and reputable U.S. operators were permitted to enter the market, they would have a much
greater incentive to protect themselves from money-laundering activity than offshore operators. n181
an open and potentially lucrative setting safeguarded by a sound and comprehensive regulatory regime." n180
1AC – Solvency
In 2011, the DOJ re-interpreted the Wire Act, dropping any federal barrier to
iGambling as long as it is not sports-related.
Rose 13
[I. Nelson Rose, J.D. Harvard Law School, is a Full Professor with Tenure at Whittier Law School in Costa
Mesa, California and a Visiting Professor at the University of Macau. Professor Rose is an internationally
known scholar, author, and public speaker, and is recognized as one of the world's leading experts on
gaming law, Spring, 2013 UNLV Gaming Law Journal 4 UNLV Gaming L.J. 1, “The DOJ Gives States a Gift”,
lexis//wyo-tjc]
The United States Department of Justice ("DOJ") gave states and the online gaming community a big
present, made public two days before Christmas 2011. President Barack Obama's administration
declared that the Wire Act, n2 the major federal anti-gambling statute used against Internet gambling,
applies only to bets on sports events and races. n3 Additionally, the DOJ no longer cares if a
communication wire carrying legal intra-state wagers happens to cross temporarily into another state.
n4 This opens the door for states to legalize almost every form of Internet gambling for their
residents and to authorize online wagers from residents of other states and nations. The Wire Act was
enacted in 1961 as part of Attorney General Robert F. Kennedy's war on organized crime. n5 It was
designed to aid the states in their public policies, which, at the time, were almost entirely prohibitory
against all commercial gaming. For example, in 1961 only Nevada allowed any form of off-track betting.
n6 The Wire Act was consciously designed to aid the states in fighting illegal bookmaking. n7 The
statute's purpose was to cut "the Wire" - the name organized criminals gave to the telegraph wire used
by illegal bookies to get race results before their bettors. n8 The target of the Wire Act was so specific
that prosecutors were fortunate Congress had included the words "sports events," thus allowing the Act
to be used against illegal sports books as well. n9 The 2011 Christmas announcement allows states,
which are desperate to find ways to raise revenue without raising taxes, to legalize almost any form of
intra-state gambling. However, this does not include sports betting because of [*2] another federal
statute, the Professional and Amateur Sports Protection Act ("PASPA"). n10 Under PASPA, sports
betting cannot be introduced into a state that does not already have it. n11 However, New Jersey is
challenging PASPA in court, n12 and the California State Senate has already passed a bill to legalize
sports betting. n13 Historically, it has always been up to individual states to decide their own public
policies toward gambling. For example, Utah and Nevada share a common border; yet they have
completely different gaming laws. n14 Until recently, the role of the federal government was limited to
helping states enforce their public policies. Congress only acts when it has to, as with interstate
horseracing and tribal gaming, or when the states have asked for federal assistance, as with the Wire Act
and other statutes designed to fight organized crime. The federal anti-gambling statutes are
enforcement statutes; they do not change the substantive laws of gambling. With the exception of
PASPA, no act of Congress makes illegal any form of gambling that is legal under state law. PASPA is
limited to sports betting n15 and is of questionable constitutionality. n16 All other federal statutes,
with only two exceptions, are facially limited to gambling that is illegal under federal or state law. n17
For example, the Travel Act n18 makes it a federal crime to travel or use any facility in interstate or
foreign commerce to carry on "unlawful activity," which is defined as a business enterprise involving
gambling "in violation of the laws of the State in which they are committed or of the United States."
Only the federal anti-lottery statutes n19 and the Wire Act can apply to gambling that is legal under
state law. The federal anti-lottery laws have not proven to be much of a barrier to state lotteries. Long
before Powerball, states found ways of getting around the federal prohibitions on interstate lotteries,
by having only information, not money, cross state lines. n20 The Wire Act, on the other hand, scared
the states out of legalizing other forms of gambling online, or linking games across state [*3] lines. After
the DOJ's 2011 Christmas announcement, the threat of the Wire Act to state-legal gaming is limited to
sports betting. The only barrier blocking states from legalizing Internet poker and other non-lottery
games was the DOJ's expansive view of the Wire Act. Thus, now that the DOJ has limited the scope of
the Wire Act to cover only cross-border sports bets, there is no federal law preventing a state from
authorizing intra-state online games. It is even likely that states may now enter into compacts with
other states and nations to pool players interstate and internationally. The DOJ opinion requires that
gambling be legal under state laws. n22 It will take some time for legislatures to react to this gift from
the Obama Administration, but many of the state lotteries can set up online games quickly. The 2011
Christmas announcement stemmed from the Illinois and New York state lotteries' request for
clarification from the DOJ. Those state lotteries - along with the state lotteries of Minnesota, New
Hampshire, North Dakota and Virginia - had been selling intrastate subscriptions online for years. n23
The Illinois and New York lotteries wanted to know if they could use out-of-state payment processors for
those Internet purchases. Technically, the only question being decided was, "whether proposals by
Illinois and New York to use the Internet and out-of-state transaction processors to sell lottery tickets to
in-state adults violated the Wire Act." The DOJ's answer was far beyond what they were hoping for.
Now, states can not only sell lottery ticket subscriptions over the Internet and use out-of-state payment
processors, but they can also operate any game legal under state law, so long as it is not considered
sports betting. n24
Interstate compacts are a superior option- they create sustainable gambling pools,
removes barriers to foreign operators, raise revenue, and don’t require Congressional
consent.
Rosomer 2013
[James Romoser, J.D. candidate at Georgetown University Law Center, Summer, 2013 American Criminal
Law Review 50 Am. Crim. L. Rev., UNSTACKING THE DECK: THE LEGALIZATION OF ONLINE POKER,
lexis//wyo-tjc]
A better option is for states to enter interstate compacts to form large, online poker networks
covering multiple states. Article I of the U.S. Constitution contemplates the power of states to form
compacts, n171 and states routinely use this power. In fact, perhaps the most familiar examples of
present-day interstate compacts are the massive "Powerball" and "MegaMillions" lotteries in which
many states participate. Just as they do with these lottery games, states could create a multi-state
online poker network that would be available to the inhabitants of all member states. The network
could be subject to a unified regulatory and taxsharing plan, according to the terms of the "compact,"
and it could expand the size of the player base far beyond what any individual state can attract on its
own. n172 Two experts have even suggested that a multi-state network could be open to poker
players from foreign countries. To be sure, the language of the Compact Clause expressly requires
that Congress consent to interstate agreements. But the Supreme Court has held that congressional
consent is necessary only in narrow circumstances— namely, when "the prohibition is directed to the
formation of any combination tending to the increase of political power in the States, which may
encroach upon or interfere [*542] with the just supremacy of the United States." n174 The Court has
never invalidated an interstate compact for lack of congressional consent, and a multi-state poker
agreement almost certainly would not trigger the consent requirement. Existing multi-state lottery
agreements, for instance, did not need the approval of Congress. n175 Very recently, Nevada
regulators latched onto the compact idea. In January 2013, the state's Gaming Control Board submitted
a bill to the state legislature that would allow the governor to enter agreements with other states in
which online poker is legal. n176 A key reason cited for the proposal is to supplement Nevada's nascent
poker network with an influx of new players. n177 If states cooperate with Nevada, an expansive, wellregulated online poker network could be imminent. By joining a compact to regulate online poker, they
can avoid having to wait for the calcified Congress to act, and they can solve the balkanization
problem of states acting on their own. In addition, they can reap billions of dollars in new revenue
and ensure that their poker-playing citizens do business with legitimate American companies. V.
CONCLUSION Americans have been playing online poker for fifteen years. All evidence suggests they will
continue to do so, regardless of whether their government tells them it is illegal. On Facebook--that
trusty gauge of generational appetites--the third-party application with the most total "Likes" is "Texas
HoldEm Poker." n178 Its popularity is especially telling given that the application does not even offer
"real" poker: people can play the game, but only using digital chips with no monetary value. The app's
parent company, Zynga, is poised to start offering online poker for real money--as soon as lawmakers
allow it. n179 The legal trend certainly points in that direction. The Department of Justice has reinterpreted the Wire Act as irrelevant to online poker. A federal district court has ruled that the Illegal
Gambling Business Act also does not apply. The Unlawful Internet Gambling Enforcement Act is
ineffectual without an applicable statute on [*543] which to rely. And the states, despite historically
treating poker as an illicit "game of chance," are beginning to move toward explicit legalization. The
best path forward is an interstate compact to create a robust multi-state online poker network. A
compact, as envisioned in this Note, would take advantage of the emerging judicial certainty that
online poker is legal under federal law. And it would, for the first time, allow American online poker
to be fully regulated, guaranteed safe, and properly taxed. As Mark Twain wrote, "There are few things
that are so unpardonably neglected in our country as poker." n180 Under a well-regulated interstate
compact, the digital iteration of America's pastime would no longer be neglected by America's
policymakers.
States are only forging ahead with INTRA-state gambling, which is now inevitable.
Nevill 13
[Andrew M. Nevill, J.D., University of Illinois College of Law, Spring, 2013 University of Illinois Journal of
Law, Technology & Policy 2013 U. Ill. J.L. Tech. & Pol'y 203, FOLDED INDUSTRY? BLACK FRIDAY'S EFFECT
ON THE FUTURE OF ONLINE POKER IN THE UNITED STATES, lexis//wyo-tjc]
As a federal statute, the UIGEA only governs interstate activity. n176 This has allowed state legislatures
to make their own laws regarding Internet gambling within their own borders. Many states that are
struggling to balance their budgets are looking for new sources of revenue and are turning to the
possibility of legalizing intrastate online gambling . n177 Despite the federal crackdown on online poker, President
Obama has recognized this right of the states to determine whether it wants to permit online poker
between its own residents. n178 In April 2011, the District of Columbia passed the Lottery Modernization
Amendment Act of 2010. n179 This law defined a lottery as being "both games of skill and games of chance" and allowed these games
to be offered over the Internet, so long as they are only played within the District. n180 Since poker falls within the definition
of lottery provided by the act regardless of whether it is determined to be a game of skill or a game of
chance, the District of Columbia had planned on creating a website that would allow people to play
online poker for money. n181 Revenue generated from the poker website would be used to supplement other areas of the District's
budget. n182 Although the law allowing Internet gambling was repealed about a year after it was passed, this should not be seen as vindication
that online gambling is not desired in Washington, D.C. n183 The reason for appeal was that some District of [*221] Columbia council members
opposed the way in which it was added to a lottery contract without proper notice to legislators. n184 Not surprisingly, Nevada
has also
considered allowing intrastate Internet gambling, including online poker. n185 In December 2011, the Nevada Gaming
Commission approved regulations for intrastate online gambling. n186 The regulations allow casinos in the state to operate websites that
would be limited to play by people within the state. n187 Some
of the larger casinos in Las Vegas, like Bally's and
Caesars, have already filed applications for licenses to start online gambling websites. n188 These
websites could represent a lucrative source of revenue as it is estimated that they could provide $ 180 million in extra
money for the state. n189 Although some states want to pass laws to legalize online gambling within their borders, others have taken action to
keep their citizens from gambling on the Internet. In 2006, the Washington legislature passed a law that made online gambling a criminal
offense. n190 The law was challenged in the Washington Supreme Court in the case Rousso v. State. n191 Rousso challenged the Washington
law on the grounds that it violated the Commerce Clause, but the court held that the law was constitutional. n192 Washington
is
currently the only state that has a law that prohibits online poker by its residents, but Utah is also
considering passing a similar law. n193
2AC
counter-interp: “the United States” is the 50 states plus D.C.
