Contents
Case Answers ................................................................................................................................... 4
Democracy Advantage Answers ........................................................................................................... 5
Democracy Advantage Answers: Extensions on 4th Amendment Violations ....................................... 9
Internet Advantage Answers .............................................................................................................. 11
Internet Answers—AT: Net Solves Extinction .................................................................................... 13
Internet Answers—AT: Internet Saves Economy ............................................................................... 14
Presidential Powers Answers .............................................................................................................. 15
Solvency Answers................................................................................................................................ 18
Disads ............................................................................................................................................. 20
Politics ..................................................................................................................................................... 21
Courts Link to Politics .......................................................................................................................... 22
AT: Decision Announced in May/June ............................................................................................... 24
Court Capital DA............................................................................................................................. 25
1nc Shell .............................................................................................................................................. 26
FYI on Spokeo v. Robins .......................................................................................................................... 29
Uniqueness.............................................................................................................................................. 30
Uniqueness: Spokeo will win now...................................................................................................... 31
Uniqueness: Spokeo Decided Next Term ........................................................................................... 34
Uniqueness: AT: Gay Marriage Ruling ............................................................................................... 35
Uniqueness: AT: Obamacare Ruling .................................................................................................. 36
Links ........................................................................................................................................................ 37
Links: Big Precedents.......................................................................................................................... 38
Links: Meta-Data ................................................................................................................................ 39
Links: War on Terror Cases ................................................................................................................ 42
Links: Strikedown of Other Branches ................................................................................................. 43
Links: Striking Down New Technologies............................................................................................. 44
Links: Katz Precedent ......................................................................................................................... 46
Links: 4th Amendment ........................................................................................................................ 47
Links: Controversial Decisions ............................................................................................................ 48
Links: Upholding Precedent ............................................................................................................... 49
Links: Unpopular Decisions Undermine Court Capital ....................................................................... 52
Link Extensions—AT: Public Won’t Notice the Courts ....................................................................... 54
Links: AT: “ONE DECISION NOT ENOUGH TO AFFECT THE COURT’S LEGITIMACY” .......................... 56
Links: AT: Original Decision Violated Precedent ............................................................................... 57
Links: AT: Courts Winners Win .......................................................................................................... 58
Internal Links ........................................................................................................................................... 61
Internal Links: Spokeo is a controversial decision ............................................................................. 62
Internals: AT: No Major Settlements vs. Tech Companies ................................................................ 63
Internal Links: AT: Legitimacy Resilient ............................................................................................. 64
Internal Links: Court Capital Key to Decisions.................................................................................... 65
Internal Links—Capital Key to Rulings ................................................................................................ 67
Internal Links—Precedents ................................................................................................................. 68
Internal Links--Public Opinion ............................................................................................................. 69
Impacts.................................................................................................................................................... 71
Impacts: Tech Sector .......................................................................................................................... 72
Impacts—Business Confidence ........................................................................................................... 75
Impacts: Court Clog Scenario ............................................................................................................. 78
Impacts--Clog Internals: Spokeo win necessary to prevent clog ....................................................... 80
Impacts--Court Clog Impact Extensions .............................................................................................. 82
Impacts: DA Turns Case...................................................................................................................... 83
Impacts: Disease ................................................................................................................................ 84
Impacts: Economy .............................................................................................................................. 85
Impacts—First Amendment ................................................................................................................ 89
Impacts: Internet Scenario ................................................................................................................. 91
Impacts: Judicial Independence ......................................................................................................... 93
Impacts: Manufacturing Scenario ...................................................................................................... 94
Impacts: Manufacturing Key to Economy .......................................................................................... 96
Impacts: Manufacturing Key to Readiness......................................................................................... 98
Impacts: Military Readiness ............................................................................................................. 100
Impacts: Separation of Powers ........................................................................................................ 101
Congress Counterplan .................................................................................................................. 105
Congress Counterplan ....................................................................................................................... 106
Congress Counterplan—Theory—Agent CP’s Good ......................................................................... 107
Congress CP Solvency—Congress Can Interpret Constitution .......................................................... 108
CONGRESS COUNTERPLAN NET BENEFIT—SEPARATION OF POWERS ............................................. 109
Congress CP—AT: Perm ................................................................................................................... 110
Congress CP Net Benefit—Democracy.............................................................................................. 111
Congress CP Solvency—Electronic Surveillance................................................................................ 112
Congress Counterplan: Congress Solves Better ............................................................................... 113
Congress Counterplan: 4th Amendment Solvency ........................................................................... 116
Congress Counterplan: Privacy Solvency ......................................................................................... 117
Congress Counterplan Solvency--Telephones .................................................................................. 118
Congress Counterplan Solvency: New Tech ..................................................................................... 119
Congress Counterplan Solvency—Internet Surveillance .................................................................. 120
Congress CP Solvency—Presidential Powers .................................................................................... 121
Case Answers
Democracy Advantage Answers
(--) Multiple violations of the Fourth Amendment they don’t solve:
Michael Tomasky, 2013 (staff writer), May 5, 2013. Retrieved June 1, 2015 from
http://www.thedailybeast.com/articles/2013/05/05/there-are-no-absoluterights.html
The Fourth Amendment protects against unreasonable search and seizure, and of course there are loads of exceptions
to this right, the most notable being that whenever an officer of the law has reason to think an
imminently dangerous situation exists, s/he may invade a citi-zen’s privacy. Then there’s the question
of the “exclusionary rule,” by which evidence deemed to have been improperly obtained can be excluded as evidence.
Jurisprudence on this question goes back 100 years, and this very interesting paper notes that it has been two decades since the court
upheld the application of the exclusionary rule in a search-and-seizure case. Since then, the
Rehnquist and Roberts Courts
have ruled six times—every time for the government, i.e., limiting the constitutional protection.
(--) Fourth Amendment rules lack flexibility for new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
A second difference between judicial and legislative rulemaking concerns their operative constraints. Judicial rulemaking is limited by strong
stare decisis norms that limit the ability of judicial rules to change quickly; in contrast, legislatures enjoy wide-ranging discretion to enact new
rules. The difference favors legislatures when
technology is in flux because the privacy implications of particular
rules can fluctuate as technology advances. To ensure that the law maintains its intended balance, it needs mechanisms that
can adapt to technological change. Legislatures are up to the task; courts generally are not. Legislatures can experiment with
different rules and make frequent amendments; n418 they can place restrictions on both public and
private actors; and they can even "sunset" rules so that they apply only for a particular period of time.
The courts cannot. n419 As a result, Fourth Amendment rules will tend to lack the flexibility that a
regulatory response to new technologies may require.
(--) Democracy is strong around the world now:
Richard Koch, 3/3/2015 (staff writer, “Is Democracy Secure?”
http://www.huffingtonpost.com/richard-koch/is-democracy-secure_b_6790352.html; Accessed
6/26/2015, rwg)
Overall, democracy is in better shape , in the West, in Eastern Europe , in India and in much of the rest of
Asia than it was in 1968. Most notably, the death of communism has done untold good. The fears of Will and
Ariel Durant have not, in general, materialized. But the issues they drew attention to -- the over-mighty military-espionage complex, and social
and racial harmony, are still the ones to watch. The 80/20 principle says that there are few issues that really matter in any sphere. For me, the
vital two issues, in order of importance, are increasing social mobility through high quality public education and encouraging people of all
backgrounds to start and join new ventures; and ensuring that potential immigrants share the values of the society they seek to join. That, and
taking pride in those liberal values of tolerance and human worth which are the true foundation of any healthy democracy. We have much to
criticize, but on
the whole society today is gentler, more united and richer in every way than it was half a
century ago, and we should give ourselves two cheers for muddling through rather well.
(--) Democratic peace theory is a farce
Layne ’07 [Christopher, Professor @ TX A&M, American Empire: A Debate, pg. 94]
Wilsonian ideology drives the American Empire because its proponents posit that the United States must use its military power to extend
democracy abroad. Here, the ideology of Empire rests on assumptions that are not supported by the facts. One reason the architects of Empire
champion democracy promotion is because they believe in the so-called democratic peace theory, which holds that democratic states do not
fight other democracies. Or as President George W. Bush put it with his customary eloquence, "democracies don't war; democracies are
peaceful."136 The
democratic peace theory is the probably the most overhyped and undersupported
"theory" ever to be concocted by American academics. In fact, it is not a theory at all. Rather it is a
theology that suits the conceits of Wilsonian true believers-especially the neoconservatives who
have been advocating American Empire since the early 1990s. As serious scholars have shown,
however, the historical record does not support the democratic peace theory.131 On the contrary, it
shows that democracies do not act differently toward other democracies than they do toward
nondemocratic states. When important national interests are at stake, democracies not only
have threatened to use force against other democracies, but, in fact, democracies have gone to
war with other democracies.
(--) Global Democracy Impossible
Dixon 10 [Dr. Patrick Dixon, PhD Foreign Policy, “The Truth About the War With Iraq”, http://www.globalchange.com/iraqwar.htm]
And so we find an interesting fact: those
who live in democratic nations, who uphold democracy as the only
honourable form of government, are not really true democrats after all. They have little or no interest in
global democracy, in a nation of nations, in seeking the common good of the whole of humanity.
And it is this single fact, more than any other, this inequality
of wealth and privilege in our shrinking global village, that
will make it more likely that our future is dominate by terror groups, freedom fighters, justice-seekers,
hell-raisers, protestors and violent agitators.
(--) Democracy doesn't prevent wars—history and theory prove
Schwartz and Skinner '01 Thomas and Kiron K (Research Fellow at the Hoover Institution at Stanford University, associate professor
of history and political science at Carnegie Mellon University); December 22, 2001; “The Myth of Democratic Peace”; JAI Press; ORBIS
Here we show that neither
the historical record nor the theoretical arguments advanced for the purpose
provide any support for democratic pacifism. It does not matter how high or low one sets the bar of
democracy. Set it high enough to avoid major exceptions and you find few, if any, democracies until the Cold War era.
Then there were no wars between them, of course. But that fact is better explained by NATO and
bipolarity than by any shared form of government. Worse, the peace among the high-bar democracies of that era was part of a
larger pacific pattern: peace among all nations of the First and Second Worlds. As for theoretical arguments, those we have
seen rest on implausible premises. Why, then, is the belief that democracies are mutually pacific so widespread and fervent? The explanation rests on an old
American tendency to slip and slide unawares between two uses of the word "democracy": as an objective description
of regimes, and as a term
of praise--a label to distinguish friend from foe. Because a democracy (term of praise) can do no wrong--or so the thinking seems to
run--at least one side in any war cannot be a democracy (regime description). There lies the source of much
potential mischief in foreign policy. The Historical Problem Democratic pacifism combines an empirical generalization with a causal attribution: democracies do
not fight each other, and that is because they are democracies. Proponents often present the former as a plain fact. Yet regimes that were
comparatively democratic for their times and regions have fought each other comparatively often-bearing in mind, for the purpose of comparison, that most states do not fight most states most of the
time. The wars below are either counter-examples to democratic pacifism or borderline cases. Each is listed
with the year it started and those combatants that have some claim to the democratic label. American Revolutionary War, 1775 (Great Britain vs. U.S.) Wars of
French Revolution (democratic period), esp. 1793, 1795 (France vs. Great Britain) Quasi War, 1798 (U.S. vs. France) War of 1812 (U.S. vs. Great Britain) Texas War
of Independence, 1835 (Texas vs. Mexico) Mexican War, 1846 (U.S. vs. Mexico) Roman Republic vs. France, 1849 American Civil War, 1861 (Northern Union vs.
Southern Confederacy) Ecuador-Columbia War, 1863 Franco-Prussian War, 1870 War of the Pacific, 1879 (Chile vs. Peru and Bolivia) Indian Wars, much of
nineteenth century (U.S. vs. various Indian nations) Spanish-American War, 1898 Boer War, 1899 (Great Britain vs. Transvaal and Orange Free State) World War I,
1914 (Germany vs. Great Britain, France, Italy, Belgium, and U.S.) Chaco War, 1932 (Chile vs. Argentina) Ecuador-Peru, 1941 Palestine War, 1948 (Israel vs.
Lebanon) Dominican Invasion, 1967 (U.S. vs. Dominican Republic) Cyprus Invasion, 1974 (Turkey vs. Cyprus) Ecuador-Peru, 1981 Nagorno-Karabakh, 1989
(Armenia vs. Azerbaijan) Yugoslav Wars, 1991 (Serbia and Bosnian-Serb Republic vs. Croatia and Bosnia; sometimes Croatia vs. Bosnia) Georgia-Ossetia, 1991
(Georgia vs. South Ossetia) Georgia-Abkhazia, 1992 (Georgia vs. Abkhazia and allegedly Russia) Moldova-Dnestr Republic, 1992 (Moldova vs. Dnestr Republic and
allegedly Russia) Chechen War of Independence, 1994 (Russia vs. Chechnya) Ecuador-Peru, 1995 NATO-Yugoslavia, 1999 India-Pakistan, 1999
Turn: Democracies start more wars
Errol Henderson
Illusion?, p. 146
2002, Assistant Professor, Dept. of Political Science at the University of Florida, 2002, Democracy and War The End of an
Are Democracies More Peaceful than Nondemocracies with Respect to Interstate Wars? The results indicate that democracies
are more war-prone than non-democracies (whether democracy is coded dichotomously or continuously) and that
democracies are more likely to initiate interstate wars. The findings are obtained from analyses
that control for a host of political, economic, and cultural factors that have been implicated in
the onset of interstate war, and focus explicitly on state level factors instead of simply inferring state level processes from
dyadic level observations as was done in earlier studies (e.g., Oneal and Russett, 1997; Oneal and Ray, 1997). The results imply that
democratic enlargement is more likely to increase the probability of war for states since democracies
are more likely to become involved in—and to initiate—interstate wars.
Transitions to democracy lead to war
Manfield and Snyder 2002
Edward D. Mansfield, Hum Rosen Professor of Political Science and Co-Director of the Christopher H. Browne Center for International Politics at
the University of Pennsylvania, and Jack Snyder, Robert and Renee Belfer Professor of International Relations at Columbia University, Spring
2002, International Organization
states undergoing democratic transitions were substantially more
likely to participate in external wars than were states whose regimes remained unchanged or
changed in an autocratic direction. 6 We argued that elites in newly democratizing states often use nationalist
appeals to attract mass support without submitting to full democratic accountability and that the institutional
weakness of transitional states creates the opportunity for such war-causing strategies to succeed.
In previous research, we reported that
However, these earlier studies did not fully address the circumstances under which transitions are most likely to precipitate war, and
they did not take into account various important causes of war. Equally, some critics worried that the time periods over which we
measured the effects of democratization were sometimes so long that events occurring at the beginning of a period would be unlikely
to influence foreign policy at its end. 7 Employing
a more refined research design than in our prior work, we
find that the
heightened danger of war grows primarily out of the transition from an autocratic regime to one
that is partly democratic. The specter of war during this phase of democratization looms especially large when
governmental institutions, including those regulating political participation, are especially weak. Under these conditions, elites
commonly employ nationalist rhetoric to mobilize mass support but then become drawn into the belligerent
foreign policies unleashed by this process. We find, in contrast, that transitions that quickly culminate in a fully coherent
aim here to identify more precisely the conditions under which democratization stimulates hostilities. We
democracy are much less perilous. 8 Further, our results refute the view that transitional democracies are simply inviting targets of
attack because of their temporary weakness. In fact, they tend to be the initiators of war. We also refute the view that any regime
change is likely to precipitate the outbreak of war. We find that transitions
toward democracy are significantly
more likely to generate hostilities than transitions toward autocracy.
Guantanamo and other rights violations undermine the US as a symbol for democracy:
Thomas Carothers 2012 – VP Carnegie – Jan 2012, Democracy Policy Under Obama:
Revitalization or Retreat?,
http://carnegieendowment.org/files/democracy_under_obama.pdf
Another key element of Obama’s attempted revitalization of U.S. democracy support— the restoration
of America’s standing as a symbol of democracy and human rights in the world—has encountered
choppier waters. The administration has taken some corrective actions with regard to U.S. respect for
law and rights in its counterterrorism policies, and Obama enjoys a better reputation generally in the
world on human rights than did Bush. But the president has not accomplished his signature goal of
closing Guantánamo. In addition, bowing to congressional pressure, the administration reversed its
earlier decision to hold civilian trials in New York for detainees accused of planning the September 11
attacks.37 The administration has also been criticized by human rights advocates for failing to hold any
current or former U.S. officials accountable for past abuses and instead adopting many of the Bush
administration’s legal positions in order to block lawsuits by former detainees seeking redress for illegal
detention, rendition, and torture.38
Democracy Advantage Answers: Extensions on 4th Amendment
Violations
Fourth Amendment doesn’t provide adequate privacy protections:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
In this Part, I will argue that this popular understanding of the Fourth Amendment is generally at odds with how courts have applied the Fourth
Amendment. Judges generally have declined to assume this active role because Fourth
Amendment doctrine has remained
heavily tied to real property concepts. In most contexts, whether an expectation of privacy is deemed reasonable can be
answered by whether it is backed by what I will call a "loose' version of real property law. Under these precedents, a "reasonable expectation of
privacy" is not the same as the privacy that a reasonable person would expect. Instead, it acts as a term of art tied largely to traditional
property law concepts. The difference often creates a wide gap between the privacy rules reasonable people want and the deferential rules
that the Fourth Amendment provides. When
technology is new or in flux, and its use may have privacy implications far removed
from property law, Fourth Amendment rules alone will tend not to provide adequate privacy protections.
Statutory protections are needed to protect privacy and regulate government uses of developing technologies.
Multiple other Fourth Amendment violations block privacy:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Even the rights of an owner are not absolute under the Fourth Amendment. n52 The courts have sanctioned a wide
range of invasive warrantless surveillance techniques that threaten privacy but not property. So long as the surveillance does not invade the
individual's right to exclude others - the very essence of the property right n53 - the surveillance generally does not violate his reasonable
expectation of privacy. For example,
the police can invade the privacy of a homeowner by standing in the public
street and peeking into his home through a window, n55 The police can rent helicopters, fly high enough
to reach public airspace where property rights no longer govern, and then take photographs of the
home. n56 Police informants can also assume undercover identities and trick the homeowner into letting them inside while wearing a
recording device, n57 or else convince another person who has common authority over the home to consent to a search. n58 All of these
techniques are invasive. All of them appear to violate the homeowner's "right to be let alone." n59 None
of these techniques violate the homeowner's property rights, however, and under existing law none of them constitute a Fourth
Amendment search.
Fourth Amendment provides only modest protection in new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
This Article has so far challenged the doctrinal foundations of what I have labeled the popular view of the Fourth Amendment in new technologies. It has made a
descriptive doctrinal claim: while Katz had revolutionary promise, cases interpreting Katz and the "reasonable expectation of privacy" test have mostly focused on
the details of how new technologies work and whether they interfere with traditional property rights. Most
existing Fourth Amendment rules
in new technologies are based heavily on property law concepts, and as a result offer only relatively
modest privacy protection in new technologies. The cases are not entirely consistent. But understood as a whole, the existing body of
doctrine reflects a relatively humble and deferential judicial attitude. The key implication of this deferential stance is that we should not expect the
Fourth Amendment alone to provide adequate protections against invasions of privacy made possible by
law enforcement use of new technologies. The popular view effectively equates a reasonable expectation of privacy with the expectation of
privacy that a reasonable person would expect. If this were the case, legislative privacy protections would be unnecessary. After all, the normative expectations of
privacy of a reasonable person are the same as the governing privacy rules that a reasonable person would want, which are the same as the rules that an idealized
legislature would enact. If the Fourth Amendment set such goals and courts could achieve them competently, there would be no need for legislative action. Existing
precedents suggest a different practice, however. A "reasonable expectation of privacy" has not been equated with the expectation of privacy of a reasonable
person; rather, it has been used as a term of art based heavily on property law principles. As a result, existing Fourth Amendment rules are not necessarily the rules
that sensible legislators might enact and reasonable citizens might desire. Especially in the area of high technology, the
property-based Fourth
Amendment does not guarantee that the rules governing law enforcement are optimal rules that
effectively balance the competing concerns of privacy and effective law enforcement.
Internet Advantage Answers
(--) Multiple factors block an open internet—nation-states efforts to maintain security
and control will lead to blocking and filtering of the net:
Janna Anderson and Lee Rainie, 7/3/2014 (“Experts say liberty online is challenged by nation-state
crackdowns, surveillance, and pressures of commercialization of the Internet,”
http://www.pewinternet.org/2014/07/03/net-threats/, Accessed 2/9/2015, rwg)
Still, some express
wide levels of concern that this yearning for an open Internet will be challenged by
trends that could sharply disrupt the way the Internet works for many users today as a source of largely unfettered
content flows. The Net Threats These Experts Fear Actions by nation-states to maintain security and political control
will lead to more blocking, filtering, segmentation, and balkanization of the Internet. Trust will evaporate in the
wake of revelations about government and corporate surveillance and likely greater surveillance in the future. Commercial pressures
affecting everything from Internet architecture to the flow of information will endanger the open
structure of online life. Efforts to fix the TMI (too much information) problem might over-compensate and actually thwart content
sharing.
(--) Governments and corporations threaten an open internet:
Open Stand, 1/7/2015 (Google’s Vint Cerf Advocates for an Open Internet, https://openstand.org/googles-vint-cerf-advocates-for-an-open-internet/, Accessed 6/26/2015, rwg)
Many governments are discussing, or have already implemented, restricted access and limit select types of
content. China and other nations tightly control public access to the web. In the wake of NSA revelations, some
nations are examining ways to create their own, secure national internets, including Iran. However, geopolitical concerns aren’t the
only threat to open access; the influence of political and trade concerns can be equally powerful, as Cerf
points out: “For example, new top-level domain names like .vin and .wine have led to major complaints by France, Spain, and Portugal over who
may properly register second-level domain names such as champagne,” Cerf shared in his article with Wired. “If
internet governance
policy gets mixed up with trade policy, one might see attempts to exchange internet openness for some
adjustment in a tariff barrier or other political accommodation. Such disputes come and go, but if they
produce uncertainty about connectivity, they could erode motivation for investing in internet businesses
and infrastructure.”
(--) Crackdowns threaten an open internet:
Janna Anderson and Lee Rainie, 7/3/2014 (“Experts say liberty online is challenged by nation-state
crackdowns, surveillance, and pressures of commercialization of the Internet,”
http://www.pewinternet.org/2014/07/03/net-threats/, Accessed 2/9/2015, rwg)
The experts in this survey noted a broad global trend toward regulation of the Internet by regimes that
have faced protests and stepped up surveillance of Internet users. They pointed out that nations such as Egypt, Pakistan, and
Turkey have blocked Internet access to control information flows when they perceived content as a threat to the current regime.
China is known for its “Great Firewall,” seen as Internet censorship by most outsiders, including those in this
canvassing. Some respondents cited the Arab Spring as an example of the power of the Internet to organize political dissent and they then commented on how this
prompted crackdowns by governments. Others
cited governments’ application of broad rules that limit the exchange
of all information in order to try to halt criminal activity. A notable number of these expert respondents also mentioned Edward
Snowden’s revelations about the U.S. National Security Agency’s (NSA) surveillance of email and phone call records. They also cited such examples as the theft of
customer account details from Target and corporate surveillance of consumers as giving ammunition to those who want to crack down on the content that flows
online. Paul Saffo, managing director at Discern Analytics and consulting associate professor at Stanford University, said, “The
pressures to balkanize
the global Internet will continue and create new uncertainties. Governments will become more skilled at
blocking access to unwelcome sites.”
(--) Internet will never collapse—too robust:
John C. Dvorak, 5/1/2007 (2004 Award winner of the American Business Editors Association's national
gold award, “Will the Internet Collapse?”
http://www.pcmag.com/article2/0%2c2817%2c2124376%2c00.asp#, Accessed 7/10/2015, rwg)
When is the Internet going to collapse? The answer is NEVER. The Internet is amazing for no other reason than that it
hasn't simply collapsed, never to be rebooted. Over a decade ago, many pundits were predicting an all-out
catastrophic failure, and back then the load was nothing compared with what it is today. So how much more can this network take?
Let's look at the basic changes that have occurred since the Net became chat-worthy around 1990. First of all, only a few people were on the
Net back in 1990, since it was essentially a carrier for e-mail (spam free!), newsgroups, gopher, and FTP. These capabilities remain. But the email load has grown to phenomenal proportions and become burdened with megatons of spam. In one year, the amount of spam can exceed a
decade's worth, say 1990 to 2000, of all Internet traffic. It's actually the astonishing overall growth of the Internet that is amazing. In 1990, the
total U.S. backbone throughput of the Internet was 1 terabyte, and in 1991 it doubled to 2TB. Throughput continued to double until 1996,
when it jumped to 1,500TB. After that huge jump, it returned to doubling, reaching 80,000 to 140,000TB in 2002. This ridiculous growth rate
has continued as more and more services are added to the burden. The jump in 1996 is attributable to the one-two punch of the universal
popularization of the Web and the introduction of the MP3 standard and subsequent music file sharing. More recently, the emergence of inane
video clips (YouTube and the rest) as universal entertainment has continued to slam the Net with overhead, as has large video file sharing via
BitTorrent and other systems. Then VoIP came along, and IPTV is next. All the while, e-mail numbers are in the trillions of messages, and spam
has never been more plentiful and bloated. Add blogging, vlogging, and twittering and it just gets worse. According to some expensive studies,
the growth rate has begun to slow down to something like 50 percent per year. But that's growth on top of huge numbers. Petabytes. So when
does this thing just grind to a halt or blow up? To
date, we have to admit that the structure of the Net is robust, to
say the least. This is impressive, considering the fact that experts were predicting a collapse in the 1990s. Robust or not, this Internet is a
transportation system. It transports data. All transportation systems eventually need upgrading, repair, basic changes, or reinvention. But what
needs to be done here? This, to me, has come to be the big question. Does anything at all need to be done, or do we run it into the ground and
then fix it later? Is this like a jalopy leaking oil and water about to blow, or an organic perpetual-motion machine that fixes itself somehow?
Many believe that the Net has never collapsed because it does tend to fix itself. A decade ago we were going to
run out of IP addresses—remember? It righted itself, with rotating addresses and subnets. Many of the Net's improvements are selfimprovements. Only spam, viruses, and spyware represent incurable diseases that could kill the organism. I have to conclude that the worstcase scenario for the Net is an outage here or there, if anywhere. After all, the phone system, a more machine-intensive system, never really
imploded after years and years of growth, did it? While
it has outages, it's actually more reliable than the power grid
it sits on. Why should the Internet be any different now that it is essentially run by phone companies who know how to keep networks up?
And let's be real here. The Net is being improved daily, with newer routers and better gear being constantly hot-swapped all over
the world. This is not the same Internet we had in 1990, nor is it what we had in 2000. While phone companies seem to enjoy nickel-and-diming
their customers to death with various petty scams and charges, they could easily charge one flat fee and spend their efforts on quality-ofservice issues and improving overall network speed and throughput. That will never happen, and phone companies will forever be loathed. But
when all is said and done, it's because of them that the Internet will never collapse. That's the good news. The bad news is they now own the
Internet—literally—and they'll continue to play the nickel-and-dime game with us. Discuss this article in the forum
Internet Answers—AT: Net Solves Extinction
(--) Eagleman is wrong—Net won’t save civilization:
Seth Mnookin, 3/23/2012 (teaches science writing at MIT, “The Frozen Future of Nonfiction,”
http://www.downloadtheuniverse.com/dtu/2012/03/why-the-net-matters-how-the-internet-will-savecivilization-by-david-eagleman-canongate-books-2010-for-ipad-by-set.html, Accessed 7/10/2015, rwg)
At least, that’s what I assumed before I read Why
The Net Matters, Eagleman’s frustrating 2010 e-book about how
and why the Internet will save civilization. (I reviewed the $7.99 iPad version, which is the platform it was designed for; a
stripped-down, text-based version is available on the Kindle for the portentous price of $6.66.) The problems start with
Eagleman’s premise, which is so vague and broad as to be practically meaningless . There are, he writes, just “a
handful of reasons” that civilizations collapse: “dis­ease, poor in­for­ma­tion flow, nat-u-ral dis-as-ters, po-lit-i-cal cor-rup-tion, re-source
de­ple­tion and eco­nomic melt­down.” Lucky
for us (and Eagleman does offer readers “[c]ongratulations on living in a fortuitous moment
technology that created the web “obviates many of the threats faced by our ancestors. In
other words...[t]he advent of the internet represents a watershed moment in history that just might rescue our future.” On the other
hand, it just might not : In order to make his point, Eagleman either ignores or doesn’t bother to look for any evidence that might
undercut it. The first of six “random access” chapters that make up the bulk of Why The Net Matters is devoted to
“Sidestepping Epidemics,” like the smallpox outbreak that helped bring down the Aztec Empire. In the future, Eagleman writes, the
in history”), the
“protective net,” in the form of telemedicine, telepresence (“the ability to work remotely via computer”), and sophisticated information
tracking, will save us from these outbreaks. That
all sounds lovely, but what of the fact that we’re currently
experiencing a resurgence in vaccine-preventable diseases such as measles...a resurgence which is fueled in no small part
by misinformation spread over that very same “protective net”?
Internet Answers—AT: Internet Saves Economy
(--) Internet won’t save the economy
Charles Kenny, 6/17/2013 (senior fellow at the Center for Global Development, “Think the Internet
Leads to Growth? Think Again,” http://www.bloomberg.com/bw/articles/2013-06-17/think-theinternet-leads-to-growth-think-again, Accessed 7/10/2015, rwg)
It hasn’t quite worked out that way. Indeed, if
the last 10 years have demonstrated anything, it’s that for all the
impact of a technology like the Internet, thinking that any new innovation will set us on a course of high
growth is almost certainly wrong . That’s in part because many of the studies purporting to show a
relationship between the Internet and economic growth relied on shoddy data and dubious
assumptions. In 1999 the Federal Reserve Bank of Cleveland released a study that concluded (PDF), “… the fraction of a country’s
population that has access to the Internet is, at least, correlated with factors that help to explain average growth performance.” It did so by
demonstrating a positive relationship between the number of Internet users in a country in 1999 with gross domestic product growth from
1974 to 1992. Usually we expect the thing being caused (growth in the 1980s) to happen after the things causing it (1999 Internet users). In
defense of the Fed, researchers at the World Bank recently tried to repeat the same trick. They estimated that a 10 percent increase in
broadband penetration in a country was associated with a 1.4 percentage point increase in growth rate. This was based on growth rates and
broadband penetration from 1980 to 2006. Given that most deployment of broadband occurred well after the turn of the millennium, the only
plausible interpretation of the results is that countries that grew faster from 1980 to 2006 could afford more rapid rollouts of broadband. Yet
the study is widely cited by broadband boosters. Many are in denial about the failure of the IT revolution to spark considerable growth.
Innovation in information technology has hardly dried up since 2000. YouTube (GOOG) was founded in 2005, and Facebook (FB) is only a year
older. Customer-relations manager Salesforce.com (CRM), the first cloud-based solution for business, only just predates the turn of the
millennium. And there are now 130 million smartphones in the U.S., each with about the same computing power as a 2005 vintage desktop.
Meanwhile, according to the U.S. Department of Commerce (PDF), retail e-commerce as a percentage of total retail sales has continued to
climb—e-commerce sales were more than 6 percent of the total by the fourth quarter of 2012, up from less than 2 percent in 2003. Yet
despite continuing IT innovation, we’ve seen few signs that predictions of “an unprecedented period of
sustainable, rapid growth” are coming true. U.S. GDP expansion in the 1990s was a little faster than the 1980s—it climbed from an
annual average of 3 percent to 3.2 percent. But GDP growth collapsed to 1.7 percent from 2000 to 2009. Northwestern
University economist Robert Gordon notes that U.S. labor productivity growth spiked briefly—rising from 1.38 percent from 1972 to 1996 to
2.46 percent from 1996 to 2004—but fell to 1.33 percent from 2004 and 2012. Part of the labor productivity spike around the turn of the
century was because of the rapidly increasing efficiency of IT production (you get a lot more computer for the same cost nowadays). Another
part was because of considerable investments in computers and networks across the economy—what economists call “capital deepening.” But
even during the boom years it was near-impossible to see an economywide impact of IT on “total factor
productivity”—or the amount of output we were getting for a given input of capital and labor combined.
