Jury Nullification Brief

Resolved: In the United States criminal justice system, jury

nullification ought to be used in the face of perceived injustice

Champion BriefsNovember/December 2015

Lincoln-Douglas Brief

Copyright 2015 by Champion Briefs, LLC

All rights reserved. No part of this work may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying,

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TheEvidenceStandard November/December2015

ChampionBriefs 3

TheEvidenceStandard

SpeechandDebateprovidesameaningfulandeducationalexperiencetoallwhoareinvolved.

We,aseducatorsinthecommunity,believethatitisourresponsibilitytoprovideresourcesthat

upholdthefoundationoftheSpeechandDebateactivity.ChampionBriefs,itsemployees,

managers,andassociatestakeanoathtoupholdthefollowingEvidenceStandard:

1. Wewillneverfalsifyfacts,opinions,dissents,oranyotherinformation.

2. Wewillneverknowinglydistributeinformationthathasbeenproventobeinaccurate,

evenifthesourceoftheinformationislegitimate.

3. Wewillactivelyfightthedisseminationoffalseinformationandwillprovidethe

communitywithclarityifwelearnthatathird-partyhasattemptedtocommitdeception.

4. Wewillneversupportordistributestudies,newsarticles,orothermaterialsthatuse

inaccuratemethodologiestoreachaconclusionorproveapoint.

5. Wewillprovidemeaningfulclarificationtoanywhoquestionthelegitimacyof

informationdistributedbyourselvesorbyanythird-party.

6. Wewillactivelycontributetostudents’understandingoftheworldbyusingevidence

fromamultitudeofperspectivesandschoolsofthought.

7. Wewill,withinourpower,assistthecommunityasawholeinitsmissiontoachievethe

goalsandvisionofthisactivity.

Thesesevenstatements,whileseeminglysimple,representthecomplexnotionofwhatitmeans

toadvancestudents’understandingoftheworldaroundthem,asisthepurposeofeducators.

TableofContents November/December2015

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TableofContents

TheEvidenceStandard.............................................................................3

TableofContents........................................................................................4

TopicAnalyses..........................................................................................19TopicAnalysisbyShaniaHunt.............................................................................................20

TopicAnalysisbyMitaliMathur..........................................................................................27

AlternativeArgumentationbyMartinPage.....................................................................35

FrameworkAnalysisbyAmyGeller..................................................46

EvidencefortheAffirmative................................................................53ConstitutionAC...................................................................................................................................54

ThegovernmentshouldadheretotheConstitution-theConstitutionisan

expressionofdemocraticgovernanceandequality.....................................................56

TheConstitutionisphilosophicallygroundedonconsentofthegoverned.........57

TheConstitutionprovidesforthebestformofgovernment.....................................58

Consentofthegovernedisthefoundationofjustgovernment................................59

TheConstitution'sgroundedonseparationofpowers--that'skeytocheck

tyrannyandensurepoliticalcooperation........................................................................60

TheConstitutionisthefundamentallawoftheland--outweighsruleoflawNCs.

.........................................................................................................................................................61

The6thAmendmentsupportsjurynullification...........................................................62


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Wecan'toverturnajury'sdecisionnomatterwhat-thisruleisrigorously

appliedincivilpractice...........................................................................................................63

TheDoubleJeopardyClausesupportsjurynullification............................................64

SixthAmendmentsupportsjurynullification.................................................................65

Jurynullificationiscompletelylawful...............................................................................66

There'snolawagainstpardoningsomeonewhoviolatedanunjuststatute.......67

TheSupremeCourthasneverprohibitedjurynullification......................................68

Juryoathsdon'tprohibitnullification--thoseoathsarebarelyintelligible.........69

Thejuryoathisambiguousanddoesn’tprecludeacquittals....................................70

Jurynullificationdoesn'tleadtofalseverdicts..............................................................71

Juryoathsdon'tprohibitnullificationinallcircumstances.......................................72

ChecksandbalancesisfundamentaltotheConstitutionandrequireswecheck

thejudiciary'spower...............................................................................................................73

Jurynullificationensureschecksandbalances..............................................................74

Jurynullificationisavitalcheckonprosecutorialdiscretionwhichgoes

relativelyunsupervised..........................................................................................................75

Jurynullificationdoesn'tharmtheruleoflaw...............................................................76

Jurynullificationisbestpreciselybecausejuriesaren'ttrainedinthelaw........77

Juriesarebetterfordiscretionthanprosecutors..........................................................78

Jurynullificationprovidesthemostproperbalancebetweenletterandspiritof

thelaw..........................................................................................................................................79

Juriesareparticularlywellsuitedtobalancingjusticewiththelaw......................80

JurynullificationissupportedbytheSixthAmendment-FifthCircuitCourtof

Appealsagrees...........................................................................................................................81

JurynullificationiskeytoourlibertiesthatcomefromtheBillofRights--deep

historicalprecedentproves..................................................................................................82

TheFoundingFatherssupportedarighttotrialbyjuryandtheideathatthejury

shouldserveasacheckonthejudge.................................................................................83

Jurynullificationisnecessarytoprotectthe6thAmendment..................................84

Jurynullificationisakeycheckongovernmenttyrannyandoppression............85


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KappelerAC..........................................................................................................................................86

AC1:Whenwefocusongovernmentalresponsestoproblemsandquestionwhat

thegovernmentshoulddo,weeraseanyquestionofwhateachandeverysingle

oneofusshoulddo.Thisensuresthatalloftheharmsofthestatusquocontinue

whileweshiftblametothestateandinsulateourselvesfrompersonalaction. 87

AC3:GovernmentactionisnothingbutaBand-Aidfixforissues.Politicalaction

isusedtoquicklypatchupviolenceinthestatusquowhilere-entrenchingthe

violenceofourmindsthatweavesintothefabricofoursocietyand

consciousness.............................................................................................................................89

AC2:Refusalofthegovernmentalactioninthefaceofinjusticeisthefirststep

towardsarticulatinganewemancipatoryimagination,actuallycapableof

dealingwithinjustice..............................................................................................................90

AC4:Complacencywithviolenceandinjusticeistherootofallviolenceand

injustice.Byattemptingtojustifyperpetratorsdecisionstocommitviolentacts,

futureviolentactsarejustified............................................................................................91

AC5:Thus,weshouldbegininterrogationsofviolenceandinjusticewithalocal

refusaltoendorseviolenceandinjustice.........................................................................92

AC6:Jurynullificationisonewayforustoengageinalocalrefusaltoendorse

violence.Jurorscanvotenoregardlessoftheevidenceofthecrime.....................93

AC7:Figuringouthowweasindividualsareconnectedtoviolenceandinjustice

mustcomebeforeanydiscussionsofglobaltransformation....................................94

Theaffisaprerequisitetoanythingelse-questioningviolenceiskeyto

overcomingit.............................................................................................................................95

Impact:The"Whatshouldthegovernmentdo"mentalityisgroundedina

misunderstandingofviolencethisfocusonmega-spheresofpoliticalaction

eclipsestheimportantquestionofwhatshouldandcanwedoassimply

ourselves.Thisleadstothesurrenderofpersonalagencyandtheabdicationof

allresponsibility.......................................................................................................................96


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Impact:Thinkingofsolutionsfromtheperspectiveofpolicymakersratherthan

peopledetachesusfromrealworldparticipationandpromotesanimperialist

paradigm......................................................................................................................................99

Impact:PowerRelationsdonotcauseviolence,agenciescommitviolentacts,the

structureoftheirargumentsignoresdecisionsandencouragestheviolencethat

theyoppose,theiranswertotheholocaustiscombatingpovertyand

unemployment,thisturnsthecasebecausetheirconflictscenariosareonly

perpetuatedthroughtheirabdicationofresponsibility...........................................100

Impact:Unlesswemovetowardsfavoringindividualaction,anyothersolutions

areaBand-Aidfixfortheirharms,revelingthepossibilityofusingpolitical

actiontoquicklypatchupviolenceinthestatusquowhenreallytheyareonly

re-entrenchingtheviolenceofourmindsthatweavesintothefabricofour

societyandconsciousness...................................................................................................102

Attemptstoexplainviolenceinabstractandformulaictermsshieldindividuals

fromresponsibility.Theneg'sargumentthat____________isanexampleofthis.

Theynaturalizeviolencebydescribingviolenceandactsofinjusticeasthe

inevitableresultofachainofevents,washingthehandsofthosewhodecideto

actuallycommitactsofinjustice.......................................................................................103

Callstonon-individualactionasaresponsetorepresentationsandotherization

motivatesadiscussionthatengagesinviolencetowardspeoplethatappearas

victims........................................................................................................................................105

Theirkritikalspeechactobjectifiesthespeakerwiththeirspeechact,whichis

anexerciseofpowerandcontrol......................................................................................106

Usingjurynullificationisanattempttobringthepoliticaloutintothepublic

sphere.Whenthepoliticalisprivatethisleadstoaproblematicformofpolitics

thatreproducestheharmsofthestatusquo................................................................107

Politicalprivacysupportsdominationandinjusticeviathepublic-private

dichotomy..................................................................................................................................108

Democraticpolicyoptionsleadtoviolentdominationofpeopleandthe

continuationofinjustices.....................................................................................................109


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Democraticpoliticsleadstomasteryoverothers,causinginjusticeand

domination.Weneedtorejectresponsestoinjusticethataren'tjury

nullification...............................................................................................................................110

Emotioniscentraltotheideaofjurynullification.Utilizingemotioninadvocacy

iscrucialtocreatemovementsandfightinjustice......................................................111

Topdownapproachesfailtograspthewaysinwhichpowerisexercisedin

organizationalspacesandeverydayactions................................................................112

Weneedtorecognizethatthewayinjusticeiscreatedisthroughpersonal

choicesratherthanthroughabsurdchainsofinternallinks.Byunderstanding

thisandundertakingthepersonalchoicetoengageinjurynullification,wecan

createchangeinthesystem................................................................................................114

Whenwealtermindsets,wewillbeabletosolveforinjustice.Jurynullification

isthefirststeptowardsalteringmindsets....................................................................115

Thisisnotautopianalternative.Isimplycallforaworldinwhicheachperson

engagesinanindividualacceptanceofresponsibility.Utopiansolutionsare

uselessbecausetheydon'tofferanyproductivemethodsofchange...................116

Anythingbutchangingthesocialpracticesthatallowinjusticetocontinuewill

essentiallydonothing.Myaffsolvesandstraightturnsalloftheirarguments.

.......................................................................................................................................................117

Attemptingtojustifyinjusticeandviolencejustifiesfutureviolentacts,turning

alloftheirarguments............................................................................................................118

Theirsolutiondoesnothavetheabilitytosolveandwillactuallyfurther

perpetuatetheharmsofthestatusquo..........................................................................119

Juryintentisirrelevant.Theonlythingthatmattersisthatindividualactionto

reduceinjusticeandviolenceistaken.............................................................................120

Non-ViolentDrugOffendersAC...................................................................................................121

Jurynullificationiskeytomarijuanafederalism........................................................123

Jurynullificationensuresdefendantscanchallengemarijuanapossession

charges.......................................................................................................................................124


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Jurorshavethepowertonullify,butaren'talwaysinformedofthat-jurorshavea

righttobetold-thatensuresmarijuanacasescan'tgetprosecuted.....................125

Jurynullificationleadstonotguiltyverdictsforpeoplearrestedformarijuana

possession-DougDarrellproves........................................................................................126

Courtsaren'tinformingjuriesoftherighttonullify,butthatmustchange-people

shouldn'tbecomevictimsofthedrugwar.....................................................................127

Jurynullificationinmarijuanacasesiskeytomakingourlawsfairer................128

Evenifjurynullificationhassometimesbeenusedinracistway,thatdoesn't

justifyopposingnullificationinitsentirety..................................................................129

Arrestandincarcerationratesformarijuanapossessionareunfairlyhigh-jurors

concernedaboutracialbiaswillnullify..........................................................................130

Jurynullificationcanbeusedtoensurejusticeinmedicalmarijuanacases.....131

Jurynullificationissymbolicallyimportant-itsendsamessageagainstunjust

marijuanalaws........................................................................................................................132

Marijuanapossessionchargesareunfair-weshouldinformjuriesoftheirright

tonullify.....................................................................................................................................133

Nullificationendedprohibitionofalcohol,andit'llendmarijuanaprohibition

too-growingnumberofAmericansopposingmarijuanaarrestsnow..................134

Jurynullificationiskey-wecan'texpectourleaderstochangemarijuanalaws

withoutbottom-uppressure...............................................................................................135

Thewarondrugsisanutterfailure-toomanypeoplearegettingarrestedfor

non-violent,low-leveloffenses-thatdestroyscommunities....................................136

Increasedjurynullificationformarijuanachargesmakeseventualrepealof

marijuanaprohibitioninevitable......................................................................................137

PluralismAC......................................................................................................................................138

Jurynullificationoccurswhenthereareillegalactsthataremorallyblameless.

.......................................................................................................................................................140

Obeyingthelawisaprimafaciedutythatcanbeoverriddenforthesakeof

justice..........................................................................................................................................141


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Wehaveaprimafaciedutytoavoidunjustlyharmingpeople...............................142

Sincethedefendantismorallyblameless,jurieshaveanobligationtovotenot

guilty............................................................................................................................................143

Thethesisoftheaffisthatjurorshaveadutytonullifyinthefaceofinjustice

becauseitisprimafaciewrongtocauseunjustharm...............................................144

Eveniftheaffviolatesthejuryoath,breakingpromisesispermissibleifdoingso

avoidsunjustharms...............................................................................................................145

Promisesbasedonunjustcoercionaren'tethicallybinding...................................146

It'spermissibletobreakapromisetoavoidunjustharm........................................147

Thesalientfactorsthatjustifybreakingpromisesapplyforjurynullification.148

Jurynullificationisn'tlawless............................................................................................149

Jurynullificationdoesn'tundermineruleoflaworriskanarchy..........................150

Unjustharmsoutweighthenecessityofuniformstandardsoflaw......................151

Evenifuniformityinlawmatters,thejurorshouldnotmaketheirdecision

basedonwhetheritpromotesuniformstandardsofjustice...................................152

Evenifjurynullhasbeenmisusedforracistpurposes,jurynullisethicalon

balance.......................................................................................................................................153

Jurynulliskeytorectifyinginjustice;repealingunjustlawsalonecan'tsolve.

.......................................................................................................................................................154

Theideathatjurynullificationplacescognitiveandemotionalburdensonjuries

isirrelevant--ignoresourethicaldutytoavoidunjustharm..................................155

"Youshouldchangethelawinstead"isanon-sequitur;jurynullandpolitical

activismaren'tmutuallyexclusive...................................................................................156

Theideathatjurynullificationisunaccountableassumeslegislationismore

accountable,butthat'sinaccurate....................................................................................157

Juriesarebettercapableofevaluatingspecificapplicationsofthelawthan

generalpublicopinion..........................................................................................................158

Theunanimityrequirementmeansjurieswilluniquelycheckunjust

punishments.............................................................................................................................159


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Theethicalquestionofjurynullisthatofindividualjurors'responsibilities,not

whethermajoritywillisjust...............................................................................................160

Negargsaboutthedesirabilityofjurynullaspublicpolicyaren'trelevanttoaff

offense........................................................................................................................................161

Theaffoutweighs.Wevaluethelawbecauseofjustice............................................162

Wecannotsayjurynullificationisunethicalwhenjuriesaremorallyobligated

tonullify.....................................................................................................................................163

BiopowerAC.......................................................................................................................................164

JuryNullificationrelocatespowerfromtrialsbyexposingaslieswhatistakenas

truebythecourts....................................................................................................................165

ParticularJuryNullificationsaredisruptivetorelationsofpower,exposingtheir

nexusaslies..............................................................................................................................166

MoralObligationforJuryNullificationtoaddressRacialOppression.................167

SelectiveJuryNullification,suchasinthefaceofinjustice,isamoralobligation

.......................................................................................................................................................168

DisproportionateSentencingGuidelines,whichareproppedupbythe

PunishmentRegime,provideauniquemoraljustificationforNullification.....169

ComplianceamongBlackJurorswiththesymbolicandpacifyingroleassignedto

themcanonlybeunderminedwithselectiveNullification......................................170

TheapartheidofdrugsentencingjustifiesNullification...........................................171

TheLawassumesthepotentialityofcriminalsintermsoftheirrelationtothe

group,nullificationdisruptsthisprocess.......................................................................172

Racismisaformofbiopower.............................................................................................173

Biopowerrequiresdivisionsinrace................................................................................174

Legalsystemisunjustforqueerandtransindividuals,andparticularlyqueer

andtransindividualsofcolor.............................................................................................175

JuryNullificationsolvesqueerandtranscourtinjusticeLegalsystemisunjust

forqueerandtransindividuals,andparticularlyqueerandtransindividualsof

color.............................................................................................................................................176


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JuryNullificationSolves-PrisonReformists.................................................................180

JuryNullificationSolves-PrisonAbolitionists..............................................................181

JuryNullificationasatoolofPrisonAbolitionchallengesstructuralracism,

underminesthecriminalizationofsexualandgenderidentitiesandreducesant-

queerandanti-transviolence............................................................................................182

A2LettheGuiltyGo................................................................................................................183

Power'sDriveToManageAndOrderTheWorldinPredictableWaysDoes

ViolenceOnAPlanetaryScaleAndEnsuresPlanetaryDestruction......................184

Biopoliticsinanattempttosecurelifemakesgenocideandwarinevitable.....186

Disciplinarypowermakeswarinevitableinaworldwhereone’ssubjectivityis

renderedtothestateforthesakeofprotectingone’slifeandrights...................187

BiopoliticalPowerEnsuresTheRightToDestroyCertainFormsOfSubjects...188

Biopoliticsjustifiestheeliminationoftheotherwhothreatensthesanctityand

biologicalpurityofthesociety...........................................................................................189

Dehumanizationoutweighsnuclearwar,environmentaldestructionand

genocide–makesthemallinevitable..............................................................................190

EvidencefortheNegative...................................................................191CapitalismBadNC...........................................................................................................................192

NC1:JuryNullificationgivesthe"commonperson"thefalseideathattheyare

participatingindemocraticinstitutionsandmakingimportantpolicydecisions.

.......................................................................................................................................................193

NC2:Despitethefactthateveryonebelievesthatdemocracyisthepolitical

systemthatcausestheleastamountofinjustice,existingdemocraciesprovethat

democracyonlybenefitsthewealthy..............................................................................194


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Link:JuryNullificationandotherlegalsystemmeasuresreinforcesystemsof

capitalism..................................................................................................................................195

NC4:Thealternativeistorejectjurynullificationasaninstanceof

neoliberalism...........................................................................................................................196

Impact:Neoliberalismhasledtoanincreaseinincarcerationratesthrough

jailinganyonewhoisnotamemberoftheelite.Thisstraightturnstheaff......197

Impact:Thepressuresofthemarketwillalwayscomebeforeandcurtailrights

claims.Thisensuresthatinjusticewillalwaysbepresentinaneoliberalworld.

.......................................................................................................................................................198

AltSolv:Byrejectingtheaffirmativespositiononjurynullificationwecreatethe

spaceforthestruggleagainstcapitalismtocontinue................................................199

AltSolv:Wemustrejectneoliberalismineveryshapeandform...........................200

Specificityinmovementsagainstneoliberalismisbadbecauseitallowsthe

elitestosubvertandcooptthemovement.....................................................................202

Byclaimingthatneoliberalismisinevitable,weallowittocontinueindefinitely

withoutchallengers...............................................................................................................203

RuleofLawNC...................................................................................................................................204

Jurynullificationisarbitraryandundemocratic;nogroupof12peopleshould

gettooverridethelaw..........................................................................................................206

Thereisnoguaranteethatajurywillonlynullifybadlaws....................................207

Jurynullificationunderminestheruleoflaw...............................................................208

TheSupremeCourtsaysjurynullificationiswrong...................................................209

Afederaljudgeagrees--jurynullificationshouldnotbeencouragedbyjudges.

.......................................................................................................................................................210

Weshouldnotdefythelawinordertopursueallegedjustice...............................211

Jurynullificationunderminestheruleoflawandtheintegrityofdemocratic

institutions................................................................................................................................212

Jurynullificationunderminesruleoflawandfaithinthecriminaljusticesystem.

.......................................................................................................................................................213


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Jurynullificationleadstounfair,racistapplicationofthelaw...............................214

Evenifcertainlawsareunjust,weshouldn'thavevigilantejuries.......................215

Jurieshavenorighttoignorethelaw..............................................................................216

Jurynullificationwillnotresultinmorejustoutcomes............................................217

Jurynullificationleadstoarbitraryapplicationofthelaw--unlikeprosecutors,

jurieshavetoolimitedinformation.................................................................................218

Jurynullificationisnotdemocraticallyaccountable..................................................219

Jurynullificationwillnotmakethesystemmoreaccountable...............................220

Theaffirmativejustifiesexecutiveclemencynotnullification...............................221

Juriesarenotdemocraticallyaccountable....................................................................222

NietzscheK.........................................................................................................................................223

Jurorsviewnullificationasawaytoexercisepowerandcontrol.........................224

Nullificationisviewedthroughhetermsofpowerandcontrol–fixingtheworld

bytakingpowerfromthegovernmentandgivingittothepeople.......................225

JuryNullificationisusedasanexpressionofpower..................................................226

Juriesusethepowerofnullificationtoshapetheworldthroughtheirdecisions–

historicallyprovenintheJimCrowsouth......................................................................227

Jurorsthinktheyhaveultimatepowerbecausedoublejeopardypreventsre-

prosecutionwheninfactasinglecasecannotordertheworld..............................228

Thesearchfororderintheworldthroughanexpressionofpowerproducesa

violentwilltoorderinwhichchaoscan’tbeeliminatedbreedingresentment.