Parsons 13
[Chancelor, Delaware State court, SMARTMATIC INTERNATIONVAL V DOMINION VOTING SYSTEMS, May
13, p. http://courts.delaware.gov/opinions/download.aspx?ID=188720]
The narrow issue before me is whether the term ―in the United States,‖ as used in Section 3.4(b) of the
License Agreement, includes or excludes Puerto Rico. Section 3.4(b) states in relevant part:
―Smartmatic shall not develop, market or sell any Licensed Products in the United States at any time
during the term of this Agreement.‖ 29 I consider first the plain and ordinary meaning of the term
―United States Delaware courts ―will look to dictionaries for assistance in determining the plain
meaning of terms which are not defined in a contract.‖ 31 The Random House Webster‘s Unabridged
Dictionary defines the United States as ―a republic in the N[orth] Western Hemisphere comprising 48
coterminous states, the District of Columbia, and Alaska in North America, and Hawaii in the N[orth]
Pacific.‖ 32 Black‘s Law Dictionary defines the United States a s ―a federal republic formed after the
War of Independence and made up of 48 coterminous states, plus the state of Alaska and the Di strict
of Columbia in North America, plus the state of Hawaii in the Pacific.‖ 33 Webster‘s New World
Dictionary provides that the United States of America is a ―country made up of the N [orth] American
area extending from the Atlantic Ocean to the Pacific Ocean between Canada and Mexico, together
with Alaska & Hawaii.‖ 34 Similarly, the New Oxford American Dictionary defines the Unites States as
―a country that occupies most of the southern half of North America as well as Alaska and the
Hawaiian Islands.‖ 35 The American Heritage 13 College Dictionary of the English Language, however,
provides this definition of the United States : ―A country of central and northwest North America with
coastlines on the Atlantic and Pacific Oceans. It includes the non - contiguous states of Alaska and
Hawaii and various island territories in the Caribbean Sea and Pacific Ocean.‖ 36 Thus, the cited
dictionary definitions, although not unanimous, overwhelmingly suggest that the ordinary meaning of
the United States includes only the for ty - eight contiguous states, the District of Columbia, Alaska,
and Hawaii. I consider next how the courts have defined the United States.
And we-meet: state legalization can specify whether the bill allows compacting OR if
it’s intra-state.
Poker News Report 13
[staff, Pennsylvania Online Gambling Proposal Progressing, March 11,
http://www.pokernewsreport.com/pennsylvania-online-gambling-proposal-progressing-11950]
Pennsylvania Online Gambling Proposal Progressing. A
bill to legalize online gambling in Pennsylvania is likely to be
proposed this week by Rep. Tina Davis. Davis may propose the measure perhaps as soon as Wednesday before the House Gaming
Oversight Committee. The bill calls for online license fees of $10 million, with generated revenue to be taxed at a 20 percent clip. Licenses
would be restricted to Pennsylvania casinos that are already licensed for slots and table games. Davis told philly.com that since she made it
known last month that her proposal would be forthcoming, she got quite a bit of feedback from casinos and has made some changes that
reflect the input received. She believes that Pennsylvania needs to keep pace with the neighboring states of Delaware and New Jersey, who are
moving forward with their recently-enacted online gambling legislation. "If we do not protect our casinos and money in Pennsylvania," Davis
said, "we will be hurt by all the competition." Davis’ bill includes a unique concept to protect problem gamblers. Players who consistently lose
in short periods of time would trigger a software mechanism that would automatically lock their accounts. The proposal is not without its
detractors. Rep. Paul Clymer is reportedly opposed to any gambling expansion plans and is considering drafting a measure that would make
Internet gambling illegal. Thus far, only Utah has such a statute in place. The Pennsylvania House of Representatives is controlled by the
Republican party, which leans against gambling. In order for Davis’ bill to win support, GOP lawmakers must be swayed to change their views.
Pennsylvania recently surpassed New Jersey as the nation’s no. 2 ranked gaming market behind Nevada.
The Silver State passed an online poker interstate compact bill last month that allows for increasing
player pools by partnering with other states. Currently, Pennsylvania’s proposal is limited to
intrastate Internet gaming and includes a full menu of casino games.
counter-interp- nearly all is 60-80% of an activity
SACRAMENTO BEE 98
[staff, “Fight over bilingual ed may play out in court”, http://wwwrcf.usc.edu/~cmmr/SacBee_Oct12.html]
Proposition 227, which passed with 61 percent of the vote in June, sought to scrap bilingual education
by dictating that limited-English speakers be put in a one-year immersion program taught "nearly all"
in English. Parents were allowed to ask that their children be put back in bilingual education after 30
days if they were over 10, already spoke English or had "special needs." The law took effect Aug. 2, but
some schools have kept bilingual education alive by interpreting the phrase "nearly all" to mean
anywhere from 20 percent to 40 percent of instruction can be in a second language.
Second, we meet- Sports betting is only 20% of global iGambling market share
Church-Sanders 12
[Rachel Church- Sanders, staff, Special Report: Online Poker – Industry Trends, IGB Affiliate,
http://www.igbaffiliate.com/resources/articles/special-report-online-poker-%E2%80%93-industrytrends]
Gaming sites by genre, August 2012: Sportsbooks: 20.20%
<graph image- switch to online or reading view>
a- Contextual support- leaving sports betting illegal would still legalize nearly all
Platzer 12
[Michaela D. Platzer, Specialist in Industrial Organization and Business, “Remote Gambling: Industry
Trends and Federal Policy,” November 8, 2012, CRS RESEARCH SERVICES]
Another change affecting remote gaming is DOJ’s recent determination on the Wire Act.35 In its clarification
made public in December 2011, the department isolated the Wire Act to be applicable only to sport-related gambling activities. According to
this clarification eliminated nearly all federal anti-gaming laws . Furthermore, it appears that
its stance not only opens the door to intrastate Internet activity, but possible interstate activity as
well. Even though legal questions remain, there are a number of indications that companies and states are
poised to expand remote gaming as part of a larger trend toward online entertainment and communications. According
legal gambling experts,
to the Pew Internet & American Life Project, 85% of all adults now use the Internet and the same percentage have a cell phone, two-thirds of
U.S. households have access to a high-speed broadband connection, 45% have a smartphone, and 18% have a tablet computer. All of these
platforms could be used for gambling.36 Soon, interactive television is expected to become widely available, offering even more potential
platforms for betting. Nelson I. Rose, a professor at the Whittier Law School, argues that UIGEA and the regulations to implement it may have
paved the way for expansion of remote gaming: By
issuing these [regulations] federal agencies have now made it
clear that some forms of gambling on the Internet are legal in the United States. This creates
opportunities for existing or expanding legal state gaming, and for bolstering faltering state budgets. But, mostly it opens
some doors for creative Internet gaming operators … The result will be a major expansion of Internet gambling. The major obstacles facing legal
online gaming are the customers’ fear that they might be breaking the law and their difficulty in getting money to sites they trust. Individual
patrons will now be able to use their credit cards to make bets. And they will know that they are not breaking the law and the gaming operation
is honest when the gambling site is operated by a state lottery or licensed by a state racing or gaming board, or has a reasoned legal opinion.37
b- it’s bad for a legal topic- There is no agreement on legal definitions of “nearly all”
Struempf 05
[Dona, undergraduate in English education at Cal Poly Pomona
http://cla.calpoly.edu/~jbattenb/Papers/struempf.html, November 2]
The law does not define what "nearly all" means exactly. Therefore, school districts are in
disagreement as to what percentage constitutes compliance. The Los Angeles Unified school district,
the largest and most diverse school district in the state, offers two programs for LEP students: Model A,
where most of the instruction is provided in English, and Model B, where English instruction constitutes
65-70 percent of instruction (Terry 7). According to Elena Soto-Chapa, the statewide education director
for the Mexican American Legal Defense and Education Fund, there is a great deal of confusion; some
districts are using a 60-40 English-foreign language formula while others are using 70-30 or 80-20
(Terry 7).
Reps shape reality is wrong
Wendt 99
Alexander Wendt, Professor of International Security at Ohio State University, 1999, “Social theory of
international politics,” gbooks
The effects of holding a relational theory of meaning on theorizing about world politics are apparent in David
Campbell's provocative
study of US foreign policy, which shows how the threats posed by the Soviets, immigration, drugs, and so on, were constructed
out of US national security discourse.29 The book clearly shows that material things in the world did not force US decision-makers to have
particular representations of them - the picture theory of reference does not hold. In so doing it highlights the discursive aspects of truth and
reference, the sense in which objects are relationally "constructed."30 On
the other hand, while emphasizing several times
that he is not denying the reality of, for example, Soviet actions, he specifically eschews (p. 4) any
attempt to assess the extent to which they caused US representations. Thus he cannot address the
extent to which US representations of the Soviet threat were accurate or true (questions of correspondence).
He can only focus on the nature and consequences of the representations.31 Of course, there is nothing in the
social science rule book which requires an interest in causal questions, and the nature and consequences of representations are important
questions. In the terms
discussed below he is engaging in a constitutive rather than causal inquiry. However,
I suspect Campbell thinks that any attempt to assess the correspondence of discourse to reality is
inherently pointless. According to the relational theory of reference we simply have no access to what the Soviet
threat "really" was, and as such its truth is established entirely within discourse, not by the latter's
correspondence to an extra-discursive reality 32 The main problem with the relational theory of reference is that it cannot
account for the resistance of the world to certain representations, and thus for representational
failures or m/'sinterpretations. Worldly resistance is most obvious in nature: whether our discourse says so or not, pigs can't fly.