Presidential Powers Answers
(--) Impact is empirically denied: power of the president has expanded throughout
history:
Robert Dallek, 2011 (staff writer, “Power and the Presidency, From Kennedy to Obama,”
http://www.smithsonianmag.com/history-archaeology/Power-and-the-Presidency-From-Kennedy-toObama.html, Accessed 7/25/2012, rwg)
To be sure, the President’s control over foreign affairs had been growing since the Theodore Roosevelt
administration (and still grows today). TR’s acquisition of the Panama Canal Zone preceded Woodrow Wilson’s decision to enter
World War I, which was a prelude to Franklin Delano Roosevelt’s management of the run-up to the victorious American effort in World War II.
In the 1950s, Harry S. Truman’s response to the Soviet threat included the decision to fight in Korea without a Congressional declaration of war,
and Dwight Eisenhower used the Central Intelligence Agency and brinksmanship to contain Communism. Nineteenth-century presidents had
had to contend with Congressional influences in foreign affairs, and particularly with the Senate Foreign Relations Committee. But by
the
early 1960s, the president had become the undisputed architect of U.S. foreign policy.
(--) No impact: Court unnecessary to check the President:
Robert Dallek, 2011 (staff writer, “Power and the Presidency, From Kennedy to Obama,”
http://www.smithsonianmag.com/history-archaeology/Power-and-the-Presidency-From-Kennedy-toObama.html, Accessed 7/25/2012, rwg)
Perhaps the lesson to be taken from the presidents since Kennedy is one Arthur Schlesinger suggested almost 40 years ago, writing about
Nixon: “The
effective means of controlling the presidency lay less in law than in politics . For the American
President ruled by influence; and the withdrawal of consent, by Congress, by the press, by public
opinion, could bring any President down.” Schlesinger also quoted Theodore Roosevelt, who, as the first modern practitioner of
expanded presidential power, was mindful of the dangers it posed for the country’s democratic traditions: “I think it [the presidency] should be
a very powerful office,” TR said, “and I think the president should be a very strong man who uses without hesitation every power that the
position yields; but because of this fact I believe that he should be closely watched by the people [and] held to a strict accountability by them.”
(--) Turn: Presidential flexibility is necessary to stop nuclear acquisition from rogue
states.
David Nakamura, 9/9/2013 (staff writer) WASHINGTON POST, Sept. 9, 2013. Retrieved Apr. 24, 2015
from http://www.washingtonpost.com/politics/obama-adviser-susan-rice-pushes-presidents-case-forstrike-against-syria/2013/09/09/92edd2e4-196f-11e3-a628-7e6dde8f889d_story.html
“Any
president, Republican or Democrat, must have recourse to all elements of American power to
design and implement our national security policy — diplomatic, economic or militaristic,” Rice said during an address at the
nonpartisan New American Foundation. “Rejecting limited military action that President Obama strongly supports
would raise questions around the world about whether the United States is truly prepared to use the full
range of its power.” Rice’s argument, coming a day before Obama is scheduled to address the nation, was part of a high-stakes
administration blitz, through the media and meetings on Capitol Hill, designed to sway public opinion and win votes for the use-of-force
The Obama administration has asserted that it has
overwhelming evidence that Assad used the chemical weapons in the Aug. 21 attack that killed more than 1,400
people, including at least 426 children — crossing a “red-line” that the president said must be enforced to
authorization the president is seeking from Congress.
discourage further use of weapons of mass destruction by Assad and other regimes.
With support from
lawmakers in both parties waning over the past week, Obama was set to discuss his Syria strategy in interviews with six television networks
Monday evening. Deputy National Security Adviser Tony Blinken briefed reporters Monday at the White House’s daily briefing, part of the allhands-on-deck approach the administration was employing. In her address at the think tank, Rice, the former U.S. ambassador to the United
Nations who has advocated a tough stance on Syria, stepped up the administration’s rhetoric by warning that America’s enemies would
become emboldened if Congress fails to approve the use-of-force resolution. She suggested that the rulers of Iran and North Korea, countries
with nuclear weapons ambitions, are closely watching the deliberations this week.
(--) Rogue state acquisition of nuclear weapons threatens human survival.
Sidney D. Drell, 2014 (senior fellow at the Hoover Institution at Stanford University), THE NUCLEAR
DANGER, May 21, 2014. Retrieved Apr. 24, 2015 from
http://www.hoover.org/sites/default/files/uploads/documents/0817944729_1.pdf
“The
crossroads of radicalism and technology,” said President George W. Bush, is the locus of “the gravest danger
our nation faces.” He was speaking of the acqui-sition of weapons of mass destruction—nuclear, chemical,
biological, and radiological—by rogue states or terrorist groups. Any of these types of weapons would be a
serious threat in the hands of those bent on causing enormous damage to achieve their ends. But
nuclear weapons, as measured by their destructive potential, surely present the gravest danger. Biological
agents may ultimately come to rival nuclear weapons as a threat to the whole population but for now they should be feared primarily for their
potential for cre-ating havoc and terror. Chemical weapons already can kill on a large scale, but “mass destruction” is not the term that
accurately describes their lethality. Civil defense and advanced medical techniques could potentially become very effective in mitigating the
consequences of chemical and biological agents. Nuclear weapons, on the other hand, are so destructive that there is no practical
way to make the consequences of their use more bearable for civilian populations. These weapons are unique in their terrifying potential for
massive destruction on an unprecedented and uni-maginable scale. With
them, for the first time in history mankind has
the capacity to threaten human survival.
(--) Presidential flexibility solves multiple foreign policy crises.
Andrew Hammond, 2014 (Associate at LSE Ideas at the London School of Economics), GULF NEWS,
Oct. 6, 2014. Retrieved Apr. 24, 2015 from http://gulfnews.com/opinion/thinkers/the-crucial-last-legof-obama-legacy-1.1395056
With Republicans already strong favourites to retain a majority in the US House of Representatives in November, Democratic President Barack
Obama could face his partisan opponents holding both chambers of Congress in his final two years of
office. However, while this would stymie much of the remainder of his domestic policy agenda, it need
not leave him as a complete ‘lame duck’ president — as some already contend. Instead, it would probably
accentuate his focus on foreign policy in 2015 and 2016. Here, he could still secure significant achievements
to consolidate his presidential legacy. On the defence and security fronts, this includes the prospect of a significant depletion of
Daesh’s (Islamic State of Iraq and the Levant) territorial foothold and capabilities in Iraq and Syria. And also stabilising the new national unity
government in Afghanistan, headed by new President Ashraf Gani and his CEO Abdullah Abdullah, which earlier this month concluded a new
security treaty that will see a continuing significant US and Nato presence in the country beyond this December.
There is also the
possibility of a comprehensive, permanent nuclear agreement with Iran, which would help consolidate Obama’s
broader desire to enhance global nuclear security. As well as inter-state nuclear diplomacy, the US administration has
created the Nuclear Security Summit process to counter nuclear terrorism, which Obama has described as the
“most immediate and extreme threat to global security”. And on the trade policy front, the White House is negotiating
for the Trans-Pacific Partnership with around a dozen countries in the Americas and Asia-Pacific that collectively
account for about 40 per cent of the world’s gross domestic product (GDP). This free trade and investment treaty is one key element of
Obama’s ambition for a reorientation of US international policy towards the Asia-Pacific region and other strategic high-growth markets.
Moreover, Obama also wants to secure the Transatlantic Trade and Investment Partnership with the 28 European Union states. This would
represent the largest regional free trade and investment agreement in history with the US and Europe accounting for more than 50 per cent of
the world’s GDP.
(--) Strong presidents show flexibility in solving problems:
Jeffrey Bell 8-8-05 (Bell is a principal of Capital City Partners, a Washington consulting firm. What Makes for a Strong President?
http://historynewsnetwork.org/article/1119#sthash.rCx5S5Es.dpuf. 06/26/2015. clj)
Strong presidents seek political power to accomplish specific goals, not to make themselves look good or
even to acquire power, or the perception of power, as an end in itself. Strong presidents have nothing against being
reelected, but the thought of abdicating a share of power for two precious years to Tom Daschle (in Reagan's day, the roughly equivalent
figures were Tip O'Neill and Robert Byrd), on the grounds that such abdication might enhance one's electability, would make a strong president
physically ill. Because strong
presidents think in terms of specific goals, they devote a lot of their time to building
political support for their goals. Sometimes this takes the form of wooing legislators, including legislators of another political party or
ideological persuasion. When polarization and partisanship make such wooing hard if not impossible, that same
ambition is likely to take the form of aiding the election of candidates who can be counted on to support one's
goals. The differing political climates of Austin 1995 and Washington 2001 fully account for the seeming contradiction between the legendary
bipartisanship of Governor Bush and the fierce, relentless, highly effective partisanship we witnessed in the President Bush of the 2002 off-year
election cycle. While strong
presidents are hardly oblivious to calculations of risk and lost prestige, their orientation toward specific goals
makes them far more interested in building loyalty. Undoubtedly there were strong arguments against the president's multiple
appearances for candidates thought very likely to lose. But the other side of the coin is this: Try to picture a future time or situation when the
president will be refused the help of Senator Wayne Allard of Colorado. Strong
presidencies are not generated by the
nature of the times they live in or the problems they deal with. William McKinley was a strong president
who bequeathed an enhanced foreign and domestic hand to his successor, Theodore Roosevelt. But because
Roosevelt was from his first moment in office a strong president, he took that strong hand and found ways to make it even stronger. As for
George W. Bush, the vital signs of a strong presidency were evident well before 9/11, when against all the expectations of his 50-50 election, he
demanded from Congress and largely got a sizable tax cut as his first order of business rather than the watered-down version everyone
assumed he would settle for. Strong
presidents tend to be selective in their agenda at any given point of their presidency.
They greatly value focus. They are hard to divert from any issue or task they have decided is their center of gravity, as
has so obviously been the case with Bush in regard to the war on terrorism in the last 14 months. In Isaiah Berlin's typology, a strong
president is far more likely to be a hedgehog than a fox (the infinitely knowledgeable and voluble Bill Clinton is the epitome
of a fox). The critics and political opponents of strong presidents often mistake their hedgehog-like methods and focus
for a kind of tunnel vision. In the past year, for example, it might have been plausible for Tom Daschle to assume that, because the
majority leader and most Democrats avoided obstructionist tactics on anything directly relating to the war, he could pretty well have his way,
or at least exert an absolute veto, on almost everything else. Bush did little, directly, to disabuse him of this assumption, other than quietly lay
the groundwork for the most elaborate, most comprehensive, and most partisan intervention by a president in an off-year election in American
history. Strong
presidents tend not to get visibly mad, and are even willing to look weak and ineffectual for extended
cases where they feel their power to achieve their goals is in danger of being
called into question, they do have their ways of altering the playing field. It's a lesson Minority Leader Daschle will not
periods of preparation. But in
soon forget.
Solvency Answers
(--) US Supreme Court isn’t modeled—has lost legal influence:
Liptak 2008
(Adam, Washington Times, U.S. Supreme Court's global influence is waning,
http://www.nytimes.com/2008/09/17/world/americas/17iht-18legal.16249317.html?pagewanted=all,
9-28-2008) SQR
Judges around the world have long looked to the decisions of the United States Supreme Court for
guidance, citing and often following them in hundreds of their own rulings since the Second World War.¶ But now
American legal influence is waning . Even as a debate continues in the court over whether its decisions should ever cite foreign
law, a
diminishing number of foreign courts seem to pay attention to the writings of American justices.¶
"One of our great exports used to be constitutional law," said Anne-Marie Slaughter, the dean of the Woodrow Wilson School of Public and
International Affairs at Princeton. "We are losing one of the greatest bully pulpits we have ever had."¶ From 1990 through 2002, for instance,
the Canadian Supreme Court cited decisions of the United States Supreme Court about a dozen times a year, an analysis by The New York Times
found. In the six years since, the annual citation rate has fallen by more than half, to about five. ¶ Australian state supreme courts cited
American decisions 208 times in 1995, according to a recent study by Russell Smyth, an Australian economist. By 2005, the number had fallen
to 72.
(---)Constitutional law is inherently indeterminate—their legal change provides no
solvency:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118 Harv. L. Rev.
1787; Lexis
Third, among the features that mark the Constitution as only minimally morally legitimate is its
indeterminacy or contestability. There is widespread disagreement about what kind of document the
Constitution is and, accordingly, about how it should be interpreted. For example, some regard the Constitution as a
document whose meaning was fixed by original historical understandings. n11 Others [*1793] think it a "living" charter with an evolving
meaning. n12 Nor do disagreements about the Constitution's nature reflect simple misunderstandings. Only because the Constitution can mean
so many things to so many people does it enjoy widespread sociological acceptance.
(--) Justices will interpret the law to favor the existing socioeconomic status quo:
Lawrence Baum, 2003 Department of Political Science, Ohio State University, June 2003
[“The Supreme Court in American Politics,” http://arjournals.annualreviews.org/doi
/full/10.1146/annurev.polisci.6.121901.085526;jsessionid=n1HzQqZJALRe]
The role of the courts in a democratic system depends not only on the extent of policy intervention but also on its content. Perhaps the most
important aspect of its content is the allocation of gains and losses among segments of society. Judicial interventions on particular issues
typically serve those who are unable to gain favorable policies on those issues elsewhere in government. To oversimplify, the primary
beneficiaries of interventions in any period might fall into either of two broad classes. One is people and groups that are advantaged in the
sense that they have high social and economic status, interests that seek redress from the courts at times when the other branches are
relatively unfavorable to them. The other set of interests consists of disadvantaged people with little conventional political power, who seek to
gain in the courts what they seldom could win in the other branches. The attitudinal and strategic models do not predict the success of these
two classes directly. However, the
logic of each might lead us to expect the Court to tilt in favor of advantaged
interests. Most justices have come from families of high socioeconomic status, most have achieved
financial success in their careers, and in those careers most have associated chiefly with people of
relatively high status. Thus their policy preferences might tend to reflect the interests of advantaged
groups. Further, since those groups generally have the greatest political power, they would seem to be
in the best position to affect the calculations of justices who take the Court's political environment into
account.
(--) Justices can reach any conclusion they want to and find plausible legal precedent
to back it up:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
Second, although questions about the moral legitimacy of Justices "disobeying the law of their country" n230 would seem in principle to be
highly important, they hold little prominence in contemporary constitutional debates, n231 despite Judge Posner's comments about Bush v.
Gore. A large part of the reason, I would speculate, is that today, judges and especially Supreme Court Justices rarely experience acute tugs
between their senses of moral desirability on one hand and legal duty on the other. If the Justices seldom feel a tension, I would further
speculate, it is not because our Constitution is morally perfect, but because practice
and precedent across more than two
centuries have created a situation in which Supreme Court Justices can plausibly claim authority to
accommodate almost any perceived exigency without [*1838] overstepping clear bounds of legal
legitimacy. n232 Even before Roe v. Wade, Justices who believed recognition of abortion rights to be morally urgent could find support in
judicial precedent, n233 despite the lack of firm historical foundations. Even after, Justices who believe abortion to be morally abominable are
not strongly bound by Roe, but can plausibly dismiss it as a judicial mistake that ought to be corrected, n234 notwithstanding the doctrine of
stare decisis. n235
(--) Because the law is indeterminate, judges will interpret the law in line with the
broader social context of the time:
Lassiter,2005 Assistant Professor of History, University of Michigan, Michigan Law Review,
May, 2005, 103 Mich. L. Rev. 1401
"because
constitutional law is generally quite indeterminate, constitutional interpretation almost inevitably
reflects the broader social and political context of the times" (p. 5). Such a perspective on [*1408]
constitutional history suggests that "justices are unlikely to be either heroes or villains ... [because] they
rarely hold views that deviate far from dominant public opinion" (p. 6).
Klarman explains that the judicial decisionmaking process operates simultaneously along a political and a legal axis, although
Disads
Politics
Courts Link to Politics
(--) Health care proves—Republicans will lash out against unpopular Supreme Court
decisions:
Stephen Manual, 2012 (6/28/2012, staff writer, “Will Supreme Court judgment help Obama
win presidential election?” Accessed 7/26/2012 at http://www.allvoices.com/contributednews/12483143-will-supreme-court-judgment-help-obama-win-presidential-election, rwg)
Finally, President Barack Obama
has carried the day. He stood winner as the Supreme Court ruled on Thursday to
uphold the Affordable Care Act. However, the president remained humble during his speech following the decision. He said that it
was a victory for the American people and his administration would continue to work for betterment of the people. The Supreme Court
judgment is clearly against the anticipation of Republicans, as they were predicting a contrary decision on the issue. The
judgment can be called one of the biggest victories of the Obama administration in years. However, the question arises whether
the Obama administration will be able to translate the victory into successful election campaign or not.
Observers believe the administration would definitely exploit the judgment in its favor and try its best to
convince electorates to cast vote for Obama in the upcoming presidential election. The visionary abilities of Obama would be highlighted and
people would be told about revolutionary plans of Obama for the people and that all these plans would be implemented only if he is reelected
into the office in November’s election. The judgment would also help the Obama administration to undermine capabilities of Republican
presidential candidate Mitt Romney. Observers opine the judgment dealt a heavy blow to the Republicans, as they believed the court would
strike down the individual mandate – at the very least. They were planning to celebrate the judgment and shaming the Obama administration
once the verdict was out, but they were shocked after the judgment was released. Observers believe that the Obama administration has got a
fresh opportunity to set the house in order and focus more on public-related issues so that they could bag maximum votes in the upcoming
presidential election. It is the best opportunity for Obama to sell his Health-Care law to the masses. Mitt Romney, while giving his reaction on
the Supreme Court judgment, said that he would repeal the law if elected to the presidency in the November election. He even said that there
was a need to get rid of Obama if people want to get rid of Obama-care. Definitely, Republicans
would lash out at the law in
their public meetings and try to invoke public anger on the issue. Republicans believe the ruling of the Supreme Court
can hamper their campaign against Obama.
(--) Health care proves: Republicans will rally against Supreme Court decisions they
oppose:
Fox News Latino, 2012 6/28/2012 (“Supreme Court Upholds Health Care Reform Law in Big
Win for Obama,” http://latino.foxnews.com/latino/politics/2012/06/28/supreme-court-obamahealth-care-reform-act-is-constitutional/, rwg)
Republicans immediately cast the Supreme Court decision as a wake-up call for Americans. In what is
surely to be a campaign theme for Romney going forward, the Republican National committee chairman
Reince Priebus said: "We need market-based solutions that give patients more choice, not less. The answer
to rising health care costs is not, and will never be, Big Government.” Democrats heralded the decision as a much needed extension of basic
health care to millions of Americans without access to medical attention.
(--) Conservatives will push other branches of Congress to reverse unpopular Supreme
Court decisions:
Steffi Porter, 2012 6/28/2012 (staff writer, “Conservative groups denounce Supreme Court
ruling on ‘ObamaCare’” Porter http://blog.chron.com/txpotomac/2012/06/conservativegroups-denounce-supreme-court-ruling-on-obamacare/, Accessed 7/26/2012, rwg)
Conservative opponents of “ObamaCare” were not happy to hear that the Supreme Court ruled 5-4 in
favor of upholding the controversial health care law. Not just unhappy. Furious. “Today’s Supreme Court
decision will do serious harm to American families,” said Family Research Council President Tony Perkins. “Not only is the individual mandate a
profound attack on our liberties, but it is only one section among hundreds of provisions in the law that will force taxpayers to fund abortions,
violate their conscience rights, and impose a massive tax and debt burden on American families.”
American Conservative Union
Chairman Al Cardenas called for the law to be “thrown out.”
“Today’s unfortunate decision by the Supreme Court to
uphold an unpopular and ill-considered law puts the American healthcare system at the mercy of Washington bureaucrats,” Cardenas said in a
statement. “This law needs to be thrown out by the Congress and the President immediately, as it exceeds
federal power, asserting enormous federal control over the healthcare of every man, woman and child in America. We need a bill that that will
actually solve our healthcare problems and reduce the cost — not add to the legacy of debt to our children with trillions of dollars in new
spending.”
(--) Liberal Supreme Court decisions quickly become fodder for the Republican Party to
rally their conservative base:
Atlanta Journal-Constitution, 2005 7/10/2005; Lexis
With the retirement of Supreme Court Justice Sandra Day O'Connor, and the expected retirement of Chief Justice William Rehnquist, a court
that has been unchanged since 1994 is about to take on a very different look. But it's not going to happen without a fight. The
conservative movement that has taken control of the Republican Party --- and with it the legislative and
executive branches --- now sees its opportunity to remake the Supreme Court as well, clearing the last obstacle
to the revolution it seeks to create in American government and culture. To justify that makeoverof the court, Republican
activists have spun out an elaborate indictment of the current system, repeating it endlessly until it has
taken on the aura of absolute truth in some corners. For instance, much of the rhetoric coming from House Majority Leader
Tom DeLay, Senate Majority Leader Bill Frist and other Republican leaders has focused on what they call "judicial activism," judges who in their
minds have been overly eager to impose their own personal beliefs on the political system.
AT: Decision Announced in May/June
1) FIAT abuse: the plan should be decided immediately
A) Key to Disad ground: we can’t have uniqueness for disads if they could delay
indefinitely
B) Infinite regression: They could always delay until after any major event.
C) Court decisions CAN be announced quickly if they need to be: Bush v. Gore
proves:
Michael C. Dorf, 2001 (Vice Dean and Professor of Law, Columbia University School of Law,
Michigan Law Review, “ELECTIONS AND DEMOCRACY: THE 2000 PRESIDENTIAL ELECTION:
ARCHETYPE OR EXCEPTION?” May 2001, Lexis/Nexis, accessed 6/26/2015, rwg)
This is a fair criticism. A U.S. Supreme Court opinion relying on the Eleventh Circuit's due process rule would have been unjustifiable. Yet it
would have been no more unjustifiable than the actual decision in Bush v. Gore, for the equal protection standard the majority announced also
threatens to inject a federal issue into every state election. Similarly, it is no less arbitrary for a federal court to substitute its reading of state
law for that of the state courts under the nominal auspices of Article II - as three Justices did in Bush v. Gore - than under the Due Process
Clause. Perhaps the majority Justices
relied on Article II and equal protection rather than due process because of the
haste with which they needed to decide the case and issue their opinion. Bush v. Gore was handed
down less than two days after it was argued . By way of comparison, even working at lightning speed, Issacharoff, Karlan, and
Pildes took nearly two weeks from the date of the decision until they submitted their final manuscript to the publisher, whereas I spent a
leisurely two and a half months working on this Essay, and the editors of the Michigan Law Review spent a still longer period editing it and
checking citations. Given this upside-down allocation of time, it is not surprising that the Court's chosen legal theories do not survive close
scrutiny.
D) Ignores topic specific education: turns every debate into a court capital debate
instead of about the merits of the plan.
Court Capital DA
1nc Shell
A) The Supreme Court will rule for Spokeo in Spokeo v. Robins now:
Rich Samp , 4/15/2015 (staff writer, “Supreme Court Has Opportunity To Halt Lawsuits By Uninjured
Plaintiffs,” http://www.forbes.com/sites/wlf/2015/04/15/supreme-court-has-opportunity-to-haltlawsuits-by-uninjured-plaintiffs/, Accessed 6/26/2015, rwg)
Federal courts have been inundated in recent years by suits filed by plaintiffs who have suffered no
injury but who allege that a federal statute provides them with “standing” to sue for alleged violations
of federal law. Such lawsuits can be extremely lucrative for the plaintiffs’ bar when the statute provides for an award of statutory damages
(typically, $100 to $1,000) for each violation; by filing their suits as nationwide class actions, attorneys can often plausibly seek to recover
billions of dollars. The
Supreme Court may soon make it much more difficult for such suits to survive a
motion to dismiss. The Court on Friday will consider whether to grant review in Spokeo v. Robins, a case that squarely addresses
whether plaintiffs can assert Article III standing where their only “injury” is the affront to their sensibilities caused by the belief that someone is
not complying federal law. The
Court has indicated a strong interest in addressing the issue; Spokeo is an
appropriate vehicle for doing so and ought to be granted.
B) A ruling in favor of Spokeo is a controversial ruling:
Christi A. Lawson, 4/29/2015 (staff writer, “United States: U.S. Supreme Court Accepts Review Of
Robins v. Spokeo, Inc., http://www.mondaq.com/unitedstates/x/393448/trials+appeals+compensation
/US+Supreme+Court+Accepts+Review+Of+Robins+v+Spokeo+Inc, Accessed 6/26/2015, rwg)
The Supreme Court's acceptance of Spokeo's petition is interesting in light of the fact that the Court
previously declined review of two cases with very similar issues: First National Bank of Wahoo v. Charvat, which the
court declined to review, and First American Financial Corp. v. Edwards, which the Court heard in 2010, but later dismissed certiorari as
"improvidently granted." The
Supreme Court's acceptance of Spokeo's petition is also interesting because it
means that the high court has disregarded the recommendations of the federal government . In
October, the high court requested that the Solicitor General file a brief regarding the government's
position. In response, the Solicitor General recommended that the Court deny Spokeo's petition, which
would leave the Ninth Circuit's decision in place. The Solicitor General supported his position by stating that the public dissemination of
inaccurate personal information about Robins amounted to "concrete harm" that courts have traditionally acted to redress, regardless of
whether the plaintiff could demonstrate some further consequential injury.
C) Court involvement in surveillance undermines the courts institutional
credibility:
Foundation for Defense of Democracies, 5/22/2012 (“The Supreme Court Enters the Surveillance
Debate,” http://www.defenddemocracy.org/media-hit/the-supreme-court-enters-the-surveillance-debate/, Accessed 7/8/2015, rwg)
To protect the nation from hostile foreign forces is the principal responsibility of the federal government. Primarily, it is the responsibility of the
Executive Branch. The federal courts have held both before and after FISA’s enactment that the
president is endowed by the
Constitution with the power to conduct surveillance — including electronic eavesdropping — against “foreign powers” (a
term of art that includes operatives not only of foreign governments but of such sub-sovereign entities as foreign terrorist organizations). If the
president has that power, it cannot be reduced by a statute — it is black-letter law that the Constitution cannot be trumped by a mere
congressional enactment. The
federal courts were intended to have no national security role, particularly when it
comes to foreign threats, both because they lack institutional competence in intelligence matters and, more
importantly, because they are not politically accountable to the American people — national defense
decisions being the most significant that a body politic makes.
D) Political capital of the court is necessary to make controversial rulings:
Grosskopf and Mondak, 1998 Profs of Poli Sci Long Island U and U of Illinois, 19 98
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey Mondak, Professor of
Political Science @ U of Illinois, 1998, “Do attitudes toward specific supreme court decisions matter? The impact
of Webster and Texas v Johnson on Public Confidence in the Supreme Court” Political Research Quarterly, vol.
51 no 3 633-54 September1998)
The existence of a strong link between basic values and diffuse support does not necessarily preclude a role for specific decisions, particularly
when we seek to understand how support comes to change over time (e.g., Caldeira and Gibson 1992: 658-61). We believe that any claim
that the Supreme Court is fully immune to backlash against controversial decisions can be rejected on a
prima facie level. First, consider the extreme case. Were the Supreme Court to make its occasional blockbustersBrown v. Board of Education, Roe v. Wade, Texas v. Johnson, etc.-the norm by routinely ruling on the
thorniest social questions, we see it as implausible that such actions would bring no cumulative impact
on how people view the Court. Second, the Supreme Court's typical mode of operation suggests that justices themselves
view institutional support as an expendable political capital (Choper 1980). That is, the Court recognizes its own
political limitations, and thus justices pick their spots carefully when approaching potentially controversial cases.
From this perspective, the apparent dominance of democratic values as a determinant of institutional support (e.g., Caldeira and Gibson
1992) means not that the Court is insulated from backlash, but that strategic justices tread cautiously so as to keep backlash
to a minimum. Consequently, how and where we examine whether public response to Supreme Court decisions affects institutional
support may shape what answer we find.
IMPACT
E) Victory for Spokeo is necessary to prevent billions of dollars of damage to
the tech sector:
Wall Street Journal, 4/16/2015 (“Surf, Cry, Sue,” http://www.wsj.com/articles/surf-cry-sue1429226196, Accessed 6/26/2015, rwg)
Trial lawyers have built an empire chasing the potentially injured and convincing them to sue. But what if a multimillion-dollar lawsuit required
no injury at all? On Friday the Supreme Court will consider taking a case about whether companies can be held liable in civil court for violating a
federal statute, even if no one was harmed. Under Article III of the Constitution, a plaintiff in federal court has to claim injury to have standing
to sue. But over the years, especially in the area of financial regulation and privacy matters, Congress has passed statutes that allow plaintiffs to
sue without having to show they were injured. Now trial lawyers are translating those developments into class actions. In
Spokeo v.
Robins, Thomas Robins claims that Spokeo, a website that culls data about people, posted information about him that isn’t true, creating the
impression that he is richer and more educated than he is, and married, which he isn’t. Because of those misrepresentations, Mr. Robins has
sued Spokeo in a class action, saying the mistakes upset him and made it harder for him to get a job. He says he represents a class that “consists
of millions of individuals.” ENLARGE Photo: Corbis The Supreme Court has said that to meet the Article III requirement, a plaintiff has to show
an “injury in fact” that is “concrete and particularized.” Hypotheticals don’t count. There is “an outer limit to the power of Congress to confer
rights of action,” Justice Anthony Kennedy wrote in his concurrence in 1992’s Lujan v. Defenders of Wildlife. “[I]t would exceed those
limitations if, at the behest of Congress and in the absence of any showing of concrete injury, we were to entertain citizen suits to vindicate the
public’s nonconcrete interest in the proper administration of the laws.” A
federal district court dismissed Mr. Robins’s claim
that he suffered an economic injury from the incorrect information, but the liberal Ninth Circuit Court of
Appeals reversed. Even if he hadn’t suffered a personal economic injury, the Ninth Circuit said, alleging a statutory violation is enough to
satisfy Article III’s injury requirements. If that decision is left standing, it will open the floodgates for the tort bar to
sue for statute violations. Mr. Robins claims Spokeo violated the Fair Credit Reporting Act, but similar class actions are pending in
federal courts alleging violations of privacy laws. The risk is acute for tech companies such as eBay, Facebook, Google and Yahoo, which have
said that with a no-injury requirement they will likely face lawsuits running into the billions of dollars. The trial-lawyer agenda is not to litigate
but to confront companies with such mammoth classes and astronomical legal fees that they will settle, regardless of the merit of the claim. Jay
Edelson, founder of the law firm representing Mr. Robins, told the New York Times he has wrested more
than $1 billion in settlements suing technology companies. If left to stand, the Ninth Circuit’s standard
could make that number look like pocket change . The Supreme Court was poised to consider this issue in a case called First
American Financial Corp. v. Edwards, but dismissed it at the last minute without deciding the merits. We hope the Justices take this one.
F) Strong tech sector key to US military dominance and solving war around the
globe:
Dr. Mary L. Good, 1996(Chair, Undersecretary for Technology, Dept. of Commerce, Technology in the
national interest, accessed via google books)
Technology and the National Defense On the battlefield, technology can be the decisive edge. America’s technological
superiority has provided our men and women in uniform the wherewithal to protect the freedom, democracy, and security of the United
States. Beyond our own borders, U.S.
military strength—built on a foundation of high-technology—has enabled
the United States to stand in defense of our allies, preserve the peace, deter hostilities , repel aggression ,
and foster fledging democracies around the globe. During the Cold War, an arsenal of advanced weapons allowed the
United States to field a technologically superior force to counter the numerically superior Soviet threat. Today, these high-technology weapons
and the transportation and logistics systems that support their deployment provide the United States with the ability to undertake global
military operations and conduct surgical strikes on strategic military targets—as in recent operations in Iraq and Bosnia—while minimizing the
Continued technological leadership is essential to U.S. national security, military
readiness, and global influence.
risk to U.S. soldiers and civilians.
FYI on Spokeo v. Robins
At issue in this case is whether a person may bring a lawsuit when a company violates a federal privacy
law. In order to invoke the jurisdiction of federal courts under Article III, a plaintiff must have "standing"
to sue. The Petitioner Spokeo, Inc., argues that the case should be dismissed because the Plaintiff did
not prove that the publication of inaccurate personal information in violation of the Fair Credit
Reporting Act was a concrete "injury" under Article III. The U.S. Court of Appeals for the Ninth Circuit
disagreed, and denied Spokeo's motion to dismiss the case for lack of jurisdiction.