.......................................................................................................................................................229

Theaddictiontosecuritycreatesaself-fulfillingprophecyinwhichinabilityto

ordertheworldbecomesathreattohumanity.Thisredirectsourperpetual

resentmentagainsttheunknown,whichtriggersinexplicablehatredforlife.232

Rejectingtheirorderingoftheworldisaprerequisitetoreducingglobal

violence......................................................................................................................................233

FocusonbodycountsturnstheAC...................................................................................235


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Theaffirmativeattemptstopreservestabilityandorder,butneitherarecritical

toexistence.Thatcausescomplicitywithstructuralviolencethatrenderslackof

orderasdirt,disease,andundesirability.......................................................................236

TheACisacontradiction-theattempttoeliminatesufferingdeniestheintrinsic

relationshipbetweensufferingandatrueaffirmationoflife.................................237

Thealternativeistoembracetheeternalrecurrencethatisourlife.Sufferingis

agatewaytoliberationfromthedelusionoforder.Withoutsuffering,ourlife

projectbecomesmeaningless.............................................................................................238

JuryNullificationputstoomuchpowerfortoofew....................................................239

Thealternativeistodonothing.Thisisanactivechoiceofdefenselessnessand

disorder.Thisacceptanceofthedangerofbeingaliveisnecessary.....................240

Thenecessityforactionandpowerleadstoafragmentaryexistence–preferthe

alternative’srefusaloftheaffanditsacceptanceofincoherence,dangerand

pain..............................................................................................................................................241

Thealternativesembracementofthestatusquoistheonlywaytoaffirmthe

beautyoflife.............................................................................................................................244

Theaffirmative’srejectionofinsecuritydrivesthemtoawilltopowerinorder

tocreateorder,causesalapseintonihilism.................................................................246

DrugWarTurns...............................................................................................................................248

JuryNullificationdoomsthewarondrugs....................................................................249

Endingthewarondrugsdestroysmarginalizedcommunities-addiction........250

Lesssentencingfornonviolentoffendershascausedariseindrugrelated

deathes.......................................................................................................................................251

Lackofmajorlegalpunishmentkeepsthepriceslowanddeathshigh–even

nonviolentdealersshouldbepunishedforthedeathstheycause........................252

‘Nonviolentdrugusers’isafalsedistinction–mostviolentcrimesaredirectly

motivatedbydrugaddictionsorsales.............................................................................253

Lackofpunishmentfordruguserswouldincreasethecrimerate.......................254


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Incarcerationandmandatoryminimumsforevennonviolentdrugusersare

empiricallyeffectiveforreducingviolentcrime–empiricallyreducedmurders,

rapesrobberiesandassaults..............................................................................................255

Statistically,empiricallystrongenforcementlowerscrimerates.........................256

DemocracyNC...................................................................................................................................257

Widespreadskepticismfornullification........................................................................258

Commitmenttolegallearningistheonlywaytopreventviolence-

indeterminacyinthelawjustifiesillegalityineverycontext..................................259

Givinguponlegalinstitutionscausescomplacency...................................................264

UslegitimacyisnecessaryforI-Laweffectiveness......................................................266

Internationallawisnecessarytopreventingnuclearwar.......................................267

Jurynullificationallowsjurorstolieandhangjuriesforprejudicialpurposes.

.......................................................................................................................................................268

CourtlegitimacyisnecessaryforthespreadofDemocracy....................................269

Democracyisnecessarytopreventwar.........................................................................270

Don’toutrightrejectthelaw–prejudicialusedoesn’tprecludethelawsinherent

value............................................................................................................................................271

Notjusttheory–we’reonthebrinkofajurynullificationcrisis–statisticsprove

itsalreadyhappeningintheBronxandDC....................................................................272

Astrongnationaljudiciaryiskeytoglobalcooperation...........................................273

Astrongdemocracyisnecessaryforfreetrade...........................................................275

Empiricallytraderelationshipsarenecessaryforproliferationprevention....276

Proliferationcausesextinction..........................................................................................277

AnthropocentrismNC.....................................................................................................................285

Epistemicpracticesmustalwaysbeevaluatedfirstbecausetheyinvolvethelink

betweenknowledgeandhowthatknowledgeisobtained,thusprecluding

knowledgeitself.Individualscannotevaluatetheirownepistemological

assumptionsobjectivelybecausetheirobjectionswouldbeinfluencedbytheir


ChampionBriefs 17

epistemicpractices.Thusit’sthedutyofthejudgetoevaluateourepistemic

practices.....................................................................................................................................286

Anthropocentricorderingdrivestheexclusionanddehumanizationof

populationsbasedonrace,ethnicityandgender........................................................288

RejecttheAff’sharmfulanthropocentricassumptionsateveryturntocombatits

devastatingeffectonhumanpowerrelationsandvoteaffirmativetosubscribe

tothephilosophyofdeepecology.....................................................................................289

Theviewofnonhumansasthingsandpropertyisgroundedinhistoricallegal

justifications.............................................................................................................................291

Modernlawcontinuestheancientlegaltraditionofnonhumanthinghood......292

Whilesomenon-humanshaveminorlegalprotectionsthereisnowayforanon-

humantoseekalegalremedyinthecurrentlegalsystem......................................293

Therecanbewaysfornon-humanstoberecognizedaslegalpersons................294

Thereisnoreasongrantinglegalpersonhoodtonon-humanswouldundermine

thelaw,thatstatushasalreadybeenextendedtocorporations............................295

AnEthicofcaresolvesfortheanthropocentriccriminaljusticesystem.............296

Legalpersonhoodisaflexibleconceptandattimesevenfellowhumanswere

treatedasthingsjustasnon-humansaretoday...........................................................297

TheCommonLawInterpretationofLegalPersonhoodcanExtendtonon

humans.......................................................................................................................................298

Extendingthewritofdehominereplegiandotonon-humanssolves..................299

Writdehominereplegiandocanbeextendedtonon-humansandcanfreenon-

humansfromoppressivedetention.................................................................................300

CurrentAnimalRightsMovementsareMerelyAnimalWelfareMovements.....301

Nonhumansarecurrentlyclassifiedaslegalthings...................................................302

Non-humanssuchascetaceans,greatapes,elephantsandotherspeciesarenot

protectedundercurrentwelfarelaws.............................................................................303

It’snotaboutgrantinghumanrightstonon-humansbutratherabout

recognizingtherightsthatareentitledtootherspecies..........................................304


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Therightsofnonhumansareinlinewithinternationallawandfailureto

recognizethoserightsunderminesourownconceptsofmoralityandjustice.305

Anthropocentrisminsulatesnotionsofdominanthierarchies,whichcaninflict

sufferingonsupposedinferiorgroups............................................................................306

Anthropocentrismisajustificationtodominateotherhumans............................307

AnthropocentricthinkingmadeHurricaneKatrinasuchaterribledisaster....308

Intellectualrejectionofanthropocentrismsolvesextinction.................................309

Challenginganthropocentrismallowsforadoptionofanewmorality................310

TheAltfunctionsasanexpansionofknowledgeonhumanintegration.............311

Failingtoaddresstheoppressiveanddominatingnatureofhumanities

relationshiptonaturepromotesanthropocentrism..................................................312

Topic Analyses



TopicAnalysisbyShaniaHunt November/December2015

ChampionBriefs 20

Topic Analysis by Shania Hunt

Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice

November/December Debate Perspective

November/December is one of those topics that many debaters do not like participating

in. Not only is the two-month period cut short by winter break, there are also very few

tournaments on the topic so some schools may even take a break from these months completely.

Therefore, this is a great opportunity for you to keep working hard to achieve whatever goals you

have set up for yourself, whether it is to do well at a local tournament or qualify for your state

tournament or the Tournament Of Champions. Overall, it is crucial that you work as hard as

possible on this topic and take advantage of how unprepared other teams and debaters will likely

be! The Topic

I believe this topic is uniquely focused on legality, which means that we might have some

good positions for a variety of different debaters from utilitarianism to Ks to everything else in

between.

First, it’s important to establish why this topic is important. Jury nullification has been

largely debated in waves over the past century. It began with the famous nullification case in

John Zenger’s 1735 trial, which accused him of printing libels of the New York colony governor.

As the years went on, jury nullification became more popular to address morally repugnant or

unpopular laws. In the early 1800s, it was used to nullify the impacts of the Alien and Sedition

Act. In the mid-1800s, it was used against people that were accused of harboring slaves in


ChampionBriefs 21

violation of the Fugitive Slave Laws. Each case has a similar story: Juries believed that despite

the defendant being guilty, the unfair law was reason to give a non-guilty decision, as protest to

that legal standard.

As debaters, we often like to make arguments about the legal system having structural

inequalities through substantive laws (laws whose content controls what we can/cannot do) that

outweigh the protections that are given to every individual through procedural laws (laws that

establish how laws are applied and enforced). As part of the procedural due process, the

government attempts to make sure that every citizen is protected from the system through the

provision of procedural laws that protect the rights of individuals in the legal system. However,

even with these protections, there are still inherent inequalities. Every possible law that you

have thought to be racist, sexist, unfair, unjust, etc. is a potential scenario that this resolution

would likely address. Jury nullification allows jury members to take a stance against an unjust

law and actively defy it. This transfers their duty from evaluating just facts to evaluating both

facts and the merit of the law.

Next, it’s important to address the first phrase of the resolution: “In the United States.”

It’s helpful to debaters that the topic is about one country’s specific legal and criminal justice

system rather than that of multiple countries. Then this leads into the next question – how do we

define the U.S. criminal justice system? American Heritage Dictionary defines the criminal

justice system as, “The system of law enforcement, the bar, the judiciary, corrections, and

probation that is directly involved in the apprehension, prosecution, defense, sentencing,

incarceration, and supervision of those suspected of or charged with criminal offenses,”


ChampionBriefs 22

(American Heritage Dictionary).1 It is important that you evaluate all facets of this definition

when evaluating how you will debate this topic.

The next term is “jury nullification” which is probably the most crucial term in the

resolution. The Free dictionary defines jury nullification as, “A sanctioned doctrine of trial

proceedings wherein members of a jury disregard either the evidence presented or the

instructions of the judge in order to reach a verdict based upon their own consciences. It

espouses the concept that jurors should be the judges of both law and fact,” (The Free

Dictionary).2 Doug Linder similarly defined jury nullification as, “when a jury returns a verdict

of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. In other

words, the jury in effect nullifies a law that it believes is either immoral or wrongly applied to

the defendant whose fate they are charged with deciding,” (Linder).3

Juries hold the common belief that they have the power to jury nullification and this

resolution addresses whether or not they have the right to it. The traditional approach is that

jurors are triers of fact and the judge is a trier of law. However, this resolution asks whether or

not jurors should have this role. It is important to note that jury nullification tends to affect

criminal cases via civil cases most often. This is because the Fifth Amendment ensures that a

jury trial resulting in acquittal of a defendant is final, meaning an individual has a guaranteed

freedom from Double Jeopardy.

1 American Heritage® Dictionary of the English Language, Fifth Edition. Copyright © 2011 by Houghton Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company. All rights reserved.] 2 "Jury Nullification." TheFreeDictionary.com. N.p., n.d. Web. 14 Oct. 2015. 3 UMKC. "Jury Nullification: History, Questions and Answers about Nullification, Links." Jury Nullification: History, Questions and Answers about Nullification, Links. UMKC, n.d. Web. 14 Oct. 2015.


ChampionBriefs 23

The next word in the resolution is “ought.” Ought is defined by Merriam Webster

Dictionary as, “used to express an obligation,” (Merriam-Webster).4 The definition of ought is

not usually contested, but rather used to indicate that the value is morality or to show that the

debate is about prescribing right action. When addressing the phrase, “in the face of”, American

Heritage Dictionary provides a synonym of “when confronted with” (American Heritage

Dictionary).5 Cambridge Dictionary also defines it as, “when threatened by,” which might be

preferable for your cases because it explains that jury nullification should be used when

threatened by injustice.6

The final phrase is “perceived injustice.” Perceived is defined by Dictionary.com as, “to

become aware of, know, or identify by means of the senses,” (Dictionary.com).7 Injustice is

defined by the same source as, “the quality or fact of being unjust; inequity” or “an unjust or

unfair act; wrong,” (Dictionary.com).8 Something to consider is that this could garner you

offense in two ways. First from whether or not jury nullification itself is right or wrong and

second from whether we should have the power to use jury nullification in certain cases that are

unjust.

There might be a few topicality violations in this resolution. Popular definitions for

topicality might be for “jury nullification” and “perceived.” Regardless, the topic is about

4 "Ought." Merriam-Webster. Merriam-Webster, n.d. Web. 21 Aug. 2014. <http://www.merriam-webster.com/dictionary/ought>. 5 The American Heritage® Dictionary of Idioms by Christine Ammer. Copyright © 2003, 1997 by The Christine Ammer 1992 Trust. Published by Houghton Mifflin Harcourt Publishing Company. All rights reserved. 6 Cambridge Dictionary of American Idioms Copyright © Cambridge University Press 2003. Reproduced with permission. 7 Dictionary.com Unabridged Based on the Random House Dictionary, © Random House, Inc. 2015. 8 Ibid.


ChampionBriefs 24

whether or not people who are on juries should have the right to nullify decisions about certain

actions out of their own volition and thus actively disregard the law.

You should take this as the beginning of your research not all of it. Dive more into

definitions that contextualize what words mean in the context of this specific resolution. Now I’ll

offer a few ideas for the affirmative and negative that you could look into for a possible case.

Affirmative

As the affirmative, you are defending a world where jury nullification is a good thing and

should be used in response to perceived injustice. There is a theoretical transference from having

jury nullification be a power to a right. I will offer up a few arguments that could help you start

thinking about how you would like to approach the topic. These ideas are meant to guide your

research and help spark your own, more unique ideas!

The first argument is to address specific injustices and champion social causes. These

could either be kritikal, plans, or just advantages to an Aff. You could argue that when juries are

faced with X injustice, they should nullify. The possibilities are endless, ranging from sexist laws

to racist laws. Paul D. Butler believes that African American jurors can and should use jury

nullification as a, “sword to combat a racist criminal justice system” (Butler).9 This has

commonly been done through “Bronx juries,” which were juries from the Bronx that were made

of minorities that would reconsider guilty verdicts based on either making a “statement to focus

attention on racism in the criminal justice system and poor conduct towards minorities” or

understanding from experience how the law and police force unfairly address minority groups in

9 Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995); Nancy S. Marder, The Interplay of Race and False Claims of Jury Nullification, 32 U. Mich. J.L. Reform 285 (1999).


ChampionBriefs 25

comparison to how they address and interact with white communities (Keneally).10 These same

types of arguments can be made under other social causes as well.

Another argument is about vigilantism. Jury nullification can be used to let off someone

who violate the law but had honorable motives. For example, in Detroit, a neighborhood that was

once safe and well kept became unsafe because of the presence crack house, where drug dealers

lived and sold illegal narcotics. After multiple police calls and nothing changing, two people in

the neighborhood burned the house down to rid the neighborhood of the focal point of

reoccurring violence. Though the two individuals were guilty of arson, the trail jury decided that

they shouldn’t go to jail.11

A final argument could be that jury nullification is a way to critically engage with the

law. Critical legal studies scholar Duncan Kennedy argue that critical legal studies is aimed at,

“change the existing system of social hierarchy, including its class, racial and gender dimensions,

in the direction of greater equality and greater participation in public and private government,”

(Kennedy).12 Jury nullification could be an important tool in advancing such agendas.

Negative

As the negative, you will be defending some type of world that does not actively

encourage jury nullification. You do not have to defend that jury nullification will never be used

because it will happen regardless of whether it’s encouraged or not, as it has been in the past.

However, you can advance other, separate arguments. A few are listed below.

10 James M. Keneally 2010/11 “Jury Nullification, Race, and The Wire” Volume 55 NYLS Law Review 11 Ibid. 12 Duncan Kennedy “The Critique of Rights in Critical Legal Studies”


ChampionBriefs 26

First, you could argue that runaway juries might not suspend only bad laws. Different

people have different perspectives on the law. How certain juries will interpret those laws is

highly up to chance and variable (Silverman).13 Furthermore, a state government should not be

actively encouraging that laws democratically made on behalf of all citizens should be violated.

Put blankly, jurors have no right to be putting their own preferences over the preferences of the

entire country because it has a large impact on the rule of law (Chicago Tribune).14

Another argument that can be made into a case (or into just case turns) is that

championing certain causes will only harm those causes by polarizing a society and perpetuating

harmful stereotypes of those groups (Leipold).15

This topic allows you to argue a multitude of different philosophical, utilitarian, policy-

making, and topicality arguments. The options are truly endless.

Good Luck!

Shania Hunt

About Shania Hunt

Shania Hunt debated for four years at Northland Christian School and was a team captain

for her junior and senior year. She reached elimination rounds of Grapevine, Greenhill,

Lexington, and the VBI tournament. She was a semifinalist at 2012 St Marks Tournament,

national runner up in Extemporaneous Debate at the 2013 NSDA nationals, champion of the

2013 Greenhill Classic and Cal Berkeley Round Robin, a finalist at Cal Berkeley Invitations, and

a Quarterfinalist at 2014 TOC. She was honored with a place on the USA’s debate team and will

be debating in the fall at the WSDC world championships. She is currently to be attends UCLA.

13 Steve Silverman 2/4/14 “8 Jury Nullification Objections Rebutted” 14 Chicago Tribune “The dangers of jury nullification” 1/27/14 15 Andrew D. Leipold, The Dangers of Race-Based Jury Nullification: A Response to Professor Butler, 44 UCLA L. Rev. 109, 112 (1996). ]

TopicAnalysisbyMitaliMathur November/December2015

ChampionBriefs 27

Topic Analysis by Mitali Mathur

Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice

Introduction

The November/December topic is always a great opportunity for debaters to improve

their debate skills, continue the process of qualifying to tournaments, and excel during the

season. Regardless of what circuit you compete on, there are lots of opportunities to debate this

topic in a competitive environment, especially now that many of you have gotten back into the

swing of debate. There are many competitive national tournaments on this topic including

Meadows, Glenbrooks, and Apple Valley. Glenbrooks and Meadows tend to be more policy-

heavy in terms of style while Apple Valley has a broad range of styles. But whether you compete

on the local, state, or national level, take the time to research the topic literature to do the best

you can in debates.

The November/December topic has lately been very focused towards the criminal justice

system. I think that this brings the spotlight onto very real world issues debaters should analyze.

In my opinion, debaters should interrogate the criminal justice system and look at the bigger

picture (i.e. injustices in the United States). I would like to see debates on whether or not jury

nullification is actually effective at remedying the harms of the status quo. The prison population

is growing, minorities are disproportionately behind bars, victims feel abandoned, and ex-

prisoners are trapped in a cycle of poverty. These are a few of the myriad of issues that affect the

daily lives of the more than 12 million Americans who cycle through the criminal justice system

each year.


ChampionBriefs 28

I appreciate the diversity of styles in the debate community, but I think that for this topic

in particular, if you want to read a purely philosophical position, you should realize that you are

abstracting from reality. I think that for topics that are literally about the livelihoods of millions

of individuals, we should put them at the focal point of our discussions. Telling someone who

has faced injustices that their life is secondary to an abstract discussion is the reason the criminal

justice system continues to prey and devastate the lives of many. By failing to analyze real world

issues, debaters mirror the writers, enactors, and enforcers of unjust laws by turning a blind eye

to the consequences of such injustices. Therefore, I think that this topic has great ground for

critical arguments that analyze the nature of the criminal justice system and the laws that end up

subjugating many. I would urge everyone to view the topic through the lens of individuals

affected by jury nullification.

Topic Background

This topic has a lot of literature as issues surrounding jury nullification have been and

continue to be debated. Jury Nullification “occurs when the defendant's guilt is clear beyond a

reasonable doubt, but the jury, based on its own sense of justice or fairness, decides to acquit.

The nullification doctrine recognizes this power to ‘acquit against the evidence,’ even though

when a jury nullifies, it ignores the judge's legal instructions and vetoes a legislative definition of

culpable conduct.”16 Jury nullification exists in the status quo, but many members of the jury

don’t know they possess the power to let someone who is guilty, free to make a statement and

16 Andrew D Leipold 96 [Assistant Professor at the University of Illinois College of Law], "Rethinking Jury Nullification," Virginia Law Review, Vol. 82, Number 2, March 1996, GU//MM


ChampionBriefs 29

declare that a law is immoral.17 Some examples of instances when jury nullification has been

used include sympathetic defendants, unpopular laws, or controversial government conduct.