But examples abound in society too. In 1519 Montezuma faced the same kind of epistemological problem facing
social scientists today: how to refer to people who, in his case, called themselves Spaniards. Many
representations were conceivable, and no doubt the one he chose - that they were gods - drew on the discursive
materials available to him. So why was he killed and his empire destroyed by an army hundreds of
times smaller than his own? The realist answer is that Montezuma was simply wrong: the Spaniards were not
gods, and had come instead to conquer his empire. Had Montezuma adopted this alternative
representation of what the Spanish were, he might have prevented this outcome because that
representation would have corresponded more to reality. The reality of the conquistadores did not
force him to have a true representation, as the picture theory of reference would claim, but it did have certain
effects - whether his discourse allowed them or not. The external world to which we ostensibly lack
access, in other words. often frustrates or penalizes representations. Postmodernism gives us no insight
into why this is so, and indeed, rejects the question altogether.33 The description theory of reference favored by
empiricists focuses on sense-data in the mind while the relational theory of the postmoderns emphasizes relations among words,
but they are similar in at least one crucial respect: neither grounds meaning and truth in an external
world that regulates their content.34 Both privilege epistemology over ontology. What is needed is a
theory of reference that takes account of the contribution of mind and language yet is anchored to
external reality. The realist answer is the causal theory of reference. According to the causal theory the
meaning of terms is determined by a two-stage process.35 First there is a "baptism/' in which some new
referent in the environment (say, a previously unknown animal) is given a name; then this connection of
thing-to-term is handed down a chain of speakers to contemporary speakers. Both stages are causal, the
first because the referent impressed itself upon someone's senses in such a way that they were induced
to give it a name, the second because the handing down of meanings is a causal process of imitation and
social learning. Both stages allow discourse to affect meaning, and as such do not preclude a role for
"difference" as posited by the relational theory. Theory is underdetermined by reality, and as such the
causal theory is not a picture theory of reference. However, conceding these points does not mean that
meaning is entirely socially or mentally constructed. In the realist view beliefs are determined by
discourse and nature.36 This solves the key problems of the description and relational theories: our ability to refer to the same
object even if our descriptions are different or change, and the resistance of the world to certain representations. Mind and language
help determine meaning, but meaning is also regulated by a mind-independent, extra-linguistic world.
Terrorism studies are epistemologically and methodologically valid---our authors are
self-reflexive
Michael J. Boyle '8, School of International Relations, University of St. Andrews, and John Horgan,
International Center for the Study of Terrorism, Department of Psychology, Pennsylvania State
University, April 2008, “A Case Against Critical Terrorism Studies,” Critical Studies On Terrorism, Vol. 1,
No. 1, p. 51-64
Jackson (2007c) calls for the development of an explicitly CTS on the basis of what he argues preceded it, dubbed ‘Orthodox Terrorism Studies’.
The latter, he suggests, is characterized by: (1) its poor methods and theories, (2) its state centricity, (3) its problemsolving orientation, and (4)
its institutional and intellectual links to state security projects. Jackson argues that the major defining characteristic of CTS, on the other hand,
should be ‘a skeptical attitude towards accepted terrorism “knowledge”’. An
implicit presumption from this is that terrorism
scholars have laboured for all of these years without being aware that their area of study has an implicit
bias, as well as definitional and methodological problems. In fact, terrorism scholars are not only well
aware of these problems, but also have provided their own searching critiques of the field at various points during the
last few decades (e.g. Silke 1996, Crenshaw 1998, Gordon 1999, Horgan 2005, esp. ch. 2, ‘Understanding Terrorism’). Some of those
scholars most associated with the critique of empiricism implied in ‘Orthodox Terrorism Studies’ have also engaged
in deeply critical examinations of the nature of sources, methods, and data in the study of terrorism. For
example, Jackson (2007a) regularly cites the handbook produced by Schmid and Jongman (1988) to support his claims that theoretical
progress has been limited. But this fact was well recognized by the authors; indeed, in the introduction of the second edition they point out
that they have not revised their chapter on theories of terrorism from the first edition, because the failure to address persistent
conceptual and data problems has undermined progress in the field. The point of their handbook was to sharpen and make more
comprehensive the result of research on terrorism, not to glide over its methodological and definitional failings (Schmid and Jongman 1988, p.
xiv). Similarly, Silke’s (2004) volume
on the state of the field of terrorism research performed a similar
function, highlighting the shortcomings of the field, in particular the lack of rigorous primary data collection. A non-reflective
community of scholars does not produce such scathing indictments of its own work.
Preventing extinction needs to come first
Paul Wapner, associate professor and director of the Global Environmental Policy Program at
American University, Winter 2003, Dissent, online:
http://www.dissentmagazine.org/menutest/archives/2003/wi03/wapner.htm
All attempts to listen to nature are social constructions-except one. Even the most radical
postmodernist must acknowledge the distinction between physical existence and non-existence. As I
have said, postmodernists accept that there is a physical substratum to the phenomenal world even if
they argue about the different meanings we ascribe to it. This acknowledgment of physical existence
is crucial. We can't ascribe meaning to that which doesn't appear. What doesn't exist can manifest no
character. Put differently, yes, the postmodernist should rightly worry about interpreting nature's
expressions. And all of us should be wary of those who claim to speak on nature's behalf (including
environmentalists who do that). But we need not doubt the simple idea that a prerequisite of
expression is existence. This in turn suggests that preserving the nonhuman world-in all its diverse
embodiments-must be seen by eco-critics as a fundamental good. Eco-critics must be supporters, in
some fashion, of environmental preservation. Postmodernists reject the idea of a universal good.
They rightly acknowledge the difficulty of identifying a common value given the multiple contexts of
our value-producing activity. In fact, if there is one thing they vehemently scorn, it is the idea that
there can be a value that stands above the individual contexts of human experience. Such a value
would present itself as a metanarrative and, as Jean-François Lyotard has explained, postmodernism is
characterized fundamentally by its "incredulity toward meta-narratives." Nonetheless, I can't see how
postmodern critics can do otherwise than accept the value of preserving the nonhuman world. The
nonhuman is the extreme "other"; it stands in contradistinction to humans as a species. In
understanding the constructed quality of human experience and the dangers of reification,
postmodernism inherently advances an ethic of respecting the "other." At the very least, respect must
involve ensuring that the "other" actually continues to exist. In our day and age, this requires us to
take responsibility for protecting the actuality of the nonhuman. Instead, however, we are running
roughshod over the earth's diversity of plants, animals, and ecosystems. Postmodern critics should find
this particularly disturbing. If they don't, they deny their own intellectual insights and compromise their
fundamental moral commitment.
Quality of life is skyrocketing worldwide by all measures
Ridley, visiting professor at Cold Spring Harbor Laboratory, former science editor of The Economist, and
award-winning science writer, 2010
(Matt, The Rational Optimist, pg. 13-15)
If my fictional family is not to your taste, perhaps you prefer statistics. Since
1800, the population of the world has
multiplied six times, yet average life expectancy has more than doubled and real income has risen
more than nine times. Taking a shorter perspective, in 2005, compared with 1955, the average human being on
Planet Earth earned nearly three times as much money (corrected for inflation), ate one-third more calories of
food, buried one-third as many of her children and could expect to live one-third longer. She was less
likely to die as a result of war, murder, childbirth, accidents, tornadoes, flooding, famine, whooping cough,
tuberculosis, malaria, diphtheria, typhus, typhoid, measles, smallpox, scurvy or polio. She was less likely, at
any given age, to
get cancer, heart disease or stroke. She was more likely to be literate and to have finished
school. She was more likely to own a telephone, a flush toilet, a refrigerator and a bicycle. All this during a
half-century when the world population has more than doubled, so that far from being rationed by
population pressure, the goods and services available to the people of the world have expanded. It is, by
any standard, an astonishing human achievement. Averages conceal a lot. But even if you break down the world into
bits, it is hard to find any region that was worse off in 2005 than it was in 1955. Over that half-century, real
income per head ended a little lower in only six countries (Afghanistan, Haiti, Congo, Liberia, Sierra Leone and Somalia), life expectancy in three
(Russia, Swaziland and Zimbabwe), and infant survival in none. In the rest they have rocketed upward. Africa’s rate of improvement has been
distressingly slow and patchy compared with the rest of the world, and many southern African countries saw life expectancy plunge in the
1990s as the AIDS epidemic took hold (before recovering in recent years). There were also moments in the half-century when you could have
caught countries in episodes of dreadful deterioration of living standards or life chances – China in the 1960s, Cambodia in the 1970s, Ethiopia
in the 1980s, Rwanda in the 1990s, Congo in the 2000s, North Korea throughout. Argentina had a disappointingly stagnant twentieth century.
But overall, after fifty years, the outcome for the world is remarkably, astonishingly, dramatically positive. The
average South Korean lives twenty-six more years and earns fifteen times as much income each year as he did in 1955 (and earns fifteen times
as much as his North Korean counter part). The
average Mexican lives longer now than the average Briton did in
1955. The average Botswanan earns more than the average Finn did in 1955. Infant mortality is lower
today in Nepal than it was in Italy in 1951. The proportion of Vietnamese living on less than $2 a day has
dropped from 90 per cent to 30 per cent in twenty years. The rich have got richer, but the poor have
done even better. The poor in the developing world grew their consumption twice as fast as the world
as a whole between 1980 and 2000. The Chinese are ten times as rich, one-third as fecund and twenty-eight years longer-lived
than they were fifty years ago. Even Nigerians are twice as rich, 25 per cent less fecund and nine years longer-lived than they were in 1955.
Despite a doubling of the world population, even the raw number of people living in absolute poverty
(defined as less than a 1985 dollar a day) has fallen since the 1950s. The percentage living in such absolute poverty
has dropped by more than half – to less than 18 per cent. That number is, of course, still all too horribly high, but the
trend is hardly a cause for despair: at the current rate of decline, it would hit zero around 2035 – though it probably
won’t. The United Nations estimates that poverty was reduced more in the last fifty years than in the previous 500.
No root cause – war causes their impacts
Goldstein 01
[Professor of International Relations at American University, 2001 (Joshua S., War and Gender: How
Gender Shapes the War System and Vice Versa, pp.411-412) ]
First, peace activists face a dilemma in thinking about causes of war and working for peace. Many peace
scholars and activists support the approach, “if you want peace, work for justice”. Then if one believes
that sexism contributes to war, one can work for gender justice specifically (perhaps among others) in
order to pursue peace. This approach brings strategic allies to the peace movement (women, labor,
minorities), but rests on the assumption that injustices cause war. The evidence in this book suggests
that causality runs at least as strongly the other way. War is not a product of capitalism, imperialism,
gender, innate aggression, or any other single cause, although all of these influences wars’ outbreaks and outcomes.
Rather, war has in part fueled and sustained these and other injustices. So, “if you want peace, work for
peace.” Indeed, if you want justice (gener and others), work for peace. Causality does not run just
upward through the levels of analysis from types of individuals, societies, and governments up to war. It
runs downward too. Enloe suggests that changes in attitudes toward war and the military may be the
most important way to “reverse women’s oppression/” The dilemma is that peace work focused on
justice brings to the peace movement energy, allies and moral grounding, yet, in light of this book’s
evidence, the emphasis on injustice as the main cause of war seems to be empirically inadequate.