Uniqueness
Uniqueness: Spokeo will win now
(--) Court will likely rule in favor of Spokeo now:
Elliot Katz, 5/28/2015 (“Spokeo v. Robins: The Case That Has Silicon Valley Buzzing, Even Though
Plaintiffs Likely Don’t Have a Leg To “Stand” On,” http://www.jdsupra.com/legalnews/spokeo-v-robinsthe-case-that-has-75066/, Accessed 6/29/2015, rwg)
The Ninth Circuit reversed. The Ninth Circuit ruled that Mr. Robins did have standing to sue because (1) the “violation of a statutory right is
usually a sufficient injury in fact to confer standing”, and (2) the FCRA does not require a showing of actual harm when a plaintiff sues for
statutory damages in certain circumstances. Spokeo subsequently petitioned the Supreme Court for cert. on the standing issues, and, on April
27, 2015, Spokeo’s request was granted. In Spokeo, the Supreme Court will decide “[w]hether Congress may confer Article III standing upon
a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of federal court, by authorizing a
private right of action based on a bare violation of a federal statute.” In other words, can Congress authorize an individual to sue by alleging
that a company violated a federal statute without also alleging that he or she has actually suffered any injury? This question affects not only
cases brought under the FCRA, but other privacy-related cases as well, which are often brought under statutes passed by Congress authorizing
statutory damages without requiring a plaintiff to demonstrate harm, such as the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq.
and Electronic Communications Privacy Act, 18 U.S.C. § 2510, et seq. What Is The Likely Outcome? To support his position that he does have
standing to sue, Robins cited Warth v. Seldin, a 1975 Supreme Court decision which states: “The actual or threatened injury required by Art. III
may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” Interestingly, the Ninth Circuit quoted the
above portion of Warth in its opinion holding that Robins did have Article III standing, despite the fact that six sentences later, Warth states: “Of
course, Art. III’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself….” Given that one of the opening
lines in the Ninth Circuit’s opinion was “Robins’s allegations of injury were sparse”, the above-quoted portion of Warth – puzzlingly absent from
the Ninth Circuit opinion – may not bode well for Robins’ chances before the Supreme Court. Additionally, an important footnote on the final
page of the Ninth Circuit opinion states: “Because we determine that Robins has standing by virtue of the alleged violations of his statutory
rights, we do not decide whether harm to his employment prospects or related anxiety could be sufficient injuries in fact.” Given that Warth
states a plaintiff must allege a “distinct and palpable injury to himself,” this
case will most likely ultimately hinge on the
Supreme Court’s 2013 defendant-friendly Clapper v. Amnesty International USA decision. In Clapper, a case that
is virtually always cited by defendants in motions to dismiss data breach and privacy-related lawsuits ,
the Supreme Court held that mere concern or fear of future harm cannot manufacture standing. Under
Clapper, Mr. Robins’ alleged future harm to his employment prospects and related anxiety – similar to plaintiffs’ fear that they
could be harmed by a bad actor who may utilize their financial information post-data breach – will likely not suffice to confer
standing.
(--) Spokeo will win now:
Barry Goheen, 6/22/2015 (Corporate Counsel, “Supreme Court Prepares to Weigh FCRA and 'Actual
Injury'” http://www.corpcounsel.com/id=1202730126796/Supreme-Court-Prepares-to-Weigh-FCRAand-Actual-Injury#ixzz3fG4O93W5, Accessed 7/7/2015, rwg)
The Supreme Court’s grant of certiorari in Spokeo has raised hopes from the defense bar that the Court
will hold that standing to sue is a constitutional issue that Congress cannot confer merely by enacting a
statute that provides for penalties upon proof that the statute was violated. Prior statements from the Court have hinted at
such a holding. See, e.g., Raines v. Byrd, 521 U.S. 811, 820 (1997) (“Congress cannot erase Article III’s standing requirements by statutorily
granting the right to sue to a plaintiff who would not otherwise have standing.”).
(--) Spokeo will win now—Court took the case at the behest of tech firms:
Marisa Kendall, 6/22/2015 (“On SCOTUS Watch with Akin Gump's Heinke,”
http://www.therecorder.com/id=1202729771067/On-SCOTUS-Watch-with-Akin-GumpsHeinke?slreturn=20150529150348, Accessed 6/29/2015, rwg)
Second, in
Spokeo v. Robins, the Supreme Court granted certiorari to decide whether Congress may confer
Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the
jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute (so-called "statutory injury").
Spokeo is likely to limit the viability of class action lawsuits claiming millions of dollars in statutory damages for technical violations of federal
privacy, data breach and consumer protection laws. The
Supreme Court took the case at the urging of a number of
companies and groups—such as Facebook, Google, Trans Union, the U.S. Chamber of Commerce and the Consumer Data
Industry Association—with a strong stake in discouraging such cases. Spokeo could have an enormous impact on class action
defense because of the number of laws providing for statutory damages, as well as the potential exposure under such statutes.
(--) Court will reverse the Ninth Circuit and rule for Spokeo now:
Terry W. Clemans, 7/8/2014 (executive director of the National Consumer Reporting Association,
“Will SCOTUS Take Up Spokeo v. Robins and Address the No Harm, No Foul Claim?”
http://nationalmortgageprofessional.com/news/41629/will-scotus-take-spokeo-v-robins-and-addressno-harm-no-foul-claim, Accessed 6/29/2015, rwg)
Several interested parties, including the National Consumer Reporting Association (NCRA) have filed amicus briefs in the
U.S. Supreme Court urging it to hear the case of Spokeo v. Robins and reverse the Ninth Circuit’s
conclusion
that “the violation of a statutory right” in itself is “a sufficient injury in fact to confer standing” under Article III [Robins v.
Spokeo Inc., 742 F.3d 409, 412 (9th Cir. 2014)]. The Ninth Circuit found that “the statutory cause of action does not require a showing of actual
harm” (id.), and held that the plaintiff had sustained injury-in-fact under Article III by virtue of the bare statutory violation of the Fair Credit
Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. The importance of this issue has a broad impact far beyond the FCRA claim it specifically
addresses. There are many federal and state statutes that provide statutory damages that arguably may be recovered in the absence of any
showing of actual consumer harm. By holding that causation is effectively automatic in statutory damages cases, the Ninth Circuit’s rule makes
it very easy to certify a class of plaintiffs: if a statute was violated, then every consumer was hurt. That rule raises a defendant’s exposure in
class-action statutory damages cases to a level that is not survivable by most businesses. In order for a federal court to be able to hear a case,
Article III of the U.S. Constitution requires a plaintiff to have standing. Basically, they need to have suffered a concrete, particularized harm. In
Spokeo v. Robins, the plaintiff filed a class-action suit based on a “bare allegation” that the defendant had violated FCRA by issuing consumer
reports in willful violation of that statute. Spokeo is a Web site that offers information on consumers, claiming to have searched social media,
criminal records, and public filings to put together estimates of their wealth and character. The named plaintiff found his profile on Spokeo, but
never lost a job or was denied credit. In fact, Spokeo’s Web site listed him as having more wealth than he actually did. The issue in the Spokeo
case is whether an allegation of a willful violation, standing alone, is enough of a “harm” to justify the exercise of federal jurisdiction. This issue
is particularly important under FCRA, which creates statutory damage liability for willful violations ranging from $100 to $1000 per consumer.
Even a small consumer reporting agency issues reports on thousands of individuals per month, and a small disclosure mistake that goes
unnoticed for only a couple of months could result in a liability that would eliminate the company’s ability to survive. It would also outstrip any
actual harm caused by the award. This is not news to the class-action bar, which is showing an increased interest in filing these kinds of suits
and is filing growing numbers of them. This Supreme Court has attempted to rein in the excesses of class-action litigation through, for example,
enforcing arbitration clauses that prohibit class-action suits and tightening pleading standards so that defendants cannot be forced to endure
discovery or to enter in terrorem settlements based on a naked claim that a violated a statute that affected the plaintiff and a few thousand of
his closest friends. In fact, last year, the mortgage industry was at the center of another case important to this one, that of First American
Financial v. Edwards. That case took a very similar issue involving the presence of conflicts of interest in real estate transactions. The Court
dismissed that appeal as improvidently granted, meaning that a majority of them thought that the facts of First American presented a bad
vehicle to decide the question presented. Spokeo, however, represents a better vehicle due to the fact that there is no question of whether or
not this plaintiff was harmed (he wasn’t), and if
the Supreme Court were to review this decision, there is a good
chance that they would reverse it . As the Supreme Court, however, hears very few cases, amicus participation at the petition
stage is critical. NCRA joined with the National Association of Professional Background Screeners (NAPBS) and PreCheck, a background
screening company, to retain the Washington, D.C. law firm of Meyer, Klipper & Mohr PLLC (thank you to Chris Mohr of the firm for assistance
with this article) to file a friend-of-the-court brief explaining the harm that these suits are doing to this industry, and urging them to take the
case.
(--) Spokeo will win now—the fact that the Court agreed to hear it proves:
Scott A. Shaffer, 5/1/2015 (focuses his litigation practice in the areas of advertising, direct
marketing, class action defense, “Supreme Court To Consider An Appeal That Could Greatly Impact TCPA
Litigation” http://www.olshanlaw.com/blogs-Advertising-Law-Blog,Supreme-Court-Appeal-TCPA,
Accessed 6/29/2015, rwg)
The district court in the Central District of California sided with Spokeo and dismissed the case. Robins
appealed to the Ninth
Circuit, and prevailed.
In reversing the district court, the Ninth Circuit held that, “When, as here, the statutory cause of action does not
require proof of actual damages, a plaintiff can suffer a violation of the statutory right without suffering actual damages. Of course, the
Constitution limits the power of Congress to confer standing... This Constitutional limit, however, does not prohibit Congress from ‘elevating to
By agreeing to hear
Spokeo’s appeal, the Supreme Court cast doubt on the continuing validity not only of the Ninth
the status of legally cognizable injuries concrete de facto injuries that were previously inadequate in law.’”
Circuit’s ruling , but indirectly on a large number of TCPA cases. In nearly every TCPA case (except for possibly junk fax cases, where
printer ink and toner are wasted), the recipient will have a difficult time showing an injury-in-fact from an unwanted telephone call or text
message, and therefore only the statutory award is sought
Uniqueness: Spokeo Decided Next Term
(--) Spokeo will be decided next term
Skipease, 4/28/2015 (“Supreme Court To Hear Spokeo People Search Case,”
http://www.skipease.com/blog/peoplesearch/spokeo-v-robins/, Accessed 6/29/2015, rwg)
Spokeo, Inc. v. Robins will be argued and decided during the Supreme Court’s next term, which starts in
October 2015 and ends in June 2016.
Uniqueness: AT: Gay Marriage Ruling
(--) Majority of Americans support same-sex marriage ruling:
Nick Gass, 6/30/2015 (staff writer, “Majority supports Obamacare, gay marriage Supreme Court
decisions,” http://www.politico.com/story/2015/06/poll-obamacare-gay-marriage-supreme-courtrulings-119590.html, Accessed 7/10/2015, rwg)
A majority of Americans support the Supreme Court’s decisions last week on Obamacare and same-sex
marriage, according to a new CNN/ORC poll released Tuesday. But at the same time, nearly 4 in 10 say the nation’s highest court is too
liberal. More than 6 in 10 Americans — 63 percent — said they support the Court’s ruling that upheld government subsidies for Americans
buying health insurance through federally-run exchanges in states where no such program would otherwise exist. Asked
about same-
sex marriage, 59 percent said they agreed with the decision to legalize it in all 50 states.
(--) Majority of Americans support same-sex marriage ruling:
Evan McMurry, 6/30/2015 (staff writer, “CNN Poll: Majority Agree with SCOTUS Gay Marriage,
Obamacare Rulings,” http://www.mediaite.com/online/cnn-poll-majority-agree-with-scotus-gaymarriage-obamacare-rulings/, Accessed 7/10/2015, rwg)
More good polling news for President Barack Obama from CNN today: the two major Supreme Court cases
decided last week enjoy broad popularity among the public, an early affirmation of the administration’s stances on health care
and same-sex marriage. A CNN/ORC poll found 63% of respondents approved of the Supreme Court’s 6-3 decision to ratify the Affordable Care Act’s federal
subsidies against a tortured reading of the law, the biggest existential threat to the president’s signature domestic legislation since the constitutional challenge over
the individual mandate two years ago. Meanwhile,
59% approved of the Supreme Court’s decision to establish
marriage equality as a constitutional right, a landmark ruling in the progression of gay rights that led to apocalyptic denunciations from the
right. Some clerks in southern states have refused to issue licenses to same-sex couples, citing legal ambiguities and religious objections; the popularity of the
decision could pressure dissenting justices to give up the ghost.
Uniqueness: AT: Obamacare Ruling
(--) Majority of Americans support Obamacare decision
Nick Gass, 6/30/2015 (staff writer, “Majority supports Obamacare, gay marriage Supreme Court
decisions,” http://www.politico.com/story/2015/06/poll-obamacare-gay-marriage-supreme-courtrulings-119590.html, Accessed 7/10/2015, rwg)
A majority of Americans support the Supreme Court’s decisions last week on Obamacare and same-sex marriage,
according to a new CNN/ORC poll released Tuesday. But at the same time, nearly 4 in 10 say the nation’s highest court is too liberal. More than 6 in 10
Americans — 63 percent — said they support the Court’s ruling that upheld government subsidies for
Americans buying health insurance through federally-run exchanges in states where no such program would otherwise
exist. Asked about same-sex marriage, 59 percent said they agreed with the decision to legalize it in all 50 states.
(--) Obamacare decision is broadly popular in the public:
Evan McMurry, 6/30/2015 (staff writer, “CNN Poll: Majority Agree with SCOTUS Gay Marriage,
Obamacare Rulings,” http://www.mediaite.com/online/cnn-poll-majority-agree-with-scotus-gaymarriage-obamacare-rulings/, Accessed 7/10/2015, rwg)
More good polling news for President Barack Obama from CNN today: the two major Supreme Court cases
decided last week enjoy broad popularity among the public, an early affirmation of the administration’s stances on
health care and same-sex marriage. A CNN/ORC poll found 63% of respondents approved of the Supreme Court’s 6-3
decision to ratify the Affordable Care Act’s federal subsidies against a tortured reading of the law, the biggest existential
threat to the president’s signature domestic legislation since the constitutional challenge over the individual mandate two years ago.
Links
Links: Big Precedents
(--) Moving away from watershed decisions undermines the court’s political capital
John C. Yoo, 2001 Professor of law at the University of California, 2001, [The University of
Chicago Law Review, “In defense of the court’s legitimacy,” p. 75]
How does the Court maintain this legitimacy? According to the Casey plurality, the Court receives its
public support by "making legally principled decisions under circumstances in which their principled
character is sufficiently plausible to be accepted by the Nation."39 In other words, only by acting in a
manner that suggests that its decisions are the product of law rather than politics can the Court
maintain its legitimacy. Therefore, the Court must adhere to settled precedent, lest the public believe
that the Court is merely just another political actor. "[T]o overrule under fire in the absence of the most
compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any
serious question. "40 Without this legitimacy, the Court would be unable to perform its role as interpreter of the Constitution, which at
times may require the Court to act against the popular will in favor of individual rights.
Links: Meta-Data
(--) Court strikedown of metadata is activist and puts the courts in an area that
exposes their institutional legitimacy:
Paul Mirengoff, 12/17/2013 (“The NSA, privacy, and judicial activism,”
http://www.powerlineblog.com/archives/2013/12/the-nsa-privacy-and-judicial-activism.php, Accessed
7/9/2015, rwg)
Judge Leon’s response to Smith is, in essence, that things have changed considerably since 1979 when that case was decided. He cites the vast
increase in the government’s surveillance capacity and changes in people’s phone usage habits. But these changes provide no sound basis for
distinguishing Smith. That case rests on the view that, because of the nature of metadata, its collection by the government without
a warrant isn’t constitutionally problematic. This true no matter the quantity of metadata the government collects. It’s possible that the
Supreme Court would decide that changed circumstances warrant limiting the holding of Smith. The
Court has seen fit to limit or
dispense with other old decisions in the name of striking down certain government policies intended to
protect the nation from terrorism. But this isn’t something that district courts or courts of appeals are
supposed to do. John Yoo and Max Boot are right to condemn Judge Leon’s decision on this basis. It is an egregious example of
judicial activism. I also agree with Yoo that even the Supreme Court shouldn’t reconceive the rules of search
and seizure in light of new Internet technologies. As Yoo explains: [T]hat is the responsibility of our elected representatives.
Only they can determine what society’s “reasonable expectation of privacy” is in Internet and telephone communications. Judges are the
last people to fairly claim they have their fingers on the pulse of the American people. Only our elected
representatives can properly balance existing privacy rights (if any), against the need for information to protect the nation from terrorist attack.
Judges are far too insulated and lack the expertise to make effective judgments on national-security and
foreign affairs. Unfortunately, judges — even district court judges — are too immodest and/or too power hungry to recognize this reality.
(--) Activism threatens the courts legitimacy:
ABDULLAH BOZKURT, 4/13/2008 (“Judicial activism’s quarrel with legitimacy and democracy,”
http://www.todayszaman.com/national_judicial-activisms-quarrel-with-legitimacy-anddemocracy_139067.html, Accessed 7/9/2015, rwg)
“This is judicial activism if not a judicial coup,” says Professor Ergun Özbudun, a teacher of constitutional law at Ankara’s Bilkent University.
Judicial activism is a
term adopted in the US to describe zealous judges who overstep their authority and conflict with the
legislature’s power by making new law rather than interpreting existing legislation. The issue was constantly
“There is no smoking gun in the indictment filed by the chief prosecutor with the Constitutional Court,” he adds.
debated at the republic’s foundation, spearheaded by Alexander Hamilton in his famous “Federalist Papers” and Republican Thomas Jefferson.
Hamilton argued that the judiciary would be least dangerous to political rights because it had no influence over the “sword or purse.” Jefferson,
however, challenged the proposition, saying that exalting
the judiciary over the executive and legislature would
disgrace the judiciary and lead to its eventual degradation . The Jeffersonian prediction did not happen,
thanks to the US Supreme Court mostly steering clear of politics and respecting the power of the
legislative and executive branches.
(--) Striking down metadata is an example of judicial activism:
Max Boot, 12/17/2013 (“NSA, Metadata, and the Constitution,”
https://www.commentarymagazine.com/2013/12/17/nsa-metadata-and-the-constitution/, Accessed
7/9/2015, rwg)
If any evidence were needed that judicial activism is not merely a problem of the left, look at what a
couple of conservative judicial activists pulled off yesterday in a case involving one of our most important national
security safeguards–the NSA’s monitoring of terrorist communications. Larry Klayman is a professional plaintiff who has filed too many cases to
count. (He has even gone to court against the organization he founded and then left, Judicial Watch.) He first came to public attention pursuing
various far-fetched allegations against the Clintons; more recently he has been pursuing the conspiratorial “birther” claim that President
Obama should be thrown out of office because he supposedly wasn’t born in this country. He has also been quoted as saying that conservatives
should demand “that this president leave town, to get up, to put the Quran down, to get up off his knees, and to figuratively come out with his
hands up.” Klayman’s latest cause is the NSA’s collection of “metadata” which has been irresponsibly revealed by Edward
Snowden. This is the NSA program that collects information on which telephone numbers are in contact with each other so that links among
terrorist plotters can be detected. Mind you, the NSA can’t actually listen in to the content of these communications without a court order. It
can only search for patterns so that if an al-Qaeda mastermind abroad calls someone in the United States, that phone number can be tagged
for further investigation. This is considerably less intrusive than the use of surveillance cameras in public places by organizations such as the
New York Police Department or Macy’s which can monitor individuals’ movements–and, more to the point, it’s a lot less intrusive than the kind
of data that big companies such as Amazon and Google compile on their customers, which includes their Internet browsing habits. Yet Klayman
did not choose to sue the NYPD or Google–at least not that I know of. (Given his litigious nature–he doesn’t seem to have a job other than filing
suits–such cases may well be pending.) He chose to sue the NSA over its collection of metadata, claiming that the NSA was infringing on his
personal liberties by collecting his metadata–as if Larry Klayman were so important a personage that the NSA was actually going to devote time
and resources to monitoring him. Such suits are almost as common as spam emails and about as significant. The difference in this case is that a
federal judge, Richard J. Leon of Federal District Court for the District of Columbia, chose to grant Klayman an injunction
against the NSA. Sort of. Leon actually stayed his own injunction in a moment of self-awareness or perhaps self-protection–because if he
hadn’t done so, an appeals court undoubtedly would have.
(--) The lower court decision to strike down meta-data is activist:
Barry Friedman and Dahlia Lithwick, 12/18/2013 (professor of law at New York University School of
Law, “Judge Leon’s NSA #Slatepitch,” http://www.slate.com/articles/news_and_politics/
jurisprudence/2013/12/nsa_data_collection_ruling_judge_richard_leon_is_right_that_we_expect_more
.html, Accessed 7/9/2015, rwg)
Buried deep in Judge Richard Leon’s breathtaking decision invalidating the NSA’s telephone metadata
program is a #slatepitch. Leon concludes, contrary to the views of virtually everyone else in our digital world, that we have a greater
expectation of privacy in the data we readily hand over to third-party providers today than we had back in the 1970s. As our colleague Emily
Bazelon wrote Monday, “That’s the most debatable proposition in his opinion.” Debatable it is, but—like some percentage of all good
Slatepitches—it’s probably also true. It had better be true. If Judge Leon’s groundbreaking opinion is to be upheld on appeal, it is crucial that he
is right about this one proposition. The Fourth Amendment prohibits “unreasonable searches and seizures,” and the Supreme Court has said
that if we don’t have a legitimate expectation of privacy in what the government grabs, it is not a search at all. Period. Unfortunately for Judge
Leon (and for anyone else who doesn’t want all their telephone metadata vacuumed up by the NSA), long-standing Supreme Court precedents
state unequivocally that is not a search for the government to collect evidence we’ve already given over to third-party providers. That’s why
Judge Leon felt compelled to make a normative argument to support his conclusion. And while he is normatively correct that our expectations
of privacy should be greater than they were back in the days of rotary phone booths, his claim still sounds paradoxical. The most relevant case
here is the Supreme Court’s 1979 decision in Smith v. Maryland. In Smith a guy snatched a woman’s purse, and she started to get weird phone
calls. So the police had the phone company install a pen register to trace her incoming calls, without obtaining a warrant, which ultimately
incriminated the defendant. The Supreme Court decided that Smith had no reasonable expectation of privacy in the numbers he dialed from his
home phone. (If that strikes you as odd, sit tight; we’ll get back to it in a moment.) No reasonable expectation of privacy means there was no
search, which means there was no constitutional protection. The Smith decision looked to be one heck of an obstacle for Judge Leon to get
around, and so he worked overtime—and not particularly successfully in the eyes of some—to distinguish the NSA’s ginormous warrantless
wiretapping scheme from collecting the numbers called from just one person’s phone in Smith. That’s also why he went normative. Judge Leon
sets up the question before him as follows: “When do present-day circumstances—the evolutions in the Government' s surveillance
capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those
considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply?” You guessed it—his answer to that
question turns out to be “now.” Leon’s opinion is a cornucopia of facts about all the new ways we use phones, suggesting that we think—or
would like to think—our information is absolutely private, way more so than back in the day (1979). The money line in Judge Leon’s opinion is
this one: “Whereas some may assume that these cultural changes will force people to ‘reconcile themselves’ to an ‘inevitable’ ‘diminution of
privacy that new technology entails,’ ”—he is quoting Justice Samuel Alito here—“I think it is more likely that these trends have resulted in a
greater expectation of privacy and a recognition that society views that expectation as reasonable.” That’s the Slatepitch: the counterintuitive
insistence that, as a society in 2013, the more we give information away to anyone and everyone, the more privacy we expect in our data. The
last thing any of us reasonably expect is that the government will use some stealthy technology to invade that which we wish to keep private.
And what about the fact that Americans really don’t seem to care about giving all their data away? Leon writes in a footnote (it’s the footnotes
in his opinion that really ring the change) that it's the government’s—and especially the Supreme Court’s—fault: We have been conditioned by
our legal regime not to care. “The experiences of many Americans—especially those who have grown up in the post-Smith, post-cell phone,
post PATRIOT Act age—might well be compared to those of the ‘refugee from a totalitarian country, unaware of this Nation’s traditions, [who]
erroneously assume that police were continuously monitoring’ telephony metadata. Accordingly, their ‘subjective expectations obviously could
play no meaningful role in ascertaining ... the scope of Fourth Amendment protection.’ ” And then Judge Leon rather
dramatically
concludes that because our catawampus ideas about privacy can no longer be helpful to the debate over
what a reasonable expectation of privacy might look like, "a normative inquiry” is what’s called for. So
there it is, sports fans. That’s the moment you want to watch on instant replay. When a Republican-appointed federal judge
tells you he is going to make a “normative” determination about what reasonable expectations of
privacy should be, that’s a signal that he is going to step out. In some quarters that’s called “judicial
activism.”
Links: War on Terror Cases
(--) Active role by the judiciary in the war on terror risks judicial capital:
Stephen Reinhardt, 2006 (Judge, U.S. Court of Appeals for the Ninth Circuit, Boston University Law
Review, “THE ROLE OF THE JUDGE IN THE TWENTY-FIRST CENTURY: THE JUDICIAL ROLE IN NATIONAL
SECURITY,” Lexis/Nexis, Accessed 7/6/2015, rwg)
The role of judges during times of war - whether it be a traditional war or a "war on terrorism" - is essentially no different than during times of
peace: it is to interpret the law to the best of our ability, consistent with our constitutionally mandated role and without regard to external
pressure. Among the differences in wartime for the judiciary, however, is one that involves a principle that is essential to the proper operation
of the federal courts - judicial independence. In wartime, the need for judicial independence is at its highest, yet the very concept is at its most
vulnerable, imperiled by threats both within and without the judiciary. Externally, there is
pressure from the elected
branches, and often the public, to afford far more deference than may be desirable to the President and
Congress, as they wage wars to keep the nation safe. Often this pressure includes threats of retribution,
including threats to strip the courts of jurisdiction. Internally, judges may question their own right or ability to make the
necessary, potentially perilous judgments at the very time when it is most important that they exercise their full authority. This concern is
exacerbated by the fact that the judiciary is essentially a conservative institution and judges are
generally conservative individuals who dislike controversy, risk taking, and change.
Links: Strikedown of Other Branches
(--) Striking down actions of other branches risks court capital:
Lisa A. Kloppenberg, 2007 (Dean and Professor of Law, University of Dayton School of Law,
University of Dayton Law Review, “ENACTING AND INTERPRETING STATUTES IN THE CONSTITUTION'S
SHADOWS SYMPOSIUM: THE AVOIDANCE CANON: FROM THE COLD WAR TO THE WAR ON TERROR,”
Lexis/Nexis, Accessed 7/6/2015, rwg)
Why have federal and state courts developed avoidance canons if they pose the risks delineated above? The
justifications for avoidance can be grouped into a few categories based on Justice Brandeis's famous Ashwander formulation of 1936. n13
Perhaps the most understandable and defensible justification is the proposition that federal courts should avoid unnecessary constitutional
questions to promote federalism and separation of powers. Thus, to the extent Congress or a state is charged with authority in a particular
substantive area, courts should carefully ensure the ability of these actors to interpret the Constitution in their work by not foreclosing options.
Judicial review that invalidates another branch's constitutional work should be a last resort due to its
purportedly delicate and final nature. Similarly, states and other constitutional actors should be given the benefit of the doubt
whenever possible, and their actions repudiated only when absolutely necessary. n14 While deference is an important and valid stance for
courts in our multilayered democracy, it is not simple to apply. Additionally, executive and legislative officials may sometimes fail to protect
constitutional interests of individuals, particularly in times when expedience is needed, majoritarian political pressure is extreme, or when
those seeking protection are viewed as threats or enemies. The precise dictates of federalism and separation of powers are not clear, making
more difficult the judgment call about whether lawsaying by a court is necessary. In addition to being vague and broad, the constitutional
interests in these areas change over time in response to historical, political and social developments. For example, in recent decades,
federalism issues have emerged as major areas for power struggles between the federal and state governments, businesses, and individuals,
with courts delineating the scope of these powers regularly and "mediating" these struggles. n15 During the War on Terror, President George
W. Bush and his advisors have advanced a broad view of executive power that is not completely shared by the Court, some legislators, and
some of the polity. While avoiding constitutional issues to afford time for political battles to play out or crises to diminish may appear
attractive, it entails costs for parties who must spend excessive time and expense in determining and [*353] securing protection for their
constitutional rights. Additionally, a court's invocation of an avoidance mechanism does not always lead to greater deference to other
constitutional actors or advance constitutional dialogue. n16 Judge Posner has characterized Professor Bickel's avoidance project as promoting
a "coercive" kind of dialogue. n17 "It would be a Bickelian Court's hope that legislators' eyes would be opened by the Court's tutorial or that
reenactment would flounder because of the difficulty of enacting legislation." n18 In terms of promoting dialogue, the canon affords less clarity
as the Court shapes constitutional law. The Court could step away from the ruling or alter the boundaries of the danger zone identified in future
cases. Professor Murchison has said the canon advances a rather "muffled" and "tentative" dialogue, with a "blend of indirection, impatience,
pause and reply," but he nevertheless concludes that the canon is important and useful. n19 A
second set of justifications for
avoidance is even more troubling. These concerns center on the pressure placed on courts resulting from
constitutional adjudication. n20 They include a court's credibility and viability , and are directly linked to fears for
judicial independence. The Ashwander formulation arose in part as a response to the activism of the conservative U.S. Supreme Court of the
Lochner era. The
fears of political reprisal and long-term credibility, or the viability of unelected Article III judges
certainly animate the general avoidance doctrine, as captured so well in Bickel's work on the countermajoritarian difficulty
and passive virtues. n21
Links: Striking Down New Technologies
A) Court interpretation of privacy to strike down new technologies violates
Separation of Powers:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
In the fast-developing area of communications technology, courts should
be cautious not to wield the amorphous
"reasonable expectation of privacy" standard, in a manner that nullifies the balance between privacy
[*853] rights and law enforcement needs struck by Congress in Title III ... . As new technologies continue to
appear in the marketplace and outpace existing surveillance law, the primary job of evaluating their impact on privacy
rights and of updating the law must remain with the branch of government designed to make such
policy choices, the legislature. Congress undertook in Title III to legislate comprehensively in this field and has shown no reluctance
to revisit it. Accordingly, we must decline [the defendant]'s invitation to usher in through the Fourth Amendment a prohibition of that which
Title III tells us, in no uncertain terms, Congress affirmatively permitted at the time this case arose. n309
B) Striking down actions of other branches risks court capital:
Lisa A. Kloppenberg, 2007 (Dean and Professor of Law, University of Dayton School of Law,
University of Dayton Law Review, “ENACTING AND INTERPRETING STATUTES IN THE CONSTITUTION'S
SHADOWS SYMPOSIUM: THE AVOIDANCE CANON: FROM THE COLD WAR TO THE WAR ON TERROR,”
Lexis/Nexis, Accessed 7/6/2015, rwg)
Why have federal and state courts developed avoidance canons if they pose the risks delineated above? The
justifications for avoidance can be grouped into a few categories based on Justice Brandeis's famous Ashwander formulation of 1936. n13
Perhaps the most understandable and defensible justification is the proposition that federal courts should avoid unnecessary constitutional
questions to promote federalism and separation of powers. Thus, to the extent Congress or a state is charged with authority in a particular
substantive area, courts should carefully ensure the ability of these actors to interpret the Constitution in their work by not foreclosing options.