I think the phrase “perceived injustices” helps frame what the debate is about. The

fundamental question is not whether or not jury nullification should exist, rather, it’s a question

of whether it should be a tool used in the face of perceived injustices. Debaters can get creative

by framing in what situations jury nullification should be used. I think the issue of

implementation is interesting. Given the wording, it is hard to pose a specific plan that would

implement a policy since the Criminal Justice System itself doesn’t pass policies. Additionally,

jury nullification already exists, so the resolution is about when/why it ought to be used.

Therefore, I think that debaters can specify particular injustices in which jury nullification ought

to be used, but should not write plans phrased as the criminal justice system ought to implement

X policy.

Overall, I think that this topic is really interesting and focuses on real world issues. I

think debaters should focus on those issues and really analyze how they want to frame the

debate. Options to frame the debate and make cases can come from different definitions of

“perceived injustices.” Hopefully, this brief will help give you some ideas and examples of

potential cases that could be successful. But this brief should by no means be the extent of your

research, but it can be a good start!

17 James Joseph Duane 96 [Associate Professor at Regent Law School in Virginia Beach, Virginia], "Jury Nullification: The Top Secret Constitutional Right," Litigation 6-60, 1996, GU//MM


ChampionBriefs 30

Affirmative

I think that there is a lot of interesting aff ground depending on how debaters view

“perceived injustices.” Here are a few positions that I can imagine being run:

Firstly, a stock aff. I think that stock affirmatives are often times just true because they

have the most literature and research behind them. On this topic, a stock aff would have

justifications for why we must act in the face of injustices and why jury nullification is a tool that

can remedy the harms of the status quo. There is evidence to support the claim that jurors should

act in their consciousness and that they have obligations to do what’s in their ability to fight

injustices.

Secondly, a liberty or checks on state power aff. One of the more prominent cases for

jury nullification revolves around the idea of nullifying laws that allow for government

oppression. Juries themselves were created to be a check on governmental power. The

framework that can be with this kind of philosophical aff can differ, including a Republicanism

framework, a checks on state power framework, or a liberty based framework. There are

different variations of this case. You can advocate for jury nullification as a check on state

power. You can advocate for juries to nullify political motivated convictions. You can advocate

for jury nullification to mitigate coercion and promote freedom of individuals.

Thirdly, a util aff. I think that there are multiple advantage areas to draw from, so stacked

affirmatives can be quite strategic. Here are a few examples of some advantages you can read:


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1) Federalism Advantage. Jury nullification can be used to protect people who would be

convicted under federal law, but not state law.18 You would frame the injustices to be the

harms of disrespecting the principles of federalism.

2) Democracy Advantage. You could read reasons why jury nullification contributes

towards upholding democracy. This is because by nullifying unjust laws, juries have a

voice within/against the government and fulfill their role by contributing to the civic.

3) Poverty Advantage. You can read arguments about why current laws are antagonistic

towards the poor, which often leads to incarceration due to small infractions of the law.

Jury nullification would minimize excessive criminalization.

This is a limited list, but it can be a starting point for writing a util aff.

Fourthly, more critical affirmatives. I think that this topic offers great critical ground and

that debaters should talk about the people who will be directly impacted by jury nullification.

Here are a few examples of approaches you can take towards writing a more critical aff:

1) Racism Aff. This aff can criticize the nature of laws that disproportionately

affect minority populations and keep “undesirable” populations locked up behind bars.

There is a lot of historical evidence to verify that jury nullification helped directly

challenge slavery and fugitive slave laws. 19 You can argue that jury nullification helps

directly contest racism and mass incarceration in the status quo because it decreases

18 Aaron McKnight 14 [Prosecutor at Orem City; Brigham Young University; Previously worked in the US Attorney's Office, District of Utah], "Jory Nullification as a Tool to Balance the Demands of Law and Justice," Brigham Young University Law Review, Volume 2013, Issue 4, Article 9, January 27, 2014, GU//MM 19 Paul Butler 03 [BA at Yale University; JD at Harvard University; Professor of Law at George Washington University], “By Any Means Necessary: Using Violence and Subversion to Change Unjust Law,” UCLA Law Review, February 2003, GU//MM�


ChampionBriefs 32

incarceration of individuals harmed by racist laws. I think that this can be very powerful

as it has tangible and direct impacts.

2) Drug Aff. There is plenty of evidence to support the fact that marijuana laws unjustly

subjugate and target many minorities. Jury nullification would help decrease

incarceration due to unjust and racially motivated drug laws.

3) Battered Women Aff. There are multiple cases where victims of domestic violence

have killed their batterers. Juries are left with the choice to convict the woman of

homicide or nullify the law. You can read a powerful narrative of survivorship and

moving on after domestic violence instead of being an incarcerated victim.

I think that these critical affirmatives are very powerful and could be very strategic.

There are a wide variety of affirmatives that can be run on this topic and I hope you find

one or multiple affirmatives you are comfortable with.

Negative

There are also a multitude of approaches you can take to negate this topic regardless of

what style of debater you are.

Negative Cases

I think that there are a few negative cases that can be run on this topic. Firstly, you could

read a case about respecting the rights of the victims. Jury nullification occurs in situations where

there is enough evidence to prove someone guilty of violating a law. You could argue that jury

nullification disregards the victims. I think that this could be a pretty stock argument that could

be persuasive. It could be run with a framework about respecting rights (especially victims) or

one about retributivism. Another twist on this kind of negative could be one that focuses more on


ChampionBriefs 33

issues of fairness and justice. Secondly, a legitimacy NC about why the use of jury nullification

harms the perception of the criminal justice system. The framing could be about why it is

important to maintain the rule of law and respect institutions. The offense in this type of negative

could include reasons why jury nullification decreases citizen trust in the system since laws are

just disregarded.

Alternative Argumentation

I think that there could be some advantage counterplans depending on specific

affirmatives. For example, against a drug aff, there could be a counterplan to end the war on

drugs. There could be a rehabilitation/reform counterplan against an aff that discusses

decreasing retributivism. I think the best counterplans will adapt to what the affirmatives are.

Another type of counterplan that could be run is an agent counterplan. There is certainly some

literature arguing that prosecutors, not juries, should be the ones to make discretionary decisions,

especially given that they are given more information than jurors.

The disad ground seems to be lacking a lot of uniqueness given that jury nullification

exists in the status quo. Therefore, I would caution you when you find a disad link. Perhaps a

few linear disads could work such as a trust in the system DA (any increase in the use of/public

stance in favor of jury nullification will decrease trust in the system).

I think one of the most common critiques on this topic will be of the entire criminal

justice system. You can argue that the criminal justice system is inherently oppressive and

should be obliterated all together or majorly reformed. You can incorporate other links about

how jury nullification masks the real struggle against what you consider to be the root cause of

oppression. I think that this could be an interesting way to engage an aff that is more focused on

working within the system.


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Overall Thoughts

I think that this topic is very interesting and there are a variety of approaches to it.

Regardless of what kind of debater you are or what circuit you debate on, you can find a way to

debate this topic. Keep looking for specific links to the topic and keep in mind the bigger picture.

Good luck!

Mitali Mathur

About Mitali Mathur

Mitali competed in LD for 4 years at Greenhill School with success on the local, state,

and national level. She qualified to the Texas Forensics Association debate tournament three

times, placing third her junior and senior year. Over her debate career, she cleared at national

tournaments including St. Marks, Grapevine, Meadows, Glenbrooks, Isidore Newman, and

Emory. She also qualified to the TOC her junior and senior year. Mitali was honored to be a

member of the USA Debate Team, through which she placed second in the Harvard Westlake

Tournament and Holy Cross Tournament, won the Blake Tournament, and the team placed 10th

in the world at the World Schools Debating Championship held in Singapore. She is excited to

be attending the School of Foreign Service at Georgetown University starting this fall.

Alt.ArgumentationbyMartinPage November/December2015

ChampionBriefs 35

Alternative Argumentation by Martin Page

Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.

November-December provides plenty of opportunities for LD Debaters to run alternative

positions at national, regional, and local tournaments. Given the increasingly progressive nature

of TOC-bid tournaments, depending on how you utilize mutual judge preferences (MJP), there

will likely be plenty of rounds at large tournaments where these positions are welcome.

Ultimately, the best strategy on any topic involves preparing a diverse array of traditional,

theory-heavy, and critical positions to ensure you are in the best position to adapt to any judge or

judge panel. This topic analysis will address how common critical positions function on this

topic and then discuss some counterplan ideas. Each section will include some specific

strategies, and at the end I will briefly discuss how to effectively utilize mutual judge preferences

for alternative argumentation.

First, I would like to offer a few tournament-specific notes. For tournaments that use

Tabroom.com, judges are often posted before preferences/strikes open, so be sure to review these

well in advance as you begin preparing so that you know generally what type of judge pool

you’ll be facing. If there isn’t a specific “Judges” tab on the tournament’s website, you can see a

list of judges under the “Live Updates” tab, usually. For the three bid tournaments in the

Northeast (Scarsdale, Ridge, Princeton), expect a progressive judge pool that is open to kritiks

and other alternative forms of argumentation. Expect a more traditional judge pool at Alta

(Utah) in November, though the early judge list does include some progressive judges who are

open to critical and policy-type argumentation. The same can be said for Blue Key (Florida), the

first bid tournament on the topic. For these tournaments, it is perfectly acceptable to discuss


ChampionBriefs 36

issues of oppression, racism, capitalism, sexism, and more often addressed in more critical

positions. However, at these tournaments, these issues should be discussed in negative cases

with framework and standards and affirmative cases that may have oppression-focused

frameworks but also have a standard and an advocacy text that invites a discussion of the whole

resolution. For larger tournaments like Glenbrooks and Apple Valley, expect a judge pool

diverse enough that you can use MJP to generally get judges who are open to your preferred

style, but remember that competition at these tournaments is fierce and you will never always get

the judges you want. Therefore, a diverse preparation strategy is necessary for these larger

tournaments.

Critical Positions—Affirmative

For so many topics, critical literature functions better on the negative than it does on the

affirmative. For this one, that is not necessarily the case insofar as jury nullification may be one

way to solve issues of systematic oppression in the justice system. Women, non-heterosexual or

non-cisgendered persons, and racial and ethnic minorities all suffer in one way or another by the

hand of the United States Justice System, and critical affirmatives with an advocacy or plan text

could be a powerful and strategic way of discussing these issues.

A race-based critical approach seems like the most obvious one here given just how much

black Americans suffer in the United States criminal justice system. There are numerous critical

frameworks and a plethora of critical literature on the oppression of black people, particularly in

the criminal justice system. A cursory look at the National Association for the Advancement of

Colored People (NAACP) Criminal Justice fact sheet offers plenty of statistics: nearly 50% of

America’s incarcerated population is black and a disproportionate amount of black Americans


ChampionBriefs 37

are sent to jail for drug-related crimes.20 These basic sources can shine light on the problem, and

authors like Frank Wilderson, probably the most common “race K” author in LD today, offer

philosophical and critical analysis of the problem. Wilderson calls “the reconfiguration of the

prison-industrial complex” a “renaissance of slavery.”21 Later in the same article, debaters can

find the often-cited passage explaining how black Americans are dehumanized and have a “past

without a heritage,” and, more importantly for this topic, Wilderson’s observation that “whoever

says ‘prison’ says Black.”22 Wilderson effectively argues that the systems of civil society in the

west, including the United States, have been built on top of black people while systematically

depriving black Americans of an identity outside of America’s oppressive power structures,

including prisons. Specific to this topic, he suggests that the prison system is, at least

discursively, part and parcel with blackness in the U.S.

The resolution’s final words “in the face of perceived injustice” are important here. The

affirmative could advocate for jury nullification as a way of reducing the oppression of black

Americans by giving juries a reasonable avenue to reduce the number of black Americans going

to prison or being convicted of drug crimes because there is a “perceived injustice” against black

Americans in the criminal justice system. A race-based framework combined with advantages

specific to reducing the oppression of black Americans and a role-of-the ballot on reducing black

oppression or anti-black racism could be very strategic.

20 "Criminal Justice Fact Sheet." National Association for the Advancement of Colored People. Web. 12 Oct. 2015. http://www.naacp.org/pages/criminal-justice-fact-sheet 21 Wilderson, Frank B. “The Prison Slave as Hegemony’s Silent Scandal,” p.22. Social Justice Journal. Web. 12 Oct. 2015. http://www.socialjusticejournal.org/archive/92_30_2/92_04Wilderson.pdf. This article gives an excellent sample of Wilderson’s thought, which offers the philosophical, framework-level underpinning for many black oppression cases and kritiks. 22 Ibid., p.25.


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Layer ACs like this to ensure you have multiple ways to garner offense. For instance,

you could read a short narrative at the top of the AC, read a race-based oppression framework

with a role of the ballot that offers you ways to garner offense on the pre-fiat level by promoting

discourse on oppressed people and post-fiat level through the actual policy of jury nullification,

and offer an advocacy text with impact/advantage-level offense after that. Throughout the case,

you can sprinkle analytic and carded theory and topicality spikes, like Berube’s argument (in the

context of ableism, but nonetheless relevant) that all equal participation (read: oppressed voices

in the debate space) is a prerequisite to debates about participatory parity (read: fairness voter).23

This strategy allows you to garner offense on the post-fiat contention level, the framework,

which may include some cards that offer pre-fiat offense through the discussion of oppression or

racism they offer, and the narrative. Of course, it is always possible to discuss these issues in a

more traditional context, with a value of justice and a standard/value criterion of minimizing

oppression, but this would likely require framework evidence less specific to race and avoiding

pre-fiat arguments.

While race-based affirmatives may be the most common on this topic, there are more

options for micro-political Ks on the affirmative. For instance, Eric Grollman of the University

of Virginia writes, “The National Transgender Discrimination survey notes that trans people are

more likely to interact with law enforcement and/or enter the criminal justice system,” partially

“because of employment discrimination, many transgender people turn to sex work, selling as

well as using drugs, or other parts of the underground economy.”24 Furthermore, a quick Google

search reveals systematic problems of abuse of women in women’s prisons, turning up search

23 Berube, Michael. "Citizenship and Disability." Alternet. 2 May 2003. Web. http://www.alternet.org/story/15809/citizenship_and_disability. 24 Grollman, Eric. "Transgender People And The Criminal Justice System." 30 June 2014. Web. http://egrollman.com/2014/06/30/trans-criminal-justice/.


ChampionBriefs 39

results as recent as 2014 and as old as 1996. The most famous occurrence of this was the

widespread sexual assault allegations at the Julia Tutwiler women’s prison in Alabama, which

the Department of Justice took steps to fix only this may.25 These surely could be “perceived

injustices” for juries considering nullification and therefore, fair ground for affirmatives.

Discussing these real-world issues in the context of feminist or queer theory literature on the

framework level (with a role of the ballot/standard of “reducing female oppression” or “reducing

trans oppression”) could offer the opportunity to argue that jury nullification can keep women

away from harmful prison conditions and trans people from being convicted because of the

structural discrimination they face. I can’t emphasize enough: it is possible, and in front of

traditional judges, even advisable, to address these problems facing black, female, and trans

Americans in the context of a broader, philosophical framework centered on reducing

oppression. This whole-resolutional approach, however, may be less complex and thus too easy

for negative debaters to respond to at more progressive tournaments.

Critical Positions—Negative

Many negative debaters prefer to combine strategies, by running a counterplan (CP) with

a topicality shell, or a kritik and a counter plan, etc., etc. This topic throws a wrench into the

“counterplan-with-something-else” negative strategy because it is very difficult to find

competitive counterplans on such a specific topic. Initially, you may think that abolishing

private prisons could be a valid counterplan. But at least on the surface, this CP would not be

25 Cox, John. "Justice Department Acts to End Sexual Assault at Women's Prison in Alabama." Washington Post. The Washington Post, 28 May 2015. Web. <https://www.washingtonpost.com/world/national-security/justice-department-acts-to-end-sexual-assault-at-womens-prison-in-alabama/2015/05/28/f72e1fcc-055c-11e5-8bda-c7b4e9a8f7ac_story.html>.


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competitive with the notion that jury nullification “ought to be used in the face of perceived

injustice.” Surely we can use jury nullification and abolish private prisons. I’m sure there are

ways to make CPs like this competitive on a textual or political capital level, but in short, CPs on

this topic will be incredibly susceptible to perms. That being said, there are some CPs that

discuss alternative legal means to the same ends as jury nullification that could be strategic. I

will address these a bit later on.

All this is to say that Ks are likely more strategic for this topic because they can move to

the left of affirmatives while still competing with them. Why am I talking about competition in

relation to Ks? Because Ks, and particularly their alternatives, can be susceptible to perms as

well as de-links as well. Above, I discussed how the affirmative can argue critically that jury

nullification can mitigate some of the harms of the justice system (maybe). The negative can

simply critique the justice system entirely.

The most obvious, strong link for a lot of negative Ks is: The affirmative, by working

within the United States criminal justice system as stipulated by the resolution, endorses that

system which [oppresses and dehumanizes x group] or [perpetuates x harm]. This could

alternatively function as a criticism of those terms in the resolution, but the link story of Ks of

the resolution is generally less compelling because the Aff can much more easily perm an

alternative or de-link from a K that the affirmative performance or advocacy does not explicitly

link to. Other good links will be specific to certain affirmatives: if you start with the

aforementioned link and are running a race-based K, and the affirmative reads a Kant AC, you

can extemporaneously add a performative link saying the affirmative bites in by utilizing the

philosophy of a known racist. Since the resolution contains the word “ought”, if the affirmative

uses this word without critically interrogating it, this could be a link to a K based on Dr. Tommy


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J. Curry’s philosophy of anti-ethics. Curry writes, “In ethical deliberations dealing with the

problem of racism, it is common practice to attribute to historically racist institutions, and

individuals universal moral qualities that have yet to be demonstrated,” in addition to saying that

“ought is repressive” for black thinkers.26 Thus, if the affirmative is attributing the ability to be

just to a historically racist institution of American juries and using the word “ought” without

criticism, these could both function as links to a race-based negative critique. Given that jury

nullification was a practice used by white juries to acquit whites of crimes they surely committed

in the Jim Crow south, this adds only another layer.27

Most of these links function best for Ks that focus on racial issues, but if your strategy is

to move to the left of an affirmative, the link to the affirmative’s endorsement of a justice system

that systematically fails women, LGBTQ, and non-white people is solid for any micro-political

criticism. The same goes for a capitalism K, which requires proving a relationship between

capitalism and the American justice system in the link discussion. There are two ways to do this.

First, private prisons are inherently linked to capitalism insofar as they are private; at that point,

you can continue with a standard K of capitalism. The impact is significant as 6% of state

prisoners and 16% of federal prisoners are housed in private prisons, on top of some local

inmates as well.28 The private prison lobby has become one of the largest in the United States,

26 Curry, Dr. Tommy J. "[Draft] In the Fiat of Dreams: The Delusional Allure of Hope, the Reality of Anti-Black Violence and the Demands of the Anti-Ethical." Academia.edu. Web. <https://www.academia.edu/3384301/_Draft_In_the_Fiat_of_Dreams_The_Delusional_Allure_of_Hope_the_Reality_of_Anti-Black_Violence_and_the_Demands_of_the_Anti-Ethical>. Please note that this paper requires permission to cite; be sure to get this permission before running it in round to avoid theory arguments on source integrity (and, by the way, it’s required by the rules of academic integrity). 27 See, for example: Somin, Ilya. "When Should Jurors Should Acquit the Guilty: A Partial Defense of Jury Nullification." Foundation for Economic Education. 11 Aug. 2015. Web. <http://fee.org/anythingpeaceful/when-should-jurors-should-acquit-the-guilty/>. Somin points out these basic concerns but goes on to defend the principle of jury nullification in part. 28 "Private Prisons." American Civil Liberties Union. Web. <https://www.aclu.org/issues/mass-incarceration/privatization-criminal-justice/private-prisons>.


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spending $25 million on lobbying—sometimes for more stringent enforcement of law to increase

the prison population—since 1989.29 At this point, it should be clear that the United States

justice system is not only wrapped up in capitalism but perpetuates it, and the involvement of

capitalism in the justice system comes at the expense of justice. Additionally, prisoners often

work to produce goods for far below minimum wage—as of 2014, such prison labor, which

some have called modern-day slavery, has been legalized by 37 states.30 This provides yet

another link (and the beginnings of an impact story as well) between the United States Justice

System and capitalism.

Remember that most Lincoln-Douglas topics don’t specify a country like this one does:

“In the United States criminal justice system” are the first words of the resolution. This creates a

ground restriction that probably has a more sever effect on negative debaters than most

restrictive clauses do. For the negative, it is difficult to run Ks focused on orientalism or

imperialism because those tend to be international topics. However, problematizing biopower in

the context of the United States Justice System and the affirmative’s endorsement of it would be

a solid strategy. Insofar as prison is one of the most direct forms of state control of the body—

the prisoner is physically and mentally constrained by a state (or state-sponsored) institution—

and Foucault’s criticism of power is based on the panopticon, a figurative prison, criticisms of

biopower would work well on this topic.