Can’t solve – Nommo only speaks to those who already agree on the terms and
doesn’t allow for the inclusion of other perspectives
Clarke 4 [Lynn, professor of communication at Vanderbilt, “Talk About Talk: Promises, Risks, and a Proposition Out of Nommo”,
The Journal of Speculative Philosophy 18.4, pp. 317-325]
Returning to the question of creative power's compass—Yancy's account of Nommo raises problems
here as well. In the account, recall, the word's generative function funds "an oppositional way of
speaking" (Yancy 2004, 289). Among other products, the speech acts of resistance manifest themselves
in a black identity and reality based on a presumption of shared interests among African American
selves.4 At the same time, however, Nommo's creative force is conceptually detached from the word's
power to constitute intersubjective relations between selves and others within the African American
community. Thus, Yancy's concept of Nommo only admits a generative power to create identification
among blacks who already agree to the presence and terms of shared interest . The power of this Nommo
fails to reach those African Americans who disagree with black majoritarian terms. This relatively
minimal compass of power suggests that Nommo's potential to define black community and reality may
need to be reconceptualized beyond the presumptions of shared experience and common values to
consider Nommo's potential to forge relations between African Americans who are divided on the terms
of their present and future.
Yancy’s conceptualization of Nommo precludes the possibility intersubjective dialogue
and debate – constrains the power of Nommo to effectively resist oppressive
structures
Clarke 4 [Lynn, professor of communication at Vanderbilt, “Talk About Talk: Promises, Risks, and a Proposition Out of Nommo”,
The Journal of Speculative Philosophy 18.4, pp. 317-325]
The question of Nommo's compass of power is also significant for relations between African American selves and European American others.
Though it may not appear to be of immediate relevance to the task of theorizing a language spoken among African Americans, the question
may still be worth raising for at least two reasons: Yancy's
linguistic theory of AAL is offered in the name of black
Americans, and a cursory look at political discourse within the African American community reveals a
centuries-old controversy over whether (or in what contexts) blacks should integrate with or separate
from whites. Given the unresolved status of this controversy, African Americans may benefit from
renewed discussion and debate on the terms of integration and separation and the attitude that
distinguish and relate them. If so, AAL may have a role to play in the important talk ahead. Either way, the presence of these two
concepts in black public discourse suggests that relations between black and white Americans is not a settled issue for the community in whose
name AAL has been defined and thought. The question of Nommo's power to constitute relations between blacks and whites may therefore be
relevant to thinking and defining AAL. If black and white racial division is a cause for concern in the U.S., the concept of Nommo
as
instrumental power butts upon a problem of relation much like the one we encountered with dissent
among African Americans. Specifically, Yancy's and others' accounts of Nommo do not address the
word's power to forge relations between African Americans and the white benefactors of racial [End
Page 321] and racist thinking in America. Cast in relation to the production of "hidden transcripts"
(Scott 1990), the power of Nommo in the aforementioned accounts is constrained to a resistance that
risks foreclosing the capacity of humans to collectively define their selves and world(s). Recalling Fanon, the
risk speaks to the question of whether, upon self-consciousness, an oppressed group may "choose action (or passivity) with respect to the real
source of the conflict—that is, toward the social structures" (Fanon 1967, 100). The choice to
act would require a concept of
Nommo that works to mend division and invite intersubjective dialogue and debate about racial and
racist thinking and their pernicious affects on black and white Americans, and others. Together, the
question of Nommo's creative compass of power, along with the problem of holding creative power
accountable to intersubjective reason, point to the risk of conceptualizing language in such a way that
the word's instrumental force is disconnected from the argumentative form of communication. To leave
this connection unnamed and unthought in an account of AAL is to proceed according to at least two questionable presuppositions about
contemporary speech situations in which Nommo is uttered: the speaker of AAL is of good moral character; and the speaker and audience are
united on their preferred form of life and the terms of their identification. While these presuppositions may have been appropriate in the past
times and spaces to which African "tradition(s)" refer, today both premises are untenable in the U.S. and elsewhere in the African diaspora.
Speakers regularly express a will to power and, increasingly, communities are an admixture of identities, cultural traditions, and forms of life.
Present contingencies warrant an account of Nommo that invites reflection upon the products of invention attributed to AAL.5
Nommo falls short – focusing on the self forecloses creating relations between
communities and does not allow the power of the word to connect to resistance
efforts
Clarke 4 [Lynn, professor of communication at Vanderbilt, “Talk About Talk: Promises, Risks, and a Proposition Out of Nommo”,
The Journal of Speculative Philosophy 18.4, pp. 317-325]
So far, informed by a rhetorical philosophical approach to language, I have discussed certain promises
and risks of framing a linguistic theory of AAL in Nommo as creative power. Regarding the promises, the
architectonic force of Nommo is the possibility of expressing social trauma, and of defining the self and
her experience of the world. In facilitating these acts of speech and definition, Nommo fosters
subjectivity and a vital sense of human agency. Moreover, self-identity, the representation of private
experience, and the practiced capacity to define one's sense of self and world, are all necessary to the
work of struggle. Finally, a concept of the productive force of the word acknowledges the mutual
interdependence of personhood and community and the role of creativity in fashioning the terms of
social existence and, potentially, common life. Framing AAL in a theory of Nommo offers philosophers of
language an opportunity to appreciate and think the potential of AAL to contribute to thriving black
community. Important, these promises of invention do not come without risks. A sole focus on
Nommo's power to define the self and his sense of the world forecloses the potential of speech to
create relations between self and other. Similarly, the potential of Nommo to move between and
relate particular [End Page 322] interests, to connect creative power to the force of communicative
reason without collapsing one into the other, is squandered before it appears. The linguistic resistance
attributed to AAL transforms the terms of identity and reality, but leaves unaccounted-for those
members of the African American community who do not see their selves, their experiences, their
values, or their interests in the newly created terms. Too, in this particular linguistic theory of AAL, the
important question of affecting resistance towards collective transgression of racialized norms is at
worse overlooked, and at best deferred until a time yet to be named.
Turn – ontological expansiveness: exposing Nommo to whites allows them to insert
their ontology into it, perpetuating white supremacy and short-circuiting resistance to
it
Sullivan 4 [Shannon, professor of philosophy, women’s studies, and African American studies @ Penn State, “White WorldTraveling”, Journal of Speculative Philosophy, 18.4, pp. 300-04]
Letting white people into the code also risks reinforcing a particular habit of white privilege, that of
ontological expansiveness (Sullivan 2001). As ontologically expansive, white people often manifest a
way of being in the world (often nonconscious) in which they presume the right to occupy any and all
geographical, moral, psychological, linguistic, and other spaces. From the point of view of white
ontological expansiveness, the existence of a linguistic space off-limits to white people is an “unjust”
violation of the “natural” order of the world that must be rectified. From an antiracist perspective,
however, white ontological expansiveness not only presumes a “right” grounded in white supremacy,
but also tends to damage and destroy spaces of resistance to white domination. White people’s
knowledge of the code of African American Language thus can strengthen their sense that it is
appropriate for them to inhabit any space they choose to enter.
Treating Nommo as a interruption of whiteness flattens different cultural and racial
projects within both whiteness and blackness.
John McClendon 4, Associate Professor of African American and American Cultural Studies at Bates
College (Ji "Philosophy of Language and the African American Experience: Are There Metaphilosophical
Implications?" The Journal of Speculative Philosophy 18.4 (2004) 305-310 MUSE
Philosophy, Yancy clearly shows, is not removed from the institutional practice of racism. Besides, the
road to recovering a more humane sense about the doing of philosophy is to go beyond the constraining
boundaries imposed by the dominant conception of African American language and its underlying
racism. This racist conception offers up a view of African American language that ultimately renders it as
substandard and pathological. This pathology, Yancy and Smitherman contend, in turn neglects the rich
heritage of culture semiotics and nuanced meanings, which are intrinsically intertwined with the African
American experience (Yancy 2004,283-84). Yancy's overriding thesis is not only the claim that there are
philosophical gems locked away in the African American locutional experience: in addition, he argues that
this language that so brightly radiates from African American culture is not only a site of investigation fan object
of inquiry") but also a viable means as a mode for philosophical inquiry. This is all possible since in terms of a
general principle, Yancy holds that modes of philosophical inquiry are at root cultural undertakings (Karp
and Masoio 2000). In this manner of thinking about metaphilosophy, Yancy reiterates and extends the
tradition within African American philosophy toward which Alain Locke, the first Black Rhodes Scholar
and gadfly of the Harlem Renaissance, [End Page 307] dedicated so much of his intellectual efforts.
Yancy, who is steeped with a substantive comprehension of the history of African American philosophy,
brings into bold relief how the very definition, tasks, substance, and scope of philosophy—or, in a word,
metaphilosophy—cannot expect to develop in a progressive manner without due attention to the
collective lives and language practices of African Americans (Locke 1983). Here I do want to give a
cautionary suggestion. Yancy must stay alert to the fact that a common culture, or shared experiences and even
the enduring heritage of having the same language, is not a sufficient condition for claiming there exists, among
African Americans, some kind of spontaneously arrived at common ontology, where ontology is taken as
philosophical in substance. Furthermore, it seems this very premise—about the actual existence of a common
African American ontology— subsequently grounds Yancy's notion about how African American language is
foundational to the construction of a new conception of metaphilosophy. Now when we take into account the
fact that theory is always distinct from experience, we must accordingly recognize the differentia
specifica is none other than the matter of the distinction between the inquiries into experience vis-a-vis
the lived experience. The determinate theoretical responses to common experience (and I take
philosophy to be the most abstract form of theory) are always critical reflections adjoined to an inquiry
about collective existence; thus, theory remains mediated and distanced from the immediacy of
experience. The mediated relationship of the theoretical (ontology) to the empirical (lived experience)
means there is room for a conceptual space, which allows for the description, definition, and
interpretation of experience. This necessary space between the theoretical and the empirical is why
common experiences are not a sufficient condition for sharing a common ontology. Additionally, the
function of various forms of social stratification—especially the impact of class contradictions—harbors
the real possibility for different ideological responses to commonly experienced conditions of life. In the
manner of the Marxist conception of ideology, as found in The German Ideology, I presume that
philosophy (ontology) is a form of ideology (Marx and Engels 1976). Hence, only on the presupposition that
the African American community is socially homogeneous can it plausibly he argued that African Americans all
share the same ontology. Given it is not the case that the African American community is homogeneous,
then there is no plausible warranting for the belief that all African Americans share a common ontology. This leads
directly to point three and my charge of Yancy's (and Smitherman's) vindicationism, where he argues that
resistance to white supremacy is the defining characteristic of African American culture and hence language. When
African American vindicationism is bereft of dialectical theory and method, as a determinate philosophical
approach to African American culture, it neglects a very important aspect of the historical dialectic of African
American [End Page 308] culture, viz, that African American culture is not in any way a monolithically
formed culture where there are only manifestations of resistance. There is more to African American
history and culture than a continuous line of resistance to oppression, for, by way of example, not all African
Americans sang the spirituals with an eve to Joining the Underground Railroad (Fisher 1990). Some believed that
freedom was wearing a robe in "heahen" and that washing in the blood of Jesus would make one "as white as the
snow," Or that lovaitv to Massa was the highest virtue and resistance and revolt were of the greatest follv. The
modem dav connotation for "Uncle Tom" did not enter the lexicon of African American language without the
historical presence of real, existing "Toms." It is no accident that there is the current exercise in African
American locution of playing on this word (Tom) whenever Supreme Court Justice, Clarence "Tom-to-us"
is mentioned among African American political speakers. After all, the historical record indicates that the
failure of Gabriel Prosser's. Denmark Vesev's. and Nat Turner's slave insurrections were due in part to other slaves
that were more loval to Massa than their own liberation . Mind you that those who ratted out the slave revolts
shared in the same language, ate the same food, lived the same experiences, but also had a different
worldview (conception of reality) and set of values. The idea that social ontology and identity among African
Americans, past and present, are preeminently the same for all is the sort of reductionism that flattens out the
cultural, social, nolitical. and ideological landscape called African American culture. Albeit, resistance is cardinal
and crucial to any description, definition, and interpretation of African American culture, nonetheless, it
is not exhaustive of its actualities and even of its future possibilities. African American culture in its full
substance and scope is more complex than a singular thrust in the monodirection of resistance. Rather,
African American culture historically constitutes an ensemble of traditions in which we are able, for
analytical purposes, to locate what are two primary and yet contradictory forms, viz. one of resistance
and another of accommodation. This internal dialectic is undermined when a scenario of resistance sans
accommodation gains support via vindicationism. In conclusion, the Yancy/Smitherman thesis about the
importance of African American language is a needed corrective to the hegemonic perspective that
relegates African American language to a form of substandard speech and African American culture to
the dismal state of pathology. In providing this service, they present to us what are new avenues for the
philosophy of language to creatively explore. Alternatively, Yancy's accent on the African American
collective lived experience as the source for a common ontology affixed with the vindicationist conception of
African American culture, where resistance becomes the only viable cultural/political tradition, is problematic.