Judicial review that invalidates another branch's constitutional work should be a last resort due to its
purportedly delicate and final nature. Similarly, states and other constitutional actors should be given the benefit of the doubt
whenever possible, and their actions repudiated only when absolutely necessary. n14 While deference is an important and valid stance for
courts in our multilayered democracy, it is not simple to apply. Additionally, executive and legislative officials may sometimes fail to protect
constitutional interests of individuals, particularly in times when expedience is needed, majoritarian political pressure is extreme, or when
those seeking protection are viewed as threats or enemies. The precise dictates of federalism and separation of powers are not clear, making
more difficult the judgment call about whether lawsaying by a court is necessary. In addition to being vague and broad, the constitutional
interests in these areas change over time in response to historical, political and social developments. For example, in recent decades,
federalism issues have emerged as major areas for power struggles between the federal and state governments, businesses, and individuals,
with courts delineating the scope of these powers regularly and "mediating" these struggles. n15 During the War on Terror, President George
W. Bush and his advisors have advanced a broad view of executive power that is not completely shared by the Court, some legislators, and
some of the polity. While avoiding constitutional issues to afford time for political battles to play out or crises to diminish may appear
attractive, it entails costs for parties who must spend excessive time and expense in determining and [*353] securing protection for their
constitutional rights. Additionally, a court's invocation of an avoidance mechanism does not always lead to greater deference to other
constitutional actors or advance constitutional dialogue. n16 Judge Posner has characterized Professor Bickel's avoidance project as promoting
a "coercive" kind of dialogue. n17 "It would be a Bickelian Court's hope that legislators' eyes would be opened by the Court's tutorial or that
reenactment would flounder because of the difficulty of enacting legislation." n18 In terms of promoting dialogue, the canon affords less clarity
as the Court shapes constitutional law. The Court could step away from the ruling or alter the boundaries of the danger zone identified in future
cases. Professor Murchison has said the canon advances a rather "muffled" and "tentative" dialogue, with a "blend of indirection, impatience,
pause and reply," but he nevertheless concludes that the canon is important and useful. n19 A
second set of justifications for
avoidance is even more troubling. These concerns center on the pressure placed on courts resulting from
constitutional adjudication. n20 They include a court's credibility and viability , and are directly linked to fears for
judicial independence. The Ashwander formulation arose in part as a response to the activism of the conservative U.S. Supreme Court of the
Lochner era. The
fears of political reprisal and long-term credibility, or the viability of unelected Article III judges
certainly animate the general avoidance doctrine, as captured so well in Bickel's work on the countermajoritarian difficulty
and passive virtues. n21
Links: Katz Precedent
(--) The Katz precedent has been the subject of carefully crafted precedent—it can’t be
cavalierly mixed with other rules:
George M. Dery, 2007 (Professor, California State University Fullerton, Connecticut Law Review,
“Blissful Ignorance? The Supreme Court's Signal to Police in Georgia v. Randolph to Avoid Seeking
Consent to Search from All Occupants of a Home,” Lexis/Nexis, Accessed 6/26/2015, rwg)
In mentioning Olson in passing in order to support its holding, Randolph made an explicit connection between its "commonly held
understanding" element and Katz's
"reasonable expectation of privacy" standard. n250 Randolph's linkage of "reasonable
expectation of
privacy" is not a concept that can be cavalierly mixed with other rules , for it has been the focus of
expectation of privacy" and "commonly held understanding" could lead to unintended consequences. "Reasonable
considerable Court attention and thus has been the subject of a long list of
[*77]
carefully crafted
precedent . n251 In particular, the Court has previously determined that reasonable privacy expectations, rather than being static
assessments, are subject to change by the actions of others. n252 Indeed, third parties can "frustrate" a person's otherwise legitimate privacy
expectations. n253 Such a situation occurred in United States v. Jacobsen, a case involving the commercial delivery service, Federal Express.
n254
(--) Katz is a landmark that established the foundations for modern day 4 th
amendment jurisprudence:
Donald R. C. Pongrace, 1985 (J.D. The Washington College of Law, The American University, Summer,
“A SYMPOSIUM OF CRITICAL LEGAL STUDY: STEREOTYPIFICATION OF THE FOURTH AMENDMENT'S
PUBLIC/PRIVATE DISTINCTION: AN OPPORTUNITY FOR CLARITY,” Lexis/Nexis, accessed 6/26/2015, rwg)
Commentators applauded the Katz decision as significantly expanding the scope of the fourth amendment's protections. n78 Although the
decision in Katz is probably a landmark in fourth amendment doctrine , such a status should not rest solely on a
somewhat simplistic characterization of its contribution to fourth amendment jurisprudence. Ultimately, the Court in Katz
abandoned a property oriented, formalistic definition of fourth amendment privacy and replaced it with
a relativistic definition characterized by the now familiar balancing approach used to protect privacy
rights. n79 [*1206] The decision in Katz, therefore, constitutes a clear dividing line, albeit tardily established,
between formalist and realist fourth amendment doctrine. n80 Although the rhetoric of the opinion in Katz evokes images
similar to those enunciated by the Court in its opinion in Boyd, the rationales of the two opinions are disparate and incomparable.
(--) Katz is a watershed Fourth Amendment decision:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
This brings us back to Katz. Today,
Katz is canonized as a landmark decision that dramatically changed Fourth
Amendment law. Professor Amsterdam called it a " watershed in fourth amendment jurisprudence ." n99
Yet a close examination of Katz suggests a plausible contrary reading: Katz did not revolutionize Fourth Amendment law, but merely
reemphasized the loose property-based approach announced in Jones. Indeed, while Justice Harlan's concurrence in Katz did introduce the
"reasonable expectation of privacy test," that doctrinal formulation was apparently meant merely to articulate the legal standard that the Court
had been tacitly applying in past cases - cases such as Jones v. United States.
Links: 4th Amendment
(--) Bright line rules on the 4th amendment undermine court legitimacy:
Joshua Levy, 2011 (New York University School of Law, magna cum laude, Virginia Journal of Law & Technology, “Towards a Brighter
Fourth Amendment: Privacy and Technological Change,” http://www.vjolt.net/vol16/issue4/v16i4_499-Levy.pdf, Accessed 7/8/2015, rwg)
Despite their advantages, bright - line rules entail significant legitimacy costs. First and foremost, they
are inherently inflexible, which can lead courts to incorrect results in particular cases. 141 Incorrect or
unjust results risk severely damaging the institutional cred ibility of the judiciary. 142 Second, bright - line
rulemaking is legislative in nature and, therefore, risks damaging the Court’s legitimacy. 143 In order to
ameliorate these costs, courts should only engage in bright - line rulemaking for uncontroversial areas t hat have traditionally received the highest privacy
protections. “[T]he
Court has given weight to such factors as the intention of the Framers of the Fourth
Amendment, the uses to which the individual has put a location, and our societal understanding tha t certain areas deserve the most scrupulous protection
from government invasion.” 144 In addition to limiting themselves to traditional areas of privacy protection, courts should only adopt bright - line rules for activities
that are recurring in nature, clear ly understandable, and affected by rapid technological changes. The event must be recurring since developing rules entails upfront
costs of scarce judicial resources, whereas standards incur costs in enforcement; so efficiency favors only promulgating rul es for frequent, recurring events. 145
Judges will only be able to develop such rules if they can fully understand the activities at issue. 146 Yet, given the legitimacy costs of bright line rules, the Court
should only invoke this power when “[t]o withdraw pr otection of this minimum expectation would be to permit police technology to erode the privacy guaranteed
by the Fourth Amendment,” leaving citizens “at the mercy of advancing technology.” 147 In areas of rapid technological change, the inability (or unwilli ngness) of
other areas of government to adequately protect privacy mollify any legitimacy costs rulemaking might entail. 148 Although
technological change
may diminish privacy in all areas of life, 149 courts should proceed with caution given the institutional and
legitimacy limitations they face. While this may not provide protection from all areas into which the government may intrude, this Article seeks to
set out a framework of bright - line Fourth Amendment rules for core areas of privacy that can later be ex panded. There are two areas that satisfy all these
requirements: homes and human bodies. The text of the Fourth Amendment explicitly refers to both “houses” and “persons,” 150 and searches involving homes
and bodies are mainstays of criminal investigations and have been for years. 151 Since all judges have bodies and live somewhere, they surely understand the
privacy and security interests at stake. These interests are constantly being changed as police develop technology that can see into homes 152 and even bod ies.
153 Therefore, courts must proactively protect both homes and bodies with bright - line rules to ensure that their traditional Fourth Amendment protections do not
become increasingly empty due to technological advancements.
Links: Controversial Decisions
(--) Controversial decisions risks the court’s credibility:
Lisa A. Kloppenberg, 2007 (Dean and Professor of Law, University of Dayton School of Law,
University of Dayton Law Review, “ENACTING AND INTERPRETING STATUTES IN THE CONSTITUTION'S
SHADOWS SYMPOSIUM: THE AVOIDANCE CANON: FROM THE COLD WAR TO THE WAR ON TERROR,”
Lexis/Nexis, Accessed 7/6/2015, rwg)
Relying on concerns about deference, foreclosure, and threats to judicial independence, the
U.S. Supreme Court has employed
avoidance techniques selectively over the past three decades, often in cases involving controversial issues or "sensitive
area[s] of social policy." n27 The costs of avoiding constitutional questions are borne too often by the poor and marginalized in our societythose most in need of help in securing protections for their constitutional rights and civil liberties. For example, the Court has used avoidance
techniques frequently in litigation involving dissident speech (notably the Cold War cases), civil rights claims and issues of equity for women,
racial minorities, gays, lesbians, and cases involving the protection of religious minorities. n28 Sometimes
the justices write
overtly about the political pressure on the courts ; more often, the political controversy goes unstated.
The decision to avoid a constitutional issue is itself a decision, and it is impossible to separate analysis of the procedural tool completely from
the merits of the underlying constitutional questions. As judges determine whether it is necessary to address a constitutional issue, their views
of the merits are frequently intertwined with that decision. Political
pressure on courts may influence when courts issue
minimalist rulings, affording less clarity and guidance to other constitutional actors on some of the most important issues of the day.
(--) Decisions do affect the court’s political capital:
Harold Maass, 7/22/2013 (staff writer, “How the Supreme Court got on the bad side of
everybody,”http://theweek.com/article/index/247206/how-the-supreme-court-got-on-the-badside-of-everybody, Accessed 7/25/2013, rwg)
Unlike Congress or the presidency, one might expect the Supreme Court, as a nominally nonpartisan
institution, to be sheltered from the public disaffection that has chipped away at the ratings of the other
two branches. In reality, though, the court has often been a source of political polarization since 2000
and is hardly immune to the same political forces plaguing the other two branches. [Gallup]
Links: Upholding Precedent
(--) Ignoring legal consistency threatens the Court’s legitimacy:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis, rwg
For example, critics who claimed that the Supreme Court acted illegitimately in Bush v. Gore mostly
seemed to imply that the majority acted not merely erroneously, but with a willful disregard for
applicable constitutional principles. n143 More particularly, some thought that the majority breached
the requirement that judges must apply legal principles consistently , without regard to the parties or a
case's partisan impact. n144
(--) Adherence to precedent critical to the foundations of legitimacy:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
First, the foundations of contemporary constitutional legitimacy - regardless of whether that term is
used in a legal, sociological, or moral sense - necessarily lie in current states of affairs. If precedent is
accepted as a legally valid source of authority for future decisions, then it enjoys legal legitimacy,
regardless of its relation to the original understanding of constitutional language. Nor does any tinge of moral
illegitimacy sully this state of affairs. If the current constitutional regime deserves to be supported, as I believe that it does, it is because the
current regime furnishes the great benefits of the rule of law and because it is reasonably just, not because we are bound by the intentions of
generations now long dead.
(--) Distorting precedent weakens the judiciary:
ALBERTO GONZALES, 2/2/2007 (Federal News Service; Lexis)
Activist judges - those who on a pretense substitute their own views for the will of the legislatures - can,
of course, find some rationale to support any desired outcome. They can find some quote to support their viewpoint in
legislative history. Or, from a footnote in an earlier decision, they can extrapolate a new principle despite what the language of the law itself
says.
But in the end, distorting history or precedent to support a pre- determined outcome weakens the
Judiciary , undermines the rule of law, and harms our democracy.
(--) Upholding precedent key to Supreme Court legitimacy:
ALBERTO GONZALES, 2007 2/2/2007 (Federal News Service; Lexis)
Judicial decisions have been obeyed historically in large part because the judgment of the federal
Judiciary is respected. But it is perhaps underappreciated that when courts apply an activist philosophy that
stretches the law to suit policy preferences, they reduce the Judiciary's credibility and authority . In
contrast, a judge who humbly understands the role of the courts in our tripartite system of government renders decisions based on
neutral principles. He generally defers to the judgment of the political branches, and respects precedent - the
collective wisdom of those who have gone before him. In so doing, that judge strengthens respect for
the Judiciary, upholds the rule of law, and permits the People - through their elected representatives - to decide the issues of the
day.
(--) Court’s legitimacy depends upon its adherence to legal norms:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
In this passage, the Supreme Court invoked - sometimes alternately and sometimes simultaneously - sociological and legal concepts of
legitimacy. When the Court equated its institutional legitimacy with its power and said that its power depends on acceptance, it referred to
the Court's sociological legitimacy resides in the public's acceptance of its role
(institutional legitimacy) and in the public's willingness to accept judicial mandates (authoritative
legitimacy). n241 As the Court recognized, however, its sociological legitimacy depends on its adherence
or apparent adherence to legal [*1841] norms . If the Court did not base its decisions on legal
legitimacy in a sociological sense:
principles, the public would lose respect for it . n242
(--) Overruling its decisions undermine the Court’s legitimacy.
Thomas W. Merrill, 1994 John Paul Professor of Law at Northwestern University School of
Law, 1994, [Harvard Journal of Law and Public Policy, “A Modest Proposal for a Political Court,”
p. 137]
The legitimacy of the Supreme Court is widely assumed to depend on the perception that its decisions
are dictated by law. This is the central thesis of the extraordinary joint opinion in Planned Parenthood v. Casey, decided by the Supreme
Court at the end of the 1991 Term. The joint opinion observes that the Court's power lies in its legitimacy and
that its legitimacy is "a product of the substance and perception" that it is a court of law. Thus, frequent
overrulings are to be avoided, because this would "overtax the country's belief' that the Court's rulings
are grounded in law.
(--) Unpopular decisions erode the Supreme Court’s institutional capital:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
n183. Compare Gibson et al., supra note 22, at 361 (concluding that "judgments of specific policies are entirely unrelated to confidence in the
Court"), and Tyler & Mitchell, supra note 22, at 781 (reporting findings that views of "institutional legitimacy" and thus of whether to empower
the Supreme Court to make abortion decisions were "generally unrelated to support for Court decisions"), with Anke
Grosskopf &
Jeffery J. Mondak, Do Attitudes Toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v. Johnson on Public
Confidence in the Supreme Court, 51 Pol. Res. Q. 633, 651-52 (1998) (concluding that confidence in the Supreme Court
depends on perceptions of particular decisions and that unpopular decisions erode the Court's
institutional capital).
(--) Legitimacy depends more on present acceptance of decisions than the legal
legitimacy of decisions:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
When we examine legitimacy debates with these three concepts in mind, striking conclusions emerge.
First, the legal legitimacy of the Constitution depends more on its present sociological acceptance than
on the (questionable) legality of its formal ratification.
(--) Supreme Court actively bases its decisions on perceived public opinion:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
Only when the concepts of sociological and legal legitimacy are distinguished does Casey's provocative
aspect come into focus: the majority opinion suggests that the Supreme Court is permitted and perhaps
required by law to base its decisions partly on public perceptions and, in particular, on an asserted
interest in preserving its own sociological legitimacy. n243
(--) Judges don’t live in a cocoon—they respond to public opinion:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
n209. See generally Friedman, supra note 167, at 2611-13 (noting that "judges do not live in a cocoon"
and recognizing the incentives "to remain within the range of public opinion").
(--) The Court will bend to public opinion:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
n210. See Robert A. Dahl, Democracy and Its Critics 190 (1989) ("The views of a majority of the justices
of the Supreme Court are never out of line for very long with the views prevailing among the lawmaking
majorities of the country."); Robert G. McCloskey, The American Supreme Court 224 (1960) ("It is hard
to find a single historical instance when the Court has stood firm for very long against a really clear wave
of public demand.").
(--) Controversial overrules uniquely undermine the Court’s authority
Thomas W. Merrill, 1994 John Paul Professor of Law at Northwestern University School of
Law, 1994, [Harvard Journal of Law and Public Policy, “A Modest Proposal for a Political Court,”
p. 137]
Especially when a controversial ruling like Roe v. Wade is involved, a decision to overrule should be
avoided at all costs, because this would give rise to the perception that the Court is "surrendering to
political pressure" or "over-ruling under fire." Such a perception, in turn, would lead to "loss of
confidence in the judiciary." Translated, the thesis of the joint opinion is that the further a decision deviates from the Constitution,
the more important it is for the Court to adhere to that decision, or else the public may conclude that the emperor is wearing no clothes.
(--) Current sociological acceptance is key to legitimacy:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
First, the legal legitimacy of the Constitution depends much more on its present sociological acceptance
(and thus its sociological legitimacy) than upon the (questionable) legality of its formal ratification.
Other fundamental elements of the constitutional order, including practices of constitutional
interpretation, also owe their legal legitimacy to current sociological acceptance.
Links: Unpopular Decisions Undermine Court Capital
(--) Making unpopular decisions threatens the court’s capital:
Kevin Burke, August 23, 2013 (“How Low Public Trust Threatens the Legitimacy of Court Decisions,”
http://proceduralfairnessblog.org/2013/08/23/how-low-public-trust-threatens-the-legitimacy-of-court-decisions/, Accessed 7/8/2015, rwg)
What do these two pieces mean for judges? Both articles highlight how the
judiciary itself, if not careful, can contribute to the erosion
of public trust in our decisions. To be sure, the erosion of the legitimacy of judicial decisions is not entirely the fault of the Supreme Court, nor of
judges in general. The media, for example, often refers to which President appointed a judge as a shorthand way to explain a decision. But that is, in part, why Ms.
Greenhouse’s piece is important. The Chief Justice is recognized as a brilliant man. He and every other judge in the United States know the inevitable shorthand the
media will use to describe judges and to explain their decisions. And so the Chief Justice, the members of the United States Supreme Court, indeed every
judge in this country needs to be particularly sensitive to what we are doing that might either advance
trust in courts or contribute to the erosion of the legitimacy of our courts. The bottom line is: Appearances
make a difference. There will be decisions by judges at every level of court that test the public’s trust in our wisdom. It is therefore
imperative that judges act in a manner that builds a reservoir of goodwill so that people will stand by
courts when a decision is made with which they disagree. There may have been an era when trust in the wisdom and impartiality of
judicial decisions could be taken as a given. But if there was such an era, we no longer live in it. Trust and legitimacy today must be earned.
(--) Legitimacy is affected by perception of the Court:
Tsai, 2005 Assistant Prof. of Law @ University of Oregon School of Law, 2005 (Robert, Iowa
Law Review, March 2005; 90 Iowa L. Rev. 1095; Lexis)
These themes were played out in the contentious battle over the scope of the right to abortion. In
Planned Parenthood v. Casey, the plurality opinion transparently explored the idea that the Court's
legitimacy is a "product of substance and perception ." n209 In justifying their decision to affirm the
core [*1143] of Roe on stare decisis grounds, Justices Kennedy, O'Connor, and Souter found occasion
to discuss Brown's legacy.
(--) Legal legitimacy rests fundamentally on societal acceptance of judicial rulings:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
Following a well-trod jurisprudential path, n279 I have maintained that legal
legitimacy depends fundamentally on
sociological legitimacy. To repeat now familiar formulae, the foundations of law, including constitutional law, lie
in sociological embrace and acceptance of rules, norms, and interpretive practices. The Constitution is
law because it is accepted as such. Judicial precedent contrary to what otherwise would be the best interpretation of the
Constitution is law for the same reason.
(--) The Court’s legitimacy, institutional legitimacy, is dependent on public opinion.
John C. Yoo, 2001 Professor of law at the University of California, 2001, [The University of
Chicago Law Review, “In defense of the court’s legitimacy,” p. 75]
Legitimacy is a word often used in our political debate, but seldom defined precisely. We can think of
institutional "legitimacy" as the belief in the binding nature of an institution's decisions, even when one
disagrees with them.10 This sociological or even psychological definition of the term is concerned with
whether people will think the Court's decision in Bush v Gore was legitimate, and as a result will obey
it.11
(--) Public opinion key to the Court’s legitimacy:
John C. Yoo, 2001 Professor of law at the University of California, 2001, [The University of
Chicago Law Review, “In defense of the court’s legitimacy,” p. 75]
"The
Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in
the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare
what it demands."38 Without the sword or purse, the Casey plurality believes, the Court's authority derives
from the public's acceptance of its power to interpret the Constitution.
Link Extensions—AT: Public Won’t Notice the Courts
(--) THE GENERAL PUBLIC DOESN’T MATTER—ELITES WILL PERCEIVE THE DECISION
AND THEY ARE KEY
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis, rwg
When defenders maintain that the legal legitimacy of the Supreme
Court's role rests largely on public acceptance, n168 as I myself have done, we may be saying scarcely
more than that the public, being little informed about the Court's practices, has not mounted a revolt.
n169 The American people have allowed constitutional law to become what legal elites, especially
[*1826] the Supreme Court, say that it is under interpretive standards evolved by the courts and little
understood outside the legal elite.
To me, at least, these are jarring conclusions.
(--) Major decisions are picked up by the media guaranteeing perception:
Uhlmann, 2003 professor of government at Claremont Graduate University, October 2003
(Michael M., “The Supreme Court Rules
www.orthodoxytoday.org/articles2/UhlmannSupremeCourt.shtm)
Under this new dispensation the Court is increasingly seen as a political institution, different in form and customs from the political branches
One can scarcely name an issue of political or
moral significance on which the Court has not opined or suggested how we ought to think. That is why
judicial nominations are now routinely freighted with hot political debate; and that is why the full glare
but not essentially different in kind. And why should it not be so understood?
of media attention now focuses on the Court whenever a major decision is pending.
(--) Elites are key to legitimacy:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis, rwg
n285. See Friedman, supra note 128, at 1387 (observing that "if those familiar with the Court's decisions
do not believe those decisions to be socially correct, the work of judges will be seen as illegitimate").
(--) Even if the public doesn’t notice Supreme Court decisions—elites do—their
perception of the Court is closely tied to individual decisions of the Court:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis, rwg
n170. See David Adamany & Joel B. Grossman, Support for the Supreme Court as a National Policy Maker, 5 Law & Pol'y Q. 405, 407-08 (1983)
although most judicial opinions have relatively little salience with the general public,
awareness goes up among elites, and "support for the Court among these elites is ... very closely
correlated with their approval of specific court decisions").
(noting that
(--) Elites are critical to how decisions are perceived:
Tsai, 2005 Assistant Prof. of Law @ University of Oregon School of Law, 2005 (Robert, Iowa
Law Review, March 2005; 90 Iowa L. Rev. 1095; Lexis, rwg)
But judges do not bear all of the blame, for litigation is not the only process that affects a legal icon's
vitality. How the decisions have been received by intellectual elites more generally reinforces their
gestalt properties in juridic thought. Accordingly, Part V considers the influence of academic culture on
these two sacred emblems. Treatment of this pair of cases mirrors the telling of religious creation
stories and parables. I close by suggesting that a lasting devotion to our constitutional heritage must be
made of more inspiring stuff than the combination of these two decisions.
(--) Views of political elites key to Court legitimacy
Thomas W. Merrill, 1994 John Paul Professor of Law at Northwestern University School of
Law, 1994, [Harvard Journal of Law and Public Policy, “A Modest Proposal for a Political Court,”
p. 137]
Perhaps the best decisional rule for a political Court to adopt is to exercise its discretion in accordance
with the emerging consensus among the dominant political elites of society. If the Court correctly anticipates the
emerging consensus among those with influence, then there is little danger that its decisions will be overruled. Moreover, if powerful
elites are happy with the Court, then the Court can rest assured that the Executive will enthusiastically
enforce its judgments, Congress will not cut its funding, and no attempt will be made to circumscribe its
jurisdiction.
Links: AT: “ONE DECISION NOT ENOUGH TO AFFECT THE COURT’S
LEGITIMACY”
(--) Webster and Texas v. Johnson prove: specific decisions of the Court can
undermine its legitimacy:
Friedman, 2003 Professor of Law, New York University School of Law
Michigan Law Review, August 2003, 101 Mich. L. Rev. 2596; Lexis, rwg
n103. Anke Grosskopf & Jeffery J. Mondak, Do Attitudes Toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v.
disagreement with one or both
decisions of the Court, on Webster and Texas v. Johnson cases, substantially reduced confidence in the
Court); Hoekstra, supra note 78, at 97 (showing that satisfaction or dissatisfaction with the decisions made by the
Johnson on Public Confidence in the Supreme Court, 51 Pol. Res. Q. 633 (1998) (showing that
Court influences subsequent evaluations of the Court).
Links: AT: Original Decision Violated Precedent
(--) Adherence to precedent key to Court legitimacy—even if the original precedent
itself is constitutionally suspect:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
a virtual consensus exists that at least some judicial precedents suffice to
ground further, future claims of legitimate judicial authority, even when those precedents were
themselves erroneously decided in the first instance. Like the legal legitimacy of the Constitution, the legal legitimacy of
Fifth, however, as Part III argues at length,
precedent-based decisionmaking arises from sociological acceptance.
Links: AT: Courts Winners Win
(--) Court needs to save capital – controversial decisions burn capital.
Peretti, 2001 Prof PoliSci Santa Clara U, 2001
(Terri Jennings Peretti, Prof of Poli Sci at Santa Clara University, 2001, In Defense of a Political Court, p.152)
To the degree that a justice cares deeply about her policy goals, she will be quite attentive to the degree of
support and opposition among interest groups and political leaders for those goals. She will be aware of the re—
sources (e.g.. commitment, wealth, legitimacy) that the relevant interest groups possess who bear the burden of both carrying forward the
appropriate litigation necessary for policy success and for pressuring the other branches for full and effective implementation. Only the
policy motivated justice will care about the willingness of other government officials to comply with the
Court’s decisions or carry them out effectively. And only the policy motivated justice will care about
avoiding the application of political sanctions against the Court that might foreclose all future policy
options. The school desegregation cases illustrate these points quite nicely. The Court could not pursue the goal of
racial integration and racial equality until there was an organized and highly regarded interest group such as the National Association for the
Court further was required to protect that group from
political attack, as it did in NAACP v. Alabama and NAACP v. Button. Avoidance of other decisions that
Advancement of Colored People willing and able to help. The
might harm its desegregation efforts was also deemed necessary. Thus, the Court had legal doctrine
available to void antimiscegenation statutes, but refused to do so on two occasions.‘°° (Murphy notes that one
justice was said to remark upon leaving the conference discussion, " One bombshell at a time is enough."'°‘)
The Court additionally softened the blow by adopting its “deliberate speed" implementation formula. Even so, the Court still needed the
active cooperation of a broad range of government officials. in all branches and at all levels of government, in order to carry out its decisions
effectively. Thus, significant progress in racial integration in the southern schools did not in fact occur until Congress and the Department
of Health, Education, and Welfare decided to act. The Court further had to consider whether the political opposition
that it knew would ensue would be sufficient to result in sanctions against the Court, such as withdrawal of jurisdiction
or impeachment. These considerations arose only in the process of caring deeply about the policy goal at hand—racial equality in public
education. They were not a by-product of caring only about the logical or precedential consistency of an opinion or of worrying only about
deriving a decision from the Framers’ intentions.
(--) Even if court capital isn’t finite, justices think it is and fears of the loss of its
legitimacy cause the Court to adhere to public opinion after it angers the public:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis
(c) Measures of Sociological Legitimacy and the Limits of Judicial Power. - The measures of
sociological legitimacy commonly
used by social scientists provide poor gauges of the effective limits of judicial [*1833] power. Indeed,
excessive focus on the authoritative legitimacy of Supreme Court rulings and on the Court's institutional legitimacy - as measured by surveys
charting "diffuse support" - could prove affirmatively misleading for some purposes. Among other things, the public's belief that the Supreme
Court is a legitimate institution need not entail a view that the Justices currently are doing a good job. n207 When significant fractions of the
public disagree with the Court on salient issues, they may support political candidates pledged to change the Court's ideological balance. In
recent decades, presidential candidates have repeatedly campaigned against unpopular claims of judicial authority and promised to appoint
Justices whom their constituencies would regard as more right-thinking. n208 Justices who
defy aroused public opinion risk,
and know that they risk, provoking a political backlash that ultimately could cause their doctrinal
handiwork to collapse. n209 Possibly as a result of the Court's concern for its own sociological
legitimacy, it has seldom remained dramatically at odds with aroused public opinion for extended
periods . n210 In ways that are still little understood, the Justices undoubtedly are influenced by popular
political movements and by the evolving attitudes of their society. n211
(--) Court needs to pick battles – capital is finite.
Young, Prof Law UT Austin, 2004
(Ernest A. Young, Prof of Law at UT Austin, November 2004, “The Rehnquist Court's Two Federalisms” 83
Tex. L. Rev. 1)
Whether or not Alexander Hamilton was right to call the judiciary the "least dangerous branch," n451 both
contemporary theory and historical experience suggest that courts' ability to defy the national political
branches is not unlimited. Those limits bear on federalism doctrine in at least three respects. First, they support,
at least to some extent, the notion that the judiciary has limited institutional capital. If that is true, then
courts may not be able to pursue all possible doctrinal avenues at once and may, in consequence, have to
choose among them. Second, these limits suggest that courts should pursue certain kinds of doctrine. In
particular, they support doctrine that advances the goal of state autonomy without forcing direct
confrontations by invalidating political branch actions. Finally, the limits on the judiciary's ability to
confront the political branches ought to temper our expectations (or fears) of what judicial federalism doctrine
can accomplish.
(--) Court needs to conserve capital.
Pacelle, Prof PoliSci Georgia Southern, 2002
(Richard L. Pacelle, Jr., Prof of Poli Sci @ Georgia Southern University, The Role of the Supreme Court in American
Politics: The Least Dangerous Branch? 2002 p 162-3
The Court is supposed to be the voice of reason, charged with the creative function of articulating
the durable principles of government. The normative view is that the justices should be governed by
principles of constitutional law and statutory interpretation. The justices must respect the governmental
structure and use reasoned principle and societal moral tradition, as well as history, the text of
the Constitution, and judicial precedent as sources of inspiration. The justices need to pay attention to the
broader context that Leslie Goldstein refers to as “the evolving morality of our tradition? Because the
Court stands outside popular control, it should refrain from taking and deciding certain cases
when it would be politically unwise. The justices need to find the underlying meaning embedded in the
plans behind the Constitution. To deny the existence of broader guiding principles is to make the Court “a
naked power organ” rather than a court of law (Goldstein 1995, 277--278). In Chapter 2, I argued that since
the late 1980s, the Supreme Court has begun to move away from the so-called double standard that
dominated judicial decisionmaking for half a century This move would help the Court resolve the dilemmas
it faced. Part of the new role urges the Court to adopt judicial restraint when it deals with the actions
of the elected branches. To do so would mitigate concerns that the Court is undemocratic. This new role
also asks the Court to avoid making sweeping policy pronouncements. That would reduce
concerns over the Court°s institutional limitations and arguments about capacity. However, the
adoption of such a role would represent an abdication of the role of the Court as a protector of minorities.
Internal Links
Internal Links: Spokeo is a controversial decision
(--) Spokeo is a controversial decision:
David L Wallace, 4/29/2015 (Herbert Smith Freehills LLP, 4/29/2015, “U.S. Supreme Court to weigh
future of no harm class-action menace,” http://www.lexology.com/library/detail.aspx?g=1c7d7816a85d-41da-af19-30a6afd36480, Accessed 6/29/2015, rwg)
A Waterloo Moment for Standing
to Sue in Federal Courts The US Supreme Court will take up this
controversial subject when it hears Spokeo, Inc. v. Robins (No. 13-1339) during its next Term, which begins in October.
The question it will decide – which will determine the future of "no harm" class actions in the federal system – is whether a person suing for a
bare violation of a federal statute, who suffers no concrete harm, has standing to invoke the jurisdiction of a federal court.
(--) Issues in Spokeo are controversial:
Stephen J. Newman, 5/6/2015 (experience in defending class actions, Daily Journal,
http://www.stroock.com/publications/where-class-actions-belong, Accessed 6/29/2015, rwg)
In its next term, the U.S. Supreme Court likely will address one of the most controversial issues in
current class action jurisprudence: whether class litigation may be pursued by or on behalf of persons
with no real-world injury, against a defendant alleged only to have violated a technical legal requirement. On April 27, the Supreme
Court granted certiorari in Spokeo v. Robins, 13-1339, to address the question: "Whether Congress may confer Article III standing upon a
plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a
private right of action based on a bare violation of a federal statute."