29 Cohen, Michael. "How For-profit Prisons Have Become the Biggest Lobby No One Is Talking about." Washington Post. The Washington Post, 28 Apr. 2015. <https://www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profit-prisons-have-become-the-biggest-lobby-no-one-is-talking-about/>. 30 Pelaez, Vicky. "The Prison Industry in the United States: Big Business or a New Form of Slavery?" Global Research. 31 Mar. 2014. Web. <http://www.globalresearch.ca/the-prison-industry-in-the-united-states-big-business-or-a-new-form-of-slavery/8289>.


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Keep in mind that negative Ks work best with links to the specific affirmative case you

are hitting. This shields you against generic perm arguments by giving you an automatic

disadvantage to the perm through the affirmative’s perpetuation of some negative impact.

Furthermore, it allows you to make cross-applications from the impacts in the K to the aff, giving

you some turns to the affirmative right off the bat—this is especially valuable if you lack aff-

specific responses.

Counterplans

As I wrote before, I do not think there is extensive, competitive counterplan ground on

this topic, unless the counterplan has a critical bend to it. For instance, a counterplan calling for

the abolition of private prisons as an alternative to the aforementioned capitalism K might work,

but the competition may have to rely on the discursive realm: the CP does not endorse the United

States criminal justice system while the affirmative does, etc. Therefore, this CP would likely

require pre-fiat advantages related to this as well to ensure competition with the affirmative.

Even then, just because this CP would be appended to a K with links and impacts that function as

turns on the affirmative, those impacts would not necessarily function as disadvantages to a perm

of this CP alt insofar as the CP could function independently of the K. Of course, there are

plenty of ways to make a CP competitive without actually competing: multiple layers of theory

arguments in the competition section or competing through net benefits are all options. That

said, I have never found these particularly compelling and thus advocate for a K strategy that

involves pre- and post-fiat alternatives as opposed to non-topical counterplans for this topic.

That said, there are more directly topical counterplan options. Kerr argues in the

Washington Post that the functions of jury nullification—whether to convict in a case of guilt

where there is perceived injustice in the law or some other realm—ought to be the prosecutor’s


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prerogative.31 This argument is fairly easy to respond to insofar as prosecutors are politically

motivated and build their careers on convictions, but combined with turns on jury nullification

read against the affirmative, this could be a viable counterplan strategy. Furthermore, it’s surely

competitive in that advocating that prosecutors ought not bring certain cases to trial

fundamentally shifts the burden of preserving justice away from the jury and changes the actor

from those who don’t know the law professionally to those who do. If your advantages are

specific to the expertise of prosecutors, the change in actor surely makes the CP competitive.

Given how short the 1AR is, if you are confident you can win that the CP is competitive, you’ll

likely garner solid offense off of this counterplan.

Closing Thoughts

Please also remember that topicality is also a valid alternative strategy—the operative

words to look at for good T ideas are “in the face of perceived injustice.” The various definitions

of justice and injustice could allow negative debaters to run topicality shells arguing that

affirmatives are not topical because they don’t apply to/specify situations of perceived injustice.

This could be an interesting T strategy, which those of us who judge regularly would love to see

far more than the standard theory and T that leaves us filling out ballots angrily and shaking our

heads.

Remember that if you are focused on alternative argumentation—in particular, if you

want to read Ks most rounds—you should not be thinking of the preference or strike sheet before

the tournament as a list of “good” or “bad” judges. If you’re a K debater or prefer to run policy

arguments but hate theory, think about the “progressive” judges who are biased towards theory

31 Kerr, Orin. "The Problem with Jury Nullification." Washington Post. The Washington Post, 10 Aug. 2015. Web. <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/10/the-problem-with-jury-nullification/>. This post also links to some other articles on jury nullification.


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and strike them. You can adapt to parent judges, even on an out rounds panel, but it is a lot more

difficult to adapt to a judge who is paradigmatically opposed to the way you want to debate. In

short, don’t waste your strikes on parent judges—they put you and your opponent at roughly the

same disadvantage if you’re both progressive debaters. Instead, strike the judges who are

progressive, but not in the way you want them to be. If you, as a K debater, rate them highly in

MJP, you may end up debating a theory debater in front of a judge who likes theory and hates

Ks. That’s a far worse situation than the one with the parent judge.

In short, the affirmative has multiple ways to discuss issues of oppression, both in critical

and non-critical ways. Negative debaters should lean towards Ks with alternatives that cannot

easily be permed and stay away from counterplans that do not compete with the affirmative on

any meaningful level. On the whole, this is sure to be a fascinating topic to judge and debate

both in progressive and traditional environments, truly forcing debaters to think critically about

justice and oppression at the same time. Best of luck for a wonderful two months of debating,

and thank you for reading.

Good Luck!

Martin Page

About Martin Page

Martin Page attended and competed for Milton Academy in Massachusetts. As a

Congressional Debater, he placed in the top 6 at the TOC and NSDA Nationals, won the NSDA

Senate Leadership Bowl, and was a two-time Massachusetts State Champion. Martin is currently

the Assistant Director of Debate at Ridge High School in Basking Ridge, NJ, where he coaches

Congressional Debate, Public Forum, and Lincoln Douglas. His students have Championed Yale,

George Mason, NCFL Nationals, the Bronx Round Robin, and New Jersey States in addition to

placing in the top 6 at Harvard, the Tournament of Champions, and NSDA Nationals. He is a

junior majoring in History at Princeton University and hopes to teach and continue coaching

after he graduates.

Frameworks



TopicAnlyses November/December2015

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Framework Analysis by Amy Geller

Resolved: In the United States criminal justice system, jury nullification ought to be used in the face of perceived injustice.

Affirmative Frameworks:

1. Complicity

The value is morality as prescribed by the word ought in the resolution. Get evidence that

says that achieving morality entails active action by citizens. Additionally, find some

evidence that talks about bystanderism and how being a bystander in the face of injustice is

equivalent to participating in the immoral action. Therefore, the standard is avoiding moral

culpability.

A. Strategy:

This framework is strategic because it gets down to the crux of the conflict of the

resolution: what should happen when jurors are confronted with a case where they

perceive injustice? This position would argue that doing nothing and prosecuting the

defendant makes the jurors complicit in the injustice. This is an interesting case idea

because it takes a stance from a distinct perspective of the resolution in the sense that it

goes one step further in assigning guilt to what the jurors do in the negative world.

B. Ideas to answer:

The jurors didn’t do anything. That’s the point. A juror’s job is to take a passive approach

and just sit back and listen to the facts of the case. Why does culpability matter? Make

responses that show the distinction between taking an immoral action and not acting.

There are definitely legitimate reasons as to why people don’t intervene in certain


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situations. Brainstorm those reasons and take down culpability. Also, jurors would be

more culpable if they nullify because the defendant would get off free when they

committed a crime.

2. Checks

The value is a just state. Look for evidence that says that since people’s interests often

conflict, justice requires a fair method to resolve these needs. Look for cards in the literature

of author Thomas Christiano. Checks let us evaluate the legitimacy of the CJS. They also

provide a way for citizens to dissent against the state and keep it legitimate. People need to

have a say over the laws that govern them. Thus the standard is maintaining democratic

checks on state power.

A. Strategy:

So this framework might be considered stock, but don’t let that deter you because if it is

well developed it is very strategic. A checks FW is always useful because it could be

used to preclude most other FWs which always creates an entire layer of responses and

extensions to compare to the neg. This case would be run to say that nullifying a

perceived injustice is a check on the legitimacy of the CJS because the jury acts for the

interests of the common citizen, and gives voice to unjust laws in the society.

B. How to answer:

If jurors now have the power to disregard guilt and protest laws, it is not longer a check,

but a dangerous power hungry task. What is a check? Use your FW to conceptualize what

a check is and how we determine and measure that. Explain how the reasons checks are


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good are for external goods (aka your neg standard). If done correctly, you have the

opportunity to co-opt their framework.

Negative Frameworks:

1. Obligations:

The value is Justice defined as giving each his or her due. Being a juror is part of a legal duty

required by living in the US. Jurors enter into a contract where they must set aside prior

biases and focus on achieving justice in a specific case. Jurors must abstract themselves from

their experiences. You should find a card that explains the obligations that jurors have, the

importance of the contract they oblige to, and the tenets of the relationship between the juror

and the criminal justice system (CJS). You should also find evidence about the significance

of going into the job with a “clean slate” of mind. From there, you can argue that jurors have

the fundamental legal burden to judge the case to the best of their ability and search for guilt

or innocence. The standard they are upheld to is one which prescribes that they uphold civic

obligations, which means taking actions consistent with prescribed legal obligations.

A. Strategy:

This framework would be used to set up a position that explains how jurors have an

obligation to the current case. Since upon entering their civic obligation they are required

to try to be objective and only evaluate the evidence in the case, letting their “perceived

injustice” and personal opinions get in the way of determining the guilt of the defendant

would be unjust and against their legal duty. This is strategic because it centers the debate

around the people’s role as jurors and citizens that have obligations to the state. This is


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also good specific framework to use because it is specific to the criminal justice system,

as a genetic “Answer to burdens” framework would be unresponsive.

B. How to Answer:

A good way to answer this framework would be to take the approach that the debater is

fundamentally misunderstanding the question of the resolution. It is not about whether or

not the juror should try to perceive injustices with the laws/cases, but when they do, what

actions they should take in that situation. It is important to note how jurors do not have a

burden to the case they are deciding but that their role entails a burden to the entire CJS at

large. Therefore, they would definitely have the obligation to act on an injustice. Answers

like this one that are specifically about legal system and bettering the CJS on a higher

level would be a smart move.

2. Social Contract

The value morality is prescribed by the word ought in the resolution. People enter into a

contract with the state where they agree to follow the law in order to receive protection in

return. You should look into philosophers like John Locke to find a card about the social

contract. When people become jurors, they become state actors and act in the interest of the

government and CJS, not just themselves. Evidence to illustrate this fact would also be

helpful. Thus, the standard is upholding the social contract.

A. Strategy:

This framework would be run to set up an advocacy that focuses on the relationship

between the defendant and the state. This is strategic because many Affs will be about the


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jury or the CJS but the defendant also plays a critical role in the context of the resolution.

S/he broke a law, broke the social contract, and deserves retribution. So regardless of any

perceived injustice, the current laws of the society dictate that the defendant is guilty. The

jurors work for the state in this instance, so they must be devoted to protecting the laws.

B. How to Answer:

Whip out those social contract blocks! Attack the first layer by arguing that the social

contract is illegitimate/doesn’t exist. Make specific answers to the juror-state relationship.

Why are the jurors now all of a sudden magically an actor of the state? Aren’t they still

regular people? One main argument is that the social contract was created to keep the

state just and provide citizens with a check. If there is an unjust law, the contract is

already broken, so affirming wouldn’t violate.

3. Semi-critical Negative

The value is morality prescribed by ought in the resolution. Get evidence saying that there

are multiple cultures and conceptions of the good. Then find a card that says since society

has many groups, we need to respect the differences in opinions they may possess rather than

marginalizing certain groups. Thus the standard is respecting value pluralism. Prefer this

standard because the CJS was created to adjudicate a fair judgment to all.

A. Strategy:

This framework would be used if you want to run something more on the critical side.

For example, this would be used in a case criticizing the western ideals of the CJS. It

would say that the problem is that the jury has the power to dictate which laws are good

and which laws are bad, which allows people who conform with the western ideas off the


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hook but punishes people with different views just because they are seen as different in

the eyes of the jurors. The fact that these decisions have to be unanimous also puts

pressure on those in the jury with eastern ideals and opens the door to domination.

B. How to Answer:

In answering a more critical case, you probably don’t want to argue that their FW is

“bad”. Using an argument that pluralism is bad might be considered wrong. Instead, try

to hone in on a comparison of your FW and their FW and how yours precludes and better

respects pluralism. If you don’t like K debate, dump on the FW. If you do like K debate

and have prep for this type of contention, re-conceptualize their FW by extending key

parts of yours and then make many responses on the contention level.

Evidence for the Affirmative



ConstitutionAC November/December2015

ChampionBriefs 54

ConstitutionAC

This aff is particularly strategic because this is a legal topic. There are surprisingly great

cards about how jury nullification is a right under the US Constitution. This is an aff that you

should definitely prepare because it’s something that can be executed very strategically.

The case itself is possible to turn, but the literature about it appears pretty aff biased.

That’ll help you out on the contention debate for sure. In addition, even if someone does read

case turns, so long as you’re “deep in the lit” you’ll be able to easily combat that. I never

understood why people rushed to read cases that were literally impossible to turn, or resorted to

theory when people read lots of cards against them. You can very easily engage people straight-

up, and clash, if you’re know what you’re talking about when you’re reading a case about the

Constitution. With any case you write, you need to know all of the ins and outs of the position,

anticipate potential negative strategies, and continue to innovate as the topic progresses.

Frameworks you could read for this aff:

--Rule utilitarianism: Utilitarianism is the correct moral theory, but we better go about

maximizing utility through codified rules than case-by-case calculations. The Constitution is a

utility-maximizing rule because following the Constitution, in general, tends to lead to good

consequences. This enables you to make disads about specific scenarios irrelevant; those DAs

prove that following the Constitution in this singular instance would be bad, but the warrants for

rule util prove that it’s too difficult for us to judge the specific circumstances in which we should

break rules. So, we should absolutely commit to the Constitution in all circumstances.


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--Kantianism: We have an obligation to honor our promises in all cases. This conclusion results

from the Categorical Imperative, that our principles for action (maxims) must be universal

(capable of being willed by all similarly situated rational agents). The US government promised

to follow the Constitution, politicians swear to follow it by oath, etc.

--Agent-relative obligations: The actor of the resolution is judges, because they’re the ones that

have to notify juries that they have the power to nullify, in the world of the aff. Judges have an

obligation to follow the Constitution, and morality is agent-relative.


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The government should adhere to the Constitution-the Constitution is an expression of democratic governance and equality. Huizinga, Danny. "Why The Constitution Is Important." Intercollegiate Review. October 08,

2015. <http://www.intercollegiatereview.com/index.php/2013/09/17/why-the-constitution-is-important/>.

Tuesday, September 17th, marks Constitution Day, the 226th anniversary of the signing of our nation’s Constitution. But there’s a question worth asking – why is our Constitution so special? What distinguishes our government from other similar democracies? The answer provides a wonderful glimpse into not just a document, but a revolutionary theory of governance and mankind that took the world by storm. The Constitution created a government based on two central axioms demonstrated by the Declaration. The first, natural human equality, recognized that no person has the right to rule over another without his or her consent. The second asserted that we are “endowed by [our] Creator with certain unalienable rights” – our right to “life, liberty, and the pursuit of happiness” are inherent within us, not conditional on the whims of those in power.


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The Constitution is philosophically grounded on consent of the governed. Meese, Edwin. "The Meaning Of The Constitution." Heritage Foundation. October 08, 2015.

<http://www.heritage.org/research/reports/2009/09/the-meaning-of-the-constitution>.

The Constitution of the United States has endured for over two centuries. It remains the object of reverence for nearly all Americans and an object of admiration by peoples around the world. William Gladstone was right in 1878 when he described the U.S. Constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man." Part of the reason for the Constitution's enduring strength is that it is the complement of the Declaration of Independence. The Declaration provided the philosophical basis for a government that exercises legitimate power by "the consent of the governed," and it defined the conditions of a free people, whose rights and liberty are derived from their Creator. The Constitution delineated the structure of government and the rules for its operation, consistent with the creed of human liberty proclaimed in the Declaration.


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The Constitution provides for the best form of government. Meese, Edwin. "The Meaning Of The Constitution." Heritage Foundation. October 08, 2015.


Edwin Meese III (Ronald Reagan Distinguished Fellow Emeritus, Heritage Foundation). “The Meaning Of The Constitution.” Heritage Foundation. September 16th, 2009. http://www.heritage.org/research/reports/2009/09/the-meaning-of-the-constitution Justice Joseph Story, in his Familiar Exposition of the Constitution (1840), described our Founding document in these terms: We shall treat [our Constitution], not as a mere compact, or league, or confederacy, existing at the mere will of any one or more of the States, during their good pleasure; but, (as it purports on its face to be) as a Constitution of Government, framed and adopted by the people of the United States, and obligatory upon all the States, until it is altered, amended, or abolished by the people, in the manner pointed out in the instrument itself. By the diffusion of power--horizontally among the three separate branches of the federal government, and vertically in the allocation of power between the central government and the states--the Constitution's Framers devised a structure of government strong enough to ensure the nation's future strength and prosperity but without sufficient power to threaten the liberty of the people. The Constitution and the government it establishes "has a just claim to [our] confidence and respect," George Washington wrote in his Farewell Address (1796), because it is "the offspring of our choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers uniting security with energy, and containing, within itself, a provision for its own amendment." The Constitution was born in crisis, when the very existence of the new United States was in jeopardy. The Framers understood the gravity of their task. As Alexander Hamilton noted in the general introduction to The Federalist, [A]fter an unequivocal experience of the inefficacy of the subsisting federal government, [the people] are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the Union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world.


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Consent of the governed is the foundation of just government. Meese, Edwin. "The Meaning Of The Constitution." Heritage Foundation. October 08, 2015.


Several important themes permeated the completed draft of the Constitution. The first, reflecting the mandate of the Declaration of Independence, was the recognition that the ultimate authority of a legitimate government depends on the consent of a free people. Thomas Jefferson had set forth the basic principle in his famous formulation: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed. That "all men are created equal" means that they are equally endowed with unalienable rights. Nature does not single out who is to govern and who is to be governed; there is no divine right of kings. Nor are rights a matter of legal privilege or the benevolence of some ruling class. Fundamental rights exist by nature, prior to government and conventional laws. It is because these individual rights are left unsecured that governments are instituted among men. Consent is the means by which equality is made politically operable and whereby arbitrary power is thwarted. The natural standard for judging if a government is legitimate is whether that government rests on the consent of the governed. Any political powers not derived from the consent of the governed are, by the laws of nature, illegitimate and hence unjust. The "consent of the governed" stands in contrast to "the will of the majority," a view more current in European democracies. The "consent of the governed" describes a situation where the people are self-governing in their communities, religions, and social institutions, and into which the government may intrude only with the people's consent. There exists between the people and limited government a vast social space in which men and women, in their individual and corporate capacities, may exercise their self-governing liberty. In Europe, the "will of the majority" signals an idea that all decisions are ultimately political and are routed through the government. Thus, limited government is not just a desirable objective; it is the essential bedrock of the American polity.


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The Constitution's grounded on separation of powers--that's key to check tyranny and ensure political cooperation. Meese, Edwin. "The Meaning Of The Constitution." Heritage Foundation. October 08, 2015.


A second fundamental element of the Constitution is the concept of checks and balances. As James Madison famously wrote in The Federalist No. 51, In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place oblige it to controul itself. A dependence on the people is, no doubt, the primary controul on the government; but experience has taught mankind necessity of auxiliary precautions. These "auxiliary precautions" constitute the improved science of politics offered by the Framers and form the basis of their "Republican remedy for the diseases most incident to Republican Government" (The Federalist No. 10). The "diseases most incident to Republican Government" were basically two: democratic tyranny and democratic ineptitude The first was the problem of majority faction, the abuse of minority or individual rights by an "interested and overbearing" majority. The second was the problem of making a democratic form of government efficient and effective. The goal was limited but energetic government. The constitutional object was, as the late constitutional scholar Herbert Storing said, "a design of government with the powers to act and a structure to make it act wisely and responsibly." The particulars of the Framers' political science were catalogued by Madison's celebrated collaborator in The Federalist, Alexander Hamilton. Those particulars included such devices as representation, bicameralism, independent courts of law, and the "regular distribution of powers into distinct departments;' as Hamilton put it in The Federalist No. 9; these were "means, and powerful means, by which the excellencies of republican government may be retained and its imperfections lessened or avoided." Central to their institutional scheme was the principle of separation of powers. As Madison bluntly put it in The Federalist No. 47, the "preservation of liberty requires that the three great departments of power should be separate and distinct," for, as he also wrote, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny." Madison described in The Federalist No. 51 how structure and human nature could be marshaled to protect liberty: [T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives to resist encroachments of the others. Thus, the separation of powers frustrates designs for power and at the same time creates an incentive to collaborate and cooperate, lessening conflict and concretizing a practical community of interest among political leaders.


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The Constitution is the fundamental law of the land--outweighs rule of law NCs. Meese, Edwin. "The Meaning Of The Constitution." Heritage Foundation. October 08, 2015.