Moreover, I think it is precisely the common ontology and vindicationist theses that function as the twin
pillars on which Yancy builds his case for not only viewing African American language [End Page 309] as
a viable object of philosophical inquiry but also making the stronger claim that African American
language can act as the basis for the construction of metaphilosophy. Here, I would only say that given
my aforesaid arguments concerning the lack of evidential and logical support for a distinctive African
American ontology and along my charges about the inherent weaknesses with vindicationism, the
matter and manner of how African American language would serve in the reconceptualization of
metaphilosophy remain open questions. 1
Culture, not language, constitutes reality and thought
Faccone 2K
Claudia Faccone, Robert Kearns, Ashley Kopp, Elizabeth Watson April 19, 2000, The Effects of Language
on Thought http://www.unc.edu/~jdumas/projects/languagethought.htm
The issue of whether or not language influences thought is tricky since more than one factor affects
thought patterns. Many researchers have used differing languages to study the relationship between
language and thought, and they have come up with many different hypotheses. We propose that
although specific languages would affect the part of the brain that one uses, it is not language alone
that produces "linguistically" differentiated thought patterns. Rather it is one’s culture. Though
different linguistic cultures have specific language for certain ideas and concepts, the culture they are
raised in most likely produce their differentiated ways of thinking. In the United States of America,
where English is the predominate language, school systems have a specific method of teaching their
curriculum to students. Though not all students are able to grasp this teaching process, most are; this
method, taught to them by their teachers, becomes a large part of their thought processes. If one takes
into account the idea of society and its impact on thought processes, then both the linguistic
universalism and linguistic relativity theories are applicable. Humans are biologically capable of learning
any language, but once an individual has passed a certain age, he/she is less likely to develop new
language skills. At that point, culture will use the knowledge of words from education to teach a
specific way of analyzing the world. It is the culture, not purely language, which facilitates a different
way of thinking. Consequently, this is the extra piece of the puzzle that so many scholars have left out
in their research endeavors concerning the relationship between thought and language.
debating the law teaches us how to make it better – rejection is worse
Hedrick 12
Todd Hedrick, Assistant Professor of Philosophy at Michigan State University, Sept 2012, Democratic
Constitutionalism as Mediation: The Decline and Recovery of an Idea in Critical Social Theory,
Constellations Volume 19, Issue 3, pages 382–400
Habermas’ alleged abandonment of immanent critique, however, is belied by the role that the democratic
legal system comes to play in his theory. While in some sense just one system among others, it has a special capacity
to shape the environments of other systems by regulating their interaction. Of course, the legal
system is not the only one capable of affecting the environments of other systems, but law is uniquely open
to inputs from ordinary language and thus potentially more pliant and responsive to democratic will
formation: “Normatively substantive messages can circulate throughout society only in the language of law … . Law thus functions as
the ‘transformer’ that guarantees that the socially integrating network of communication stretched
across society as a whole holds together.”55 This allows for the possibility of consensual social regulation of domains ranging
from the economy to the family, where actors are presumed to be motivated by their private interests instead of respect for the law, while
allowing persons directed toward such interests to be cognizant that their privately oriented behavior is compatible with respect for generally
valid laws. While
we should be cautious about automatically viewing the constitution as the fulcrum of the
legal order, its status as basic law is significant in this respect. For, recalling Hegel's broader conception of constitutionalism,
political constitutions not only define the structure of government and “the relationship between citizens and the state” (as in Hegel's narrower
“political” constitution); they also “implicitly prefigure a comprehensive legal order,” that is, “the totality comprised of an administrative state,
capitalist economy, and civil society.”56 So,
subsystems, their
while these social spheres can be conceived of as autonomous functional
boundaries are legally defined in a way that affects the manner and degree of their
interaction: “The political constitution is geared to shaping each of these systems by means of the medium of law and to harmonizing them
so that they can fulfill their functions as measured by a presumed ‘common good’.”57 Thus, constitutional discourses should
be seen less as interpretations of a positive legal text, and more as attempts to articulate legal norms
that could shift the balance between these spheres in a manner more reflective of generalizable
interests, occurring amidst class stratification and cultural pluralism.¶
A constitution's status as positive law is also of importance for fundamentally Hegelian
reasons relating to his narrower sense of political constitutionalism: its norms must be public and concrete, such that differently positioned citizens have at least an initial sense of what the shared hermeneutic starting points for constitutional discourse might be. But these concrete
formulations must also be understood to embody principles in the interest of all citizens, so that constitutional discourse can be the site of effective democratic will formation concerning the basic norms that mediate between particular individuals and the general interests of free and
equal citizens. This recalls Hegel's point that constitutions fulfill their mediational function by being sufficiently positive so as to be publicly recognizable, yet are not exhausted by this positivity – the content of the constitution is instead filled in over time through ongoing legislation. In
order to avoid Hegel's foreshortened conception of public participation in this process and his consequent authoritarian tendencies, Habermas and, later, Benhabib highlight the importance of being able to conceive of basic constitutional norms as themselves being the products of public
contestation and discourse. In order to articulate this idea, they draw on legal theorists like Robert Cover and Frank Michelman who characterize this process of l egal rearticulation as “jurisgenesis”58: a community's production of legal meaning by way of continuous rearticulation,
through reflection and contestation, of its constitutional project.¶ Habermas explicitly conceives of the democratic legal order in this way when, in the context of considering the question of how a constitution that confers legitimacy on ordinary legislation could itself be thought to be
democratically legitimate, he writes:¶ I propose that we understand the regress itself as the understandable expression of the future-oriented character, or openness, of the democratic constitution: in my view, a constitution that is democratic – not just in its content but also according
to its source of legitimation – is a tradition-building project with a clearly marked beginning in time. All the later generations have the task of actualizing the still-untapped normative substance of the system of rights.59¶ A constitutional order and its interpretive history represent a
community's attempt to render the terms under which they can give themselves the law that shapes their society's basic structure and secure the law's integrity through assigning basic liberties. Although philosophical reflection can give us some grasp of the presuppositions of a practice
of legitimate lawmaking, this framework of presuppositions (“the system of rights”) is “unsaturated.”60 In Hegelian fashion, it must, to be meaningful, be concretized through discourse, and not in an one-off way during a founding moment that fixes the terms of political association once
and for all, but continuously, as new persons enter the community and as new circumstances, problems, and perspectives emerge. ¶ The stakes involved in sustaining a broad and inclusive constitutional discourse turn out to be significant. Habermas has rec ently invoked the concept of
dignity in this regard, linking it to the process through which society politically constitutes itself as a reciprocal order of free and equal citizens. As a status rather than an inherent property, “dignity that accrues to all persons equally preserves the connotation of a self-respect that depends
on social recognition.”61 Rather than being understood as a quality possessed by some persons by virtue of their proximity to something like the divine, the modern universalistic conception of dignity is a social status dependent upon ongoing practices of mutual recognition. Such
practices, Habermas posits, are most fully instantiated in the role of citizens as legislators of the order to which they are subject.¶ [Dignity] can be established only within the framework of a constitutional state, something that never emerges of its own accord. Rather, this framework
must be created by the citizens themselves using the means of positive law and must be protected and developed under historically changing conditions. As a modern legal concept, human dignity is associated with the status that citizens assume in the self-created political order.62¶
Although the implications of invoking dignity (as opposed to, say, autonomy) as the normative core of democratic constitutionalism are unclear,63 plainly Habermas remains committed to strongly intersubjective conceptions of democratic constitutionalism, to an intersubjectivity that
What all of this suggests is a constitutional politics in
which citizens are empowered to take part and meaningfully impact the terms of their cultural,
economic, and political relations to each other. Such politics would need to be considerably less legalistic and precedent
bound, less focused on the democracy-constraining aspects of constitutionalism emphasized in most liberal rule of law models. The sense
of incompleteness and revisability that marks this critical theory approach to constitutionalism represents a point
where critical theories of democracy may claim to be more radical and revisionary than most liberal and deliberative counterparts. It implies
a sharp critique of more familiar models of bourgeois constitutionalism: whether they conceive of
constitutional order as having a foundation in moral rights or natural law, or in an originary founding moment,
such models a) tend to be backward-looking in their justifications, seeing the legal order as founded on some exogenously determined
vision of moral order; b) tend to represent the law as an already-determined container within which legitimate ordinary
politics takes place; and c) find the content of law to be ascertainable through the specialized reasoning of legal
professionals. On the critical theory conception of constitutionalism, this presumption of completeness and technicity amounts to the
continues to be legally and politically mediated (a dimension largely absent from Honneth's successor theory of intersubectivity).¶
reification of a constitutional project, where a dynamic social relation is misperceived as something fixed and objective.64 We can see why this
would be immensely problematic for someone like Habermas, for whom constitutional norms are supposed to concern the generalizable
interests of free and equal citizens. If it is overall the case for him that generalizable interests are at least partially constituted through discourse
and are therefore not given in any pre-political, pre-discursive sense,65 this is especially so in a society like ours with an unreconciled class
structure sustained by pseudo-compromises. Therefore, discursive rearticulation of basic norms is necessary for the very emergence of
generalizable interests.¶ Despite offering an admirably systematic synthesis of radical democracy and the constitutional rule of law, Habermas’ theory is hobbled by the hesitant way he embraces these ideas. Given his strong commitment to proceduralism, the
view that actual discourses among those affected must take place during the production of legitimate law if constitutionalism is to perform its mediational function, as well as his opposition to foundational or backward-looking models of political justification, we might expect Habermas