Internals: AT: No Major Settlements vs. Tech Companies
(--) Major claims will come once the industry matures:
Ross Todd, 5/29/2015 (staff writer, “Wave of Privacy Suits Peters Out,”
http://www.therecorder.com/id=1202727906735/Wave-of-Privacy-Suits-Peters-Out, Accessed
6/29/2015, rwg)
David Vladeck,
a professor at Georgetown University Law Center and the former director of the Federal Trade
that the current privacy landscape reminds him of the early days
of tobacco and asbestos litigation, when plaintiffs struggled to establish harm and proximate cause. It
was only through the discovery gained through early litigation failures, he says, that plaintiffs began to
show the value of their claims. Vladeck said that he doesn't know if the cases "will turn 180 degrees," but he thinks there's a
potential for the cases to gain value as the evidence accumulates.
Commission's Bureau of Consumer Protection, said
Internal Links: AT: Legitimacy Resilient
(--) Legal legitimacy of the Courts always at risk because it rests on uncertain
foundations:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis, rwg
Fourth, because the Constitution invites disagreement about so much, many claims about the legal
legitimacy of practices under the Constitution - especially those of the courts - rest on inherently
uncertain foundations.
(--) Constitutional law always rests on shifting sands of legitimacy:
Fallon, 2005 prof. of Constitutional Law @ Harvard, Harvard Law Review, April 2005, 118
Harv. L. Rev. 1787; Lexis, rwg
constitutional law does not rest on a single rock of legitimacy, as many
appear to assume, but on sometimes shifting sands. Realistic discourse about constitutional legitimacy
must reckon with the snarled interconnections among constitutional law, its diverse sociological
foundations, and the felt imperatives of practical exigency and moral right.
Finally, as should be evident already,
Internal Links: Court Capital Key to Decisions
(--) The Court is actively concerned about protecting its political capital—justices will
make decisions based on this concern:
ERIC R. CLAEYS, 2011 (staff writer, “Obamacare and the Limits of Judicial Conservatism,”
http://www.nationalaffairs.com/publications/detail/obamacare-and-the-limits-of-judicialconservatism, Accessed 7/25/2013, rwg)
All the same, conservatives on the
Supreme Court may worry about protecting the Court's political capital
long after the public has forgotten about Obamacare. When Justice Scalia respects precedent, defers to
Congress, or refrains from construing indeterminate text, he does so at least in part to preserve the Court's standing
in relation to Congress and the president. In Lane, he found it "ill advised" for the Court "to adopt or adhere to constitutional
rules that bring us into constant conflict with a coequal branch of Government." In the 1995 case Plaut v. Spendthrift Farm, he indicated that he
prefers "high walls and clear distinctions" in structural constitutional law because "low walls and vague distinctions will not be judicially
defensible in the heat of interbranch conflict." Depending on how he reads the relevant precedents and the term "proper," Scalia (or Alito, or
Roberts) may decide that the theory followed by Judges Hudson and Vinson yields walls too low and distinctions too vague. Even
if a
ruling against the mandate did not provoke a crisis or a political backlash from Obamacare supporters in
the short term, these conservatives might worry about its effects on interdepartmental relations over
the long term.
(--) The Court responds to backlash against is decisions by moving back in line:
Barry Friedman and Jeffrey Rosen, 4/14/2010 (“The Battle Over the Court,
http://www.newrepublic.com/article/politics/the-battle-over-the-court, Accessed 7/9/2015, rwg)
How will the Supreme Court respond to these attempts to enlist it in a war with the president and
Congress? If history is any predictor, the justices won't be interested in a sustained assault . As both of us
have written in recent books, on the big issues, over time, the Court tends to come into line with public opinion. Think
here of gay rights, women’s rights, and abortion. And when the Court has wandered outside the mainstream--on issues like
the death penalty or economic regulation--it has quickly retreated after encountering resistance from the public,
Congress, or the president. The Court, in other words, is very sensitive to the possibility of backlash
against its actions; and if anything, the heated reaction to its recent decision striking down campaign finance restrictions on corporations
is only likely to make it more so.
(--) Justices will adapt to potential threats to its legitimacy:
Uhlmann, 2003 professor of government at Claremont Graduate University, October
( Michael M., “The Supreme Court Rules
www.orthodoxytoday.org/articles2/UhlmannSupremeCourt.shtm, rwg)
Thanks chiefly to the Supreme Court, the Constitution is now widely understood to derive its
legitimacy not from the permanent truths on which its provisions rest, but from their more or less
endless capacity (as divined by the Justices) to adapt. The Court has given us a “living Constitution,” by
which the Court simultaneously justifies its interpretive plasticity and leaves its critics in the unenviable position of
having to defend a “dead” Constitution.
(--) Justices will modify their behavior to avoid backlash from other branches:
Lawrence Baum, 2003 Department of Political Science, Ohio State University, June 2003
[“The Supreme Court in American Politics,”
http://arjournals.annualreviews.org/doi/full/10.1146/annurev.polisci.6.121901.085526;
jsessionid=n1HzQqZJALRe]
Another possibility is that the justices ordinarily give little attention to their political environment but
take protective action when their decisions have aroused negative reactions from other policy makers.
Justices might reason that it is a poor strategy to depart from their most preferred positions to avoid the
possibility of an unfavorable response from the other branches. But when conflicts actually occur, the
justices retreat as a means to limit the damage . What might be called crisis-driven strategy is analogous to the "fire alarm"
form of congressional oversight over the executive branch. Compared with routine strategy, it would lead to more interventions and more
confrontations, but some periods of intervention would end abruptly as the justices responded to conflicts provoked by their decisions.
Internal Links—Capital Key to Rulings
(--) Judicial capital is key to rulings.
Gibson and Caldeira, Profs of Political Science at Wash U in St. Louis and Ohio State U, 20 09
(James L. Gibson, prof of PoliSci @ Wash U in St. Louis, and Gregory A. Caldeira, Prof of PoliSci @ Ohio
State U, January 2009, “Confirmation Politics and The Legitimacy of the U.S. Supreme Court” American
Journal of Political Science, Vol. 53, No. 1, January 2009, Pp. 139–155)
We reiterate our view that institutional legitimacy is an enormously important source of political capital.
The conventional hypothesis is that legitimacy is significant because it contributes to acquiescence to
decisions of which people do not approve (e.g., Gibson, Caldeira, and Spence 2005). We have devoted
considerable effort toward investigating that hypothesis throughout the world. To the extent that we are correct
in our analysis of the theory of positivity bias, we suggest here that legitimacy has an even more significant
role in the political process: Citizens who extend legitimacy to the Supreme Court are characterized
by a set of attitudes that frame a variety of expectations and choices. These frames provide a standing
decision that is difficult to rebut in contemporary American politics. This consequence of institutional
legitimacy is perhaps the most significant.
Internal Links—Precedents
(--) Precedents snowball—once the Court decides one issue in an area, it will expand:
Foundation for Defense of Democracies, 5/22/2012 (“The Supreme Court Enters the Surveillance
Debate,” http://www.defenddemocracy.org/media-hit/the-supreme-court-enters-the-surveillance-debate/, Accessed 7/8/2015, rwg)
For the most part, the effort to “judicialize” the political realm of national defense has been confined to the disposition of enemy combatants, specifically the
process due for detaining and trying them. On Monday, the Supreme Court announced that next term it will enter the fray of intelligence gathering. The justices will
entertain the Lawyer Left’s predictable challenge to overseas surveillance, which now occurs under judicial auspices thanks to wrongheaded amendments enacted
in 2008 to modify the ill-conceived 1978 Foreign Intelligence Surveillance Act, also known as “FISA.” As
is usual when the judges begin to flex
their muscles in a new area, the first case is a camel’s nose in the tent : involving only the narrow
question of “standing” — i.e., whether the plaintiff’s have a right to bring their suit — and not the merits of their claim
that Fourth Amendment principles apply to searches targeting non-Americans outside the United States.
Internal Links--Public Opinion
(--) Public opinion key to the Court’s legitimacy: the Court won’t stay at odds with
public opinion for long:
Tom S. Clark, 2011 (The Limits of Judicial Independence, pg. 21-22, accessed via google books,
7/10/2015, rwg)
In order to protect this legitimacy, we will see, the courts—the Supreme Court in particular—often have an incentive to
engage in a deeply political calculation. Because the Supreme Court wants to preserve public support
for the institution, it will be unwilling to stray too far from the broad contours of what will be accepted
by the American public. The irony is that in order to protect its image as a neutral, independent decisionmaking body, the Court must in fact pay close attention to what will be deemed acceptable by the
populace and sometimes yield from any neutral perspective to avoid overstepping the bounds imposed
by perceptions of what is legitimate. Therein lies the limits of judicial independence and the politics-legitimacy paradox. In
order to guard its image as an apolitical decision-maker, and with it its institutional legitimacy, the Court must
engage in deeply political behavior.
(--) Court capital is limited – public opinion matters
McGuire and Stimson, profs PoliSci @ UNC Chapel Hill, 2004
(Kevin T. McGuire and James T. Stimson, profs of PoliSci @ UNC Chapel Hill, November 2004,
“The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to
Public Preferences” THE JOURNAL OF POLITICS, Vol. 66, No. 4, November 2004, Pp. 1018–1035)
The reasons for such behavior are not terribly mysterious. The justices may well want to see their preferences
reflected in policy outcomes, but that ambition would be fairly hollow if those policies, once promulgated,
had no practical effect. The Court requires the cooperation of legislative and executive officials, many of
whom are themselves careful auditors of mass opinion. For that reason, the members of the Court must reflect
on how well their preferred outcomes will be received and supported by implementers. By no means does
this imply that the Court cares about public opinion in the same ways that elected officials do, but we do think it
entirely reasonable to assume that justices want their policies to be taken seriously by relevant publics.1
This is not just our opinion, of course. There is abundant evidence of resistance, avoidance, and downright
defiance from various constituencies of the Court (Canon and Johnson 1999). It is only when popular opinion
supports the Court’s goals that its policies have their full effects (Rosenberg 1991). To be sure, the Constitution
affords the Supreme Court institutional independence, but it in no way guarantees the prestige upon
which its success is so highly dependent.
(--) Public opinion factors into court decisions.
Kramer, Prof Law NYU, 2004
(Larry D. Kramer, Prof Law @ NYU, July 2004, “Popular Constitutionalism” 92 Calif. L. Rev. 959)
We can, in a sense, view all this work on the existence and necessity of popular constitutionalism
as a kind of upping the ante on legal realism. Where the realists taught us to look beyond "the rules"
to what courts actually do, we now see that even this does not go far enough. We must also look beyond
the courts to see how judicial rulings are absorbed, transformed, and sometimes made irrelevant.
This is especially true when it comes to the Supreme Court's constitutional jurisprudence. Whether because of
practical institutional limitations or a need for support from other branches or a willingness to behave strategically to preserve
institutional capital or an inability to overcome deeply inscribed societal norms, the Supreme Court can never monopolize
constitutional lawmaking or law interpreting. Popular constitutionalism is, to some extent, perhaps a very great extent, inevitable and
unavoidable. The question is what to make of this fact. That the Supreme Court does not fully determine the course
of constitutional law is something most lawyers and judges already know - including, I am sure, the Justices of the Supreme
Court. We sometimes talk or write as if we thought otherwise, but that is because most legal scholarship is about (and so mainly
interested in) only the formal legal system. Aware that there are limits to this system's effectiveness, we leave them unspoken because
such qualifications are beyond the problem being addressed and because we assume they will be taken for granted. Maybe this is a
mistake. By declining to qualify what we say or failing to consider the fate of law beyond the courthouse, legal scholars have
almost certainly overestimated the influence of judicial pronouncements and overlooked
extrajudicial influences that matter. To that extent, the work of scholars like Griffin, Whittington, Galanter, Rosenberg,
McCann, and others provides a useful and important corrective, a reminder that judicial lawmakers face substantial obstacles and that
nonjudicial actors and activities have real significance for law and especially for constitutional law. n56 Yet nothing in this scholarship
provides a basis for criticizing or challenging even the most ambitious claims of judicial authority. Quite the contrary, evidence that
courts face inherent limits in establishing and [*974] enforcing constitutional norms may simply
give those who believe in the necessity of judicial supervision a reason to redouble their efforts to shut
down extrajudicial interpretation. The reason is straightforward: barriers to the Supreme Court's ability
to monopolize constitutional interpretation are not exogenous to beliefs about what the status of
the Court's rulings ought to be.
Impacts
Impacts: Tech Sector
(--) If Spokeo loses, could cost tech companies billions of dollars:
Kate Cox, 4/27/2015 (“Supreme Court To Decide If You Can Sue When Data Aggregators Are Wrong,”
http://consumerist.com/2015/04/27/supreme-court-to-decide-if-you-can-sue-when-data-aggregatorsare-wrong/, Accessed 6/29/2015, rwg)
If Robins wins and the class action suit he’s pursuing is verified, Spokeo could face damages of $1000 per violation.
Given how many millions of people the company aggregates records on, and how many potential errors
are in every profile, that could easily be millions or billions of dollars . So it’s easy to see why Spokeo would want to
fight this all the way to the Supreme Court. But in our data-driven economy, where we the collective consumers are more often than not also
the product being traded and sold, the
case also has repercussions far beyond Spokeo. Tech giants are closely
watching the case . Facebook and Google between them are probably the two biggest personal data
collectors and traders in the world, and nearly all of us interact with one or both several times daily. If they and others are
going to have liability for making sure every piece of personal data they move is accurate, that would be
a huge shift for them.
(--) Spokeo v. Robins is key to the tech sector—billions or trillions of dollars are at
stake:
Stephen E. Embry, 2/20/2015 (Frost, Brown & Todd attorneys, member of the Firm's class action,
privacy and mass tort groups, “Robins v. Spokeo Inc: the Light at the End of the Tunnel for Rule 23
Privacy Class Actions...or the Headlights of an Oncoming Train,” Accessed 6/29/2015, rwg)
Still no word from the Supreme Court in what is the most important privacy class action and consumer case of the decade, Robins v. Spokeo Inc.
The key issue in Robins is whether Article III standing can be conferred when plaintiff suffers no injury but can recover statutory imposed
penalties. Article III of the U.S. Constitution requires that a plaintiff suffer an injury in fact –injury or damage that is concrete and which the law
recognizes. The Supreme Court is now pondering whether to accept cert in this case that was originally decided by the 9th Circuit in February
2014. Not surprisingly, the 9th Circuit determined that such statutory penalties were sufficient without injury or damage to provide standing,
joining the 6th, 10th and D.C Circuits. The 2nd and 4th Circuits have found directly to the contrary. In
Robins, the Act in question,
the Fair Credit Reporting Act, imposed penalties collectible by affected consumers of not less than $100 or more
than $1000 per violation for publishing inaccurate personal information. Spokeo operated a website that provided users with information about
individuals. Unfortunately, it published inaccurate information about Mr. Robins who brought suit on his own behalf and on behalf of a class of
allegedly similarly situated individuals. The
importance of the decision facing the Supreme Court cannot be
overstated. Most privacy related statutes contain monetary penalties recoverable by affected consumers or users; it is the compounding
effect of such penalties across a class of individuals that have the plaintiffs’ class action bar salivating. The Telephone Consumer Protection Act
(TCPA,) the Video Privacy Protection Act, (VPPA), the Stored Communications Act, the Electronic Communications Privacy Act (ECPA) (not to
mention a whole slew of more traditional consumer protection acts) are just a few of such statutes. Based
on this “no injury”
concept sustained by the 9th, 6th, 10th and D.C. Circuits, plaintiffs’’ attorneys have and are bringing class
actions that net millions of dollars in settlements due to the enormous exposure presented by these claims. For example,
Netflex recently faced class claims in the billions of dollars and Google in the trillions . Facebook was
presented with claims of a class composed of over 3.6 million people whose statutory claims each
ranged from $2500 to $10,000 PER VIOLATION. The settlements of class claims brought under the TCPA are legendary: Capitol
One paid $75 million, Bank of America $32 million, Jiffy Lube $47 million and the list grows longer each month. The in terrorem effect of such
claims makes settlement the only viable option. And yet often the only real injury is irritation and disclosure of facts that really make little
difference to anyone. Perhaps sensing the importance of the question, the Supreme Court in October of last year asked the Solicitor General to
weigh in after the filing of multiple amicus briefs from businesses and the technology industry. There is no deadline for the Solicitor General’s
office to provide its input. Whether
this trend and practice will continue hinges almost entirely on what the
Supreme Court decides . If it does not accept cert., then these cases will proliferate perhaps at an alarming rate as new and novel
arguments will be made to fir new technology into statutes that were designed to prohibit other harms. (The VPPA for example was an
outgrowth of a successful effort to obtain and then publish a list of videos rented by a Supreme Court nominee. Now it’s being applied to
streaming over the internet). If
the Court accepts cert and overturns Robins, then an entire practice area will
vanish over night. If it sustains the Ninth Circuit’s view then Robins becomes the law of the land. Either way privacy and class action
practitioners face perhaps the most significant disruptive event in their careers.
(--) Ruling for Spokeo key to tech firms:
David N. Anthony, 4/28/2015 (“Supreme Court Grants Certiorari In Spokeo Case – Set To Address
Article III Standing In Cases With No Concrete Harm,”
http://www.consumerfinancialserviceslawmonitor.com/2015/04/supreme-court-grants-certiorari-inspokeo-case-set-to-address-article-iii-standing-in-cases-with-no-concreteharm/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+ConsumerFinancialServ
icesLawMonitor+%28Consumer+Financial+Services+Law+Monitor%29, Accessed 6/29/2015, rwg)
Because the
Spokeo decision could impact numerous statutory schemes outside of the Fair Credit Reporting Act, it has received
significant national attention in the form of multiple amicus briefs. For example, the Supreme Court received a brief from
several technology giants, including Facebook, eBay, and Yahoo. In their brief, they argued in favor of Spokeo, contending that a
plaintiff must allege actual harm in order to have Article III standing, even if a statute is alleged to have been violated. The risk of “no
injury” class actions is particularly acute for these companies because they interact with hundreds of
millions of users on a daily basis, with many of those interactions subject to state and federal laws. According to their brief, if an
actual injury – separate and apart from an alleged statutory violation – is not a necessary precursor to a lawsuit in
federal court, any of the millions of individuals who interact with these companies could bring a lawsuit
alleging technical statutory violations on behalf of hundreds of millions of people, with no accompanying actual
injury. At the invitation of the Supreme Court, the United States Office of the Solicitor General also filed an amicus brief. In its brief, the United
States requested the Supreme Court deny the writ of certiorari. According to the United States, the Ninth Circuit correctly decided the issue and
there was no need for the Supreme Court to weigh in. The Supreme Court’s grant of certiorari is contrary to the United States’ position.
Consumer protection statutes have created fertile ground for class action litigation. These statutes often require compliance with very technical
provisions and allow for the award of statutory damages, without a showing of actual harm. This creates the potential for very large classes of
plaintiffs who have not suffered any actual injuries and who often do not even know a technical statutory violation has taken place. These
large classes, coupled with the possibility of statutory damages, often create exposure in the tens or
hundreds of millions of dollars. A decision in favor of Spokeo could dramatically curtail many of these
“no concrete harm” class action lawsuits due to the lack of standing of the named plaintiff.
(--) Spokeo could change the landscape of lawsuits against tech companies for years to
come:
Elliot Katz, 5/28/2015 (“Spokeo v. Robins: The Case That Has Silicon Valley Buzzing, Even Though
Plaintiffs Likely Don’t Have a Leg To “Stand” On,” http://www.jdsupra.com/legalnews/spokeo-v-robinsthe-case-that-has-75066/, Accessed 6/29/2015, rwg)
On April 27, 2015, the United States Supreme Court granted certiorari in Spokeo v. Robins and will soon decide
whether a plaintiff must allege more than just the bare violation of a federal statute in order to invoke Article III jurisdiction. Some of Silicon
Valley’s top companies have observed in a brief to the Court in support of cert. that if the Ninth Circuit’s ruling stands, “plaintiffs may pursue
suits against [companies] even where they are not actually harmed by an alleged statutory violation.” While single-plaintiff lawsuits are
problematic, the real problem arises when these types of cases are brought as class actions, seeking “billions” in statutory damages creating an
“immense pressure to settle” even the cases that may be “baseless on the merits.” Silicon Valley companies are monitoring this case carefully
because of the impact it will have on data breach and privacy-related class actions, which are often brought by plaintiffs alleging violations of
federal statutes that are enforced through statutory damages. It
is not an understatement to say that the Supreme
Court’s decision could radically change the landscape for these types of class actions for years to come.
Put simply, if the Supreme Court does not reverse the Ninth Circuit, it is likely that there will be a
significant increase in the volume of data breach and other privacy-related lawsuits filed in moving
forward. Conversely, if the Ninth Circuit is affirmed then the volume of privacy class action lawsuits may
decline. If the Supreme Court’s decision in Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013) is any indication, then the latter may
be true.
Impacts—Business Confidence
A) Spokeo victory needed for business confidence:
KATE COMERFORD TODD, 6/16/2014 (SPOKEO , INC ., Petitioner, v. THOMAS ROBINS , INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Amicus Curiae Brief,
http://www.chamberlitigation.com/sites/default/files/scotus/files/2014/Chamber%20et%20al%20Amici
%20Brief%20--%20Spokeo%20Inc.%20v.%20Robins%20%28U.S.%20Supreme%20Court%29.pdf)
Like First American Financial Corp. v. Edwards , 132 S. Ct. 2536 (2012), whic h presented but did not
resolve the same issue (and in which both the Cham- ber and the IADC participated as amici curiae ), this
case presents both a danger and an opportunity. If the decision below is allowed to stand, there is a serious danger of continued erosion of the minimum requirements for standing under Article III of the
Constitution. Such a danger is of grave concern to the business community because (as this case illustrates) alleged technical violations of regulatory statutes can often affect large numbers of people
without actually injuring them. If, as the Ninth Cir- cuit held (following its precedent in Edwards ) such
people can bring lawsuits without the need to demonstrate any injury beyond the alleged statutory
violation itself, businesses will predictably be tied up in damages litigation over harmless alleged lapses,
diverting their resources from more productive uses. This case presents an opportunity to rein in
abusive litigation over such trifles, and to restore proper con- stitutional limitations on no-injury
lawsuits.
B) Business confidence key to the economy:
Kenneth McCarthy, 8/14/2013 (Senior Managing Director, Cushman Wakefield, “U.S. Economic
Update - Ready for Growth,” http://www.cushmanwakefield.com/en/research-and-insight/2013/useconomic-update-august-2013-ready-for-growth/, Accessed 6/29/2015, rwg)
The U.S. economy continues to improve steadily. Although gross domestic product (GDP) growth has lagged, employment is increasing at a
faster pace than a year ago and consumer demand is holding up surprisingly well. The
key to stronger growth will be higher
levels of confidence in the business sector. Once businesses are more confident , investment spending
will accelerate, as will hiring, and the economy will accelerate from today’s 1.5% to 2.0% GDP growth rate to around
3.0% to 3.5%.
C) U.S. economic failure risks multiple scenarios for nuclear war
Khalilzad ’11 Zalmay was the United States ambassador to Afghanistan, Iraq, and the United Nations during the presidency of George
W. Bush and the director of policy planning at the Defense Department from 1990 to 1992, “ The Economy and National Security”, 2-8-11,
http://www.nationalreview.com/articles/print/259024, MCR
threat to the United States’ position as global leader.
While the United States suffers from fiscal imbalances and low economic growth, the economies of rival powers are developing rapidly. The continuation of these two trends
could lead to a shift from American primacy toward a multi-polar global system, leading in turn to
increased geopolitical rivalry and even war among the great powers . The current recession is the result of a deep
Today,
economic and fiscal trends pose the most severe
long-term
financial crisis, not a mere fluctuation in the business cycle. Recovery is likely to be protracted. The crisis was preceded by the buildup over two
decades of enormous amounts of debt throughout the U.S. economy — ultimately totaling almost 350 percent of GDP — and the development
of credit-fueled asset bubbles, particularly in the housing sector. When the bubbles burst, huge amounts of wealth were destroyed, and
unemployment rose to over 10 percent. The decline of tax revenues and massive countercyclical spending put the U.S. government on an
unsustainable fiscal path. Publicly held national debt rose from 38 to over 60 percent of GDP in three years. Without faster economic growth
and actions to reduce deficits, publicly held national debt is projected to reach dangerous proportions. If interest rates were to rise significantly,
annual interest payments — which already are larger than the defense budget — would crowd out other spending or require substantial tax
increases that would undercut economic growth. Even worse, if unanticipated events trigger what economists call a “sudden stop” in credit
markets for U.S. debt, the United States would be unable to roll over its outstanding obligations, precipitating a sovereign-debt crisis that would
almost certainly compel a
radical retrenchment of the United States internationally. Such scenarios would reshape
the international order . It was the economic devastation of Britain and France during World War II, as well as the rise of other
powers, that led both countries to relinquish their empires. In the late 1960s, British leaders concluded that they lacked the economic capacity to maintain a
presence “east of Suez.” Soviet economic weakness, which crystallized under Gorbachev, contributed to their decisions to withdraw from Afghanistan, abandon Communist regimes in Eastern
the United States would be compelled to retrench , reducing
its military spending and shedding international commitments. We face this domestic challenge while other major powers
Europe, and allow the Soviet Union to fragment. If the U.S. debt problem goes critical,
are experiencing rapid economic growth. Even though countries such as China, India, and Brazil have profound political, social, demographic,
and economic problems, their economies are growing faster than ours, and this could alter the global distribution of power. These trends could
in the long term produce a multi-polar world. If U.S. policymakers fail to act and other powers continue to grow, it is not a question of whether
but when a new international order will emerge. The
closing of the gap between the United States and its rivals could
intensify geopolitical competition among major powers, increase incentives for local powers to play
major powers against one another, and undercut our will to preclude or respond to international crises
because of the higher risk of escalation . The stakes are high. In modern history, the longest period of peace
among the great powers has been the era of U.S. leadership. By contrast, multi-polar systems have been unstable, with
their competitive dynamics resulting in frequent crises and major wars among the great powers. Failures of multi-polar
international systems produced both world wars . American retrenchment could have devastating
consequences . Without an American security blanket, regional powers could rearm in an attempt to
balance against emerging threats. Under this scenario, there would be a heightened possibility of arms races ,
miscalc ulation, or other crises spiraling into all-out conflict . Alternatively, in seeking to accommodate the
stronger powers, weaker powers may shift their geopolitical posture away from the United States. Either way,
hostile states would be emboldened to make aggressive moves in their regions
(--) Victory for Spokeo necessary to prevent a flood of cases against businesses:
KATE COMERFORD TODD, 6/16/2014 (SPOKEO , INC ., Petitioner, v. THOMAS ROBINS , INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Amicus Curiae Brief,
http://www.chamberlitigation.com/sites/default/files/scotus/files/2014/Chamber%20et%20al%20Amici
%20Brief%20--%20Spokeo%20Inc.%20v.%20Robins%20%28U.S.%20Supreme%20Court%29.pdf)
As the Petition ably demonstrates, the
signifi- cance of the Ninth Circuit’s error reaches far beyond this particular
case. There are dozens of federal laws similar to the one at issue here, all of which could be read to authorize suit by plaintiffs who have
suffered no actual, concrete, or particularized injury. See Pet. 16-18. Lower courts are deeply and intractably divided over whether such suits
pass constitutional muster. See id . at 9-12. The resulting jurispruden- tial hodge-podge means a suit can be brought to vin- dicate injuries-inlaw under some statutes but not others, and in some courts but not others. See id. at 9-12, 18. The need to re solve that confusion alone
warrants this Court’s review. But this case is also of great practical signifi- cance—particularly to the business community. No matter their size,
industry, or geographic location, businesses are subject to all manner of technical le- gal duties. By the Ninth Circuit’s logic, for practical
purposes, injury-in-fact (a nd with it causation and redressability) would no longer be a required element for standing in federal courts. With
standing based solely on a technical statutory violation that could be identical for a large swath of
potential plaintiffs, the traditional class-certification hurdles of commonality and predominance could be rendered meaningless, as well.
As a result, businesses would be significantly more likely to face class actions seeking damages (sometimes
annihilating damages) for conduct that caused concrete and particularized harm to only a handful of people or to no one at all—the kind of
“frivolous lawsuits” that “essentially force corporate defendants to pay ransom to class attorneys by settling.” S. Rep. No. 109-14, at 20 (2005) (Class Action 7 Fairness Act). This is not idle speculation: Such suits are already being brought, and their
pace is ac- celerating. See Pet. 12-14. This
Court’s review is necessary to stop these litigious opportunists who have
suffered no injury—and the courts that enable them—from playing fast and loose with Article III.
Impacts: Court Clog Scenario
A) Failure to rule in favor of Spokeo leads to court clog:
Michael Greibrok, 5/18/2015 (“Spokeo, Inc. v. Robins: A Possible Alternative Path to Standing,”
http://www.freedomworks.org/content/spokeo-inc-v-robins-possible-alternative-path-standing,
Accessed 6/29/2015, rwg)
In Spokeo, the plaintiff ,Thomas Robins, sued the people finder website, Spokeo, Inc., alleging that the website had shared inaccurate
information about him. While there is some debate over whether the misinformation actually caused harm to Robins, he also claimed that
Spokeo had violated the Fair Credit Reporting Act (“FCRA”) by failing to provide him with notices. The Ninth Circuit ruled that Robins did not
This
decision has concerned many large companies, including tech giants Google and Facebook. They are
worried that a Supreme Court decision upholding the ruling could lead to more lawsuits with no real
injuries, but where federal laws similar to FCRA were violated. This is a legitimate concern, and a weakened standing
requirement could flood courts and lead to businesses settling meritless lawsuits, rather than going through the
have to show any particularized harm, as long as he showed the defendant violated a statute that authorized a private right of action.
process of discovery and a trial.
B) Court clog crushes the economy:
Ashley Post, 7/22/2011 (staff writer, “Frivolous lawsuits clogging U.S. courts, stalling economic
growth,” http://www.insidecounsel.com/2011/07/22/frivolous-lawsuits-clogging-us-courts-stalling-eco,
Accessed 9/16/2014, rwg)
Americans’ litigiousness and thirst for massive damages has been a boon to the legal profession. But some
researchers and litigation
experts warn that the abundance of lawsuits—many of them frivolous—flooding U.S. courts is severely
weakening the economy. According to consulting firm Towers Watson, the direct cost of the U.S. tort system in 2009 was
approximately $250 billion, which was roughly 2 percent of the gross domestic product. The amount is double the estimated tort expenses in
other countries, including the U.K. and Japan. In
May, the House Judiciary Committee held a hearing that explored
excessive litigation’s effect on the United States’ global competitiveness. During his testimony, Skadden Partner John
Beisner explained that plaintiffs counsel engage in five types of litigation abuse that ultimately undermine economic growth: improperly
recruiting plaintiffs, importing foreign claims, filing suits that piggyback off government investigations and actions, pursuing aggregate litigation
and seeking third-party litigation financing. “America’s
litigious nature has caused serious damage to our country’s
productivity and innovation. … The root cause is that we have created incentives to sue—and to invest
in litigation—instead of establishing disincentives for invoking judicial process unless absolutely
necessary. Other countries discourage litigation; we nuture it,” Beisner said at the hearing. Many litigation experts
resoundingly agree with Beisner’s stance on the necessity of tort reform to ameliorate the country’s
economy.
C) An economic collapse causes a global nuclear war.
Aaron Friedberg and Gabriel Schoenfeld, 2008 (prof. of politics @ Princeton & Senior editor of the
Wall Street Journal) WALL STREET JOURNAL. Oct. 21, 2008. Retrieved May 17, 2014 from
http://online.wsj.com/article/SB122455074012352571.html.
Then there are the dolorous consequences of a potential collapse of the world's financial architecture.
For decades now, Americans have enjoyed the advantages of being at the center of that system. The worldwide use of the dollar, and the
stability of our economy, among other things, made it easier for us to run huge budget deficits, as we counted on foreigners to pick up the tab
by buying dollar-denominated assets as a safe haven. Will this be possible in the future? Meanwhile,
traditional foreign-policy
challenges are multiplying. The threat from al Qaeda and Islamic terrorist affiliates has not been
extinguished. Iran and North Korea are continuing on their bellicose paths, while Pakistan and Afghanistan are
progressing smartly down the road to chaos. Russia's new militancy and China's seemingly relentless rise also give
cause for concern. If America now tries to pull back from the world stage, it will leave a dangerous
power vacuum. The stabilizing effects of our presence in Asia, our continuing commitment to Europe,
and our position as defender of last resort for Middle East energy sources and supply lines could all be
placed at risk. In such a scenario there are shades of the 1930s, when global trade and finance ground
nearly to a halt, the peaceful democracies failed to cooperate, and aggressive powers led by the
remorseless fanatics who rose up on the crest of economic disaster exploited their divisions. Today we
run the risk that rogue states may choose to become ever more reckless with their nuclear toys, just at our
moment of maximum vulnerability. The aftershocks of the financial crisis will almost certainly rock our principal strategic competitors even
harder than they will rock us. The dramatic free fall of the Russian stock market has demonstrated the fragility of a state whose economic
performance hinges on high oil prices, now driven down by the global slowdown. China is perhaps even more fragile, its economic growth
depending heavily on foreign investment and access to foreign markets. Both will now be constricted, inflicting economic pain and perhaps
even sparking unrest in a country where political legitimacy rests on progress in the long march to prosperity. None
of this is good
news if the authoritarian leaders of these countries seek to divert attention from internal travails with
external adventures.