The Constitution is our most fundamental law. It is, in its own words, "the supreme Law of the Land." Its translation into the legal rules under which we live occurs through the actions of all government entities, federal and state. The entity we know as "constitutional law" is the creation not only of the decisions of the Supreme Court, but also of the various Congresses and of the President. Yet it is the court system, particularly the decisions of the Supreme Court, that most observers identify as providing the basic corpus of "constitutional law." This body of law, this judicial handiwork, is, in a fundamental way, unique in our scheme, for the Court is charged routinely, day in and day out, with the awesome task of addressing some of the most basic and most enduring political questions that face our nation. The answers the Court gives are very important to the stability of the law so necessary for good government. But as constitutional historian Charles Warren once noted, what is most important to remember is that "however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court."[2] By this, of course, Warren did not mean that a constitutional decision by the Supreme Court lacks the character of binding law. He meant that the Constitution remains the Constitution and that observers of the Court may fairly consider whether a particular Supreme Court decision was right or wrong. There remains in the country a vibrant and healthy debate among the members of the Supreme Court, as articulated in its opinions, and between the Court and academics, politicians, columnists and commentators, and the people generally, on whether the Court has correctly understood and applied the fundamental law of the Constitution. We have seen throughout our history that when the Supreme Court greatly misconstrues the Constitution, generations of mischief may follow. The result is that, of its own accord or through the mechanism of the appointment process, the Supreme Court may come to revisit some of its doctrines and try, once again, to adjust its pronouncements to the commands of the Constitution. This recognition of the distinction between constitutional law and the Constitution itself produces the conclusion that constitutional decisions, including those of the Supreme Court, need not be seen as the last words in constitutional construction. A correlative point is that constitutional interpretation is not the business of courts alone but is also, and properly, the business of all branches of government. Each of the three coordinate branches of government created and empowered by the Constitution--the executive and legislative no less than the judicial--has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes a solemn oath precisely to that effect. Chief Justice John Marshall, in Marbury v. Madison (1803), noted that the Constitution is a limitation on judicial power as well as on that of the executive and legislative branches. He reiterated that view in McCullough v. Maryland (1819) when he cautioned judges never to forget it is a constitution they are expounding.The Constitution--the original document of 1787 plus its amendments--is and must be understood to be the standard against which all laws, policies, and interpretations should be measured. It is our fundamental law because it represents the settled and deliberate will of the people, against which the actions of government officials must be squared. In the end, the continued success and viability of our democratic Republic depends on our fidelity to, and the faithful exposition and interpretation of, this Constitution, our great charter of liberty.


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The 6th Amendment supports jury nullification. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,

1996. Web. October 08, 2015. <http://www.constitution.org/2ll/2ndschol/131jur.pdf>.

Despite all the modern government resentment toward "jury nullification," its roots run deep in both our history and law. At least two provisions of the Constitution, and arguably three, protect the jury's power to nullify. They also explain why that power is limited to criminal cases, and has no analogy in the civil context. First, it is reflected in the Sixth Amendment, which grants the accused an inviolable right to a jury determination of his guilt or innocence in all criminal prosecutions for serious offenses. Because of this right, a trial judge absolutely cannot direct a verdict in favor of the State or set aside a jury's verdict of not guilty, "no matter how overwhelming the evidence." Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). Any violation of this rule is automatically reversible error without regard to the evidence of guilt. Id. Indeed, the point is so well settled that it was announced without dissent in Sullivan by a Court that has been unanimous on only a few constitutional questions in the past ten years.


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We can't overturn a jury's decision no matter what-this rule is rigorously applied in civil practice. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


This rule is applied with a rigor that is without parallel in any area of civil practice. For example, it is reversible error to direct a verdict of guilty over the defendant's objection, even if he takes the witness stand and admits under oath that he committed every element of the charged offense! Bryant v. Georgia, 163 Ga. App. 872, 296 S.E.2d 168 (Ga. Ct. App. 1982). (Although one might fairly describe that particular defense strategy as a questionable use of direct examination.)


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The Double Jeopardy Clause supports jury nullification. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


Second, the roots of nullification also run deep into the (pg.7) Double Jeopardy Clause. Even where the jury's verdict of not guilty seems indefensible, that clause prevents the State from pursuing even the limited remedy of a new trial. This rule, by design, gives juries the power to "err upon the side of mercy" by entering "an unassailable but unreasonable verdict of not guilty." Jackson v. Virginia, 443 U.S. 307, 317 n.10 (1979).


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Sixth Amendment supports jury nullification. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


Finally, the jury's power to nullify is protected by our abiding "judicial distaste" for special verdicts or interrogatories to the jury in criminal cases. United States v. Oliver North, 910 F.2d 843, 910-11 (D.C. Cir. 1990). Unlike in civil cases, where such devices are routinely employed, in criminal cases it has frequently been held to be error to ask a jury to return anything but a general verdict of guilty or not guilty. United States v. McCracken, 488 F.2d 406, 418-419 (5th Cir. 1974) (collecting cases). This rule is designed to safeguard the jury's power "to arrive at a general verdict without having to support it by reasons or by a report of its deliberations," and to protect its historic power to nullify or temper rules of law based on the jurors' sense of justice as conscience of the community. Id.; United States v. Spock, 416 F.2d 165, 181-82 (1st Cir. 1969). The jury is given "a general veto power, and this power should not be attenuated by requiring the jury to answer in writing a detailed list of questions or explain its reasons." United States v. Wilson, 629 F.2d 439, 443 (6th Cir. 1980). Although the issue is far from settled, a powerful argument can be made that this rule "is of constitutional dimensions," and a direct corollary of the Sixth Amendment's protection of the jury's power to nullify. Wayne LaFave & Jerold Israel, Criminal Procedure § 24.7(a) (2d ed. 1992).


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Jury nullification is completely lawful. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


2. "Nullification instructions encourage the jury to violate the law." Some courts have reasoned that a nullification instruction would permit, if not encourage, the jurors to disregard or break the law. One court even held that it is proper to affirmatively instruct the jurors that they would "violate the law" if they engaged in nullification or if they violated any of the judge's instructions on the law. United States v. Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988). Another has reasoned that "anarchy would result from instructing the jury that it may ignore the requirements of the law." Powell, 955 F.2d at 1213. Such assertions are baseless. Contrary to the widespread myth popular among judges, there is no "law" that requires juries to convict every man shown to be technically guilty beyond a reasonable doubt. "The power of the courts to punish jurors for corrupt and incorrect verdicts," Dougherty, 473 F.2d at 1130, that darling of the Star Chamber's nursery, was banished from the pages of Anglo-American law centuries ago. Today, at its very core, our system of justice is unflinchingly committed to the liberty of criminal juries to "err upon the side of mercy," Jackson, 443 U.S. at 317, or to "refuse to convict even though the evidence supported the charge." Gregg, 428 US. at 199 n.50. Any system that restricted such liberty "would be totally alien to our notions of criminal justice." Id. In this respect, nullification is every bit as lawful as leniency extended by the prosecutor, or the judge, or the governor. Id.


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There's no law against pardoning someone who violated an unjust statute. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


Nor does any "law" forbid a jury from pardoning a man who violated an unjust statute, even if an acquittal requires them to ignore the court's instructions on the law. The Constitution does no such thing; it actually protects the jury's right to acquit based on their sense of justice. The penal code does not criminalize such conduct, and would be clearly unconstitutional if it did. Not even the Bible imposes any such rule. See Deuteronomy 16:20 ("Follow justice and justice alone"). If there is any such "law," it is true only in the narrow sense of illegitimate case law made up by judges acting well beyond the scope of their lawful authority. Judges who tell each other that "nullification is illegal" are more than vaguely reminiscent of the judge who once told a criminal defendant: "Rule Forty-Two. All persons more than a mile high to leave the court! It's the oldest rule in the book." Lewis Carroll, Alice's Adventures in Wonderland 256 (Bramhall House 1960). As the defendant adroitly responded: "Then it ought to be Number One"—or it ought to be, at the very least, written down in the Constitution, or the penal code, or somewhere besides judicial opinions.


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The Supreme Court has never prohibited jury nullification. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


3. "The Supreme Court said not to tell the jury about it." A surprising number of courts have tried to blame the Supreme Court for their refusal to tell juries about the power to acquit on moral grounds. That myth is also false. The Supreme Court has never said such a thing. In the two cases widely cited for this proposition, the Court merely declared that a jury is not entitled to decide what the law is or should be, and that "a judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found." Horning v. District of Columbia, 254 U.S. 135, 138 (1920) (Holmes, J.); accord Sparf and Hansen v. United States, 156 U.S. 51 (1895). This language has been widely cited by lower courts as authority for their refusal to permit any argument or instructions on nullification. E.g., Krzyske. 836 F.2d at 1021. In fact, however, Horning and Sparf have nothing to do with this matter. It would indeed be improper to tell a jury that "they are to determine the rules of law." Dougherty, 473 F.2d at 1136. In Sparf, for example, the Supreme Court properly refused a murder defendant's request that his jury be told they could convict him of manslaughter out of leniency, even though he conceded that there was no evidence to support a finding of guilt on such a lesser charge! 156 U.S. at 99. If that were the law, of course, we ought to read the jury the entire penal code, just in case manslaughter seems too harsh, so they could perhaps convict him of driving with a bad muffler instead, or maybe acquit him on the grounds of intoxication.(pg.11) Our entire system of justice would be undermined if jurors had the liberty to return a false verdict—even for benign motives of mercy—convicting a defendant of a lesser offense she simply could not have committed, or acquitting her because of some legal defense with absolutely no basis in the evidence. But that straw man has nothing to do with the typical case of a defendant seeking an instruction on nullification. Such instructions need not suggest that jurors be told they can decide for themselves what the law is or should be, or that they can convict the defendant of some lesser offense (or acquit on the basis of some affirmative defense) with no basis in the facts. Our law does not countenance such contrivances and should not encourage them. But a proper nullification instruction or argument would merely tell the jury the fact— or at least confirm their intuitive suspicion that our law intentionally allows them the latitude to "refuse to enforce the law's harshness when justice so requires." LaFave and Israel, Criminal Procedure § 22.1, at 960.Whether that information should be given to the jury has never been considered or decided by the Supreme Court. Id. But it is the height of hypocrisy to refuse to report that truthful information about our constitutional law to the jury on the pretense that the judge "has the right and duty to tell them what the law is." Horning, 254 U.S. at 138 (emphasis added). That language, taken literally, would require the judge to tell the jury much more than we do about nullification.


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Jury oaths don't prohibit nullification--those oaths are barely intelligible. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


This ominous-sounding charge has no logical substance, although it naturally carries much emotional appeal. Jurors know that oaths are serious business, see Exodus 20:7, 16, and the law never permits or encourages anyone to do anything contrary to his oath. But despite its tremendous popularity among judges, this argument is by far the most misshapen stone in the barricade judges have been erecting around the jury box. To begin with, it is usually false.The typical oath taken by jurors today does not forbid them from refusing to convict based on their sense of justice. In fact, many oaths administered today are barely even intelligible. At the beginning of (pg.12) the trial, jurors are typically asked to swear that they "will well and truly try and a true deliverance make between the United States and the defendant at the bar, and a true verdict render according to the evidence, so help [me] God." United States v. Green, 556 F.2d 71 n.1 (D.C. Cir. 1977).


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The jury oath is ambiguous and doesn’t preclude acquittals. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


Nobody still alive today knows for sure what it means to "make a true deliverance." But nothing in this oath would forbid jurors from acquitting if they are convinced—based solely on "the evidence"—that the accused's actions were morally blameless and that a conviction would be unjust. In such rare cases, no jurors could be said to have decided a case "well and truly" if they had to disregard their sense of justice to convict. And an acquittal in that case would certainly sound like a "true deliverance." See Proverbs 24:11 ("Rescue those being led away to death"); Isaiah 61:1 ("He has sent me to proclaim freedom for the captives and release from darkness for the prisoners").


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Jury nullification doesn't lead to false verdicts. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


If a jury refuses to convict a man because of overwhelming feelings of mercy or justice, they are not returning a "false" verdict. A verdict of "not guilty" based on a jury's notions of justice is not affirmatively declaring that he is innocent. (The same is true of an acquittal based on their conclusion that he has only been shown to be probably guilty, but not beyond a reasonable doubt.) The general "not guilty" verdict is merely a shorthand way of allowing the jury to express, for reasons they need not explain, "we do not choose to condemn the accused by pronouncing him guilty."


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Jury oaths don't prohibit nullification in all circumstances. Duane, James. "Jury Nullification: The Top Secret Constitutional Right." Litigation. October 14,


Beyond all this, perhaps the most blasphemous aspect of the invocation of the oath is the simple fact that we really do not expect jurors to refrain from nullifying in all circumstances. That being the case, it ill-behooves us to place jurors under an oath that they will not nullify (much less lie to them about whether they have taken such an oath). At least for those jurors who take their oaths seriously, it places them in an intolerable and totally unnecessary conflict between deeply held moral scruples. It demeans the seriousness of the oath, which stands at the very bedrock of our system of justice. United States v. Dunnigan, 507 U.S. 87, 97 (1993). And when citizens and jurors gradually get wind of the fact that we really don't expect them to always refrain from nullifying, despite their alleged oaths to the contrary, who can blame any of those people from cutting corners with their future oaths as witnesses or elected officials?


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Checks and balances is fundamental to the Constitution and requires we check the judiciary's power. McKnight, Aaron. "Jury Nullification As A Tool To Balance The Demands Of Law And

Justice." BYU Law Review. October 14, 1996. Web. October 08, 2015. <http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2890&context=lawreview>.

Checks and balances within government are a fundamental principle of the Constitution and of American jurisprudence in general. Checks and balances in government allow each branch of government to limit the others’ power, thereby restraining each individual branch’s abuse of government power. For example, the President checks the legislature with his veto power.150 The President and the Senate check the judiciary with their power to appoint judges.151 The judiciary checks the executive and legislative branches by reviewing Congress’s enacted statutes and the executive’s administration of those statutes.152 Other less known or less recognized checks and balances in American government also serve to limit government abuse of power. For example, the judiciary’s power is checked by the rule that it can hear only cases that are in controversy.153 Additionally, Congress’s division into two houses serves as a check and balance on highly populated states’ power to abuse less populated states and vice versa. And Federalism principles within the Constitution also limit the federal government’s power to abuse states,154 as well as the states’ power to abuse individuals protected by the federal government’s authority.155


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Jury nullification ensures checks and balances. McKnight, Aaron. "Jury Nullification As A Tool To Balance The Demands Of Law And


Like some of these more subtle examples, jury nullification serves as a check on the abuse of government power. Broadly speaking, the Sixth Amendment right to a jury trial serves as a fundamental check to prevent government abuse.156 In Duncan v. Louisiana, 157 the Supreme Court incorporated the Sixth Amendment right to a jury trial in criminal cases into the Fourteenth Amendment, making the right applicable to the states.158 In its opinion, the Court stated, “[a] right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.”159 The Court continued emphasizing that even though the Framers of the Constitution attempted to create an independent judiciary, criminal defendants needed further protection from potential abuses by the government.160 The Court further explained how a jury trial limits the government’s ability to abuse power by asserting, Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.161 The Court further explained that the right to a jury trial shows a conscious decision not to allow a single government entity, such as a judge, to have absolute power over the life and liberty of an individual. And finally, the Court stated, “[f]ear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.”162 These statements by the Court reveal that one of the main purposes of a jury trial is to act as a protection (or a check) against the government. However, without jury nullification, the effectiveness of such a check is greatly diminished because the jury would be forced to rigidly apply the law just as the judge would.163 “Nullification decisions check prosecutorial discretion against the public values and social norms we recognize from judicial interpretation of statutes and from the full description of the rule of law.”164 Furthermore, without the power to nullify, the jury simply becomes a tool—a rubber-stamp—for the government to use however it wishes.165


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Jury nullification is a vital check on prosecutorial discretion which goes relatively unsupervised. McKnight, Aaron. "Jury Nullification As A Tool To Balance The Demands Of Law And


Related to its role as a check on government power, jury nullification serves as an additional level of discretionary review, and recognizing it as such helps resolve criticisms that nullification defies the rule of law. Before any criminal case gets to trial, numerous government employees exercise wide ranges of discretion to determine whether the defendant’s conduct deserves prosecution.168 Initially, the police investigate alleged criminal behavior and decide whether to pass the information on to the prosecutor’s office for criminal charges.169 Discretionary decisions by police officers not to pursue criminal charges are subject to very little consistent review; at most, officers’ supervisors review such decisions.170 After a case has been sent to the prosecutor’s office, the prosecutor has almost unlimited discretion to choose not to file charges, even when the defendant’s behavior clearly violated a criminal law.171 When making such decisions, prosecutors often consider factors that are not relevant to a strict application of the law.172 Like police officers’ decisions, such decisions are likely subject to review only by the prosecutor’s supervisor, who is also a prosecutor.173 Once charges have been filed, judges exercise discretion (although their discretion is highly limited by statutes and precedent) to determine whether to grant a motion to dismiss or whether to bind a defendant over for trial after a preliminary hearing.174


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Jury nullification doesn't harm the rule of law. McKnight, Aaron. "Jury Nullification As A Tool To Balance The Demands Of Law And


This view of jury nullification substantially rebuts criticism that nullification violates the rule of law because this view reveals that discretionary decisions to not enforce a law are not as large a problem as critics argue; such discretion is exercised every day in police and prosecutors’ offices, so it seems irrational to claim that such discretion exercised on occasion by a jury would lead to anarchy and the end of the rule of law.177


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Jury nullification is best precisely because juries aren't trained in the law. McKnight, Aaron. "Jury Nullification As A Tool To Balance The Demands Of Law And


Countering, critics argue that jury nullification is a poor exercise of discretion because juries are not trained in the law and because they do not have the experience that police and prosecutor have in screening cases.178 However, juries are useful as an additional level of discretionary review exactly because they are not trained in the law: they are looking at the case from a common sense point of view. Such a common sense point of view is necessary to properly balance the rule of law with the fair application of justice—or an application of the law in accordance with the spirit of the law—because a purely legal approach, such as that taken by lawyers and judges, can often result in harsh results.


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Juries are better for discretion than prosecutors. McKnight, Aaron. "Jury Nullification As A Tool To Balance The Demands Of Law And


Furthermore, juries are actually better suited to exercise “discretionary non-enforcement” for several reasons.179 One reason juries may be better suited to screen cases is that juries do not need to appear that they are “tough on crime to ensure [their] reelection.”180 Another reason is that juries are “a group of local citizens who must live in the community into which they either might set criminals free or live with officials who violate rules. In light of that, the jury seems an appropriately cautious body to trust with the power to make such [discretionary decisions].”181 Furthermore, “[t]here is strong empirical evidence that prosecutorial discretion contributes more significantly to disproportionate capital sentences across classes of defendant groups than jury discretion does.”182 Thus, jury nullification adds an additional level of discretion that provides value to the criminal justice system.


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Jury nullification provides the most proper balance between letter and spirit of the law. McKnight, Aaron. "Jury Nullification As A Tool To Balance The Demands Of Law And


Finally, jury nullification balances government and individual interests by tempering the rigid application of the law. Often the “letter of the law” interferes with the “spirit of the law.” This is because the law applies to human behavior and the human experience is impossible to fully describe in a criminal law code. A scholar writing about jury nullification articulated this idea and jury nullification’s role: Law and Justice are from time to time inevitably in conflict. That is because law is a general rule … while justice is the fairness of this precise case under all its circumstances. And as a rule of law only takes account of broadly typical conditions, and is aimed at average results, law and justice every so often do not coincide…. Now this is where the jury comes in. The jury, in the privacy of its retirement, adjusts the general rule of law to the justice of the particular case.183 Therefore, jury nullification allows justice, or the spirit of the law, to be served in extreme cases, yet it leaves the state of the law unchanged in average cases, in part because it lacks precedential authority.184 *Ellipsis in original source


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Juries are particularly well suited to balancing justice with the law. McKnight, Aaron. "Jury Nullification As A Tool To Balance The Demands Of Law And


Juries are particularly well suited to perform this function of balancing the written law with practical concerns of justice and fairness. One reason they are well suited is that they consist of a number of people who must arrive at a unanimous decision. Often, jurors must thoroughly discuss the issues in a trial—thus taking appropriate care to correctly decide the issues before them—before they can agree on a verdict.185 Additionally, juries know less about the law than judges, but their knowledge of social norms and practices help them weigh both sides.186 Finally, empirical evidence shows that jurors try to do the right thing; they “take their role seriously, approach it conscientiously, and are capable of making complex moral judgments.”187


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Jury nullification is supported by the Sixth Amendment-Fifth Circuit Court of Appeals agrees. Wolverton, Joe. "Appeals Court Supports Sixth Amendment, Jury Nullification." The New

American. October 14, 1996. Web. October 09, 2015. <http://www.thenewamerican.com/usnews/constitution/item/18318-appeals-court-supports-sixth-amendment-jury-nullification>.

On appeal, the Fifth Circuit Court of Appeals didn’t approve of the lower court judge’s disregard of the defendant’s Sixth Amendment right to have a jury decide his guilt or innocence. Judge Jerry Smith, writing for the majority in the case of U.S. v. Juan Salazar, held: Salazar’s confession did not deprive him of his right to have a jury determine his guilt. The Sixth Amendment permits a jury to disregard a defendant’s confession and still find him not guilty. This conclusion does not depend on when the confession occurs — on the stand or pre-trial — or how much the defendant confesses — to one element or to every crime. A defendant’s confession merely amounts to more, albeit compelling, evidence against him. But no amount of compelling evidence can override the right to have a jury determine his guilt. Upon learning of the circuit court’s ruling, the Fully Informed Jury Association wrote last week, "Without mentioning it by name, the Fifth Circuit has in effect re-affirmed jurors’ right to judge the law as well as the facts of the case and to exercise jury nullification when they deem it appropriate by delivering a Not Guilty verdict even in the face of overwhelming evidence that the defendant has broken the law."