to advocate the continuous circulation in civil society of constitutional discourses that consistently have appreciable impact on the way constitutional projects develop through ongoing legislation such that citizens can see the links between their political constitution (narrowly construed),
the effects that democratic discourse has on the shape that it takes, and the role of the political constitution in regulating and transforming the broader institutional backbone of society in accordance with the common good. And indeed, at least in the abstract, this is what the “two track”
conception of democracy in Between Facts and Norms, with its model of discourses circulating between the informal public sphere and more formal legislative institutions, seeks to capture.66 As such, Habermas’ version of constitutionalism seems a natural ally of theories of “popular
constitutionalism”67 emerging from the American legal academy or of those who, like Jeremy Waldron,68 are skeptical of the merits of legalistic constitutionalism and press for democratic participation in the ongoing rearticulation of constitutional norms. Indeed, I would submit that the
preceding pages demonstrate that the Left Hegelian social theoretic backdrop of Habermas’ theory supplies a deeper normative justification for more democratic conceptions of constitutionalism than have heretofore been supplied by their proponents (who are, to be fair, primarily legal
theorists seeking to uncover the basic commitments of American constitutionalism, a project more interpretive than normative.69) Given that such theories have very revisionary views on the appropriate method and scope of judicial review and the role of the constitution in public life, it
is surprising that Habermas evinces at most a mild critique of the constitutional practices and institutions of actually existing democracies, never really confronting the possibility that institutions of constitutional review administered by legal elites could be paternalistic or extinguish the
public impetus for discourse he so prizes.70 In fact, institutional questions concerning where constitutional discourse ought to take place and how the power to make authoritative determinations of constitutional meaning should be shared among civil society, legislative, and judiciary are
mostly abstracted away in Habermas’ post-Between Facts and Norms writings, while that work is mostly content with the professional of administration of constitutional issues as it exists in the United States and Germany.¶ This is evident in Habermas’ embrace of figures from liberal
constitutional theory. He does not present an independent theory of judicial decision-making, but warmly receives Dworkin's well-known model of “law as integrity.” To a certain extent, this allegiance makes sense, given Dworkin's sensitivity to the hermeneutic dimension of
interpretation and the fact that his concept of integrity mirrors discourse theory in holding that legal decisions must be justifiable to those affected in terms of publicly recognizable principles. Habermas does, however, follow Michelman in criticizing the “monological” form of reasoning
that Dworkin's exemplary Judge Hercules employs,71 replacing it with the interpretive activities of a specialized legal public sphere, presumably more responsive to the public than Hercules. But this substitution does nothing to alleviate other aspects of Dworkin's theory that make a
match between him and Habermas quite awkward: Dworkin's standard of integrity compels judges to regard the law as a complete, coherent whole that rests on a foundation of moral rights.72 Because Dworkin regards deontic rights in a strongly realistic manner and as an unwritten part
of the law, there is a finished, retrospective, “already there” quality to his picture of it. Thinking of moral rights as existing independently of their social articulation is what moves Dworkin to conceive of them as, at least in principle, accessible to the right reason of individual moral
subjects.73 Legal correctness can be achieved when lawyers and judges combine their specialized knowledge of precedent with their potentially objective insights into deontic rights. Fashioning the law in accordance with the demands of integrity thereby becomes the province of legal
elites, rendering public discourse and the construction of generalizable interests in principle unnecessary. This helps explain Dworkin's highly un-participatory conception of democracy and his comfort with placing vast decision-making powers in the hands of the judiciary.7¶ There is
more than a little here that should make Habermas uncomfortable. Firstly, on his account, legitimate law is the product of ac tual discourses, which include the full spate of discourse types (pragmatic, ethical-political, and moral). If the task of judicial decision-making is to reconstruct the
types of discourse that went into the production of law, Dworkin's vision of filling in the gaps between legal rules exclusively with considerations of individual moral rights (other considerations are collected under the heading of “policy”75) makes little sense.76 While Habermas distances
himself from Dworkin's moral realism, calling it “hard to defend,”77 he appears not to appreciate the extent to which Dworkin links his account of legal correctness to this very possibility of individual insight into the objective moral order. If Habermas wishes to maintain his long held
position that constitutional projects involve the ongoing construction of generalizable interests through the democratic process – which in my view is really the heart of his program – he needs an account of legal correctness that puts some distance between this vision and Dworkin's
picture of legal elites discovering the content of law through technical interpretation and rational intuition into a fixed moral order.¶ Also puzzling is the degree of influence exercised by civil society in the development of constitutional projects that Habermas appears willing to
countenance. While we might expect professional adjudicative institutions to play a sort of yeoman's role vis-à-vis the public, Habermas actually puts forth something akin to Bruce Ackerman's picture of infrequent constitutional revoluti ons, where the basic meaning of a constitutional
project is transformed during swelling periods of national ferment, only to resettle for decades at a time, during which it is administered by legal professionals.78 According to this position, American civil society has not generated new understandings of constitutional order that overcome
group divisions since the New Deal, or possibly the Civil Rights era. Now, this may actually be the case, and perhaps Habermas’ apparent acquiescence to this view of once-every-few-generations national conversations is a nod to realism, i.e., a realistic conception of how much broad
based, ongoing constitutional discourse it is reasonable to expect the public to conduct. But while a theory with a Left Hegelian pedigree should avoid “the impotence of the ought” and utopian speculation, and therefore ought not develop critical conceptions of legal practice utterly
divorced from present ones, such concessions to realism are unnecessary. After all, critical theory conceptions of constitutionalism will aim to be appreciably different from the more authoritarian ones currently in circulation, which more often than not fail to stimulate and sustain public
discourse on the basic constitution of society. Instead, their point would be to suggest how a more dynamic, expansive, and mediational conception of constitutionalism could unlock greater democratic freedom and rationally integrated social identities. ¶ Given these problems in
Habermas’ theory, the innovations that Benhabib makes to his conception of constitutionalism are most welcome. While operating within a discourse theoretic framework, her recent work more unabashedly recalls Hegel's broader conception of the constitution as the basic norms
through which a community understands and relates to itself (of which a founding legal document is but a part): a constitution is a way of life through which individuals seek to connect themselves to each other, and in which the very identity and membership of a community is constantly
at stake.79 Benhabib's concept of “democratic iterations,” which draws on meaning-as-use theories, emphasizes how meaning is inevitably transformed through repetition: ¶ In the process of repeating a term or a concept, we never simply produce a replica of the original usage and its
intended meaning: rather, very repetition is a form of variation. Every iteration transforms meaning, adds to it, enriches it in ever-so-subtle ways. In fact, there is really no ‘originary’ source of meaning, or an ‘original’ to which all subsequent forms must conform … . Every iteration
involves making sense of an authoritative original in a new and different context … . Iteration is the reappropriation of the ‘origin’; it is at the same time its dissolution as the original and its preservation through its continuous deployment.80 ¶ Recalling the reciprocal relationship that
Hegel hints at between the narrow “political” constitution and the broader constitution of society's backbone of interrelated institutions, Benhabib here seems to envision a circular process whereby groups take up the conceptions of social relations instantiated in the legal order and
transform them in their more everyday attempts to live with others in accordance with these norms. Like Cover and Michelman, she stresses that the transformation of legal meaning takes place primarily in informal settings, where different groups try (and sometimes fail) to live together
and to understand themselves in their relation to others according to the terms they inherit from the constitutional tradition they find themselves subject to.81 Her main example of such democratic iteration is the challenge Muslim girls in France raised against the head scarf prohibition
in public schools (“L’Affaire du Foulard”), which, while undoubtedly antagonistic, she contends has the potential to felicitously transform the meaning of secularity and inclusion in the French state and to create new forms of togetherness and understanding. But although Benhabib
It is telling, however, that
Benhabib's examples of democratic iterations are exclusively centered on what Habermas would call ethical-political discourses.83 While
illustrates the concept of democratic iterations through an exemplary episode, this iterative process is a constant and pervasive one, which is punctuated by events and has the tendency to have a destabilizing effect on authority.82 ¶
otherwise not guilty of the charge,84 Benhabib, in her constitutional theory, runs afoul of Nancy Fraser's
critical diagnosis of the
trend in current political philosophy to subordinate class and distributional conflicts to struggles for cultural
inclusion and recognition.85 Perhaps this is due to the fact that “hot” constitutional issues are so often ones with cultural dimensions in the
foreground, rarely touching visibly on distributional conflicts between groups. This nonetheless is problematic since much court
business clearly affects – often subtly and invisibly – the outcomes of these conflicts, frequently with
bad results.86 For another reason why centering constitutional discourse on inclusion and cultural issues is problematic, it is useful to
remind ourselves of Habermas’ critique of civic republicanism, according to which the main deficit in republican models of democracy is its
“ethical overburdening” of the political process.87 To some extent, republicanism's emphasis on ethical discourse is understandable: given the
level of cooperativeness and public spirit that republicans view as the font of legitimate law, political discourses need to engage the motivations
and identities of citizens. Arguably, issues of ethical self-understanding do this better than more abstract or arid forms of politics. But it is not
clear that this is intrinsically so, and it can have distorting effects on politics. In the American media, for example, this amplification of the
cultural facets of issues is very common; conflicts over everything from guns to taxes are often reduced to conflicts over who is a good, real
American and who is not. It is hard to say that this proves edifying; substantive issues of rights and social justice are elided, politics becomes
more fraudulent and conflictual. None of this is to deny a legitimate place for ethical-political discourse. However, we do see something of a
two-steps-forward-one-step-back movement in Benhabib's advancement of Habermas’ discourse theory of law: although her concept of
democratic iterations takes center stage, she develops the notion solely along an ethical-political track. Going forward, critical theorists
developing conceptions of constitutional discourse should work to see it as a way of integrating questions of distributional justice with
questions of moral rights and collective identities without subordinating or conflating them.¶ 4.