Impacts--Clog Internals: Spokeo win necessary to prevent clog
(--) Ruling in favor of Spokeo prevents a proliferation of lawsuits:
Rich Samp , 4/15/2015 (staff writer, “Supreme Court Has Opportunity To Halt Lawsuits By Uninjured
Plaintiffs,” http://www.forbes.com/sites/wlf/2015/04/15/supreme-court-has-opportunity-to-haltlawsuits-by-uninjured-plaintiffs/, Accessed 6/26/2015, rwg)
By granting review in Spokeo and reversing the Ninth Circuit, the Court can bring a halt to the
proliferation of lawsuits filed by uninjured plaintiffs who lack the requisite Article III standing to sue for
infractions of federal statutes. Such a ruling would remind Congress that it cannot expand federal
courts’ jurisdiction beyond the limits set out in the Constitution.
(--) Ruling in favor of Spokeo prevents court clog:
Christi A. Lawson, 4/28/2015 (“U.S. Supreme Court Accepts Review of Robins v. Spokeo, Inc.,”
http://www.foley.com/intelligence/detailpdf.aspx?int=46acc213-4842-4bd9-9c19-8b2dc13e1bcc,
Accessed 6/29/2015, rwg)
Spokeo has the attention of the financial industry. Additionally, several
large companies have joined Spokeo in opposing
the Ninth Circuit’s Ruling, including but not limited to, Facebook Inc., Google Inc., Yahoo Inc. and eBay. In an
amicus brief, the companies expressed to the high court that agreeing with the Ninth Circuit’s decision would result in a
flood of “no-injury” class actions under the Telephone Consumer Protection Act, the Video Privacy Protection Act and similar
statutes.
(--) A Spokeo win discourages a wave of lawsuits:
Pamela Q. Devata, 4/27/2015 (“U.S. Supreme Court Grants Cert in Spokeo, Inc. v. Robins,”
http://www.seyfarth.com/publications/OMM042715-LE, Accessed 6/29/2015, rwg)
The Supreme Court’s decision in Spokeo is likely to dramatically affect employers, consumer reporting agencies, and other
corporate defendants. Indeed, ten separate amicus briefs were filed on behalf of seventeen different companies, trade associations, and other
organizations in support of Spokeo’s petition (including the National Association of Professional Background Screeners, Chamber of Commerce
of the United States, eBay, Facebook, Google, Yahoo, and leading consumer reporting agencies). A
decision limiting congressional
power and providing for actual damages to be alleged would likely discourage the current wave of
consumer, workplace, and other class actions seeking millions in statutory damages. A decision allowing
individual and class claims to go forward alleging only statutory damages without injury in fact would likely have the opposite outcome.
Employers should continue to closely monitor the developments in this case.
(--) Limiting standing is necessary to stop a floodgate of litigation:
MARY MASSARON ROSS, 2014 (BRIEF OF DRI - THE VOICE OF THE DEFENSE BAR AS AMICUS CURIAE IN
SUPPORT OF PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wpcontent/uploads/2014/06/DRI-Brief-Spokeo-Inc.-v.-Thomas-Robins-SCt-13-1339.pdf)
DRI’s interest in this case stems from its members’ extensive involvement in civil litigation. DRI’s members are regularly called upon to defend
their clients in lawsuits brought merely to pursue public policies rather than to seek redress for a distinct and personalized injury. Left unr
eviewed by this Court, the Ninth Circuit’s decision in this case will have a profound effect on businesses and individuals who may be subject to
suits brought under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq ., and other federal and state statutes providing for statutory
damages because it broadens the doctrine of standing to allow the judiciary to resolve disputes in the absence of an actual injury. The
Nin
th Circuit’s decision, which exacerbates an already-existing circuit split, would encourage the filing of lawsuits by noninjured plaintiffs. DRI has a strong interest in assuring that the many federal and state statutes which confer a statutory cause of action
do not provide a “back door” for uninjured litigants to obta in relief in federal court. The
Ninth Circuit’s alteration of the
standing doctrine opens the floodgates of litigation in derogation of the Framers’ intent to limit the
jurisdiction of the judicial branch to “cases” and “controversies.” This, in turn, directly affects the fair, efficient, and
consistent functioning of our civil justice system and, as such, is of vital interest to the members of DRI.
Impacts--Court Clog Impact Extensions
(--) Court clog hurts small businesses:
Ashley Post, 7/22/2011 (staff writer, “Frivolous lawsuits clogging U.S. courts, stalling economic
growth,” http://www.insidecounsel.com/2011/07/22/frivolous-lawsuits-clogging-us-courts-stalling-eco,
Accessed 9/16/2014, rwg)
The result is clogged courts and corporate funds that finance defense costs instead of economic
investment. Small businesses and startups with less than $20 million in revenue suffer the most because
they pay a higher percentage of their revenues toward tort costs than larger companies do, and therefore
they become less able to invest in research and development, create new jobs, and give raises and benefits to employees.
(--) Business confidence key to staving off a recession:
JOHN BRAITHWAITE, 2004 (The Annals of The American Academy of Political and Social Science, March;
Lexis)
The challenge of designing institutions that simultaneously engender emancipation and hope is addressed within the assumption of economic
institutions that are fundamentally capitalist. This contemporary global context gives more force to the hope nexus because we know
capitalism thrives on hope. When business confidence collapses, capitalist economies head for
recession. This dependence on hope is of quite general import; business leaders must have hope for the
future before they will build new factories; consumers need confidence before they will buy what the
factories make; investors need confidence before they will buy shares in the company that builds the
factory; bankers need confidence to lend money to build the factory; scientists need confidence to innovate with new
technologies in the hope that a capitalist will come along and market their invention. Keynes's ([1936]1981) General Theory of Employment,
Interest and Money lamented the theoretical neglect of "animal spirits" of hope ("spontaneous optimism rather than . . . mathematical
expectation" (p. 161) in the discipline of economics, a neglect that continues to this day (see also Barbalet 1993).
Impacts: DA Turns Case
(--) Lack of legitimacy means Court can’t enforce its decisions:
Kevin Burke, August 23, 2013 (“How Low Public Trust Threatens the Legitimacy of Court Decisions,”
http://proceduralfairnessblog.org/2013/08/23/how-low-public-trust-threatens-the-legitimacy-of-court-decisions/, Accessed 7/8/2015, rwg)
Trust is an essential component of procedural fairness, which, in turn, has been shown to be a key source of legitimacy for
decision-makers. All public institutions now face serious skepticism from the public about their trustworthiness. However, a trust
deficit – and the resulting lack of legitimacy – are of particular threat to the judiciary. Legitimacy is
essential if courts are to be respected and, indeed, if court orders are to be obeyed . Simply put, failure to
maintain and enhance the legitimacy of court decisions imperils the judiciary as an institution and the
vital role assigned to the judiciary in our Constitutional tradition.
Impacts: Disease
A) Technology key to solve disease:
Charles Stokes, 6/11/2013 (“Technology is key to CDC’s Public Health Defense of Our Country,”
http://www.cdcfoundation.org/blog-entry/technology-cdc-public-health-defense, Accessed 7/10/2015,
rwg)
The U.S. Centers for Disease Control and Prevention (CDC) has a long history of using technology and data to solve
public health mysteries surrounding both chronic and contagious diseases . Just as diseases advance,
however, so do the ways that technology and data can address them. Looking forward, it is vital to
America’s health and national security for our nation to continue making investments in technology at
CDC. That is the core message I take from a new op-ed in The Hill’s Congress blog today.
B) Diseases cause extinction
Guterl ’12 [Fred, award-winning journalist and executive editor of Scientific American, worked for ten
years at Newsweek, has taught science at Princeton University, The Fate of the Species: Why the Human
Race May Cause Its Own Extinction and How We Can Stop It, 1-2, Google Books, online]
Over the next few years, the bigger story turned out not to be SARS, which trailed off quickly, bur avian influenza, or bird flu. It had been making the rounds among
birds in Southeast Asia for years. An outbreak in 1997 Hong Kong and another in 2003 each called for the culling of thousands of birds and put virologists and health
workers into a tizzy. Although the virus wasn't much of a threat to humans, scientists fretted over the possibility of a horrifying pandemic. Relatively few people
caught the virus, but more than half of them died. What would happen if this bird flu virus made the jump to humans? What if it mutated in a way that allowed it to
spread from one person to another, through tiny droplets of saliva in the air? One
bad spin of the genetic roulette wheel and a
deadly new human pathogen would spread across the globe in a matter of days. With a kill rate of 60 percent, such a
pandemic would be devastating, to say the least.¶ Scientists were worried, all right, but the object of their worry was somewhat theoretical.
Nobody knew for certain if such a supervirus was even possible. To cause that kind of damage to the human population, a flu virus has to combine two traits:
lethality and transmissibility. The more optimistically minded scientists argued that one trait precluded the other, that if the bird flu acquired the ability to spread
like wildfire, it would lose its ability to kill with terrifying efficiency. The virus would spread, cause some fever and sniffles, and take its place among the pantheon of
ordinary flu viruses that come and go each season. ¶ The optimists, we found out last fall, were
wrong. Two groups of scientists working
to create bird flu viruses in the lab that had that killer combination of lethality and
transmissibility among humans. They did it for the best reasons, of course—to find vaccines and medicines to treat a pandemic should one occur,
independently managed
and more generally to understand how influenza viruses work. If we're lucky, the scientists will get there before nature manages to come up with the virus herself,
or before someone steals the genetic blueprints and turns this knowledge against us. ¶ Influenza is a natural killer, but we have made it our own. We
have
created the conditions for new viruses to flourish—among pigs in factory farms and live animal markets and a connected
world of international trade and travel—and we've gone so far as to fabricate the virus ourselves. Flu is an excellent example of how we
have, through our technologies and our dominant presence on the planet, begun to multiply the risks to our own survival.
Continued technological advancements key to solve disease:
Charles Stokes, 6/11/2013 (“Technology is key to CDC’s Public Health Defense of Our Country,”
http://www.cdcfoundation.org/blog-entry/technology-cdc-public-health-defense, Accessed 7/10/2015,
rwg)
While these developments are impressive, Carlos stresses the
urgent need for CDC to continue to grow its capacity for
advanced science and technology , particularly in light of several recent developments—five new drugresistant microbes and a new coronavirus in the Middle East, to name a few. Carlos offers, “In these times of shrinking
federal budgets we can’t afford to give the advantage to life-threatening diseases.” One way he says that CDC can make
significant strides forward is through “whole genome sequencing of bacteria and viruses to understand how disease spreads.” But there’s more to the story. Carlos
relates how several years ago when a cholera epidemic hit Haiti CDC could sequence the genome but couldn’t interpret the results because it didn’t have sufficient
bioinformatics capacity. That worries Carlos, and he’s not alone. In fact, CDC Director Tom Frieden conveyed the same concern in a recent Huffington Post blog.
Impacts: Economy
A) Relaxed standing requirement will cause untold economic damage:
MARY MASSARON ROSS, 2014 (BRIEF OF DRI - THE VOICE OF THE DEFENSE BAR AS AMICUS CURIAE IN
SUPPORT OF PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wpcontent/uploads/2014/06/DRI-Brief-Spokeo-Inc.-v.-Thomas-Robins-SCt-13-1339.pdf)
Relaxation of the standing requirement will broaden dramatically the composition of a class litigating a violation of the FCRA or
other similar “no harm” statute. This, in turn, will dramatically increase the expense of defending a class action. Even
before the Ninth Circuit’s decision in this case, the attendant costs of a major lawsuit could sound the death knell for
new companies and those suffering under today’s current economic climate. Bradley J. Bondi, Facilitating
Economic Recovery and Sustainable Growth Through Reform of the Securities Class-Action System: Exploring Arbitration as an Alternative to
Litigation , 33 Harv. J. L. & Pub. Pol’y, 607, 612 (Spring 2010). With
the new lax standing requirement announced by the Ninth
Circuit, defendants may be forced to make payouts to hundreds or even thousand of unharmed class
members. In addition, due to the violation of some statutory standard, a non-injured plaintiff might be deemed a “prevailing party” entitled
to attorney fees. The unwarranted economic burden this imposes on defendants cannot be overstated. As one
legal scholar noted, “aggregated statutory damages claims can result in absurd liability exposure in the
hundreds of millions – or even billions – of dollars on behalf of a class whose actual damages are often
nonexistent.” Sheila B. Scheuerman, Due Process Forgotten: The Problem of Statutory Damages and Class Actions , 74 Mo. L. Rev. 103, 104
(Winter 2009). Stated another way, a class judgment based on a statutory damages claim can have an
“ annihilating effect” on a defendant . O’Neil , supra , at *6. Defendants, unwilling to roll the dice, are placed under intense
pressure to settle, even if an adverse judgment seems “improbable.” See Thorogood v. Sears, Roebuck and Co ., 547 F.3d 42, 745 (7 th Cir.
2008); Matter of Rhone-Poulenc Rorer, Inc ., 51 F.3d 1293, 1298 (7 th Cir. 1995). See also Barry F. McNiel, et. al ., Mass Torts and Class Actions:
Facing Increased Scrutiny , 167 F.R.D. 483, 489-90 (updated 8/5/96). The Ninth Circuit’s holding in this case, if left uncorrected by this Court, will
only ex acerbate these problems and proliferate more of these “blackmail settlements.” Rhone , supra at 1298, citing Henry J. Friendly, Federal
Jurisdiction: A General View 120 (1973).
B) U.S. economic failure risks multiple scenarios for nuclear war
Khalilzad ’11 Zalmay was the United States ambassador to Afghanistan, Iraq, and the United Nations during the presidency of George
W. Bush and the director of policy planning at the Defense Department from 1990 to 1992, “ The Economy and National Security”, 2-8-11,
http://www.nationalreview.com/articles/print/259024, MCR
threat to the United States’ position as global leader.
While the United States suffers from fiscal imbalances and low economic growth, the economies of rival powers are developing rapidly. The continuation of these two trends
could lead to a shift from American primacy toward a multi-polar global system, leading in turn to
increased geopolitical rivalry and even war among the great powers . The current recession is the result of a deep
Today,
economic and fiscal trends pose the most severe
long-term
financial crisis, not a mere fluctuation in the business cycle. Recovery is likely to be protracted. The crisis was preceded by the buildup over two
decades of enormous amounts of debt throughout the U.S. economy — ultimately totaling almost 350 percent of GDP — and the development
of credit-fueled asset bubbles, particularly in the housing sector. When the bubbles burst, huge amounts of wealth were destroyed, and
unemployment rose to over 10 percent. The decline of tax revenues and massive countercyclical spending put the U.S. government on an
unsustainable fiscal path. Publicly held national debt rose from 38 to over 60 percent of GDP in three years. Without faster economic growth
and actions to reduce deficits, publicly held national debt is projected to reach dangerous proportions. If interest rates were to rise significantly,
annual interest payments — which already are larger than the defense budget — would crowd out other spending or require substantial tax
increases that would undercut economic growth. Even worse, if unanticipated events trigger what economists call a “sudden stop” in credit
markets for U.S. debt, the United States would be unable to roll over its outstanding obligations, precipitating a sovereign-debt crisis that would
almost certainly compel a
radical retrenchment of the United States internationally. Such scenarios would reshape
the international order . It was the economic devastation of Britain and France during World War II, as well as the rise of other
powers, that led both countries to relinquish their empires. In the late 1960s, British leaders concluded that they lacked the economic capacity to maintain a
presence “east of Suez.” Soviet economic weakness, which crystallized under Gorbachev, contributed to their decisions to withdraw from Afghanistan, abandon Communist regimes in Eastern
the United States would be compelled to retrench , reducing
its military spending and shedding international commitments. We face this domestic challenge while other major powers
Europe, and allow the Soviet Union to fragment. If the U.S. debt problem goes critical,
are experiencing rapid economic growth. Even though countries such as China, India, and Brazil have profound political, social, demographic,
and economic problems, their economies are growing faster than ours, and this could alter the global distribution of power. These trends could
in the long term produce a multi-polar world. If U.S. policymakers fail to act and other powers continue to grow, it is not a question of whether
but when a new international order will emerge. The
closing of the gap between the United States and its rivals could
intensify geopolitical competition among major powers, increase incentives for local powers to play
major powers against one another, and undercut our will to preclude or respond to international crises
because of the higher risk of escalation . The stakes are high. In modern history, the longest period of peace
among the great powers has been the era of U.S. leadership. By contrast, multi-polar systems have been unstable, with
their competitive dynamics resulting in frequent crises and major wars among the great powers. Failures of multi-polar
international systems produced both world wars . American retrenchment could have devastating
consequences . Without an American security blanket, regional powers could rearm in an attempt to
balance against emerging threats. Under this scenario, there would be a heightened possibility of arms races ,
miscalc ulation, or other crises spiraling into all-out conflict . Alternatively, in seeking to accommodate the
stronger powers, weaker powers may shift their geopolitical posture away from the United States. Either way,
hostile states would be emboldened to make aggressive moves in their regions
(--) Ruling for Spokeo necessary to stop billions of dollars in damage:
FELICIA H. ELLSWORTH, 2014 (BRIEF FOR AMICI CURIAE EBAY INC., FACEBOOK, INC., GOOGLE INC.,
AND YAHOO! INC. IN SUPPORT OF PETITIONER, http://sblog.s3.amazonaws.com/wpcontent/uploads/2014/06/13-1339-Spokeo-Inc.-v.-Robins-Br.-for-Amici-eBay-Inc.-et-al.-Jun....pdf,
Accessed 6/29/2015, rwg)
Amici are concerned that this
decision will substan- tially and improperly lower the bar for invoking the jurisdiction of federal courts, inviting abusive and costly litigation, including class actions seeking millions
or even billions of dollars in statutory damages under FCRA and similar statutes. Amici are members of a rapidly
growing and transforming technology industry that provides services to hundreds of millions of indi- viduals each day. Users of amici’s services
routinely conduct financial transactions, share information and content, and interact with people all over the world on platforms offered by
amici. The services amici provide, the information they collect, and the interactions they facilitate arguably could be subject to laws that
contain private rights of action and allow for statutory damages.
(--) Limiting standing to actual injury key to the collection industry—key to the
national economy:
BRIAN MELENDEZ, 6/13/2014 (BRIEF OF ACA INTERNATIONAL AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/13-1339tsac-ACA.pdf, Accessed 6/29/2015, rwg)
Through their attempts to recover outstanding accounts, ACA’s
members act as an extension of every community’s
businesses. ACA’s members represent the local hardware store, the retailer down the street, and the family doctor. They work with
these busi nesses, large and small, to obtain payment for the goods and services received by consumers, and
each year, their combined effort results in the recovery of billions of dollars that are returned to businesses and reinvested in local
communities. Without an
effective collection process, these businesses’ economic viability — and, by
extension, the local and national economies in general — are threatened . At the very least, absent effective
collections, consumers would be forced to pay more for their purchases to compensate for uncollected debts. 3 Finally, ACA’s members also
help governments in recovering unpaid obligations — a function that is increasingly important as many governments face record budget
deficits. ____________________ Summary of Argument Standing is a fixed constitutional principle that Congress cannot expand by statute.
Congress can enact statutes that create new rights, and Congress can create remedies for those rights. But Congress cannot abrogate the
constitutional principle of standing altogether: “broadening the categories of injury that may be alleged in support of standing is a differe nt
matter from abandoning the requirement that th e party seeking review must himself have suffered an injury.” That requirement of injury in
fact — “that the party seeking review be himself among the injured” — is an “irreducible constitutional minimum” without which a federal
court lacks jurisdiction. The statute at issue is one of a class of statutes that creates liability without requiring injury in fact. Consumer cre dit
protection is a field that Congress has regulated extensively in the last several decades, beginning with the Consumer Credit Protection Act in
1968. Many consumer- credit statutes created private rights of action to redress injuries for which there was no adequate remedy at common
law. But sometimes the remedies that Congress devised for the practices 4 that it prohibited have gone beyond the harms that Congress was
trying to address. More to the point, Congress sometimes devised remedies that offered relief even to plaintiffs who were never harmed at all.
Several federal courts of appeals have allowed plaintiffs to recover statutory damages under consumer-protection statutes without any proof
of actual damages — that is, they have let the plaintiffs recover for an injury in law without having suffered an injury in fact. A statute may be
“blind when it comes to distinguishing between plaintiffs who have suffered actual damages and those who have not,” but the Constitution is
not. Most courts of appeals th at have upheld liability against a defendant without injury to the plaintiff did not even consider the standing
requirement’s constitutional dimensions. Other courts of appeals that have considered the constitutional issue have concluded that a statutory
violation confers constitutional standing. Yet other courts of appeals have delved adequately in to this Court’s standing jurisprudence and
correctly held that an uninjured plaintiff lacks constitutional standing. This Court should resolve the various approaches that the courts of
appeals have taken, and insist upon consideration of the standing requirement’s constitutional dimensions. This case is the right medium for
that message. This
case’s implications go beyond the statute at issue, and affect the credit-and-collection
industry at every level. The Fair Credit Reporting Act is far from the only consumer-protection statute that provides for statutory
damages independent of whether the plaintiff suffered actual damages. These statutes affect the credit-and-collection
industry, daily, and at every level, from the issuance of credit to the collection of debt in default. ACA
therefore joins the Petitioner in asking that this Court grant the petition for a writ of certiorari.
(--) Victory for Spokeo key to the consumer credit agency—key to economy:
STEPHEN J. NEWMAN, 2014 (BRIEF OF TRANS UNION LLC AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/131339acTransUnionLLC-Ok-to-Print.pdf, Accessed 6/29/2015, rwg)
Trans Union LLC (“TransUnion”) is a “consumer reporting agency that compiles and maintains files on consumers on a nationwide basis,” as defined in Section
603(p) of the Fair Credit Reporting Act (the “FCRA” or the “Act”), 15 U.S. C. § 1681a(p). As one of the nation’s three major credit bureaus, TransUnion
maintains billions of pieces of information about United States consumers, and issues millions of consumer
reports every month. Given these functions and the consumer credit reporting system’s critical
importance to the national economy , TransUnion is regulated comprehensively as a “consumer reporting agency” by the FCRA, as well as by
certain state mini- FCRAs and the Dodd-Frank Wall Street Reform and Consumer Protection Act, 12 U.S.C. § 5301 (the “Dodd- Frank Act”). 1 TransUnion has a strong
interest in ensuring that the Act is applied in accordance with Constitutional requirements and is properly construed. It expends millions of dollars annually to
ensure compliance with credit reporting laws, regula tions and relevant judicial decisions. The
opinion below threatens to greatly expand
FCRA liability beyond its intended scope of consumer protection, thereby exposing TransUnion, other credit
bureaus, data furnishers and users of credit reports to potentially massive class action cases brought by
persons without any real-world harm. If this Court does not grant the petition for certiorari and correct the Ninth
Circuit’s error, then the immediate result will be more “bet the company” litigation filed under the Act. The consequent defense costs and inevitable
corporate skittishness with respect to offering new data services will reduce the scope of predictive information available to credit grantors to manage risk.
Moreover, it will increase the expense of delivering such new information services that survive legal challenge. Ultimately,
consumers will bear the
brunt of these effects in the form of diminished access to credit, delays in obtaining credit and/or higher costs of obtaining it.
(--) Failure to maintain an injury standard for standing does severe damage to the
economic system:
STEPHEN J. NEWMAN, 2014 (BRIEF OF TRANS UNION LLC AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/131339acTransUnionLLC-Ok-to-Print.pdf, Accessed 6/29/2015, rwg)
In various circumstances, the Justices of this Court and other members of the federal judiciary have expressed concern about the
rising tide of
massive class action cases, and the harm they may pose to the economic system and principles of sound
policymaking. To keep the class action in its approp- riate procedural place, this Court should recognize an
inherent constitutional limitation under Article III. A class action violates the Constitution unless the proposed class
representative and each member of the proposed class sustained an injury in fact.
Impacts—First Amendment
(--) Actual injury requirement key to the First Amendment:
STEPHEN J. NEWMAN, 2014 (BRIEF OF TRANS UNION LLC AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/131339acTransUnionLLC-Ok-to-Print.pdf, Accessed 6/29/2015, rwg)
Few defendants faced with a claim that seeks statutory damages under a law for which there is a “dearth of guidance and [] less-than-pellucid
statutory text,” Safeco Ins. Co. v. Burr , 551 U.S. 47, 70 (2007), will roll the dice in litigation when the result of losing the case is the total loss of
their business. The
issue inherent in all class actions—that class certification itself often places defendants in
a must-settle position—is more pernicious under the FCRA, due to the Act’s regulation of commercial
speech. See Sorrell v. IMS Health, Inc. , 564 U.S. __, 131 S. Ct. 2653, 2667 (2011) (credit report is “speech”) (citing Dun & Bradstreet, Inc. v. Gr
eenmoss Builders, Inc. , 472 U.S. 749, 759 (1985)). There are grave First Amendment implications when the
procedural device of the class action threatens, as a practical matter, to restrict innovation and limit the
fr ee flow of information critical to economic decision-making. The FCRA, properly construed, allows only con- sumers
with true injury in fact to receive statutory damages. Technical violations that do not actually harm the vast majority
of consumers should not threaten the destruction, through private litigation, of vital components of America’s
economic and informational systems.
(--) Injury in fact standard necessary to preserve the First Amendment:
STEPHEN J. NEWMAN, 2014 (BRIEF OF TRANS UNION LLC AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/131339acTransUnionLLC-Ok-to-Print.pdf, Accessed 6/29/2015, rwg)
Much of the FCRA attempts to protect the same interests protected by the common law of defamation or invasion of privacy. The
opinion
below, however, would vastly expand FCRA liability to circumstances where no plaintiff or any putative
class member suffered any actual impairment to his reputation or any other traditional tort- like injury.
Here, sound Article III jurisprudence will help protect important First Amendment values . To allow
uninjured con- sumers to participate in FCRA class actions “works speech-related harm that is out of
proportion to” the statute’s goals. See United States v. Alvarez , 567 U.S. __, 132 S. Ct. 2537, 2551 (2012) (Breyer, J., concurring). This Court
recognizes that “the creation and dissemination of information are speech within the meaning of the
First Amendment . . . . Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge
and to conduct human affairs.” Sorrell , 131 S. Ct. at 2667 (citing Bartnicki v. Vopper , 532 U.S. 514, 527 (2001)) (stating that “if the acts of
‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the
category of expressive conduct”) (internal quotation marks and alterations omitted).
(--) Huge class action lawsuits will chill the First Amendment:
STEPHEN J. NEWMAN, 2014 (BRIEF OF TRANS UNION LLC AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/131339acTransUnionLLC-Ok-to-Print.pdf, Accessed 6/29/2015, rwg)
Rapid advances in technology will continue to lead to new and different methods of distributing information, unless legal risk interferes.
The
First Amendment , however, protects the transmission of information even if transmission occu rs by
means other than traditional print media. E.g. , Lovell v. City of Griffin , 303 U.S. 444, 452 (1938) (“ev ery sort of publication
which affords a vehicle of information and opinion”). The First Amendment also protects for-profit ventures. E.g. , Citizens United v. Fed.
Election Comm’n , 558 U.S. 310, 351-52 ( 2010). The threat
of a class action litigation seek ing millions or even billions
of dollars in FCRA statut ory damages will have an extraordinary chilling effect on companies that
otherwise would expand access to publicly available information . See New York Times Co. v. Sullivan , 376 U.S. 254,
294-95 (1964) (discu ssing how civil litigation may impair protected First Amendment activity; “public feelings may make loc al as well as out-ofstate news-papers easy prey for libel verdict seekers”) (Black, J., concurring).
Impacts: Internet Scenario
A) Ruling for Spokeo key to the Internet:
FELICIA H. ELLSWORTH, 2014 (BRIEF FOR AMICI CURIAE EBAY INC., FACEBOOK, INC., GOOGLE INC.,
AND YAHOO! INC. IN SUPPORT OF PETITIONER, http://sblog.s3.amazonaws.com/wpcontent/uploads/2014/06/13-1339-Spokeo-Inc.-v.-Robins-Br.-for-Amici-eBay-Inc.-et-al.-Jun....pdf,
Accessed 6/29/2015, rwg)
The services offered by amici have created or transformed a wide range of industries, including elec- tronic communications of all forms;
financial transac- tions and online commerce; social networking; delivery of video, television, music and other media content; and the
organization and accessibi lity of information. Amici
are proven innovators that continue to cultivate valua- ble
technology through significant investments in re- search and development. However, due to the nature of their
businesses, amici engage in many activities that may be subject to federal and state laws that contain private causes of action and statutory
damages provi- sions similar to the provisions contained in the Fair Credit Reporting Act (FCRA). Many of these laws, like FCRA, provide a
private right of action for alleged violations and statutory damages. If
the Ninth Cir- cuit’s rule stands, plaintiffs may pursue
suits against amici even where they are not actually harmed by an alleged statutory violation, and in
certain circumstanc- es, seek class action damages that could run into the billions of dollars. Permitting
such “no-injury” lawsuits to proceed has an increasingly negative impact on amici due to the broad-scale nature of their
operations. Amici interact with hundreds of millions of users each day, using high- ly efficient automated
mechan isms to process and facili- tate billions of transactions and interactions. These mechanisms
enable amici to unlock the power of the In- ternet and to deliver immense value to users. But this structure
also makes amici vulnerable to the untoward consequences of the Ninth Circuit’s misreading of Arti- cle III and this Court’s precedent.
B) The internet solves multiple scenarios for extinction:
David Eagleman, 11/9/2010 (Neuroscientist at Baylor College of Medicine, “Six ways the internet will
save civilization,” http://www.wired.co.uk/magazine/archive/2010/12/start/apocalypse-no, Accessed
6/24/2015, rwg)
Many great civilisations have fallen, leaving nothing but cracked ruins and scattered genetics. Usually this results from: natural
disasters, resource depletion, economic meltdown, disease, poor information flow and corruption. But we’re luckier than our
predecessors because we command a technology that no one else possessed: a rapid communication
network that finds its highest expression in the internet. I propose that there are six ways in which the net
has vastly reduced the threat of societal collapse. Epidemics can be deflected by telepresence One of our more dire
prospects for collapse is an infectious-disease epidemic. Viral and bacterial epidemics precipitated the fall of the Golden
Age of Athens, the Roman Empire and most of the empires of the Native Americans. The internet can be our key to survival
because the ability to work telepresently can inhibit microbial transmission by reducing human-tohuman contact. In the face of an otherwise devastating epidemic, businesses can keep supply chains running with the maximum number
of employees working from home. This can reduce host density below the tipping point required for an epidemic. If we are well prepared when
an epidemic arrives, we can fluidly shift into a self-quarantined society in which microbes fail due to host scarcity. Whatever the social ills of
isolation, they are worse for the microbes than for us. The internet will predict natural disasters We are witnessing the
downfall of slow central control in the media: news stories are increasingly becoming user-generated nets of up-to-the-minute information.
During the recent California wildfires, locals went to the TV stations to learn whether their neighbourhoods were in danger. But the news
stations appeared most concerned with the fate of celebrity mansions, so Californians changed their tack: they uploaded geotagged mobilephone pictures, updated Facebook statuses and tweeted. The balance tipped: the
internet carried news about the fire more
quickly and accurately than any news station could. In this grass-roots, decentralised scheme, there were embedded
reporters on every block, and the news shockwave kept ahead of the fire. This head start could provide the extra hours that
save us. If the Pompeiians had had the internet in 79AD, they could have easily marched 10km to safety, well ahead of the pyroclastic flow
from Mount Vesuvius. If the Indian Ocean had the Pacific’s networked tsunami-warning system, South-East Asia would look quite different
today. Discoveries are retained and shared Historically, critical information has required constant rediscovery. Collections of learning -- from
the library at Alexandria to the entire Minoan civilisation -- have fallen to the bonfires of invaders or the wrecking ball of natural disaster.