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Jury nullification is key to our liberties that come from the Bill of Rights--deep historical precedent proves. Wolverton, Joe. "Appeals Court Supports Sixth Amendment, Jury Nullification." The New


In the Fully Informed Jury Association’s article praising the Salazar decision, they present a bit of the historical reason why a pro-jury nullification court decision (even an unintended one) could be considered a victory for the liberties protected by the Bill of Rights: Our legal system was never intended to be a level playing field. In fact, it was purposely designed to err on the side of acquittal based on the long-standing principle articulated by the English jurist William Blackstone in 1765 that, “It is better that ten guilty persons escape than that one innocent suffer.” This principle has even deeper roots, being invoked in various forms in the Salem witch trials in the 1690s, by Sir John Fortescue (Chief Justice of the King’s Bench of England) in the 1400s, by the 12th century legal scholar Maimonides, and in the book of Genesis in the Bible. For this reason, the prosecution is meant to bear a much heavier burden of proof in any criminal case, with the defense bearing no burden at all to prove innocence.


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The Founding Fathers supported a right to trial by jury and the idea that the jury should serve as a check on the judge. Wolverton, Joe. "Appeals Court Supports Sixth Amendment, Jury Nullification." The New


Before one is able to understand why jury nullification is a good idea, one must understand the importance of a trial by jury. Our Founding Fathers universally considered it to be a powerful weapon in the war against tyranny. Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution.” In the Federalist Papers, Alexander Hamilton wrote that trial by jury was the “very palladium of free government” and a “valuable check upon corruption.” Hamilton’s fellow Federalist author and Supreme Court Chief Justice John Jay informed a jury in a 1794 case that It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. Given the strength of these opinions, then, it is no surprise that the denial of trials by jury was one of the foremost acts of despotism listed by Thomas Jefferson in the Declaration of Independence. As for the concept that juries have not only the power but the obligation to nullify unjust rulings of a judge, John Adams wrote, “It is not only [the juror's] right, but his duty…to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” And Hamilton, again from the Federalist Papers, described the jury’s check on the judge as a “double security” that “tends to preserve the purity” of both judge and jury. *Ellipses from original source


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Jury nullification is necessary to protect the 6th Amendment. Wolverton, Joe. "Appeals Court Supports Sixth Amendment, Jury Nullification." The New


As the Fifth Circuit Court of Appeals rightly held, the Constitution guarantees the right to trial by jury. Therefore, the government must bring its case before a jury of the people if the government wants to deprive any person of life, liberty, or property. As the last line of defense of this “unalienable right,” jurors can and should reject government tyranny and refuse to obey a judge’s order to find a defendant guilty or to convict those subjected to prosecution for violating unjust laws.


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Jury nullification is a key check on government tyranny and oppression. Wolverton, Joe. "Appeals Court Supports Sixth Amendment, Jury Nullification." The New


In 2013, the Washington Times reported that activists handing out pro-jury nullification tracts were “arrested and charged with ‘jury tampering’ for distributing handbills at the courthouse that essentially publish the text of the New Hampshire law.” In an editorial, the Washington Times regarded this incident as an ironic example of the critical need for jury nullification in the fight against government oppression: This demonstrates clearly the responsibility of juries to serve as a check against judges and prosecutors who may think they’re the last word in all matters of the law. Respect for the law and the courts is necessary for the good of all in a free society, and sometimes, as the number of frivolous and oppressive laws [multiplies], a little nullification can be a tonic, and a reminder to the lawyers, including judges, of who’s really the boss.

KappelerAC November/December2015

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KappelerAC

Strategy Guide

This affirmative is based on Kappeler’s local refusal of violence. Included in

violence is injustice. Violence is just used as a catch-all term in this case. Kappeler’s

arguments, and the AC, reframe the way that we as a society, especially the world of the

debate, understand how violence happens. Traditionally, violence is viewed very top

down. There are large internal link chains that predicate violence, there are conditions in

society that allow violence, and the government is responsible for creating and fixing

most of these conditions. Kappeler argues that we need to look at violence differently.

Instead of looing at systems and over-arching mechanisms that allow violence to happen,

we need to look at the fact that each individual person makes the conscious decision to

commit violent acts. This also means that the best and only way to stop violent actions is

by taking individual responsibility for them and using individual mechanisms of change.

Your arguments is that jury nullification is the best way to solve for injustice because it

focuses on individual action.


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AC 1: When we focus on governmental responses to problems and question what the government should do, we erase any question of what each and every single one of us should do. This ensures that all of the harms of the status quo continue while we shift blame to the state and insulate ourselves from personal action. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 1996.

Web. October 09, 2015. <https://books.google.com/books/about/The_Will_to_Violence.html?id=Fjm8QgAACAAJ>.

‘We are the war’ does not mean that the responsibility for a war is shared collectively and diffusely by an entire society—which would be equivalent to exonerating warlords and politicians and profiteers or, as Ulrich Beck says, upholding the notion of collective irresponsibility1, where people are no longer held responsible for their actions, and where the conception of universal responsibility becomes the equivalent of a universal acquittal. 6 On the contrary, the object is precisely to analyze the specific and differential responsibilities of everyone in their diverse situations. Decisions to unleash a war are indeed taken at particular levels of power by those in a position to make them to command such collective action. We need to hold them clearly responsible for their decisions and actions without lessening theirs by any collective ‘assumption’ of responsibility. Yet our habit of focusing on the stage where the major dramas of power take place tends to obscure our sight in relation to our own sphere of competence, our own power and our own responsibility—leading to the –well-known illusion of our apparent ‘powerlessness’ and its accompanying phenomenon, our so-called political disillusionment. Single citizens- even more so those of other nations – have come to feel secure in their obvious non-responsibility for such large-scale political events as, say, the wars in Croatia and Bosnia-Hercegovina or Somalia – since the decisions for such events are always made elsewhere. Yet our insight that indeed we are not responsible for the decisions of a Serbian general or a Croatian president tends to mislead us into thinking that therefore we have no responsibility at all, not even for forming our own judgment, and thus into underrating the responsibility we do have within our own sphere of action. In particular, it seems to absolve us from having to try to see any relation between our own actions and those events, or to recognize the connections between those political decisions and our own personal decisions. It not only shows that we participate in what Beck calls ‘organized irresponsibility’, upholding the apparent lack of connection between bureaucratically, institutionally, nationally and also individually organized separate competences. It also proves the phenomenal and unquestioned alliance of our personal thinking with the thinking of the major powermongers. For we tend to think that we cannot ‘do’ anything, say, about a war, because we deem ourselves to be in the wrong situation; because we are not where the


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major decisions are made. Which is why many of those not yet entirely disillusioned with politics tend to engage in a form of mental deputy politics, in the style of ‘What would I do if I were the general, the prime minister, the president, the foreign minister or the minister of defence?’ Since we seem to regard their mega spheres of action as the only worthwhile and truly effective ones, and since our political analyses tend to dwell there first of all, any question of what I would do if I were indeed myself tends to peter out in the comparative insignificance of having what is perceived as ‘virtually no possibilities’: what I could do seems petty and futile. For my own action I obviously desire the range of action of a general, a prime minister, or a General Secretary of the UN — finding expression in ever more prevalent formulations like ‘I want to stop this war’, ‘I want military intervention’, ‘I want to stop this backlash’, or ‘I want a moral revolution.’7 ‘We are this war’, however, even if we do not command the troops or participate in so—called peace talks, namely as Drakuli~ says, in our non-comprehension’: our willed refusal to feel responsible for our own thinking and for working out our own understanding, preferring innocently to drift along the ideological current of prefabricated arguments or less than innocently taking advantage of the advantages these offer. And we ‘are’ the war in our ‘unconscious cruelty towards you’, our tolerance of the ‘fact that you have a yellow form for refugees and I don’t’ — our readiness, in other words, to build identities, one for ourselves and one for refugees, one of our own and one for the ‘others’. We share in the responsibility for this war and its violence in the way we let them grow inside us, that is, in the way we shape ‘our feelings, our relationships, our values’ according to the structures and the values of war and violence.


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AC 3: Government action is nothing but a Band-Aid fix for issues. Political action is used to quickly patch up violence in the status quo while re-entrenching the violence of our minds that weaves into the fabric of our society and consciousness. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 1996.


This means engaging also with the discourses which construct violence as a phenomenon but obliterate the agent’s decision to violate. Our unwillingness to recognize the will of those who act violently as their will to act violently, our readiness to exonerate violent behaviour by means of spurious explanations, not only betrays our primary identification with the subjects of violence and our lack of solidarity with the victims. It is itself an act of violence: the exercise of ideological violence, of the power of a discourse which legitimates violence, stigmatizes the victims, and treats people not as the agents of their own actions but as material for (‘our’) social policy. Ideology, however, is not just made by others; we are all of us subjects of ideology — as the producers of our own thinking and as the recipients of other people’s discourse — unless we resist such ideological structures of thought and discourse in a continual critique of ideology itself. A decision to violate is not necessarily synonymous with a decision to be ‘bad’ or to commit an injustice. Rather, we have at our disposal structures of thought and argumentation which make such a decision appear rational, justified or even necessary. These structures of thought are deeply rooted in our everyday thinking: they are part of the dominant ideology. We use them in our daily decisions for action — actions which are not necessarily acts of bodily injury and murder, of arson and larceny, and which do not necessarily unleash a major war, but which none the less are acts of violence: violation of the rights and integrity of other people, violation of their dignity and personhood, suppression of their freedom of choice and their self-determination, acts of objectification and of exploitation at every conceivable level — in other words, war, on a small scale and against our nearest if not our dearest. What is remarkable is that this everyday behavior, in so far as it does not fall within the competence of criminal law, is hardly the subject of a serious theoretical discussion.4 Neither does it attract explicit legitimation; rather, the violence of everyday behavior draws its legitimacy from the ubiquity of such behavior in our society and the social consensus about it as relative ‘harmlessness’ compared with other, that is, recognized forms of violence. That is to say, everyday behavior takes its orientation from the tradition of social practice, reproducing itself through recourse to the status quo. It is so naturalized, in fact, that it is not violent action which attracts attention, but any resistance to it: leaving a violent relationship or situations of violence, resisting bullying, pressure and blackmail, refusing to fight back


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AC 2:Refusal of the governmental action in the face of injustice is the first step towards articulating a new emancipatory imagination, actually capable of dealing with injustice. Nayar, Jayan. "RE-FRAMING INTERNATIONAL LAW FOR THE 21ST CENTURY: Orders

Of Inhumanity." Transnational Law & Contemporary Problems. October 14, 1996. Web. October 09, 2015. <https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=9+Transnat%27l+L.+%26+Contemp.+Probs.+599&key=edd417ed21cb67e253b98b908b7fd6ac>.

I wonder if the searching for comfort in the mind relieves what is already known. When we speak of a change in our understanding of the world, this heralded "epistemic transition" that is supposed to be the hallmark of "post-modern knowledge," what we are really talking about is the way in which we who are afraid to accept our own responsibility for the many expressions of violence in the world, although we know it, seek to find a means of making sense, from a distance, of violence, of madness. By changing the way in which we understand the world intellectually therefore we postpone again that time when pain and joy are allowed to filter into our hearts in lived emancipation, with all their messy repercussions. Instead we remain largely untouched within this realm of theorized emancipation. It is not easy however to keep our distance. It requires a lot of effort in order to not see and feel. We have to keep ourselves constantly busy. This spiral of constant reinterpretations of violence through so many theories becomes almost an anaesthetic. When I plunder through my "readings," as I search for further articulations of "good ideas," with my daily musings over "theoretical frameworks," as I keep myself busy, I am diverted from asking why--what is this all for? I know that if I stop, if I have a moment or two for reflection, if I deny myself the distractions of "good ideas," that question re-emerges; in our quiet moments, if we allow ourselves quiet moments, we cannot hide from ourselves. If we take away the numbing comfort and security of our professional reason for being, we are faced with the disconcerting uncertainties of our responsibility in being. This is not easy. Yet, perhaps, it is only when we are pulled in every direction with doubt, conviction, pain and joy, that we are able to share in the emancipatory wisdom of humanity that has been the lived life of generations before us and of generations to come. Life then ceases to be a problem to be solved. Rather it reveals itself as a journey to be traveled, and travailed.


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AC 4: Complacency with violence and injustice is the root of all violence and injustice. By attempting to justify perpetrators decisions to commit violent acts, future violent acts are justified. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 1996.


The feminist critique of sexism, together with our early recognition of the necessity of raising our own consciousness, constitutes an understanding that ideology itself is a site of power and the abuse of power - that is, that our own thinking and, by extension, our own behaviour are already a primary area for a liberatory politics. Moreover, a politics aiming at social equality and relations between equals should make it its central concern to reflect upon the structure of such relations - what it means to relate to others as equals. We have analysed and made a critique of abusive behaviour, where men choose to treat women as unequals, or whites to treat Black people as unequals, being able to do so with sanctioned impunity. This would imply an analysis also of action and behaviour which by contrast is based on choosing equality - in particular, choosing to grant equality to others, choosing not to violate others in situations which permit that choice, all the more so as it is our conviction that it is not people who are (by virtue of their 'identity') unequal, whom we then necessarily relate to as 'unequals', but that inequality is a matter of treating and being treated unequally. Conversely, we cannot assume that if there are two 'equals', their relations will necessarily be (or remain) equal. Rather, we should investigate how relationships of potential equality may, through the action of one or the other or both agents involved, be restructured into relations of dominance and submission. Action – and especially the will to power and violence - is a vital factor in the continually changing 'structure' of a relationship, combining with those factors we normally consider to constitute the structural context of the relation. This means engaging also with the discourses which construct violence as a phenomenon but obliterate the agent's decision to violate. Our unwillingness to recognize the will of those who act violently as their will to act violently, our readiness to exonerate violent behaviour by means of spurious explanations, not only betrays our primary identification with the subjects of violence and our la.ck of solidarity with the victim.s. It is itself an act of violence: the exercise of ideological violence, of the power of a discourse which legitimates violence, stigmatizes the victims, and treats people not as the agents of their own actions but as material for ('our') social policy. Ideology, however, is not just made by others; we are all of us subjects of ideology - as the producers of our own thinking and as the recipients of other people's discourse - unless we resist such ideological structures of thought and discourse in a continual critique of Ideology Itself.


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AC 5: Thus, we should begin interrogations of violence and injustice with a local refusal to endorse violence and injustice. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 1996.


fIf we nevertheless continue to explain violence by its 'circumstances' and attempt to counter it by changing these -circumstances it is also because in this way we stay in cernmand of the problem. 'In particular, we do not complicate the problem by any suggestion that It migbt be people who need to change. Instead, we turn the perpetrators ?f violence into the victims of circumstances, who as victims by definition cannot act sensibly(but in changed circumstances will behave differently). 'We', on the other hand, are the subjects able to take in hand the task of changing the circumstances. Even if changing the circumstances - combating poverty, unemployment, 'injus~ice etc. - may not be easy, it nevertheless remains within 'our' scope, at least theoretically and by means of state power. Changing people, on the other hand, is neither within our power nor, it seems, ultimately v iotence in our interest: we prefer to keep certain people under control, putting limits on their violent behaviour, but we apparently have no interest in a politics that presupposes people's ability to change and aims at changing attitudes and behaviour. For changing (as opposed to restricting) other people's behaviour is beyond the range and influence of our own power; only they themselves can change it. It requires their will to change, their will not to abuse power and not to use violence. ~ fA politics aIming at a change in people's behaviour would require political work that is very much more cumbersome and very much less promising of success than is the use of state power and social control. It would require political consciousness-raising - politicizing the way we think - which' cannot be imposed on others by force or compulsory educational measures. It would require a view of people which takes seriously and reckons with their will, both their will to violence or their 'will to change. To take seriously the will of others however would mean recognizing one's own, and putting people's will, including our own, at the centre of political reflection. rA political analysis of violence needs to recognize this will, the personal decision in favour of violence - not just to describe acts of violence, or the conditions which enable them to take place, but also to capture the moment of decision which is the real impetus for violent action. For without this decision there will be no violent act.' not even in circumstances which potentially permit it. It is the decision to violate, not just the act itself, which makes a person a perpetrator of violence - just as it is the decision not to do so which makes people not act violently and not abuse their power in a situation which would nevertheless permit it. This moment of decision, therefore, is also the locus of potential resistance to violence. To understand the structures of thinking and the criteria by which such decisions are reached, but above all to regard this decision as an act of choice, seems to me a necessary precondition for any political struggle against violence and for a non-violent society


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AC 6: Jury nullification is one way for us to engage in a local refusal to endorse violence. Jurors can vote no regardless of the evidence of the crime. Linder, Doug. "Jury Nullification.” October 14, 2015. Web. October 09, 2015.

<http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html>.

Jury nullification occurs when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding. When has jury nullification been practiced? The most famous nullification case is the 1735 trial of John Peter Zenger, charged with printing seditious libels of the Governor of the Colony of New York, William Cosby. Despite the fact that Zenger clearly printed the alleged libels (the only issue the court said the jury was free to decide, as the court deemed the truth or falsity of the statements to be irrelevant), the jury nonetheless returned a verdict of "Not Guilty." Jury nullification appeared at other times in our history when the government has tried to enforce morally repugnant or unpopular laws. In the early 1800s, nullification was practiced in cases brought under the Alien and Sedition Act. In the mid 1800s, northern juries practiced nullification in prosecutions brought against individuals accused of harboring slaves in violation of the Fugitive Slave Laws. And in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws. More recent examples of nullification might include acquittals of "mercy killers," including Dr. Jack Kevorkian, and minor drug offenders. Do juries have the right to nullify? Juries clearly have the power to nullify; whether they also have the right to nullify is another question. Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge. Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed. Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power. Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law. Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.


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AC 7: Figuring out how we as individuals are connected to violence and injustice must come before any discussions of global transformation. Nayar, Jayan. "Re-Framing International Law For The 21st Century: Orders Of Inhumanity."

Transnational Law & Contemporary Problems. October 14, 2015. Web. October 09, 2015. <https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=9+Transnat%27l+L.+%26+Contemp.+Probs.+599&key=edd417ed21cb67e253b98b908b7fd6ac>.

The description of the continuities of violence in Section II in many ways is familiar to those who adopt a critical perspective of the world. "We" are accustomed to narrating human wrongs in this way. The failures and betrayals, the victims and perpetrators, are familiar to our critical understanding. From this position of judgment, commonly held within the "mainstream" of the "non-mainstream," there is also a familiarity of solutions commonly advocated for transformation; the "marketplace" for critique is a thriving one as evidenced by the abundance of literature in this respect. Despite this proliferation of enlightenment and the profession of so many good ideas, however, "things" appear to remain as they are, or, worse still, [*620] deteriorate. And so, the cycle of critique, proposals for transformation and disappointment continues. Rightly, we are concerned with the question of what can be done to alleviate the sufferings that prevail. But there are necessary prerequisites to answering the "what do we do?" question. We must first ask the intimately connected questions of "about what?" and "toward what end?" These questions, obviously, impinge on our vision and judgment. When we attempt to imagine transformations toward preferred human futures, we engage in the difficult task of judging the present. This is difficult not because we are oblivious to violence or that we are numb to the resulting suffering, but because, outrage with "events" of violence aside, processes of violence embroil and implicate our familiarities in ways that defy the simplicities of straightforward imputability. Despite our best efforts at categorizing violence into convenient compartments--into "disciplines" of study and analysis such as "development" and "security" (health, environment, population, being other examples of such compartmentalization)--the encroachments of order(ing) function at more pervasive levels. And without doubt, the perspectives of the observer, commentator, and actor become crucial determinants. It is necessary, I believe, to question this, "our," perspective, to reflect upon a perspective of violence which not only locates violence as a happening "out there" while we stand as detached observers and critics, but is also one in which we are ourselves implicated in the violence of ordered worlds where we stand very much as participants. For this purpose of a critique of critique, it is necessary to consider the "technologies" of ordering


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The aff is a prerequisite to anything else - questioning violence is key to overcoming it. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


Resistance, I would suggest, does not come with any identity. It is a question of political will and action. It requires the political analysis of systems of oppression through to individual acts of oppression and violence — in terms of agency and its consequences, in terms of agents and beneficiaries and victims — and a corresponding analysis of resistance in terms of actions and their consequences.8 Only once we know what we are doing, and what our actions actually effect, and what we mean them to achieve, can we begin to act in resistance, knowing what it is resistance to; and only then will we be able to identify and co-operate with those acting for the same political goals.