Conclusion¶ Some readers may find
the general notion of reinvigorating a politics of constitutionalism quixotic. Certainly, it has not been not my
intention to overstate the importance or positive contributions of constitutions in actually existing democracies, where they can serve to
entrench political systems experiencing paralysis in the face of long term fiscal and environmental problems, and where public appeals to them
more often than not invoke visions of society that are more nostalgic, ethno-nationalistic, authoritarian, and reactionary than what Habermas
and Benhabib presumably have in mind. Instead, I take the basic Hegelian point I started this paper with to be this: modern
persons
ought to be able to comprehend their social order as the work of reason; the spine of institutions through
which their relations to differently abled and positioned others are mediated ought to be responsive
to their interests as fully-rounded persons; and comprehending this system of mediation ought to be
able to reconcile them to the partiality of their roles within the universal state. Though modern life is
differentiated, it can be understood, when seen through the lens of the constitutional order, as a result of citizens’ jointly exercised rationality
as long as certain conditions are met. These conditions are, however, more stringent than Hegel realized. In light of this point, that so many
issues deeply impacting citizens’ social and economic relations to one another are rendered marginal – and even invisible – in terms of the
airing they receive in the public sphere, that they are treated as mostly settled or non-questions in the legal system consitutues a strikingly
deficient aspect of modern politics. Examples include the intrusion of market logic and technology into everyday life, the commodification of
public goods, the legal standing of consumers and residents, the role of shareholders and public interests in corporate governance, and the
status of collective bargaining arrangements. Surely a contributing factor here is the absence of a shared sense of possibility that the basic
terms of our social union could be responsive to the force that discursive reason can exert. Such a sense is what I am contending jurisgenerative
theories ought to aim at recapturing while critiquing more legalistic and authoritarian models of law.¶ This is not to deny the possibility that
democratic iterations themselves may be regressive or authoritarian, populist in the pejorative sense. But
the denial of their
legitimacy or possibility moves us in the direction of authoritarian conceptions of law and political power
and the isolation of individuals and social groups wrought by a political order of machine-like
administration that Horkheimer and Adorno describe as a main feature of modern political domination. Recapturing some
sense of how human activity makes reason actual in the ongoing organization of society need not
amount to the claim that reason culminates in some centralized form, as in the Hegelian state, or in some end
state, as in Marx. It can, however, move us to envision the possibility of an ongoing practice of
communication, lawmaking, and revision that seeks to reconcile and overcome positivity and division,
without the triumphalist pretension of ever being able to fully do so.
Racial progress has occurred through legal change and shifts in civil society---reversals
don’t justify pessimism because specific reforms have achieved lasting reductions in
racial inequality
Michael Omi and Howard Winant 13, Resistance is futile?: a response to Feagin and Elias, Ethnic and
Racial Studies Volume 36, Issue 6, p. 961-973, 2013 Special Issue: Symposium - Rethinking Racial
Formation Theory
In Feagin and Elias's account, white
racist rule in the USA appears unalterable and permanent. There is little sense that the
‘white racial frame’ evoked by systemic racism theory changes in significant ways over historical time. They dismiss important
rearrangements and reforms as merely ‘a distraction from more ingrained structural oppressions and
deep lying inequalities that continue to
define US society’ (Feagin and Elias 2012, p. 21). Feagin and Elias use a concept they call ‘surface flexibility’ to
argue that white elites frame racial realities in ways that suggest change, but are merely engineered to reinforce the underlying structure of racial oppression.
Feagin and Elias say the phrase ‘racial democracy’ is an oxymoron – a word defined in the dictionary as a figure of speech that combines contradictory terms. If they
mean the USA is a contradictory and incomplete democracy in respect to race and racism issues, we agree. If they mean that people of colour have no democratic
rights or political power in the USA,
we disagree . The USA is a racially despotic country in many ways, but in our view it is also in many
respects a racial democracy, capable of being influenced towards more or less inclusive and redistributive
economic
policies , social policies, or for that matter, imperial policies. What is distinctive about our own epoch in the USA (post-Second World War to the
present) with respect to race and racism? ¶ Over the past decades there has been a steady drumbeat of efforts to contain and neutralize civil rights, to restrict racial
democracy, and to maintain or even increase racial inequality. Racial disparities in different institutional sites – employment, health, education – persist and in
many cases have increased. Indeed, the post-2008 period has seen a dramatic increase in racial inequality. The subprime home mortgage crisis, for example, was a
major racial event. Black and brown people were disproportionately affected by predatory lending practices; many lost their homes as a result; race-based wealth
disparities widened tremendously. It
would be easy to conclude, as Feagin and Elias do, that white racial dominance has
been continuous and unchanging throughout US history . But such a perspective misses the dramatic
twists and turns in racial politics that have occurred since the Second World War and the civil rights
era.¶ Feagin and Elias claim that we overly inflate the significance of the changes wrought by the civil rights
movement, and that we ‘overlook the serious reversals of racial justice and persistence of huge racial
inequalities’ (Feagin and Elias 2012, p. 21) that followed in its wake. We do not . In Racial Formation we wrote about ‘racial reaction’ in a chapter of
that name, and elsewhere in the book as well. Feagin and Elias devote little attention to our arguments there; perhaps because they are in substantial agreement
with us. While we argue that the
right wing was able to ‘rearticulate’ race and racism issues to roll back some
of the gains of the civil rights movement, we also believe that there are limits to what the right could achieve
in the post-civil rights political landscape.¶ So we agree that the present prospects for racial justice are
demoralizing at best. But we do not think that is the whole story. US racial conditions have changed over the
post-Second World War period, in ways that Feagin and Elias tend to downplay or neglect. Some of the major reforms of the 1960s have
proved irreversible; they have set powerful democratic forces in motion . These racial (trans)formations were the
results of unprecedented political mobilizations, led by the black movement, but not confined to blacks alone. Consider the desegregation of the
armed forces, as well as key civil rights movement victories of the 1960s: the Voting Rights Act, the Immigration and
Naturalization Act (Hart- Celler), as well as important court decisions like Loving v. Virginia that declared antimiscegenation laws unconstitutional. While we have the greatest respect for the late Derrick Bell, we do not believe that his ‘interest
convergence hypothesis’ effectively explains all these developments. How does Lyndon Johnson's famous (and possibly apocryphal) lament upon signing the Civil
Rights Act on 2 July 1964 – ‘We have lost the South for a generation’ – count as ‘convergence’?¶ The
US racial regime has been
transformed in significant ways . As Antonio Gramsci argues, hegemony proceeds through the incorporation of opposition (Gramsci 1971, p.
182). The civil rights reforms can be seen as a classic example of this process; here the US racial regime – under movement pressure – was exercising its hegemony.
But Gramsci insists that such reforms – which he calls ‘passive revolutions’ – cannot be merely symbolic if they are to be effective: oppositions must win real gains in
the process. Once again, we are in the realm of politics, not absolute rule. ¶ So yes, we think there were important
if partial victories that
shifted the racial state and transformed the significance of race in everyday life. And yes, we think that
further victories can take place both on the broad terrain of the state and on the more immediate level of social
across civil society . Indeed we have argued that in many ways the most important
accomplishment of the anti-racist movement of the 1960s in the USA was the politicization of the social. In the USA and indeed
around the globe, race-based movements demanded not only the inclusion of racially defined ‘others’ and
the democratization of structurally racist societies, but also the recognition and validation by both
interaction: in daily interaction, in the human psyche and
the state and civil society of racially-defined experience and identity. These demands broadened and
deepened democracy itself. They facilitated not only the democratic gains made in the USA by the black
movement and its allies, but also the political advances towards equality, social justice and inclusion accomplished by other ‘new social movements’: secondwave feminism, gay liberation, and the environmentalist and anti-war movements among others.¶ By no means do we think that the postwar movement upsurge was an unmitigated success. Far from it: all the new social movements were subject to the same
‘rearticulation’ (Laclau and Mouffe 2001, p. xii) that produced the racial ideology of ‘colourblindness’ and its variants; indeed all these movements confronted their
mirror images in the mobilizations that arose from the political right to counter them. Yet even their incorporation and containment, even their confrontations with
the various ‘backlash’ phenomena of the past few decades, even
the need to develop the highly contradictory ideology of
‘colourblindness’, reveal the transformative character of the ‘politicization of the social’. While it is not possible here to explore so
extensive a subject, it is worth noting that it was the long-delayed eruption of racial subjectivity and self-awareness into the mainstream political arena that set off
this transformation, shaping both the democratic and anti-democratic social movements that are evident in US politics today. ¶ What are the political implications of
contemporary racial trends?¶ Feagin and Elias's use
of racial categories can be imprecise. This is not their problem
alone; anyone writing about race and racism needs to frame terms with care and precision, and we
undoubtedly get fuzzy too from time to time. The absence of a careful approach leads to ‘ racial
lumping’ and essentialisms of various kinds. This imprecision is heightened in polemic. In the Feagin and Elias
essay the term ‘whites’ at times refers to all whites, white elites, ‘dominant white actors’ and very
exceptionally, anti-racist whites, a category in which we presume they would place themselves. Although the terms ‘black’, ‘African American’
and ‘Latino’ appear, the term ‘people of colour’ is emphasized, often in direct substitution for black reference points. ¶ In the USA today it is important
not to frame race in a bipolar manner. The black/white paradigm made more sense in the past than it
does in the twenty-first century. The racial make-up of the nation has now changed dramatically. Since
the passage of the Immigration Reform Act of 1965, the USA has become more ‘coloured’. A ‘majority–minority’ national demographic shift is well underway.
Predicted to arrive by the mid-twenty-first century, the numerical eclipse of the white population is already in evidence locally and regionally. In California, for
example, non-Hispanic whites constitute only 39.7 per cent of the state's population. While the decline in the white population cannot be correlated with any
decline of white racial dominance, the dawning and deepening of racial multipolarity calls into question a sometimes implicit and sometimes explicit black/white
racial framework that is evident in Feagin and Elias's essay. Shifting racial demographics and identities also raise general questions of race and racism in new ways
that the ‘systemic racism’ approach is not prepared to explain.3¶ Class questions and issues of panethnicizing trends, for example, call into question what we mean
by race, racial identity and race consciousness. No racially defined group is even remotely uniform; groups that we so glibly refer to as Asian American or Latino are
particularly heterogeneous. Some have achieved or exceeded socio-economic parity with whites, while others are subject to what we might call ‘engineered
poverty’ in sweatshops, dirty and dangerous labour settings, or prisons. Tensions within panethnicized racial groups are notably present, and conflicts between
racially defined groups (‘black/brown’ conflict, for example) are evident in both urban and rural settings. A substantial current of social scientific analysis now argues
that Asians and Latinos are the ‘new white ethnics’, able to ‘work toward whiteness’4 at least in part, and that the black/white bipolarity retains its distinct and
foundational qualities as the mainstay of US racism (Alba and Nee 2005; Perlmann 2005; Portes and Rumbaut 2006; Waters, Ueda and Marrow 2007).¶ We question
that argument in light of the massive demographic shifts taking place in the USA. Globalization, climate change and above all neoliberalism on a global scale, all
drive migration. The country's economic capacity to absorb enormous numbers of immigrants, low-wage workers and their families (including a new, globally based
and very female, servant class) without generating the sort of established subaltern groups we associate with the terms race and racism, may be more limited than
it was when the ‘whitening’ of Europeans took place in the nineteenth and twentieth centuries. In other words this argument's key precedent, the absorption of
white immigrants ‘of a different color’ (Jacobson 1998), may no longer apply. Indeed, we might think of the assimilationist model itself as a general theory of
immigrant incorporation that was based on a historically specific case study – one that might not hold for, or be replicated by, subsequent big waves of immigration.