Knowledge is hard won but easily lost. And information that survives often does not spread. Consider smallpox inoculation: this was under way
in India, China and Africa centuries before it made its way to Europe. By the time the idea reached North America, native civilisations who
needed it had already collapsed. The net solved the problem. New discoveries catch on immediately; information spreads widely. In this way,
societies can optimally ratchet up, using the latest bricks of knowledge in their fortification against risk. Tyranny is mitigated Censorship of
ideas was a familiar spectre in the last century, with state-approved news outlets ruling the press, airwaves and copying machines in the USSR,
Romania, Cuba, China, Iraq and elsewhere. In many cases, such as Lysenko’s agricultural despotism in the USSR, it directly contributed to the
collapse of the nation. Historically, a more successful strategy has been to confront free speech with free speech -- and the internet allows this
in a natural way. It democratises the flow of information by offering access to the newspapers of the world, the photographers of every nation,
the bloggers of every political stripe. Some posts are full of doctoring and dishonesty whereas others strive for independence and impartiality -but all are available to us to sift through. Given the attempts by some governments to build firewalls, it’s clear that this benefit of the net
requires constant vigilance. Human capital is vastly increased Crowdsourcing brings people together to solve problems. Yet far fewer than one
per cent of the world’s population is involved. We
need expand human capital. Most of the world not have access to
the education afforded a small minority. For every Albert Einstein, Yo-Yo Ma or Barack Obama who has
educational opportunities, uncountable others do not. This squandering of talent translates into
reduced economic output and a smaller pool of problem solvers. The net opens the gates education to anyone with a
computer. A motivated teen anywhere on the planet can walk through the world’s knowledge -- from the webs of Wikipedia to the curriculum
of MIT’s OpenCourseWare. The
new human capital will serve us well when we confront existential threats
we’ve never imagined before. Energy expenditure is reduced Societal collapse can often be understood in terms of an energy
budget: when energy spend outweighs energy return, collapse ensues. This has taken the form of deforestation or soil erosion; currently, the
worry involves fossil-fuel depletion. The internet addresses the energy problem with a natural ease. Consider the massive energy savings
inherent in the shift from paper to electrons -- as seen in the transition from the post to email. Ecommerce reduces the need to drive long
distances to purchase products. Delivery trucks are more eco-friendly than individuals driving around, not least because of tight packaging and
optimisation algorithms for driving routes. Of course, there are energy costs to the banks of computers that underpin the internet -- but these
costs are less than the wood, coal and oil that would be expended for the same quantity of information flow. The tangle of events that triggers
societal collapse can be complex, and there are several threats the net does not address. But vast,
networked communication can
be an antidote to several of the most deadly diseases threatening civilisation. The next time your coworker
laments internet addiction, the banality of tweeting or the decline of face-to-face conversation, you may want to suggest that the net may just
be the technology that saves us.
Impacts: Judicial Independence
(--) Strong legitimacy is key to judicial independence:
Tom S. Clark, 2011 (The Limits of Judicial Independence, pg. 7, accessed via google books, 7/10/2015,
rwg)
The intent of the current project is to examine the conditions under which one should expect to see
protections of judicial independence break down. I show that waning public support for the Court
manifests itself in the form of institutional signals from the elected branches of government—
specifically, Congress—to the Court about the Court’s standing with the public. Because the Court relies on public
support in order to be an efficacious policy maker, upon observing signals of waning public support,
the Court is more likely to lose judicial independence and make a decision constrained by the preferences of the elected
majority.
Impacts: Manufacturing Scenario
A) A ruling for Spokeo is necessary for a healthy manufacturing sector:
National Law Review, 5/31/2015 (“No Injury? No Problem. - Spokeo v. Robins,”
http://www.natlawreview.com/article/no-injury-no-problem-spokeo-v-robins, Accessed 6/26/2015,
rwg)
The Supreme Court recently granted certiorari in Spokeo v. Robins, a case that has the potential to redefine standing in
federal court. The Ninth Circuit’s February 2014 decision permitted plaintiff Thomas Robins to establish standing under the Fair Credit
Reporting Act (“FCRA”) with nothing more than a speculative injury. This contravenes Supreme Court precedent, which finds standing when a
plaintiff suffers a harm that is actual, distinct, palpable, and concrete; attenuated and hypothetical injuries do not constitute an injury-in-fact.
The implications of the Ninth Circuit’s holding in Spokeo v. Robins has grabbed the attention of companies
in nearly every industry. Their concern, as expressed by the U.S. Chamber of Commerce – granting standing to
plaintiffs who have not suffered an injury-in-fact will open the flood gates to no-injury class actions
brought under statutes that authorize a private right of action. But, in truth, the implications to businesses could extend
beyond this. Robins initiated a putative class action against Spokeo for violating the FCRA. Spokeo aggregates data from phone books,
social networks, marketing surveys, real estate listings, business websites, and other sources into an online database. The FCRA regulates
consumer information – including consumer credit information – that is collected, disseminated, and used in consumer reports. Spokeo
allegedly posted false information about Robins’ wealth, education, and marital status. Robins claims that these misrepresentations will
negatively affect his credit, insurance and employment prospects. While the Ninth Circuit found that Robins had not suffered actual damages, it
ultimately held that the statutory FCRA violation satisfied Article III’s injury-in-fact requirement. The Supreme Court has granted cert to
determine “[w]hether Congress can create Article III standing by authorizing a remedy for a bare statutory violation.” The FCRA engenders
dozens of federal class actions each year. That number has jumped since the Ninth Circuit’s decision — 29 FCRA class actions were filed in the
first four months of 2014. Many federal statutes authorize a private right of action. For example, internet firms interact with millions of
individuals and are subject to numerous federal statutes with private rights of action. Facebook, eBay, Google, and Yahoo! expressed concern in
their amicus brief that, under the Ninth Circuit’s holding, if any of these users was “willing (or enticed by a plaintiff’s attorney) to allege that a
generalized practice or act violated a law providing a private cause of action and statutory damages, then she could launch a putative class
action on behalf of herself and millions of other ‘similarly situated’ users . . . [and] pursue a multi-billion dollar statutory damages claim despite
What do no-injury class actions mean for manufacturers? It could mean lawsuits based
on “defective products” that allegedly violate a state or federal statute but have not caused any harm.
the lack of injury . . . .”
For example, the food and beverage and cosmetic industries are often accused of misleading consumers through false advertising, labeling, and
packaging. ConAgra was sued under the Magnuson-Moss Warranty Act and state consumer protection laws for advertising its cooking oils,
which were made from GMOs, were 100% natural. And Maybelline was sued under state consumer fraud and consumer protection acts
because its “Super Stay” lipstick allegedly didn’t stay on the advertised 10-14 hours. Under Robins, plaintiffs in these no-injury, statutory-based
class actions would not need to establish that they were physically injured to survive a standing challenge. Will creative plaintiff lawyers be able
to craft an argument that extends the no-injury standing rule in Robins to non-statutory violations?
B) Strong manufacturing sector key to hegemony:
Alliance for American Manufacturing, 5/7/2013 (“Report Says U.S. Military Dangerously Dependent on Foreign
Suppliers,” http://www.americanmanufacturing.org/blog/entry/report-says-u.s.-military-dangerously-dependent-on-foreign-suppliers,
Accessed 6/26/2015, rwg)
New Report Calls for Stronger U.S. Manufacturing Sector to Protect National Security Urgent action is
needed to reduce the U.S. military’s dangerous dependence on foreign suppliers for the raw materials, parts, and
finished products needed to defend America, according to a new study prepared by Brigadier General John Adams (U.S. Army, Retired). Remaking American
Security: Supply Chain Vulnerabilities & National Security Risks Across the U.S. Defense Industrial Base was authored by Guardian Six Consulting President Brigadier
General John Adams and released today at a Capitol Hill event led by Sen. Chris Murphy (D-Conn.), Rep. Mo Brooks (R-Ala.), and Rep. Tim Ryan (D-Ohio). (Watch
videos from the event.) The
report finds that U.S. national security and the health of the nation’s defense
industrial base are in jeopardy because of an over-reliance on foreign suppliers for critical defense
materials. Foreign sourcing puts America’s military readiness in the hands of potentially unreliable supplier nations and undermines the ability to develop
capabilities needed to win on future battlefields. The report calls for action to increase domestic production of the natural resources and manufactured goods
necessary to equip our military. “America’s
vulnerability today is frightening,” said General Adams. “This report is a wake-up call for
and unwise
America to pay attention to the growing threat posed by the steady deterioration of our defense industrial base. Excessive
outsourcing of American manufacturing to other nations weakens America’s military capability . As a soldier,
I’ve witnessed firsthand the importance of our nation’s ability to rapidly produce and field a sophisticated array of capabilities. There is a real risk that supply chain
vulnerabilities will hamper our response to future threats.”
C) US leadership is essential to prevent global nuclear exchange.
Zalmay Khalilzad, 1995 RAND, The Washington Quarterly, Spring 1995
Under the third option, the United States would seek to retain global leadership and to preclude the rise of a global rival or a return to
multipolarity for the indefinite future. On balance, this is the best long-term guiding principle and vision. Such a vision is desirable not
as an end in itself, but because a
world in which the United States exercises leadership would have
tremendous advantages. First, the global environment would be more open and more receptive to American values -democracy, free markets, and the rule of law. Second, such a world would have a better chance of dealing
cooperatively with the world's major problems, such as nuclear proliferation, threats of regional hegemony
by renegade states, and low-level conflicts. Finally, U.S. leadership would help preclude the rise of
another hostile global rival, enabling the United States and the world to avoid another global cold or hot
war and all the attendant dangers, including a global nuclear exchange. U.S. leadership would therefore be
more conducive to global stability than a bipolar or a multipolar balance of power system.
Impacts: Manufacturing Key to Economy
(--) Manufacturing sector independently key to economic health
Adrienne Selko – 2012 (Senior Editor; Industry Week, “What Makes a Manufacturing Company Competitive? Labor Productivity,”
8/6/2014, http://www.industryweek.com/labor-employment-policy/what-makes-manufacturing-company-competitive-laborproductivity?page=2, Accessed 9/12/2014, WSH)
With manufacturing cited (70%) as the single most important industry for a country’s economic health,
a recent survey asked global manufacturers which factors are necessary for achieving success in the
segment.¶ ¶ Manufacturers in Australia, Brazil, Canada, China, France, Germany, India, Mexico, Spain, the
U.K., and U.S. ranked labor productivity (74%) at the top.¶ ¶ The study, by Kronos Incorporated and conducted by IDC
Manufacturing Insights, reported that while emerging nations rated the need for modern infrastructure higher than mature economies, labor
productivity still topped as the main driver of success among all countries. ¶ ¶ Brazil, Mexico, and Spain scored the
highest regarding labor productivity, with 82% in all three countries noting it to be very or extremely important. China, France, India, and
Germany scored relatively low, with 66%, 66%, 68% and 68%.¶ ¶ “Manufacturers today are judged on A world stage and their TREATMENT of
labor is under the scrutiny of governments, downstream supply chain partners, and end consumers,” explained Gregg Gordon, senior director,
manufacturing practice group, Kronos and author of Lean Labor.¶ ¶ “With
developed countries facing high levels of unemployment and falling wages, emerging nations can no longer rely on low cost labor as A growth
strategy," he added. "They will need to develop a skilled, productive workforce to compete globally. Also,
as manufacturers seek growth internationally, they are required to invest in economic development by foreign governments; specifically good
paying, local jobs. With
increased global scrutiny, competition, and supply chain complexities, the workforce
is becoming a competitive differentiator for manufacturers everywhere.”
(--) U.S. economic failure risks multiple scenarios for nuclear war
Khalilzad ’11 Zalmay was the United States ambassador to Afghanistan, Iraq, and the United Nations during the presidency of George
W. Bush and the director of policy planning at the Defense Department from 1990 to 1992, “ The Economy and National Security”, 2-8-11,
http://www.nationalreview.com/articles/print/259024, MCR
threat to the United States’ position as global leader.
While the United States suffers from fiscal imbalances and low economic growth, the economies of rival powers are developing rapidly. The continuation of these two trends
could lead to a shift from American primacy toward a multi-polar global system, leading in turn to
increased geopolitical rivalry and even war among the great powers . The current recession is the result of a deep
Today,
economic and fiscal trends pose the most severe
long-term
financial crisis, not a mere fluctuation in the business cycle. Recovery is likely to be protracted. The crisis was preceded by the buildup over two
decades of enormous amounts of debt throughout the U.S. economy — ultimately totaling almost 350 percent of GDP — and the development
of credit-fueled asset bubbles, particularly in the housing sector. When the bubbles burst, huge amounts of wealth were destroyed, and
unemployment rose to over 10 percent. The decline of tax revenues and massive countercyclical spending put the U.S. government on an
unsustainable fiscal path. Publicly held national debt rose from 38 to over 60 percent of GDP in three years. Without faster economic growth
and actions to reduce deficits, publicly held national debt is projected to reach dangerous proportions. If interest rates were to rise significantly,
annual interest payments — which already are larger than the defense budget — would crowd out other spending or require substantial tax
increases that would undercut economic growth. Even worse, if unanticipated events trigger what economists call a “sudden stop” in credit
markets for U.S. debt, the United States would be unable to roll over its outstanding obligations, precipitating a sovereign-debt crisis that would
almost certainly compel a
radical retrenchment of the United States internationally. Such scenarios would reshape
the international order . It was the economic devastation of Britain and France during World War II, as well as the rise of other
powers, that led both countries to relinquish their empires. In the late 1960s, British leaders concluded that they lacked the economic capacity to maintain a
presence “east of Suez.” Soviet economic weakness, which crystallized under Gorbachev, contributed to their decisions to withdraw from Afghanistan, abandon Communist regimes in Eastern
the United States would be compelled to retrench , reducing
its military spending and shedding international commitments. We face this domestic challenge while other major powers
Europe, and allow the Soviet Union to fragment. If the U.S. debt problem goes critical,
are experiencing rapid economic growth. Even though countries such as China, India, and Brazil have profound political, social, demographic,
and economic problems, their economies are growing faster than ours, and this could alter the global distribution of power. These trends could
in the long term produce a multi-polar world. If U.S. policymakers fail to act and other powers continue to grow, it is not a question of whether
but when a new international order will emerge. The
closing of the gap between the United States and its rivals could
intensify geopolitical competition among major powers, increase incentives for local powers to play
major powers against one another, and undercut our will to preclude or respond to international crises
because of the higher risk of escalation . The stakes are high. In modern history, the longest period of peace
among the great powers has been the era of U.S. leadership. By contrast, multi-polar systems have been unstable, with
their competitive dynamics resulting in frequent crises and major wars among the great powers. Failures of multi-polar
international systems produced both world wars . American retrenchment could have devastating
consequences . Without an American security blanket, regional powers could rearm in an attempt to
balance against emerging threats. Under this scenario, there would be a heightened possibility of arms races ,
miscalc ulation, or other crises spiraling into all-out conflict . Alternatively, in seeking to accommodate the
stronger powers, weaker powers may shift their geopolitical posture away from the United States. Either way,
hostile states would be emboldened to make aggressive moves in their regions
Impacts: Manufacturing Key to Readiness
(--) Domestic steel manufacturing key to overall hegemony
AISI et al. 7- (*American Iron and Steel Institute, **Specialty Steel Industry of North America, ***Steel
Manufacturers Association, ****Steel Manufacturer’s Association, *****United Steel Workers, “Steel
and the National Defense”,
http://www.ssina.com/news/releases/pdf_releases/steel_and_national_defense_0107.pdf)//WK
This analysis presented by the U.S. steel industry addresses the importance of domestically-produced steel to our nation’s
overall national defense objectives and the increased need for steel to bolster our economic and military
security. The President and other U.S. government leaders have recognized repeatedly the critical interdependence of steel and national security. The American
steel industry and the thousands of skilled men and women who comprise its workforce produce high quality, cost-competitive steel products for military use in
applications ranging
from aircraft carriers and nuclear submarines to Patriot and Stinger missiles, armor plate for
tanks and field artillery pieces, as well as every major military aircraft in production today. These critical applications require consistent, high quality on-shore
supply sources. While leading-edge defense applications represent only a small portion of overall domestic sales of steel products, defense-related materials are
produced on the same equipment, using some of the same technology, and are developed by the same engineers who support the larger commercial businesses of
steel companies in the U.S. Thus, the companies are not typical defense contractors who derive the majority of their sales and profits from their defense business. It
is the overall financial health of U.S. steel producers, and not simply the profitability of their defense business, that is essential to their ability to be reliable defense
suppliers. The domestic steel industry also believes that, over an extended period of time, the United States could lose much of its steel-related manufacturing base
if U.S. steel consumers continue to move production offshore due to market-distorting foreign government incentives and due to unsound economic policies at
home. If we continue to lose our manufacturing base due to market-distorting foreign competition or U.S. economic policies that are hostile to domestic investment
and U.S.-based manufacturing, it could become impossible to produce here; the U.S. military would lose its principal source of strategic metals; and we as a nation
would become dangerously dependent upon unreliable foreign sources of supply. The U.S. steel industry, consisting of all carbon and alloy steel producers and
specialty metal producers, employs more than 160,000 highly skilled workers who produce over $60 billion of high quality steel and high-technology specialty alloy
products annually. The industry includes state-of-the-art, large and small electric arc furnace producers (or “mini mills”) that make steel from recycled scrap, and
highly efficient large “integrated” steel producers who make steel from virgin materials and recycled steel. Steel is produced in many forms, including flat-rolled and
long products, carbon pipe and tube products, wire and other fabricated products. Carbon and alloy steel is used in all major end-use markets, including
construction, automotive, machinery, appliance and containers. Specialty steels are high technology, high value materials, produced by small and medium-sized
companies. These specialty metals are used in extreme environments that demand exceptional hardness, toughness, strength and resistance to heat, corrosion and
abrasion, such as in the aerospace and chemical processing industries. All segments of the domestic steel industry contribute directly or indirectly to the defense
industrial base. The U.S. carbon/alloy and specialty steel industries are vital partners to American defense contractors and to the DOD. Domestic and specialty
metals are found in virtually every military platform. Whether it is missiles, jet aircraft, submarines, helicopters, Humvees® or munitions, American-made
steels and specialty metals are crucial components of U.S. military strength. A few examples follow: 1. The Joint Strike fighter F135
engine, the gears, bearings, and the body itself, will use high performance specialty steels and superalloys produced by U.S. specialty steel companies. 2. Land based
vehicles such as the Bradley Fighting Vehicle, Abrams Tank, and the family of Light Armored Vehicles use significant tonnage of steel plate per vehicle. 3. Steel plate
is used in the bodies and propulsion systems of the naval fleet. 4. The control cables on virtually all military aircraft, including fighter jets and military transport
planes, are produced from steel wire rope. Numerous additional examples illustrating how steel and specialty metals directly support the U.S. defense industrial
base are provided in Appendices 1 and 2. These materials are an integral part of many diversified military applications and, as such, are in a continuing state of
technological development. Steel’s importance to the military must also be looked at in a broader context to include both direct and indirect steel shipments to the
military infrastructure that are needed to support our defense efforts, both at home and overseas -- e.g. , all of the steel that goes into the rails, rail cars, ground
vehicles, tanks, ships, military barracks, fences and bases, which are not classified as shipments to ordinance, aircraft, shipbuilding or other military uses. The
September 11 attacks on the United States made it clear that (1) steel will be needed to “harden” existing U.S. infrastructure and installations and (2) a strong and
viable domestic steel industry will be needed to provide immediate steel deliveries when and where required. Consider
the potential difficulties
the U.S. would face in defending, maintaining and rebuilding infrastructure in an environment where our nation is largely
dependent upon foreign steel. By becoming even more dangerously dependent upon offshore sources of steel, the United States
would experience sharply reduced security preparedness in the face of: • Highly variable, and certainly higher, costs; • Uncertain supply,
impacted by unsettled foreign economies and politics; • Quality, design and performance problems; • Inventory problems, long lead times and extended
construction schedules.
(--) Military readiness prevents great power war
Spencer, 2000 – Research Fellow at Thomas A. Roe Institute for Economic Policy Studies (Jack, “The Facts About Military Readiness”,
Heritage Foundation, 9/15/00, http://www.heritage.org/Research/Reports/2000/09/BG1394-The-Facts-About-Military-Readiness)
America's national security requirements dictate that the armed forces must be prepared to defeat groups of adversaries in a given war.
America, as the sole remaining superpower, has many enemies. Because attacking America or its interests alone would surely end in defeat for a single nation,
these enemies are likely to form alliances. Therefore, basing readiness on American military superiority over any single nation has little saliency.
The evidence indicates that the U.S. armed forces are not ready to support America's national security requirements. Moreover, regarding the broader capability to defeat groups of enemies,
military readiness has been
declinin
g. The National Security Strategy, the U.S. official statement of national security objectives, 3 concludes that the United States "must have the capability to deter and, if deterrence fails, defeat large-scale, cross-border aggression in two distant theaters in overlapping
time frames."4According to some of the military's highest-ranking officials, however, the United States cannot achieve this goal. Commandant of the Marine Corps General James Jones, former Chief of Naval Operations Admiral Jay Johnson, and Air Force Chief of Staff General Michael
Ryan have all expressed serious concerns about their respective services' ability to carry out a two major theater war strategy.5 Recently retired Generals Anthony Zinni of the U.S. Marine Corps and George Joulwan of the U.S. Army have even questioned America's ability to conduct one
Military readiness is vital because declines in America's military readiness signal to the
rest of the world that the United States is not prepared to defend its interests
potentially hostile
nations will be more likely to lash out against American allies and interests, inevitably leading to U.S.
involvement in combat. A high state of military readiness is more likely to deter potentially hostile
nations from acting aggressively in regions of vital national interest, thereby preserving peace.
major theater war the size of the 1991 Gulf War.6
. Therefore,
Impacts: Military Readiness
(--) Tech key to military readiness:
Harrison Donnelly, 5/26/2015 (staff writer, “Training Technology for Readiness,”
http://www.kmimediagroup.com/mtt/articles/440-articles-mtt/training-technology-for-readiness,
Accessed 7/10/2015, rwg)
The United States faces a looming crisis of military readiness, and new training technologies could play a
key role in the remedy , according to panelists at a recent government/industry event focused on the nation’s
preparedness for future conflicts.
(--) Readiness is weakening now—tech is key to solve the problem:
Harrison Donnelly, 5/26/2015 (staff writer, “Training Technology for Readiness,”
http://www.kmimediagroup.com/mtt/articles/440-articles-mtt/training-technology-for-readiness,
Accessed 7/10/2015, rwg)
For participants in the daylong summit, concerns
about readiness status have grown both because of and in spite of the past
decade of conflict. Operations in Iraq and Afghanistan have created a large cadre of exceptionally skilled
military personnel but also left potential gaps in the future supply, particularly of those prepared for major state-tostate combat rather than counterinsurgency. To respond to those needs, members of the panel identified a variety
of “game-changing” technologies applicable to training, including social media, big data analytics, advanced metrics, digital
tutoring and the latest in neuroscience research.
Impacts: Separation of Powers
A) Limited standing requirements key to Separation of Powers:
DEBORAH J. LA FETRA, 5/29/2014 (Pacific Legal Foundation, Amicus Brief, Spokeo v. Robins,
http://blog.pacificlegal.org/wp/wp-content/uploads/2014/06/AC-Brief-final-5-29-14.pdf, Accessed
6/29/2015, rwg)
Article III standing requirements ensure that federal courts do not provide a vehicle for these types of abusive, non-injury class action lawsuits.
See Lujan , 504 U.S. at 559-77 (Article III standing doctrine includes a concrete injury requirement to prevent citizen bystanders from suing
about an alleged statutory violation that does not affect them perso nally and could be addressed by the political branches instead.). The
Constitution was designed to protec t the people from governmental overreach by curtailing the orbit of
all three branches. American Federation of Labor v. American Sash and Door Co. , 335 U.S. 538, 545 (1949) (“[T]he Government–the
organ of the whol e people–is restricted by the system of checks and balances established by our Constitution.”). Feder al courts must act
within the constraints of Article I II, resolving only the true cases and controversies presented to them. See Antonin Scalia, The Doctrine of
Standing as an Essential Element of the Separation of Powers , 17 Suffolk U. L. Rev. 881, 881 (1983) (The “judicial
doctrine of
standing is a crucial and inseparable element” of separation of powers principles required by the
structure and original intent of th e Constitution, “which successively describes where t he legislative, executive and judicial
powers, respect ively, shall reside.”). The decision of the court below, and several other circuits, significantly
weakens these constitutional constraints.
B) Flawed model of separation of powers causes global wars
Zakaria, 1997 editor of Newsweek International, ’97 (Fareed, Foreign Affairs, November, LN)¶
When divining the cause behind this correlation, one thing becomes clear: the democratic peace is¶ actually the liberal peace.
Writing in the eighteenth century, Kant believed that democracies were¶ tyrannical, and he specifically excluded them from his conception of
"republican" governments, which lived in a zone of peace. Republicanism,
for Kant, meant a separation of powers,
checks and balances, the rule of law, protection of individual rights, and some level of representation in
government (though nothing close to universal suffrage). Kant's other explanations for the "perpetual peace" between republics are all
closely linked to their constitutional and liberal character: a mutual respect for the rights of each other's citizens, a system of checks and
balances assuring that no single leader can drag his country into war, and classical liberal economic policies -- most importantly, free trade -which create an interdependence that makes war costly and cooperation useful. Michael Doyle, the leading scholar on the subject, confirms in
his 1997 book Ways of War and Peace that without constitutional liberalism, democracy itself has no peace-inducing qualities: Kant distrusted
unfettered, democratic majoritarianism, and his argument offers no support for a claim that all participatory polities -- democracies -- should be
peaceful, either in general or between fellow democracies. Many participatory polities have been non-liberal. For two thousand years before
the modern age, popular rule was widely associated with aggressiveness (by Thucydides) or imperial success (by Machiavelli) . . . The decisive
preference of [the] median voter might well include "ethnic cleansing" against other democratic polities. The distinction between liberal and
illiberal democracies sheds light on another striking statistical correlation. Political scientists Jack Snyder and Edward Mansfield contend, using
an impressive data set, that over the last 200 years democratizing states went to war significantly more often than either stable autocracies or
liberal democracies. In
countries not grounded in constitutional liberalism, the¶ rise of democracy often
brings with it hyper-nationalism and war-mongering. When the political¶ system is opened up, diverse groups with
incompatible interests gain access to power and press their¶ demands. Political and military leaders, who are often embattled remnants of the
old authoritarian¶ order, realize that to succeed that they must rally the masses behind a national cause. The
result is¶ invariably
aggressive rhetoric and policies, which often drag countries into confrontation and war.¶ Noteworthy
examples range from Napoleon III's France, Wilhelmine Germany, and Taisho Japan to¶ those in today's newspapers, like Armenia and
Azerbaijan and Milosevic's Serbia. The democratic¶ peace, it turns out, has little to do with democracy.¶
(--) Must reverse the Ninth Court’s decision to maintain Separation of Powers:
MARY MASSARON ROSS, 2014 (BRIEF OF DRI - THE VOICE OF THE DEFENSE BAR AS AMICUS CURIAE IN
SUPPORT OF PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wpcontent/uploads/2014/06/DRI-Brief-Spokeo-Inc.-v.-Thomas-Robins-SCt-13-1339.pdf)
Failure to address and reverse the Ninth Circuit’s decision will not only provide a vehicle for individuals with no actual
injury to seek and possibly obtain relief, it will also result in the increase of costly litigation against businesses and individuals that was not
intended by the Framers of the United States Constitution. Additionally, the Ninth Circuit’s decision to excuse plaintiffs from showing Article III
injury-in- fact undermines
class certification standards and thereby encourages forum shopping. DRI believes
the Legislature’s right to create a statutory cause of action while simultaneously requiring
a plaintiff to allege actual injury will safeguard the constitutionally-derived balance of powers between
and among the three branches of government, by maintaining the longstanding doctrine of standing, which is an
that preserving
indispensable element in our separation of powers.
(--) Standing doctrine key to separation of powers:
MARY MASSARON ROSS, 2014 (BRIEF OF DRI - THE VOICE OF THE DEFENSE BAR AS AMICUS CURIAE IN
SUPPORT OF PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wpcontent/uploads/2014/06/DRI-Brief-Spokeo-Inc.-v.-Thomas-Robins-SCt-13-1339.pdf)
The standing doctrine is a critical element of the separation-of-powers principle and the separation of powers is
a fundamental method of protecting liberty. DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 340-342 (2006). Under the doctrine of the
separation of powers , each branch of government has powers that belong to it and cannot be
transferred to another branch of government. The doctrine of standing recognizes and honors those
bounds. When a court encroaches on Article III’s standing requirement by permitting a suit to proceed based on a bare statutory violation –
even though the plaintiff does not have an actual in jury, on the theory that the statutory violation alone confers standing, it strips Article III of
its power. That is exactly what the Ninth Circuit did in this case when it held that standing is demonstrated whenever there is a “violation of a
statutory right[.]” 742 F.3d at 412. This holding not only undermines respect for the law, and particularly, our federal Constitution, it al so
renders it difficult for DRI’s members to adequately represent their clients’ interests. As a result of the Ninth Circuit’s decision, DRI’s members
are unable to predict with any accuracy the outcome of suits brought by uninjured plaintiffs under the FCRA and other similar no-harm statutes.
The current circuit split further exacerbates this problem.
(--) Ruling against Robins necessary for separation of powers doctrine:
FELICIA H. ELLSWORTH, 2014 (BRIEF FOR AMICI CURIAE EBAY INC., FACEBOOK, INC., GOOGLE INC.,
AND YAHOO! INC. IN SUPPORT OF PETITIONER, http://sblog.s3.amazonaws.com/wpcontent/uploads/2014/06/13-1339-Spokeo-Inc.-v.-Robins-Br.-for-Amici-eBay-Inc.-et-al.-Jun....pdf,
Accessed 6/29/2015, rwg)
When a statutory violation causes no actual harm, enforcement is properly left to the executive branch,
not to unharmed individual plaintiffs functioning as pri- vate attorneys general. This basic principle flows from the separation
of powers, which is the foundation for Article III’s standing requirement. Allen v. Wright , 468 U.S. 737, 752 (1984)
(“Art. III standing is built on a single basic idea—the idea of separation of powers.”); see also Lexmark Int’l, Inc. v. Static Control Compo- nents,
Inc. , 134 S. Ct. 1377, 1386 (2014) (standing doc- trine derives from “separation-of-powers principles”). The
“federal courts may
exercise power only ‘in the last resort, and as a necessity,’ and only when adjudication is ‘consistent
with a system of separated powers and [the dispute is one] traditionally thought to be capable of
resolution through the judicial process.’” Allen , 468 U.S. at 752 (citation omitted); Steel Co. v. Citizens for a Better Env’t , 523
U.S. 83, 102 (1998) (standing doctrine ensures that federal courts adjudicate only disputes “traditionally amenable to, and resolved by, the
judicial process”). Thus,
only plaintiffs who can demonstrate actual harm sufficient to meet the Article III
standing requirement may invoke the jurisdiction of the federal courts.
(--) Limits on standing key to Separation of Powers:
STEPHEN J. NEWMAN, 2014 (BRIEF OF TRANS UNION LLC AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/131339acTransUnionLLC-Ok-to-Print.pdf, Accessed 6/29/2015, rwg)
In the present litigation (like in so many others) a private attorney is simply seeking to collect a bounty, not to
improve the consumer reporting system. As a practical matter, no-injury statutory damages cases impose overshadowing regulation
independent of any “rational, overall agenda” for achieving an appropriate balance between innovation and con- sumer protection. See S
TEPHEN B REYER , B REAKING THE V ICIOUS C YCLE : T OWARD E FFECTIVE R ISK R EGULATION 20 (Harvard University Press 1993).
Recognizing an Article III limit on such litigation is therefore essential to “prevent the judicial process
from being used to usurp the powers of the political branches,” which include assessing new technologies and their
social implication s, and (when necessary) taking appropriate, measured enforcement actions on behalf of the general public. See Clapper v.
Amnesty Int’l USA , 568 U.S. __, 133 S. Ct. 1138, 1146 (2013).