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Impact: The "What should the government do" mentality is grounded in a misunderstanding of violence this focus on mega-spheres of political action eclipses the important question of what should and can we do as simply ourselves. This leads to the surrender of personal agency and the abdication of all responsibility. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


Yet our insight that indeed we are not responsible for the decisions of a Serbian general or a Croatian president tends to mislead us into thinking that therefore we have no responsibility at all, not even for forming our own judgment, and thus into underrating the responsibility we do have within our own sphere of action. In particular, it seems to absolve us from having to try to see any relation between our own actions and those events, or to recognize the connections between those political decisions and our own personal decisions. It not only shows that we participate in what Beck calls ‘organized irresponsibility’, upholding the apparent lack of connection between bureaucratically, institutionally, nationally, and also individually organized separate competences. It also proves the phenomenal and unquestioned alliance of our personal thinking with the thinking of the major power mongers. For we tend to think that we cannot ‘do’ anything, say, about a war, because we deem ourselves to be in the wrong situation because we are not where the major decisions are made. Which is why many of those not yet entirely disillusioned with politics tend to engage in a form of mental deputy politics, in the style of‘what would I do if I were the general, the prime minister, the president, the foreign minister or the minister of defense?’ Since we seem to regard their mega spheres of action as the only worthwhile andtruly effective ones, and since our political analyses tend to dwell there first of all, any question of what I would do if I were indeed myself tends to peter out in the comparative insignificance of having what is perceived as ‘virtually no possibilities’: what I could do seems petty and futile. For my own action I obviously desire the range of action of a general, a prime minister, or a General Secretary of the UN – finding expression in ever more prevalent formulations like ‘I want to stop this war’, ‘I want military intervention’, ‘I want to stop this backlash’, or ‘I want a moral revolution. ‘We are this war’, however, even if we do not command the troops or participate in co-called peace talks, namely as Drakulic says, in our non-comprehension’: our willed refusal to feel responsible for our own thinking and for working out our own understanding, preferring innocently to drift along the ideological current of prefabricated arguments or less than innocently taking advantage of the advantages these offer. And we ‘are’ the war in our ‘unconscious cruelty towards you’, our tolerance of the ‘fact that you have a yellow form for refugees and I don’t’- our readiness, in other words, to build identities, one for


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ourselves and one for refugees, one of our own and one for the ‘others.’ We share in the responsibility for this Feminist critique, as well as other political critiques, has analysed the preconditions of violence, the unequal power relations which enable it to take place. However, under the pressure of mainstream science and a sociological perspective which increasingly dominates our thinking, it is becoming standard to argue as if it were these power relations which cause the violence. Underlying is a behaviourist model which prefers to see human action as the exclusive product of circumstances, ignoring the personal decision of the agent to act, implying in turn that circumstances virtually dictate certain forms of behaviour. Even though we would probably not underwrite these propositions in their crass form, there is nevertheless a growing tendency, not just in social science, to explain violent behavior by its circumstances. (Compare the question, ‘Does pornography cause violence?’) The circumstances identified may differ according to the politics of the explainers, but the method of explanation remains the same. While consideration of mitigating circumstances has its rightful place in a court of law trying (and defending) an offender, this does not automatically make it an adequate or sufficient practice for political analysis. It begs the question, in particular, ‘What is considered to be part of the circumstances (and by whom)?’ Thus in the case of sexual offenders, there is a routine search — on the part of the tabloid press or the professionals of violence — for experiences of violence in the offender’s own past, an understanding which is rapidly solidifying in the scientific model of a ‘cycle of violence’. That is, the relevant factors are sought in the distant past and in other contexts of action, while a crucial factor in the present context is ignored, namely the agent’s decision to act as he did. Even politically oppositional groups are not immune to this mainstream sociologizing. Some left groups have tried to explain men s sexual violence as the result of class oppression, while some Black theoreticians have explained the violence of Black men as the result of racist oppression. The ostensible aim of these arguments may be to draw attention to the pervasive and structural violence of classism and racism, yet they not only fail to combat such inequality, they actively contribute to it. Although such oppression is a very real part of an agent’s life context, these ‘explanations’ ignore the fact that not everyone experiencing the same oppression uses violence, that is, that these circumstances do not ‘cause’ violent behavior. They overlook, in other words, that the perpetrator has decided to violate, even if this decision was made in circumstances of limited choice. To overlook this decision, however, is itself a political decision, serving particular interests. In the first instance it serves to exonerate the perpetrators, whose responsibility is thus transferred to circumstances and a history for which other people (who remain beyond reach) are responsible. Moreover, it helps to stigmatize all those living in poverty and oppression; because they are obvious victims of violence and oppression, they are held to be potential perpetrators themselves. This slanders all the women who have experienced sexual violence, yet do not use violence against others, and libels those experiencing racist and class oppression, yet do not necessarily act out violence. Far from supporting those oppressed by classist, racist or sexist oppression, it sells out these entire groups in the interest of exonerating individual members. It is a version of collective victim-blaming, of stigmatizing entire social strata as potential hotbeds of violence, which rests on and perpetuates the mainstream division of society into so—called marginal groups — the classic clienteles of social work and care politics (and of police repression) — and an implied ‘centre’ to which all the speakers, explainers, researchers and carers themselves belong, and which we are to


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assume to be a zone of non-violence. Explaining people’s violent behavior by their circumstances also has the advantage of implying that the solution lies in a change of circumstances. Thus it has become fashionable among socially minded politicians and intellectuals in Germany to argue that the rising neo-Nazi violence of young people (men), especially in former East Germany, needs to be countered by combating poverty and unemployment in these areas. Likewise anti-racist groups like the Anti-Racist Alliance of the Anti-Nazi League in Britain argue that ‘the causes of racism, like poverty and unemployment, should be tackled’ and that it is ‘problems like unemployment and bad housing which lead to racism’.2 Besides being no explanation at all of why (white) poverty and unemployment should lead specifically to racist violence (and what would explain middle- and upper-class racism), it is more than questionable to combat poverty only (but precisely) when and where violence is exercised. It not only legitimates the violence (by ‘explaining’ it), but constitutes an incentive to violence, confirming that social problems will be taken seriously when and where ‘they’ attract attention by means of violence—just as the most unrly children in schools (mostly boys) tend to get more attention from teachers than well-behaved and quiet children (mostly girls). Thus if German neo-Nazi youths and youth groups, since their murderous assaults on refugees and migrants in Hoyerswerda, Rostock, Dresden etc., are treated to special youth projects and social care measures (to the tune of DM 20 million per year), including ‘educative’ trips to Morocco and Israel3, this is an unmistakable signal to society that racist violence does indeed ‘pay off’.


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Impact: Thinking of solutions from the perspective of policymakers rather than people detaches us from real world participation and promotes an imperialist paradigm. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


Mitchell observes that the stance of the policymaker in debate comes with a “sense of detachment associated with the spectator posture.”115 In other words, its participants are able to engage in debates where they are able to distance themselves from the events that are the subjects of debates. Debaters can throw around terms like torture, terrorism, genocide and nuclear war without blinking. Debate simulations can only serve to distance the debaters from real world participation in the political contexts they debate about. As William Shanahan remarks: …the topic established a relationship through interpellation that inhered irrespective of what the particular political affinities of the debaters were. The relationship was both political and ethical, and needed to be debated as such. When we blithely call for United States Federal Government policymaking, we are not immune to the colonialist legacy that establishes our place on this continent. We cannot wish away the horrific atrocities perpetrated everyday in our name simply by refusing to acknowledge these implications” (emphasis in original).116 118 The “objective” stance of the policymaker is an impersonal or imperialist persona. The policymaker relies upon “acceptable” forms of evidence, engaging in logical discussion, producing rational thoughts. As Shanahan, and the Louisville debaters’ note, such a stance is integrally linked to the normative, historical and contemporary practices of power that produce and maintain varying networks of oppression. In other words, the discursive practices of policy-oriented debate are developed within, through and from systems of power and privilege. Thus, these practices are critically implicated in the maintenance of hegemony. So, rather than seeing themselves as government or state actors, Jones and Green choose to perform themselves in debate, violating the more “objective” stance of the “policymaker” and require their opponents to do the same.


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Impact: Power Relations do not cause violence, agencies commit violent acts, the structure of their arguments ignores decisions and encourages the violence that they oppose, their answer to the holocaust is combating poverty and unemployment, this turns the case because their conflict scenarios are only perpetuated through their abdication of responsibility. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


Feminist critique, as well as other political critiques, has analysed the preconditions of violence, the unequal power relations which enable it to take place. However, under the pressure of mainstream science and a sociological perspective which increasingly dominates our thinking, it is becoming standard to argue as if it were these power relations which cause the violence. Underlying is a behaviourist model which prefers to see human action as the exclusive product of circumstances, ignoring the personal decision of the agent to act, implying in turn that circumstances virtually dictate certain forms of beh.rviour. Even though we would probably not underwrite these propositions in their crass form, there is nevertheless a growing tendency, not just in social science, to explain violent behaviour by its circumstances. (Compare the question, 'Does pornography cause violence?') The circumstances identified may differ according to the politics of the explainers, but the method of explanation remains the same. While consideration of mitigating circumstances has its rightful place in a court of law trying (and' defending) an offender, -this does not automatically make it an adequate or sufficient practice for political analysis. It begs the question, in particular, 'What is considered to be part of the circumstances (and by whom)?' Thus in the case of sexual offenders, there is a routine search - on the part of the tabloid press or the professionals of violence - for experiences of violence in the offender's own past, an understanding which is, rapidly solidifying 111 the scientific model of a 'cycle of violence'. That is, the relevant factors are sought in the distant past and in other contexts of action, while a crucial factor in the present context is ignored, namely the agent's decision to act as he did… Even politically oppositional groups are not il11mune to this mam,- stream sociologizing. Some left groups have tned to explam men s sexual violence as the result of class oppression, while some Black theoreticians have explained the violence of Black men as the result of racist oppression. The ostensibleaim of these argum.ents may be to draw attention to the pervasive and structural violence of classism and racism, yet they not only fail to combat such inequality, they actively contribute to it. Although such oppression is a very real part of an agent's life context, these 'explanations' ignore the fact that not everyone experiencing the same oppression uses violence, that IS, that these circumstances do not 'cause' violent behaviour. They overlook.in other words, that


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the perpetrator has decided to violate, even if this decision was made in circumstances of limited choice) To overlook this decision, however, is itself a political decision, serving particular interests. In the first instance it serves to. exonerate the perpetrators, whose responsibility is thus transferr~d to circumstances and a history for which other people (who remain beyond reach) are responsible. Moreover, it helps to stigmatize all those living 111 poverty and oppression; because they are obvious victims of vlOlenc~ and oppression, they are held to be potential perpetrators themselves This slanders ail the women who have experienced sexual VIOlence, yet do not use violence against others, and libels those experiencing racist and class oppression, yet do not necessarily act out violence. Far from supporting those oppressed by classist, racist or sexist oppresSlOn, itsells out these entire groups in the interest of exonerating individual mernbers. It is a version of collective victim-blaming, of stigmatlzmg entire social strata. as potential hotbeds of violence, which rests on and perpetuates the mainstream division of society into so-called marginal groups - the classic clienteles of social work and care politics (and of police repression) - and an implied 'centre' to which all the speakers, explainers, researchers and carers themselves belong, and which we are to assume to be a zone of non-violence. Explaining people's violent behaviour by their circumstances also has the advantage of implying that the 'solution' lies in a change of circumstances. Thus it has become fashionable among socially minded politicians and intellectuals in Germany to argue that the rising neo- Nazi violence of young people (men), especially in former East Germany, needs to be countered by combating poverty and unemployment in these areas. Likewise anti-racist groups like the Anti- Racist Alliance or the Anti-Nazi League in Britain argue that 'the causes of racism, like poverty and unemployment, should be tackled' and that it is 'problems like unemployment and bad housing which lead to racism'. 2 Besides being no explanation at all of why (white) poverty and unemployment should lead specifically to racist viole~ce (and what would explain middle- and upper-class racism), it is more' than questionable to combat poverty only (but precisely) when and ~here ~iol~nce is exercised. It not. only legitimates the violence (by expla111ll1g It), but const~tutes an incentive to violence, confirming that social problems will be taken seriously when and where 'they' attract attention by means of violence - just as the most unruly children In schools (mostly boys) tend to get more attention from teachers than well-behaved an'd quiet children (mostly girls). Thus if German neo-Nazi youths and youth groups, since their murderous assaults on refugees and migrants in Hoyerswerda, Rostock, Dresden ete., are treated to special youth projects and social care measures (to the tune of DM 20 million per year), including 'educative' trips to Morocco and Israel.:' this is an unmistakable signal to society that racist violence does indeed 'payoff'. *Ellipses from original source


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Impact: Unless we move towards favoring individual action, any other solutions are a Band-Aid fix for their harms, reveling the possibility of using political action to quickly patch up violence in the status quo when really they are only re-entrenching the violence of our minds that weaves into the fabric of our society and consciousness. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


This means engaging also with the discourses which construct violence as a phenomenon but obliterate the agent’s decision to violate. Our unwillingness to recognize the will of those who act violently as their will to act violently, our readiness to exonerate violent behaviour by means of spurious explanations, not only betrays our primary identification with the subjects of violence and our lack of solidarity with the victims. It is itself an act of violence: the exercise of ideological violence, of the power of a discourse which legitimates violence, stigmatizes the victims, and treats people not as the agents of their own actions but as material for (‘our’) social policy. Ideology, however, is not just made by others; we are all of us subjects of ideology — as the producers of our own thinking and as the recipients of other people’s discourse — unless we resist such ideological structures of thought and discourse in a continual critique of ideology itself. A decision to violate is not necessarily synonymous with a decision to be ‘bad’ or to commit an injustice. Rather, we have at our disposal structures of thought and argumentation which make such a decision appear rational, justified or even necessary. These structures of thought are deeply rooted in our everyday thinking: they are part of the dominant ideology. We use them in our daily decisions for action — actions which are not necessarily acts of bodily injury and murder, of arson and larceny, and which do not necessarily unleash a major war, but which none the less are acts of violence: violation of the rights and integrity of other people, violation of their dignity and personhood, suppression of their freedom of choice and their self-determination, acts of objectification and of exploitation at every conceivable level — in other words, war, on a small scale and against our nearest if not our dearest. What is remarkable is that this everyday behavior, in so far as it does not fall within the competence of criminal law, is hardly the subject of a serious theoretical discussion.4Neither does it attract explicit legitimation; rather, the violence of everyday behavior draws its legitimacy from the ubiquity of such behavior in our society and the social consensus about it as relative ‘harmlessness’ compared with other, that is, recognized forms of violence. That is to say, everyday behavior takes its orientation from the tradition of social practice, reproducing itself through recourse to the status quo. It is so naturalized, in fact, that it is not violent action which attracts attention, but any resistance to it: leaving a violent relationship or situations of violence, resisting bullying, pressure and blackmail, refusing to fight back


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Attempts to explain violence in abstract and formulaic terms shield individuals from responsibility. The neg's argument that ____________ is an example of this. They naturalize violence by describing violence and acts of injustice as the inevitable result of a chain of events, washing the hands of those who decide to actually commit acts of injustice. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


Scientific discourse, too, which is one of the major instruments of cultural and ideological power, certainly is no longer the prerogative of those who rules and administer society according to their will and interests. A comparablepseudo-scientific standpoint, abstracted from any specificity of the actual situation, increasingly characterizes the discourse of individuals—including that of a critical opposition—who then regard the ‘problems of the world’ from a similarly lofty and lordly view, arriving at similar solutions. So-called standpointlessness, the objectifying look from ‘above’ and ‘outside,’ and its concomitant subjectless speech are the trademark of any discursively constructed authority. And since it is a speciality of scientific discourse to abstract action from its agents, representing it as (agentless) acts, it is only logical that this action too, this production of knowledgeable scientific speech, is presented as an act without an agent, a discourse without an author, a monological speech product without a producer. Just as public discourse is the market-place of industrially published discursive products, so-called private communication increasingly takes the form of an exchange of personal speech products, with individuals fighting each other by means of rivaling representations in preference to reaching a common understanding. Many a political meeting, seminar or conversation among several people bears testimony to the fact that, however small this public arena, it is seen and used as an opportunity for putting one’s own products on offer and achieving a victory for one’s own representation—over any reality to be analyzed and any people involved in analyzing it. Science is less concerned with the question of people’s responsible action in the world than professedly with the principle of cause and effect in the reality which is the object of its study- ‘nature’ in the case of the original natural sciences, long since joined by ‘culture’ and ‘society’ as the objects of the social sciences. Cause are the objectified impetuses of actions (‘events’ or ‘processes’), presented without regard to these as actions, while effects are the objectified consequences of these. The changing continuity of action (or a process or event) is separated into its apparent beginning and end, a point of departure and a final outcome, between which a connection, a casual relationship, is then inferred. A rational morality, if any, derives from the evaluation of effects, which are judges as good or bad, useful or harmful, desirable or undesirable, -- leaving aside for the moment by whom and in whose interests. A political morality could also be derived from the consequences of action, in terms of the agents’ responsibility for the consequences of their


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actions. However, the scientific representation of the consequences of action as mere states of affairs—as factual effects—serves to evade such responsibility as effectively as once did mythological representations of destiny as preordained. For if we detach the act from the person acting and regard its consequences as an effect, personal responsibility is no longer an issue. On the contrary, this effect now calls for the scientific investigation of its cause. The cause, as we have already seen and shall see again and again, is never found in the responsibility of consciously acting people, but in an array of correlating factors and contributing circumstances which make identifying any personal responsibility virtually impossible. What is of advantage to the ruling interests of society, however, also has its attraction for individuals, who thus similarly seek to evade their personal responsibility by means of a scientific representation of their own actions as the effect of a most complicated set of causes.


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Calls to non-individual action as a response to representations and otherization motivates a discussion that engages in violence towards people that appear as victims. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


This pictorial discourse about the ‘other’ is no less an act of violence against them than is a verbal discourse of naming and defining: a coercive objectification of them out of a position of power. I am the subject making an image, the ‘Other’ becomes the object and content of my image. This violence, moreover, reproduces and propagates itself, since the created image has a function beyond being a nice or an accurate picture: it must be applicable, and it is being applied, namely to women in the Third World. Hence these women not only are the victims of a process of objectification which makes them the object of representation; they in turn become the victims of an ‘application’ of this representation: a confrontation with this image in a renewed encounter, where the women are not perceived in their reality, but where an image is being ‘applied’ to them, projected on to them, superimposed on them. The real women who first were the ‘model’ for a picture are now being reduced to the created image. If first they were model in the creation of the picture, now the picture is ‘model’ for their reality. To make an image of somebody is an act of ideological violence, a determination and definition to which the other has nothing to say. To have an ‘image’ of the other means to select particular factors of my perception on the basis of criteria which I choose, reducing the other to these factors. The image is a fiction, a work of my own creation, a ‘knowledge’ of my own making. It is the expression of my subjectivity, my fantasy and my thinking, which says nothing about the so-called object of my representation. The reality of the other woman, everything I have not perceived and also cannot perceive, but above all her self-determination and her continuing changing, remain out of consideration, are suppressed and excluded. The arrogance of such imaging consists not only in mistaking my perception for knowledge, but in thinking that what I know is everything there is to know, is my unwillingness to reflect my own subjectivity, according to the principle that ‘reality is where I perceive it.’ It betrays not only an incapacity for reality, but an unwillingness to realism, a will to power. For it is this same arrogance which moves me anew to reapply my image to reality, to travel there with my learnt knowledge in order to approach reality through its screen. Hence it matters little whether the image is ‘negative’ or ‘positive’, insulting or flattering. The image is made in the interest of the imager, a means of controlling the ‘other’ with her ‘knowledge’, fortifying herself against the risks of an unknowable reality. It shows her decision to affect the other while taking preventive measures against any possibility of herself being affected by the other, let alone changed in the fortress of her self-built Self.


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Their kritikal speech act objectifies the speaker with their speech act, which is an exercise of power and control. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


To reformulate what a woman has said is an act of violence. Adopting and reformulating her speech from our own point of view not only shows that we do not wish to speak with her, but that we are unwilling to hear what she said. Not only do we not hear what she says, but in not letting her speak for herself in our speech we show that we do not want our own addressees to hear what she has said. Instead, we replace her speech by our (mis)representation of it, which we put up for discussion as ‘her speech’. Objectifying the speaker together with ‘her speech’, we are inviting our audience to join us in the position of discursive subjects, that is, to join in objectifying ‘them’. Such reformulations, however, are constantly being produced, in discussions as well as in texts — so—called paraphrases in our own words.2 Whether there is a conscious intention to misrepresent, or just an assumption that our paraphrase will do as well as the original speech, it is problematical communicative behaviour towards the person whose speech is being paraphrased. If I take a woman seriously, I take seriously what she has said, that is, precisely what she has said and how she has said it. I assume that she means what she says, and that she says what she means. And I can reply only to what she has actually said, not to what I think she has said. If a woman criticizes the behaviour or statement of another woman or even a group of women who identify themselves as feminists, this does not mean that ‘feminism’ has been criticized, and should not be reformulated as such. If Black women criticize the fact that many white feminists prioritize sexism over racism, they do not thereby question feminism or even sexism, but the insistence of some white women that sexism can be separated from racism and that sexism has to come first. But the point of such reformulations is evidently not to engage with the critique or to enter into a dialogic exchange with the critics — to try to understand, to ask for clarification, to contribute to the analysis and to continue to think further. The point is to establish discursive power, to reformulate the problem, replacing it by one’s own definition, and to win the audience as allies in this venture. This explains why critique is rarely quoted verbatim, why the critics are not given the chance to speak for themselves. It is an exercise of power and control, eliminating ‘the other’ together with her speech and controlling what is heard. In this way, not only her critique is suppressed, but also the communicative significance of her critique as a speech act, that is, her intention of speaking with us to reach a common understanding. What was an act of social communion becomes an act of opposition, through the discursive restructuring of the communicative parties of ‘I’ and ‘you’ as the oppositional parties of ‘us’ and ‘them’.