Feagin and Elias's systemic racism model, while offering numerous important insights, does not inform concrete analysis of these issues. ¶ It is important going
forward to understand how groups are differentially racialized and relatively positioned in the US racial hierarchy: once again racism must be seen as a shifting racial
project. This has important consequences, not only with respect to emerging patterns of inequality, but also in regard to the degree of power available to different
racial actors to define, shape or contest the existing racial landscape. Attention to such matters is largely absent in Feagin and Elias's account. In their view racially
identified groups are located in strict reference to the dominant ‘white racial frame’, hammered into place, so to speak. As a consequence, they fail to examine how
racially subordinate groups interact and influence each others’ boundaries, conditions and practices. Because they offer so little specific analysis of Asian American,
Latino or Native American racial issues, the reader finds her/himself once again in the land (real or imaginary, depending on your racial politics) of bipolar US racial
dynamics, in which whites and blacks play the leading roles, and other racially identified groups – as well as those ambiguously identified, such as Middle Eastern
and South Asian Americans (MEASA) – play at best supporting roles, and are sometimes cast as extras or left out of the picture entirely. ¶
We still want to
acknowledge that blacks have been catching hell and have borne the brunt of the racist reaction of
the past several decades. For example, we agree with Feagin and Elias's critique of the reactionary politics of
incarceration in the USA. The ‘new Jim Crow’ (Alexander 2012) or even the ‘new slavery’ that the present system practises is something that was just in its
beginning stages when we were writing Racial Formation. It is now recognized as a national and indeed global scandal. How is it to be understood?
Of course there are substantial debates on this topic, notably about the nature of the ‘prison-industrial complex’ (Davis 2003, p. 3) and the social and cultural effects
of mass incarceration along racial lines. But beyond Feagin and Elias's denunciation
of the ferocious white racism that is
operating here, deeper political implications are worth considering. As Alexander (2012), Mauer (2006), Manza and Uggen
(2008) and movement groups like Critical Resistance and the Ella Baker Center argue, the upsurge over recent decades in incarceration
rates for black (and brown) men expresses the fear-based, law-and-order appeals that have shaped US racial politics since the rise of Nixonland (Perlstein 2008)
and the ‘Southern strategy’. Perhaps even more central, racial repression aims at restricting the increasing impact of voters of
colour in a demographically shifting electorate.¶ There is a lot more to say about this, but for the present two key points stand out:
first, it is not an area where Feagin and Elias and we have any sharp disagreement, and second, for all the horrors and injustices that the
‘new Jim Crow’ represents, incarceration, profiling and similar practices remain political issues. These
practices and policies are not ineluctable and unalterable dimensions of the US racial regime. There
have been previous waves of reform in these areas. They can be transformed again by mass
mobilization, electoral shifts and so on. In other words, resistance is not futile.¶ Speaking of electoral shifts and the
formal political arena, how should President Barack Obama be politically situated in this discussion? How do Feagin and Elias explain Obama? Quite amazingly, his
name does not appear in their essay. Is he a mere token, an ‘oreo’, a shill for Wall Street? Or does Obama represent a new development in US politics, a black
leader of a mass, multiracial party that for sheer demographic reasons alone might eventually triumph over the white people's party, the Republicans? If the
President is neither the white man's token nor Neo, the One,5 then once again we are in the world of politics: neither the near-total white despotism depicted by
Feagin and Elias, nor a racially inclusive democracy. ¶ President Obama continues to enjoy widespread black support, although it is clear that he has not protected
blacks against their greatest cumulative loss of wealth in history. He has not explicitly criticized the glaring racial bias in the US carceral system. He has not
intervened in conflicts over workers’ rights – particularly in the public sector where many blacks and other people of colour are concentrated. He has not intervened
to halt or slow foreclosures, except in ways that were largely symbolic. Workers and lower-middle-class people were the hardest hit by the great recession and the
subprime home mortgage crisis, with black families faring worst, and Latinos close behind (Rugh and Massey 2010); Obama has not defended them. Many writers
have explained Obama's centrism and unwillingness to raise the issue of race as functions of white racism (Sugrue 2010). ¶ The black community – and other
communities of colour as well – remains politically divided. While black folk have taken the hardest blows from the reactionary and racist regime that has mostly
dominated US politics since Reagan (if not since Nixon), no united black movement has succeeded the deaths of Malcolm and Martin. Although there is always
important political activity underway, a relatively large and fairly conservative black middle class, a ‘black bourgeoisie’ in Frazier's (1957) terms, has generally
maintained its position since the end of the civil rights era. Largely based in the public sector, and including a generally centrist business class as well, this stratum
has continued to play the role that Frazier – and before him, Charles S. Johnson. William Lloyd Warner, Alison Davis and other scholars – identified: vacillation
between the white elite and the black masses. Roughly similar patterns operate in Latino communities as well, where the ‘working towards whiteness’ framework
coexists with a substantial amount of exclusion and super-exploitation.¶ Alongside class issues in communities of colour, there are significant gender issues. The
disappearance of blue-collar work, combined with the assault by the criminal justice system – chiefly profiling by the police (‘stop and frisk’) and imprisonment,
have both unduly targeted and victimized black and brown men, especially youth. Women of colour are also targeted, especially by violence, discrimination and
assaults on their reproductive rights (Harris-Perry 2011); profiling is everywhere (Glover 2009).¶ Here again we are in the realm of racial politics. Debate proceeds in
the black community on Obama's credibilty, with Cornel West and Tavis Smiley leading the critics. But it seems safe to say that in North Philly, Inglewood or
Atlanta's Lakewood section, the president remains highly popular. Latino support for Obama remains high as well. Feagin and Elias need to clarify their views on
black and brown political judgement. Is it attuned to political realities or has it been captured by the white racial frame? Is Obama's election of no importance? ¶
***¶ In conclusion, do Feagin and Elias really believe that white power is so complete, so extensive, so ‘sutured’ (as Laclau and Mouffe might say) as they suggest
here? Do they mean to suggest, in Borg-fashion, that ‘resistance is futile?’ This seems to be the underlying political logic of the ‘systemic racism’ approach, perhaps
unintentionally so. Is white racism so ubiquitous that no meaningful political challenge can be mounted against it? Are black and brown folk (yellow and red people,
and also others unclassifiable under the always- absurd colour categories) utterly supine, duped, abject, unable to exert any political pressure? Is such a view of race
and racism even recognizable in the USA of 2012? And is that a responsible political position to be advocating? Is this what we want to teach our students of colour?
Or our white students for that matter? ¶ We suspect that if pressed, Feagin and Elias would concur with our judgement that racial
conflict, both
within (and against) the state and in everyday life, is a fundamentally political process. We think that they would also
accept our claim that the
ongoing political realities of race provide extensive evidence that people of colour
in the USA are not so powerless, and that whites are not so omnipotent, as Feagin and Elias's analysis suggests them to
be.¶ Racial formation theory allows us to see that there are contradictions in racial oppression. The racial formation approach reveals that white racism is unstable
and constantly challenged, from the national and indeed global level down to the personal and intra-psychic conflicts that we all experience, no matter what our
racial identity might be. While racism – largely white – continues to flourish, it is not monolithic. Yes, there
have been enormous increases in
racial inequality in recent years. But movement-based anti-racist opposition continues, and
sometimes scores victories. Challenges to white racism continue both within the state and in civil
society . Although largely and properly led by people of colour, anti-racist movements also incorporate whites such as Feagin and Elias themselves.
Movements may experience setbacks, the reforms for which they fought may be revealed as
inadequate, and indeed their leaders may be co-opted or even eliminated, but racial subjectivity and self-awareness, unresolved and conflictual
both within the individual psyche and the body politic, abides. Resistance is not futile.
Legal change has resulted in racial advancement and more is still possible---reject
pessimism because it results in subversive alternatives
Randall Kennedy 12, Harvard Law Professor, Race, Crime, and the Law, Knopf Doubleday Publishing
Group, pp. 388-389
True, it
is sometimes genuinely difficult to determine an appropriate remedial response. The proper way
to address that difficulty, however, is to acknowledge and grapple with it, not bury it beneath unbelievable
assertions that, in fact, no real problem exists. Whitewashing racial wrongs (especially while simultaneously proclaiming that
courts are doing everything reasonably possible to combat racially invidious government action) corrupts officials and jades onlookers, nourishing
simplistic, despairing, and defeatist critiques of the law that are profoundly destructive .¶ The second impression that
I want to leave with readers should serve as an antidote to these overwrought, defeatist critiques by acknowledging that the administration of
criminal law has changed substantially for the better over the past half century and that there is
reason to believe that, properly guided, it can be improved even more. Today there are more formal
and informal protections against racial bias than ever before, both in terms of the protections
accorded to blacks against criminality and the treatment accorded to black suspects , defendants, and convicts.
That deficiencies, large deficiencies, remain is clear. But comparing racial policies today to those that
prevailed in 1940 or 1960 or even 1980 should expose the fallacy of asserting that nothing substantial
has been changed for the better .¶ This point is worth stressing because of the prevalence and prominence of
pessimistic thinking about the race question in American life. Some commentators maintain, in all seriousness,
that there has been no significant improvement in the overall fortunes of black Americans during the past half
century, that advances that appear to have been made are merely cosmetic, and that the U nited States is
doomed to remain a pigmentocracy. This pessimistic strain often turns paranoid and apocalyptic in
commentary about the administration of criminal law.¶ It is profoundly misleading , however, to focus
exclusively on the ugliest aspects of the American legal order. Doing so conceals real achievements:
the Reconstruction Constitutional Amendments, the Reconstruction civil rights laws, Strauder v. Alabama,
Dempsey v. Moore, Brown v. Mississippi, Powell v. Alabama, Norris v. Alabama, Batson v. Kentucky,
the resuscitation of Reconstruction by the civil rights movement, the changing demographics of the bench, bar,
and police departments—in sum, the stigmatization (albeit incomplete) of invidious racial bias. Neglecting
these achievements robs them of support . Recent sharp attacks upon basic guarantees bequeathed by the
New Deal ought to put everyone on notice of the perils of permitting social accomplishments to lose their
rightful stature in the public's estimation. Moreover, one-dimensional condemnations of the racial situation
in America renders attractive certain subversive proposals that are, given actual conditions, foolish,
counterproductive, and immoral. I think here in particular of the call for racially selective jury nullification. Such proposals should
be openly challenged on the grounds that they fundamentally misperceive the racial realities of
American life.