(--) Injury in fact requirement necessary for Separation of Powers:
STEPHEN J. NEWMAN, 2014 (BRIEF OF TRANS UNION LLC AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/131339acTransUnionLLC-Ok-to-Print.pdf, Accessed 6/29/2015, rwg)
Article III’s injury-in-fact requirement “is founded in concern about the proper—and properly limited —
role of the courts in a democratic society .” Summers v. Earth Island Inst. , 555 U.S. 488, 492-93 (2009) (quoting Warth v. Seldin ,
422 U.S. 490, 498 (1975)). Congress may not “transfer from the President to the courts the Chief Executive’s
most important constitutional duty, to ‘take Care that the Laws be faithfully executed. . . .’” Lujan v. Defenders
of Wildlife , 504 U.S. 555, 577 (1992) (quoting U.S. Const. art. II, § 3). Congress, of course, has the power to legislate a private remedy for an
actual harm, assuming Congress is otherwise acting within the scope of its Constitutional powers. See Lujan , 504 U.S. at 578. But Article III is
offended when Congress attempts to grant judicial recourse to those who have not suffered any injury in fact. Wallace v. ConAgra Foods, Inc. ,
747 F.3d 1025, 1030 (8th Cir. 2014). This principle applies in bo th individual and class cases. See Simon v. E. Kentucky Welfare Rights Org.426
U.S. 26, 40 (1976). The procedural device of a class action may not be used to enlarge, abridge or modify any substantive right, and Congress
disclaims any intent to do so. See 28 U.S.C. § 2072(b); Wal-Mart Stores, Inc. v. Dukes , 564 U.S. __, 131 S. Ct. 2541, 2561 (2011). Thus, in a class
case, the plaintiff must “demonstrate that the class members ‘have suffered the same injury,’ . . . . This does not mean merely that they have all
suffered a viola tion of the same provision of law.” Wal-Mart , 131 S. Ct. at 2551 (quoting Gen. Tel. Co. of Southwest v. Falcon , 457 U.S. 147,
157 (1982)). A class action based solely on injury in law, but with no rigorous analysis of whether the proposed class representative or any
members of the proposed class suffered injury in fact (and if so, which ones), is anathema to these principles.
(--) Ninth Circuit decision undermines Separation of Powers:
STEPHEN J. NEWMAN, 2014 (BRIEF OF TRANS UNION LLC AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/131339acTransUnionLLC-Ok-to-Print.pdf, Accessed 6/29/2015, rwg)
This Court has long recognized that just as Article III protects the courts from infringements on their
Constitutional powers, Article III also prohibits Congress from expanding the judicial power beyond its
Constitutional limits. See Marbury v. Madison , 5 U.S. (1 Cranch.) 137, 176-77 (1803). By allowing standing for pure injury
in law, with no corresponding injury in fact, the Ninth Circuit has improperly expanded the court
system’s “constitutionally limited r ole of adjudicating actual and concrete disputes, the resolutions of which
have direct consequences on the parties involved.” See Genesis Healthcare Corp. v. Symczyk , 569 U.S. __, 133 S. Ct. 1523, 1528 (2013).
(--) Ninth Circuit decision undermines the core of Separation of Powers:
STEPHEN J. NEWMAN, 2014 (BRIEF OF TRANS UNION LLC AS AMICUS CURIAE IN SUPPORT OF
PETITIONER, Spokeo v. Robins, http://sblog.s3.amazonaws.com/wp-content/uploads/2014/06/131339acTransUnionLLC-Ok-to-Print.pdf, Accessed 6/29/2015, rwg)
“ No
principle is more fundamental to the judiciary’s proper role in our system of government than the
constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon , 426 U.S. at 37.
“One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so.”
Hollingworth , 133 S. Ct. at 2660. “The
constitutional requirements for federal-court jurisdiction—including the
standing requirements and Article III—‘are an essential ingredient of separation and equilibrium of
powers.’” Hein v. Freedom From Religion Found. , 551 U.S. 587, 611 (2007) (quoting Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 101
(1998)). The Ninth Circuit’s opinion improperly departs from the above principles. Articl e III does not authorize a
court to hear a dispute br ought by a plaintiff who suffered no injury in fact, and Congress may not 15 through legislation allow what the
Constitution prohibits. Certiorari should be granted so that this Court may explain how these limits should be defined and applied.
Congress Counterplan
Congress Counterplan
The United States Congress should ____________________________________ [insert
plan text].
(--) Congress solves better than the courts—have a significant institutional advantage
in regulating new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
In this part, I will argue that such enthusiasm for judicial solutions overlooks significant institutional limitations of judicial rulemaking. Courts
tend to be poorly suited to generate effective rules regulating criminal investigations involving new
technologies . In contrast, legislatures possess a significant institutional advantage in this area over
courts. While courts have successfully created rules that establish important privacy rights in many
areas, it is difficult for judges to fashion lasting guidance when technologies are new and rapidly
changing. The context of judicial decisionmaking often leaves the law surprisingly unclear. Courts lack
the institutional capacity to easily grasp the privacy implications of new technologies they encounter.
Judges cannot readily understand how the technologies may develop, cannot easily appreciate context, and often cannot even recognize
[*859] whether the facts of the case before them raise privacy implications that happen to be typical or atypical. Judicially
created
rules also lack necessary flexibility ; they cannot change quickly and cannot test various regulatory
approaches. As a result, judicially created rules regulating government investigations tend to become quickly
outdated or uncertain as technology changes. The context of legislative rule-creation offers significantly
better prospects for the generation of balanced, nuanced, and effective investigative rules involving new
technologies. In light of these institutional realities, courts should proceed cautiously and with humility, allowing some room for political
judgment and maneuvering in a setting that is in such flux. n345
Congress Counterplan—Theory—Agent CP’s Good
1) Agent counterplans are good:
A) Tests the Supreme Court in the plan text
B) Key to Separation of Powers debates—helps us understand which agency
should take action
C) Predictable: core area of 4th amendment law is to determine Congress vs. the
Courts—Kerr evidence specifically compares the two.
D) Solvency advocate checks abuse—we read specific solvency evidence.
E) Tests the opportunity cost of action by the Supreme Court.
F) AFF speaks first & last and gets infinite prep time—Neg should get the agent
counterplan to get back in the game.
G) Specific evidence warrants the comparison in 4th Amendment law:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
The first difference is that legislatures
typically create generally applicable rules ex ante, n397 while courts tend
to create rules ex post in a case-by-case fashion. n398 That is, legislatures enact generalized rules for the
future, whereas courts resolve disputes settling the rights of parties arising from a past event. n399 The
difference leads to Fourth Amendment rules that tend to lag behind parallel statutory rules and current
technologies by at least a decade, resulting in unsettled and then outdated rules that often make little
sense given current technological facts.
Congress CP Solvency—Congress Can Interpret Constitution
(--) Nothing prevents other branches from interpreting the Constitution
Richard H. Fallon, 2005 Jr., Professor of Constitutional Law, Harvard Law School, April 2005
[“Legitimacy and the Constitution,” http://web.lexisnexis.com/universe/document?_m=be00e4b6d189ddb647d9365044a5571c&_docnum=1&wch
p=dGLbVzb-zSkVb&_md5=7105aae1669b5f945e6a9318b42fc69d]
Among the complications in gauging the authoritative legitimacy of Supreme Court rulings is the
possibility of change across time. In an important book, Larry Kramer has argued that many among the
Constitution's founding generation subscribed to a "departmental" theory under which Congress, the
President, and even the states would act according to their own interpretation of the Constitution,
sometimes in disagreement with the Supreme Court. In cases of persistent inter-branch dispute, the departmentalists
expected ultimate resolution by "the people themselves," presumably through political action. As Kramer documents, the
departmental theory gradually lost currency, but a similar approach could imaginably take root again.
Such a development would not require the Supreme Court to revise its claims about the legal authority
of its decisions. The authoritative sociological legitimacy of judicial rulings is ultimately a matter of fact, capable of either evolutionary or
revolutionary change regardless of the Court's pronouncements.
CONGRESS COUNTERPLAN NET BENEFIT—SEPARATION OF POWERS
A) Failure of other branches to play a proper role in interpreting the Constitution
undermines Separation of Powers:
Robert J. Kaczorowski, 2005 Professor of Law at Fordham University School of Law, March
2005. [The Fordham Law Review, “Theories of taking the Constitution seriously outside the
courts: popular Constitutionalism versus justice in plain clothes: reflections from history,”
p.lexis]
A majority of the American public today believes that the Supreme Court should have the final authority
to interpret the Constitution. In light of history, Kramer argues, the current acceptance of judicial
supremacy "is exceedingly anomalous." The practice of judicial supremacy takes control over
fundamental law away from the people and turns it over to "a judicial oligarchy." Consequently, Kramer
contends that advocates of judicial supremacy are anti-democratic who believe "that popular politics is by nature dangerous and arbitrary; that
"tyranny of the majority' is a pervasive threat; that a democratic constitutional order is therefore precarious and highly vulnerable; and that
Kramer sees the current debate regarding judicial
supremacy as the same debate over the question of how to control an excess of democracy or popular
rule that arose at the founding and again during the middle of the nineteenth century. It is a debate
between democracy and aristocracy, and aristocracy is currently winning.
substantial checks on politics are necessary lest things fall apart."
B) Flawed model of separation of powers causes global wars
Zakaria, 1997 editor of Newsweek International, ’97 (Fareed, Foreign Affairs, November, LN)¶
When divining the cause behind this correlation, one thing becomes clear: the democratic peace is¶ actually the liberal peace.
Writing in the eighteenth century, Kant believed that democracies were¶ tyrannical, and he specifically excluded them from his conception of
"republican" governments, which lived in a zone of peace. Republicanism,
for Kant, meant a separation of powers,
checks and balances, the rule of law, protection of individual rights, and some level of representation in
government (though nothing close to universal suffrage). Kant's other explanations for the "perpetual peace" between republics are all
closely linked to their constitutional and liberal character: a mutual respect for the rights of each other's citizens, a system of checks and
balances assuring that no single leader can drag his country into war, and classical liberal economic policies -- most importantly, free trade -which create an interdependence that makes war costly and cooperation useful. Michael Doyle, the leading scholar on the subject, confirms in
his 1997 book Ways of War and Peace that without constitutional liberalism, democracy itself has no peace-inducing qualities: Kant distrusted
unfettered, democratic majoritarianism, and his argument offers no support for a claim that all participatory polities -- democracies -- should be
peaceful, either in general or between fellow democracies. Many participatory polities have been non-liberal. For two thousand years before
the modern age, popular rule was widely associated with aggressiveness (by Thucydides) or imperial success (by Machiavelli) . . . The decisive
preference of [the] median voter might well include "ethnic cleansing" against other democratic polities. The distinction between liberal and
illiberal democracies sheds light on another striking statistical correlation. Political scientists Jack Snyder and Edward Mansfield contend, using
an impressive data set, that over the last 200 years democratizing states went to war significantly more often than either stable autocracies or
liberal democracies. In
countries not grounded in constitutional liberalism, the¶ rise of democracy often
brings with it hyper-nationalism and war-mongering. When the political¶ system is opened up, diverse groups with
incompatible interests gain access to power and press their¶ demands. Political and military leaders, who are often embattled remnants of the
old authoritarian¶ order, realize that to succeed that they must rally the masses behind a national cause. The
result is¶ invariably
aggressive rhetoric and policies, which often drag countries into confrontation and war.¶ Noteworthy
examples range from Napoleon III's France, Wilhelmine Germany, and Taisho Japan to¶ those in today's newspapers, like Armenia and
Azerbaijan and Milosevic's Serbia. The democratic¶ peace, it turns out, has little to do with democracy.¶
Congress CP—AT: Perm
(--) Perm links to the court disads—counterplan alone does not.
(--) Congressional actions have stronger legitimacy than Court actions:
Araiza, 2005 Professor of Law @ Loyola Law School, 2005 (William, Tulane Law Review,
February 2005, 79 Tul. L. Rev. 519; Lexis)
These concerns about overreaching and line-drawing are much less salient for a legislature. As a political
institution with a constantly renewed democratic mandate, Congress is less susceptible to the charge of
imperialism. n174 The idea of self-limitation is at least formally inapplicable to the body that represents
the people, and whose powers, within its proper sphere, are understood to be plenary. Congress's
democratic legitimacy also spares it from the requirement that it use legal reasoning to justify the lines
it draws.
Congress CP Net Benefit—Democracy
(--) Judicial restraint in the area of new technologies bolsters democracy:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Justice Stephen Breyer
has also recognized the difficulties of judicial creation of privacy rules in new
technologies in his recent extra-judicial writing. n456 The problem of privacy in new technologies "is
unusually complex," n457 Justice Breyer noted, involving changing public perceptions, changing laws, and changing technologies.
"These circumstances mean that efforts to revise privacy law to take account of the new technology will
involve ... the balancing of values in light of predictions about the technological future." n458 Courts
should not preempt this process through broad constitutional rulemaking, Breyer reasoned. While courts
have a role to play, that role should be modest, allowing the " participatory democratic process " n459 to
work through issues first. This approach echoes the caution of Justice Breyer's opinion in a First Amendment case, Denver Area
Educational Telecommunications Consortium, Inc. v. FCC. n460 Justice Breyer voted to uphold rules permitting cable system operators to
prohibit "patently offensive" indecent programming transmitted over leased access channels. n461Although the parties framed the issue as a
choice of how to analogize cable systems, Justice Breyer upheld the statute on a narrower ground that avoided reliance on a definitive analogy:
Congress CP Solvency—Electronic Surveillance
(--) Congress key to regulate electronic surveillance:
Timothy Casey, 2008 (Associate Professor of Law, Case Western Reserve University School of Law,
“RIGHTS AND REMEDIES: Electronic Surveillance and the Right To Be Secure,” UC Davis Law Review,
Lexis/Nexis, Accessed 6/25/2015, rwg)
n152. One commentator
has suggested that the legislature, and not the courts, are properly situated to
regulate electronic surveillance. Orin Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for
Caution, 102 Mich. L. Rev. 801, 804-06 (2004) ("Courts should place a thumb on the scale in favor of judicial caution
when technology is in flux, and should consider allowing legislatures to provide the primary rules
governing law enforcement investigations involving new technologies.").
Congress Counterplan: Congress Solves Better
(--) Courts lack the institutional competence in areas of changing technology to solve
as well as Congress:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Part III challenges the functional premise of the popular vision. It argues that regulating developing technology through the Fourth Amendment
poses significant difficulties for courts. The context of judicial decisionmaking presents few opportunities to clarify the law. Judicial decisions
tend to incorporate outdated assumptions of technological practice, leading to rules that make little sense in the present or future. Courts
also lack the information needed to understand how the specific technologies in cases before them fit
into the broader spectrum of changing technologies, and cannot update rules quickly as technology
shifts. Legislatures do not offer a panacea, but they do offer significant institutional advantages over courts.
Legislatures can enact comprehensive rules based on expert input and can update them frequently as
technology changes. As a result, [*808] legislatures can generate more nuanced, balanced, and accurate
privacy rules when technology is in flux. Courts should recognize their institutional limitations and
remain cautious until the relevant technology and its applications stabilize.
(--) Congress has institutional advantages of privacy protections:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Additional privacy protections are needed to fill the gap between the protections that a reasonable
person might want and what the Fourth Amendment actually provides. As we will see in the next part, those
protections historically have come from Congress . And as we will see in the final Part, Congress will likely remain
the primary source of privacy protections in new technologies thanks to institutional advantages of
legislatures .
(--) Courts are slow to adapt to new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Consider the hurdles that must be overcome before the courts resolve how the Fourth Amendment
applies to a new technology. Because the Fourth Amendment applies only to actual searches, not to
technologies that merely have the potential to conduct searches, n400 courts generally cannot pass on how the Fourth
Amendment applies to a technology until long after a technology has been introduced . For a trial court
to address the Fourth Amendment implications of a technology, the technology must be used by the government in the
course of investigating a criminal offense; the use of the technology must yield evidence of a crime; it must lead to
an arrest; and then it must lead to a constitutional challenge requiring judicial resolution. n401 Appellate
decisions come only much later. Because plea agreements usually require a defendant who pleads guilty to waive a right of appeal,
and the overwhelming majority of cases end in a plea, n402 appellate decisions come only in the rare case in which a defendant has been
convicted at trial and then appeals, or else signs a conditional plea allowing an appeal. When an appeal is heard, it is usually decided more than
a year after the initial trial court's decision. Very few appeals lead to published, precedential opinions. Even if the issue does lead to a published
decision of an appellate court, Supreme
year. If
Court review is not likely; the Court hears only about 80 or 90 cases a
[*869] the Supreme Court does agree to resolve the case eventually, it is likely to happen several years after the circuit courts have
first addressed the issue. n403
(--) Courts are slow at adapting to new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
This delay carries important consequences for the clarity of judicial rulemaking. Years may
pass before a court considers how
the Fourth Amendment regulates use of a new technology; many more years may pass before the issue
is resolved definitively. By the time the courts decide how a technology should be regulated, however, the
factual record of the case may be outdated, reflecting older technology rather than more recent developments. n410 Further,
once the law appears to be settled, the rapid pace of technological change may make it difficult to know how future courts might resolve the
same problem. Existing precedents may have little force: an appellate decision based on a factual record created a few years before may no
longer apply just a [*870] few years later. As Stuart Benjamin has noted, "rapidly changing facts weaken the force of stare decisis by
undermining the stability of precedents. Appellate opinions are only as robust as the facts on which they are based. When those facts
evaporate, the opinion on which they rest is weakened as well." n411 Consider the lower court's findings about the Internet in the litigation
that led to the Supreme Court's decision in Reno v. ACLU. n412 The facts were accurate for 1996, but are not necessarily accurate today. n413
Because constitutional rules may be based on changing technological facts, it may be difficult know whether a Fourth Amendment rule that is
valid one day is valid the next. n414
(--) Courts lack of flexibility hinders solutions to new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
It is far harder for the courts to adopt such flexible rules under the Fourth Amendment. n438 Putting aside the
merits of such an approach from the standpoint of normative constitutional theory, the task would create enormous practical
headaches. To allow the governing rules to change as needed over time, courts would be forced either
to expressly change the governing rules at regular intervals or else articulate the governing rule using a
standard that keeps the result unclear to incorporate changed circumstances. Stare decisis norms make
the first option unrealistic; it's hard to imagine the courts creating new rules every few years to keep the law up to date. But the
latter option leads to intolerable uncertainty. The result is constitutional law's version of the Heisenberg uncertainty principle
in quantum physics; n439 you can know the law at one time or you can know its general direction, but you can't know both at the same time.
(--) Legislatures have better knowledge of new technologies than the Courts:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
The third important difference between judicial rules and legislative rules relates to the information environment in which rules are generated.
Legislative rules tend to be the product of a wide range of inputs, ranging from legislative hearings and
poll results to interest group advocacy and backroom compromises. Judicial rules tend to follow from a
more formal and predictable presentation of written briefs and oral arguments by two parties. n445 Once
again, the difference offers significant advantages to legislative rulemaking. The task of generating
balanced and nuanced rules requires a comprehensive understanding of technological facts. Legislatures
are well-equipped to develop such understandings; courts generally are not.
(--) Courts lack of knowledge of technology prevents workable and sensible rules:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
While the Court of Appeals corrected the district court's error in Bach, the error illustrates the difficulty courts encounter trying to regulate new
technologies through the Fourth Amendment. The district court guessed about ISP practices, and based a constitutional rule on that guess. But
the guess turned out to be incorrect. Fortunately, the district court's ruling led to an amicus brief on appeal that corrected the
misunderstanding. But this will happen only rarely; in
most cases, courts will not possess an informed understanding
of the technical facts they need to appreciate the technology they are attempting to regulate. They will
simply guess, and create rules that may or may not do what the courts think they will do. Because the
courts tend to lack knowledge of the broader technological context, they struggle to create workable
and sensible rules governing that technology.
(--) Congress has more information than Courts—making them better suited to fashion
rules for new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
To be sure, legislative rulemaking is not a panacea. At the same time, the
information environment of legislative
rulemaking is superior to that of judicial rulemaking in the context of developing technologies.
Legislatures can receive input from a wide range of sources, and can use these inputs to generate wellinformed rules. The open legislative process and the accompanying public scrutiny tend to ferret out
rules that are particularly unbalanced, and often lead to amendments that temper proposed rules that go too far in either
direction. For example, Congress generally legislates in the area of high-tech privacy only after holding
extensive hearings in which experts testify and comment on various technologies and regulatory
strategies. n481 Legislators typically ask both the Justice Department and civil liberties groups for comment, and consider objections from
both sources before voting on legislation. The legislature can also amend [*882] proposed rules in response to concerns of the public, media
coverage, or any experts the legislature wishes to consult. n482 Given this
environment, the legislative process tends to
generate more informed rules governing developing technologies than is likely to result from the closed
environment of the judicial process.
Congress Counterplan: 4th Amendment Solvency
(--) Legislature should have the primary role in governing the Fourth Amendment with
regard to new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
This article challenges the popular view of the role of the Fourth Amendment in new technologies. I will argue that the popular vision is based
on a romantic but somewhat inaccurate view of Fourth Amendment doctrine, history, and function. Properly understood, considerations of
doctrine, history, and function tend to counsel against an aggressive judicial role in the application of the Fourth Amendment to developing
technologies. They teach that courts
should place a thumb on the scale in favor of judicial caution when
technology is in flux, and should consider allowing legislatures to provide the primary rules governing
law enforcement investigations involving new technologies. While proponents of the popular view assume that the
Fourth Amendment can play the same central role regulating government use of developing technologies that it has played in more traditional
cases, there are sound reasons to treat developing technologies differently. These differences suggest that statutory
rules rather than
constitutional rules should provide the primary source of privacy protections regulating lawenforcement use of rapidly developing technologies. When technology is in flux, Fourth Amendment
protections should remain relatively modest until the technology stabilizes.
(--) Legislative pre-dominance in the face of developing technologies is consistent with
the Fourth Amendment:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
This article aims to reorient current thinking about how the legal system should regulate criminal investigations involving new technologies. I
want to nudge us away from thinking primarily in terms of the Fourth Amendment, and focus attention instead on legislative rules. I contend
that the legislative branch rather than the judiciary should create the primary investigative rules when technology is changing. Contrary to the
three premises underlying the popular view, legislative predominance
in the face of developing technologies is
consistent with current Fourth Amendment doctrine, accurately reflects historical practice, and is likely
to continue in the future given the relative institutional competence of courts and legislatures. The
institutional advantages of legislative rule making may eventually create a bifurcated privacy regime in which the governing law is primarily
constitutional in most areas, but primarily statutory in areas of technological flux. Technological change
may reveal the
institutional limits of the modern enterprise of constitutional criminal procedure, exposing the need for
statutory guidance when technology is changing rapidly. The implications for the field of criminal procedure are
considerable. If criminal prosecutions involving new technologies continue to grow in number and importance, a basic understanding of
criminal procedure rules may someday require as much knowledge of the United States Code as the United States Reports.
Congress Counterplan: Privacy Solvency
(--) Legislatures are capable of protecting privacy as well as the courts:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
By arguing in favor of judicial caution, I don't wish to suggest that privacy in unimportant. To the contrary: privacy is one of our most cherished
values, and rules that effectively regulate criminal investigations to prevent government abuse are essential to our traditions. At the same time,
it is wrong to assume that courts necessarily generate more protective rules than legislatures. In recent
decades, legislative privacy rules governing new technologies have proven roughly as privacy protective
as, and quite often more protective than, parallel Fourth Amendment rules. Judicial deference has often invited
Congressional regulation. As a result, the key question is less how much criminal procedure rules should protect privacy than whether we
should look primarily to the courts or to Congress to generate those rules. I believe that we
should look first to Congress when
technology is changing rapidly. A renewed focus on the possibilities offered by legislative rules will enable the legal system to
generate better rules - rules that are more nuanced, clear, and that optimize the critical balance between privacy and public safety more
effectively when technology is in flux.
(--) Real privacy protections derive from statutory law, not the Fourth Amendment:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Part II challenges the historical premise and its canonical example of wiretapping law. The
popular view teaches that the Fourth
Amendment constitutionalized the law and successfully tamed wiretapping practices. I argue that the
impact of the Fourth Amendment on wiretapping law generally has been considerably overstated.
Wiretapping law may be constitutional in theory thanks to Berger v. New York n19 but it remains largely statutory in fact. Courts interpreting
the Fourth Amendment have generally deferred to statutory law in this area. In the decades since Katz v. United States, only a handful of
judicial decisions have found that government wiretapping violated the Fourth Amendment. Nor is the dominance of statutory rules within
wiretapping law necessarily unusual. The statutory Wiretap Act offers only one example of how criminal investigations in developing
technologies have tended to be governed by statute. Although
scholars tend to focus on the Fourth Amendment, the
real privacy protection has more often derived from statutory law .
Congress Counterplan Solvency--Telephones
(--) Congress can protect the secrecy of telephone messages:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Congress may of course protect the secrecy of telephone messages by making them, when intercepted,
inadmissible in evidence in federal criminal trials, by direct legislation, and thus depart from the
common law of evidence. But the courts may not adopt such a policy by attributing an enlarged and
unusual meaning to the Fourth Amendment. n257
Congress Counterplan Solvency: New Tech
(--) Congress has taken the lead in criminal investigations regarding new technologies:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Wiretapping is not an exception to the rule. A
broader look at the legal standards that govern criminal investigations
involving new technologies suggests that Congress has often taken the lead , and that judicial decisions
interpreting the Fourth Amendment generally have played a secondary role. In some instances, congressional
action has followed Supreme Court decisions interpreting the Fourth Amendment. For example, the Court's decision in the Keith case
considering how the Fourth Amendment applies to national security wiretapping helped inspire the passage of the Foreign Intelligence
Surveillance Act in 1978. The Court's conclusion in Smith v. Maryland n321 that the Fourth Amendment did not protect numbers dialed from a
telephone (so-called "pen register" information) n322 led Congress to protect such information in 1986, via the Pen Register and Trap and Trace
Devices Statute. n323
(--) When technologies are new, statutory rules are better than judicial rules:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
The second limitation is that my argument applies only when technologies are in flux. My
concern is the institutional
competence of courts and legislatures when facts are changing quickly. As a result, my interest is not whether a given
case involves a "technology" in an absolute sense, but rather whether the basic assumptions upon which rules are generated are likely to
remain constant or to shift in unpredictable ways. The argument thus has a significant temporal aspect; it is not an argument against strong
Fourth Amendment protection, but rather
an argument for judicial caution in the face of rapid technological
change. When technologies are new and their impact remains uncertain, statutory rules governing law
enforcement [*860] powers will tend to be more sophisticated, comprehensive, forward-thinking, and
flexible than rules created by the judicial branch. The temporal limitation also responds to concerns that legislatures may
enact rules that dismiss privacy concerns. Because early adopters of new technologies tend to have disproportionate political influence,
legislators often will be unusually sensitive to privacy threats raised by technological change.
Congress Counterplan Solvency—Internet Surveillance
(--) Congress best to regulate Internet surveillance law:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
Of course, the legislative enactment of law enforcement regulations beyond the Fourth Amendment does not necessarily mean that these
statutory laws are adequate. I have argued both in congressional testimony and in my academic writing that Congress's
handiwork in
the field of Internet surveillance law offers a promising framework, but needs reforms to bolster privacy
protections. n334 At the same time, Congress's track record is often ignored by scholars even [*857] when statutes provide the most
important privacy protection against invasive government practices. n335 Both criminal procedure and privacy law scholars
have tended to focus their attention on the Fourth Amendment, overlooking the reality that since the
1960s Congress rather than the courts has shown the most serious interest in protecting privacy from
new technologies. Judicial decisions have played a role by shaping legislation, but the real work that has been done to
regulate law enforcement use of new technologies has come primarily from Congress, not the courts.
(--) Congress better at conducting Internet privacy laws:
Orin S. Kerr, 2004 (Associate Professor, George Washington University Law School, Michigan Law
Review, 102 Mich. L. Rev. 801, Accessed 7/7/2015, rwg)
The statutory framework that governs Internet privacy demonstrates the flexibility and creative potential of legislative approaches. Congress
enacted the Electronic Communications Privacy Act ("ECPA") in 1986 to regulate the privacy of Internet communications. n420 Since that time,
Congress has amended the framework no less than eleven times: once in 1988, n422 three times in 1996, n424 twice in 2001, n426 Some of
those changes were only minor technical amendments, while others were more significant alterations to the statutory scheme. Moreover, the
structure of Congress's statutory Internet privacy laws demonstrates how legislative rules can impose
[*872] creative and flexible regulatory regimes involving new technologies. For example, Congress opted
to regulate both public and private parties to best protect privacy. This would be difficult if not
impossible under the Fourth Amendment, which regulates only the government and private parties
acting on the government's behalf. n427 But ECPA recognizes that private parties acting on their own can pose a serious threat to
Internet privacy: if America Online can look through the e-mails of its 30 million subscribers and disclose the evidence to the police without
restriction, this would gut Internet privacy protections. The Fourth Amendment does not restrict this disclosure, but ECPA does: n428 in
addition to restricting the ability of law enforcement to order private ISPs to disclose communications to law enforcement, n429 the law also
restricts the ability of private ISPs to disclose communications to law enforcement voluntarily. n430
Congress CP Solvency—Presidential Powers
(--) Congress should check the executive in the area of the Fourth Amendment
Rob Hager, 7/3/2013 (“Snowden's Constitution vs Obama's Constitution,”
https://www.techdirt.com/articles/20130703/00121023700/snowdens-constitution-vs-obamasconstitution.shtml, Accessed 7/10/2015, rwg)
In his Federalist #47, James Madison explained the separation of powers principle: “The accumulation of all powers legislative, executive and
judiciary, in the same hands ... may justly be pronounced the very definition of tyranny.” The dual sovereignty of the federal system was
intended to further divide those separated powers between what is truly of national concern and what is of only local concern. "By denying any
one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.
"Bond v. United States,131 S. Ct. 2355, 2365 (2011) (Kennedy, J., for unanimous Court ). The
question as to separation of powers
is: which branch of the state, if any, can be trusted to accurately discern and express the judgment of
the people as to the Fourth Amendment reasonableness of a permanent and universal regime of search
and seizure of private communications? Since the subject restrained by the Fourth Amendment is the state acting in its
executive capacity, the contours of the restraint on executive powers cannot be left to the subjective
determination of the executive branch itself. Allowing the executive branch to decide the reasonableness of its own actions
would defeat the purpose of the Fourth Amendment. Hence the views of Obama, his prosecutors, military, and spies are all irrelevant to this
determination. They stand accused of violating the rule of reasonableness which, not them, but the people must decide. The
judicial
power under Article III of the Constitution extends only to the application of law in individual cases. Like stories, cases
have a beginning, a middle and an end. The state does not have the power to initiate and courts do not have the power to hear a never-ending
case against the whole population of the United States, or even against the subset of all the customers of Verizon. Only a police state with its
secret tribunals takes such an adversarial posture against its own people. Where the government diffusely suspects and secretly snoops on the
whole people, in a democracy, it is the government itself that proves itself illegitimate, unrepresentative, unreasonable, and in violation of its
oath to support the Constitution. The
power to make rules that affect everyone into the indefinite future is
inherently a legislative and not a judicial power. An unelected “court” that violates the separation of
powers by exercising legislative powers in order to make new rules empowering the executive in secret
collaboration between the two separate branches is the very definition of tyranny, in Madison's terms. Having a
judge authorize an act does not turn that authorization into a “judicial process” as required by Katz. No judge or magistrate, let alone one judge
of a multi-judge tribunal, Colleen Kollar-Kotelly acting in secret even from her own secret FISA court, can exercise Article III judicial authority, let
alone collaborate with Article II executive power, to decree a universal and unending search or seizure of private communications. Any such
unlimited “search and seizure” of persons who are not even suspects takes place inherently “outside the judicial process” of cases. As stated in
Acevedo and Katz quoted above, it is therefore presumed “per se unreasonable under the Fourth Amendment.” A
legislature
authentically representative of the people might determine that such a generalized search is a
reasonable and necessary exception to this per se rule under some “specifically established and well-delineated” circumstance
“that society is prepared to recognize as 'reasonable,'" Katz (Harlan, J, at 361). That has obviously not been done. Few in Congress were even
aware of the scope of the snooping being conducted by the Obama administration and its strained interpretations of law. Nor were they aware
of the advisory opinions from a nominal court in fact acting as a secret unelected legislature acting in secret complicity with the executive
branch to circumvent constitutional norms and usurp its legislative power. Legislators were in any event proscribed from sharing with their
constituents any knowledge they did acquire. Hence they could not represent any views of their constituents about the reasonability of secret
spying which their constituents did not even know about.