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Using jury nullification is an attempt to bring the political out into the public sphere. When the political is private this leads to a problematic form of politics that reproduces the harms of the status quo. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


Even though in everyday speech we use ‘politics’ mostly in contrast to self-interest, the basic attitude of looking after one’s own interest has to be regarded as a fundamentally political attitude, being of considerable consequence to society and social relations. Moreover, much that we traditionally include under the rubric of ‘politics’ is of this kind. How a person decides to act is political, whatever the content of their action and regardless of whether anyone else is present or not, since it necessarily has consequences for society. A person acts in society, and even a so-called withdrawal ‘from’ society and into the ‘private’ is a social act affecting the rest of society. The very term ‘private’ still is testimony to an understanding of humans as fundamentally social beings, whose retreat or banishment into an exile of ‘privacy’ was considered a deprivation — a loss of society and company. What today is being claimed from society as the individual’s ‘right’ was once understood as a punishment and a loss. It is not difficult to describe the attitude of a structural sew—interest in terms of today’s discourses: many of them have expressions for and provide legitimations of it. In everyday language we call it ‘apolitical’ or non—political, that is, the attitude of people who are not interested in ‘politics’ and who instead pursue their own interests. Here ‘politics’ designates the concerns of others — society, humanity — to which I, as a private individual, and my concerns, as my private interests, stand in contrast. A ‘sensible’ political attitude is seen as constituted by a ‘healthy’ mixture of self—interest and an interest in ‘politics’. Christian or moral discourses and personal ethics concerned with the behaviour of~individuals make the harmony of personal behaviour with the person’s (or God’s) moral ideals a first priority. Even though a concern for other people is usually part of these ideals, the responsibility for others is subsumed under the person’s self-interest — the fulfilment of personal moral aspirations.’ Discourses of philosophy and psychology whose premise is the self or the ego, take from grammar the concept of the subject and its object—relations. Hence it appears ‘natural’ as well as sensible for the subject to be concerned in the first instance with its own existence and subjectivity, or respectively with putting its psychic household in order, so as to become capable in the second instance of sociability.


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Political privacy supports domination and injustice via the public-private dichotomy. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


This means that the construction of the individual continues to constitute itself principally by means of a hierarchy, namely his relation to the level ‘above’, to the state, and his relation ‘down’ to the private sphere. The qualification as citizen is constituted on the one hand through the subject-object relation of the adult man to women and children and other property, while on the other equality among these free subjects requires their subordination to a state which constitutes them as a community by distinguishing them from other men outside the nation, and regulates and guarantees relations between them. That is, the qualification for freedom and equality is constituted through every single democrat’s ‘private’ relationship of domination and his own subordination to the state which holds the monopoly of ‘public’ power. The superordination of the state in turn constitutes a subject—object relationship, a relation in which the citizens are objects. Yet this seems of less concern to the citizens than that the establishment of a superior level should guarantee the regulation of relations between them, since their major concern as citizens is not to be dominated and made an object by other citizens.9 Hence the civil state permits the citizen to constitute his subjectivity by means of his subject—object relation to ‘his family’, granting every one of them the free zone of his ‘private sphere’. Here, in the privacy of his family and home, he remains largely unmolested by the laws of the state,10 freed in particular from the obligations of citizenship and non-violence with regard to other people. For in the family there are no other citizens, nor indeed any individuals, hence there is no obligation to acknowledge ‘freedom, equality and brotherhood’. The ‘private’ sphere is the sphere of his sovereignty as subject, where he may do as he pleases, where nobody else is watching and no one intervening, where he is the sole ruling lord and master.


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Democratic policy options lead to violent domination of people and the continuation of injustices. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


While the democratic relationship, of course, fundamentally differs from systems of slavery, colonialism or sexual enslavement — physical force in particular having (theoretically) no part in it — we might none the less say that it (and democracy in general) constitutes a historically new and almost inverse situation: while slavery, conquest and occupation begin with violent physical subjection, followed by ideological subjugation, Western society today presents a situation where slavery, serfdom and colonialism are theoretically abolished and direct physical violence is officially outlawed, yet where the ideological subjugation of people, their inculcation with the values of dominance and mastery, seems well—nigh complete. Individuals of ‘equal rights’ encounter one another with interests and values corresponding to those of slaveholders, conquistadores, colonialists and husbands, without even first needing to reorient their potential victims to these values. The values of mastery and the interest in domination are not in question, only who will manage to assert these more successfully or how they may be evenly shared. For the culture that constitutes the ideological frame-work of our ‘private’ interpersonal relationships is a culture which celebrates mastery as ‘democracy’, and the individual’s claims to power as universal ‘freedom’ and ‘human rights’. Accordingly, violence in the democratic relationship shifts to a power struggle of perception: the struggle to assert one’s own perception as the ‘common’ perception, one’s own interests as the ‘shared’ interests of the relationship. It begins with the mutual perception of each other as exploitable and usable for one’s own needs, that is, as candidate for a ‘relationship’: supplier of satisfaction, minister of care, and generally as material for realizing my relationship and my interests. There is violence in the intention to commit the other to a frame of guaranteed mutual trade and to design interactions as debit and credit, considering neither one’s own nor the other’s actions as actions, but as sequences in a trade exchange. It is the violence of the arrogant perceiver not to see the other on principle as independent and ‘indif-ferent’, but as ‘interested’ in common trade and mutual exploitation, that is, mutual prostitution.


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Democratic politics leads to mastery over others, causing injustice and domination. We need to reject responses to injustice that aren't jury nullification. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


While the apparent ‘gain’ of the other raises the spectre of the subject’s possible exploitation, thus necessitating accounts and trade agreements, the subject waives accounts in the face of its own ecstasy. Just as it is the citizen’s sense of democracy to be protected from being exploited, with no proviso that he will not exploit others either, so the subject knows of the fundamentally exploitative nature of the relationship and seeks protection from being exploited — having no objection to doing the exploiting wherever it may get the chance. Thus the democratic relationship seems to reflect the development of patriarchal capitalist democracy from its inception to ‘gender— equality’. Not only are the aspirations of the emancipated subject inspired by the power of the erstwhile husband, the ruler over his non-enfranchised wife, but self-prostitution and servitude also seem to have their pride of place among the newly available liberties: as a means to manipulate and as the price for one’s own right to mastery. Not only have we internalized the values of dominance and exploitation, making mastery our own aspiration, we also seem to have understood the functioning of dominance and submission, be it through experience or the incessant cultural propagation of the masochism of ‘voluntary submission’. Most people’s experience of democracy includes experiences of power as well as subordination. In particular, we seem to have understood that ascending on the ladder of the power hierarchy must be ‘earned’ by accepting subordination. Socialization in the sadism of power necessarily means socialization in the ‘inevitability’ of masochism. Choosing a democratic ‘personal relationship’ over autonomous and independent social relations means choosing of a democratic mixture of sadism and masochism — of self-subjugation in the interest of exercising mastery, of masochistic payment in the interest of sadistic appropriation.


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Emotion is central to the idea of jury nullification. Utilizing emotion in advocacy is crucial to create movements and fight injustice. McAdam, Dough. Silence and Voice in the Study of Contentious Politics. October 14, 2015.

Web. October 12, 2015. <http://www.cambridge.org/bm/academic/subjects/politics-international-relations/comparative-politics/silence-and-voice-study-contentious-politics>.

At the aggregate level, we think the onset of an episode of contention is associated with, and partially dependent upon, the collective mobilization of heightened emotion. This is not to say that the mobilization of strong emotions “causes” movements or revolutions, but that otherwise favorable environmental circumstances (for example, the presence of established organizations, expanding political opportunities, population pressures, and so on) will not produce a movement in the absence of heightened emotions. Or perhaps more accurately, the various facilitators of mobilization familiar to scholars of contention may well operate, at least in part, through the emotional dynamics they set in motion. The second claim concerns the role of emotions in motivating individual activism. Much has been made in the literature of the daunting “freerider” problem, which allegedly impedes collective mobilization by making it irrational for any individual to expend time and energy pursuing collective goods that s/he would receive in any case if the movement or revolution succeeded. Many objections have been raised regarding the nature of and predictions that derive from the “free-rider” problem. For example, a good many critics of the perspective have argued that the formulation is too narrowly economistic in its identification of the “selective incentives” that are held to overcome the free-rider problem. This may be true, but, in our view, there is a more basic problem with the formulation of both the free-rider dilemma and its hypothesized solution. Quite simply, the formulation ignores the power of emotions to shape both the assessment of potential gains and costs involved in any line of action the individual might take and perhaps to motivate action directly quite apart from any instrumental calculus of risks and rewards. Intense fear can motivate action, even in the face of extreme risks and seemingly no hope for payoff. Take, for example, the little known case of gentile wives who took to the streets in Nazi Germany to protest the detention and threatened internment of their Jewish husbands. Given the extraordinary risks they ran in challenging such a brutal regime and the seeming hopelessness of their plight — to say nothing of the presumed rationalist appeal of the free-rider stance — it is not at all clear how one can understand this “movement” without invoking the power of emotions to trump or, at the very least, shape rational calculus.


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Top down approaches fail to grasp the ways in which power is exercised in organizational spaces and every day actions. McAdam, Dough. Silence and Voice in the Study of Contentious Politics. October 14, 2015.

Web. October 12, 2015. <http://www.cambridge.org/bm/academic/subjects/politics-international-relations/comparative-politics/silence-and-voice-study-contentious-politics>.

Space is an object and a matrix of power. All power is, ultimately, power over people. One way of exercising control over people is by controlling the spaces where people live and work. The organization of power in the modem nation state is particularly space-based, or territorial, in character. The laws and administrative apparatus of the modern state are at least supposed to extend equally over the whole of the national territory; the territorial boundaries of the state are carefully mapped and marked; people or goods passing across the boundary must pass through immigration and customs checks; and the internal territory of the state is meticulously divided up into districts, provinces, states, or counties that have their own boundaries and jurisdictions. This is in marked contrast to a feudal polity; in which territorial boundaries were relatively fluid and power was exercised primarily through control over chains of vassalage, and in which jurisdictions were often based more on the status of the person than on territory — so that free men were judged by different courts than serfs and clergy by different courts than laymen. It was only in the aftermath of the democratic revolutions of the late eighteenth century that purely territorial jurisdiction became the universal rule even in such Western European countries as France, Britain, and the Netherlands. Crucial to states’ control over territory is policing — the surveillance of the activities of citizens and the use of coercion to enforce laws and maintain order. Not all state policing is carried out by police forces. The military, the tax authorities, and various branches of the bureaucracy also engage in policing in this sense. To be fully effective, the state’s policing must cover the entire space of the territory. But there are also limits on the police powers of the state, limits both intrinsic and legal. Policing is intrinsically limited because the police are vastly outnumbered by the people whose activities they are supposed to monitor and control. Policing is legally limited by restrictions on access to certain spaces. Police can exercise their functions only within their territorial jurisdictions and entry to certain kinds of spaces is restricted or forbidden. For example, in many countries police officers must have a valid search warrant in order to enter a private dwelling. t the aggregate level, we think the onset of an episode of contention is associated with, and partially dependent upon, the collective mobilization of heightened emotion. This is not to say that the mobilization of strong emotions “causes” movements or revolutions, but that otherwise favorable environmental circumstances (for example, the presence of established organizations, expanding political opportunities, population pressures, and so on) will not produce a movement in the absence of heightened emotions. Or perhaps more accurately, the various facilitators of mobilization familiar to scholars of contention may well operate, at least in part, through the emotional dynamics they set in motion. The second claim concerns the role of emotions in motivating individual


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activism. Much has been made in the literature of the daunting “freerider” problem, which allegedly impedes collective mobilization by making it irrational for any individual to expend time and energy pursuing collective goods that s/he would receive in any case if the movement or revolution succeeded. Many objections have been raised regarding the nature of and predictions that derive from the “free-rider” problem. For example, a good many critics of the perspective have argued that the formulation is too narrowly economistic in its identification of the “selective incentives” that are held to overcome the free-rider problem. This may be true, but, in our view, there is a more basic problem with the formulation of both the free-rider dilemma and its hypothesized solution. Quite simply, the formulation ignores the power of emotions to shape both the assessment of potential gains and costs involved in any line of action the individual might take and perhaps to motivate action directly quite apart from any instrumental calculus of risks and rewards. Intense fear can motivate action, even in the face of extreme risks and seemingly no hope for payoff. Take, for example, the little known case of gentile wives who took to the streets in Nazi Germany to protest the detention and threatened internment of their Jewish husbands. Given the extraordinary risks they ran in challenging such a brutal regime and the seeming hopelessness of their plight — to say nothing of the presumed rationalist appeal of the free-rider stance — it is not at all clear how one can understand this “movement” without invoking the power of emotions to trump or, at the very least, shape rational calculus.


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We need to recognize that the way injustice is created is through personal choices rather than through absurd chains of internal links. By understanding this and undertaking the personal choice to engage in jury nullification, we can create change in the system. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


fIf we nevertheless continue to explain violence by its 'circumstances' and attempt to counter it by changing these -circumstances it is also because in this way we stay in cernmand of the problem. 'In particular, we do not complicate the problem by any suggestion that It migbt be people who need to change. Instead, we turn the perpetrators ?f violence into the victims of circumstances, who as victims by definition cannot act sensibly(but in changed circumstances will behave differently). 'We', on the other hand, are the subjects able to take in hand the task of changing the circumstances. Even if changing the circumstances - combating poverty, unemployment, 'injus~ice etc. - may not be easy, it nevertheless remains within 'our' scope, at least theoretically and by means of state power. Changing people, on the other hand, is neither within our power nor, it seems, ultimately v iotence in our interest: we prefer to keep certain people under control, putting limits on their violent behaviour, but we apparently have no interest in a politics that presupposes people's ability to change and aims at changing attitudes and behaviour. For changing (as opposed to restricting) other people's behaviour is beyond the range and influence of our own power; only they themselves can change it. It requires their will to change, their will not to abuse power and not to use violence. ~ fA politics aIming at a change in people's behaviour would require political work that is very much more cumbersome and very much less promising of success than is the use of state power and social control. It would require political consciousness-raising - politicizing the way we think - which' cannot be imposed on others by force or compulsory educational measures. It would require a view of people which takes seriously and reckons with their will, both their will to violence or their 'will to change. To take seriously the will of others however would mean recognizing one's own, and putting people's will, including our own, at the centre of political reflection. rA political analysis of violence needs to recognize this will, the personal decision in favour of violence - not just to describe acts of violence, or the conditions which enable them to take place, but also to capture the moment of decision which is the real impetus for violent action. For without this decision there will be no violent act.' not even in circumstances which potentially permit it. It is the decision to violate, not justthe act itself, which makes a person a perpetrator of violence - just as it is the decision not to do so which makes people not act violently and not abuse their power in a situation which would nevertheless permit it. This moment of decision, therefore, is also the locus of potential resistance to violence. To understand the structures of thinking and the criteria by which such decisions are reached, but above all to regard this decision as an act of choice, seems to me a necessary precondition for any political struggle against violence and for a non-violent society.


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When we alter mindsets, we will be able to solve for injustice. Jury nullification is the first step towards altering mindsets. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


Resistance, I would suggest, does not come with any identity. It is a question of political will and action. It requires the political analysis of systems of oppression through to individual acts of oppression and violence — in terms of agency and its consequences, in terms of agents and beneficiaries and victims — and a corresponding analysis of resistance in terms of actions and their consequences.8 Only once we know what we are doing, and what our actions actually effect, and what we mean them to achieve, can we begin to act in resistance, knowing what it is resistance to; and only then will we be able to identify and co-operate with those acting for the same political goals.


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This is not a utopian alternative. I simply call for a world in which each person engages in an individual acceptance of responsibility. Utopian solutions are useless because they don't offer any productive methods of change. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 2015.


Although it must certainly be the aim of any liberation politics to dismantle the social power structure and thus to decrease the possibilities for systematic violence and abuse, this does not spare us the question of a politics of behaviour in a world which has not yet been rid of these power structures. Nor does it suffice simply to wish for a future society in which power may no longer be exercised. Here lies the crucial difference between a utopia or vision on the one hand, and a politics of change whose aims, however utopian they may seem, are derived from a political analysis and critique of reality on the other. For a utopia or ‘vision’ is the idealist sketch of a future state of society that remains silent about how this state can be reached (or maintained). Its focus is on the happy future, jumping the analysis of the present and the particular problems which will need to be solved on the way to the future. It means not only to abandon any responsibility for the present, but to build this non-responsibility into the future, since personal responsibility is given up in favour of a superior, even if invisible, institution and authority: the abolished power structure. For in the future utopia there will be no abuse of power because there will be no power to abuse, and no violence because it will be impossible to act violently — because, in other words, not only the traditional offenders but also we ourselves would simply be prevented from behaving violently. Not only is it a vision of perfect unfreedom — of being forced to be ‘good’, it is also a fallacy to believe that if there were no social power structures there would no longer be any opportunities for being violent. A vision, moreover, is the sketch of a society to which that society itself has nothing to say. It originates in the fantasy of a subject which is superordinated to society, society becoming the material in the creation of a world after the creative subject’s pleasure and will. It is a power fantasy par excellence, whether it is the vision of a general or a revolutionary.


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Anything but changing the social practices that allow injustice to continue will essentially do nothing. My aff solves and straight turns all of their arguments. Walker, Tom. One World, Many Worlds: Struggles for a Just World Peace. October 14, 1988.

Web. October 12, 2015. <https://books.google.com/books/about/One_World_Many_Worlds.html?id=dbOvLwAACAAJ>.

To rethink the meaning of security, or development, or democracy is to enter upon very difficult conceptual terrain. It is to move from what is to what might be. It is to strain at the limits of prevailing categories and to wrench enormously influential concepts out of their present contexts. The most familiar concepts of security refer to the presumed “interests” of states. If we listen to critical social movements, it becomes clear that whateversecurity could possibly mean in the future, it must refer to the security of people. A people’s security must necessarily move beyond familiar concerns about warfare and military policy. It must be grounded in a reconstruction of the way violence and vulnerability enter into social practices of all kinds. It must be able to address concerns usually framed under the concept of development. CONTINUES Whether rethinking security, development, or democracy, there is a similar pattern. Problems are posed as questions of policy. Mainstream political forces attempt to answer these questions of policy, and they do so on the presumption that existing institutions and authorities are sufficient both to formulate answers and to put them into effect. Critical social movements, however, are driven to move from specific problems to the demand for structural transformation. And they move from received images of the way structural transformation is to be attained—the images of political revolution as the taking of state power, the positing of grand utopian schemes to be brought down to earth—to a rethinking of the possible character of social and political transformation itself. To protest about bombs and poverty, violence and brutality, militarization and maldevelopment, is to confront the need to rethink the way people live together and act toward each other. The practices of critical social movements are necessarily directed not only to attempts to bring about better policies, of the kind usually prescribed by politicians and leaders of state, but toward a rethinking of political life in general. CONTINUES There are undoubtedly many people, including many who are active in social movements, who would be happy enough to see some particularly noxious symptoms brought under control. This is certainly understandable. But the real force of the message coming from so many movements is that the control of symptoms cannot be enough. Indeed, movements recognize that attempts to treat symptoms alone have often turned into one more legitimation of the underlying processes that create problems in the first place. The unhappy experience of so many foreign-aid programs is perhaps indicative in this respect. Acting in particular situations, critical social movements are able to generate new ways of thinking about what it means to express solidarity with others, to share a common destiny as human beings. Their practices express new ways of knowing how to be both singular and many. From this perspective, it is clear that a just world peace cannot be a singular condition, something that can be specified in a way that is applicable to all societies at all times. A just world peace may be a universal aspiration. But no one can claim a monopoly on what it may come to be. Nor is it a static condition, an architectural procedure. It is an ongoing process, a continuous struggle. It is possible to act in a world of peace and justice—not in some distant future— but here, and now.


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Attempting to justify injustice and violence justifies future violent acts, turning all of their arguments. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 1988.


Moreover, a politics aiming at social equality and relations between equals should make it its central concern to reflect upon the structure of such relations - what it means to relate to others as equals. We have analysed and made a critique of abusive behaviour, where men choose to treat women as unequals, or whites to treat Black people as unequals, being able to do so with sanctioned impunity. This would imply an analysis also of action and behaviour which by contrast is based on choosing equality - in particular, choosing to grant equality to others, choosing not to violate others in situations which permit that choice, all the more so as it is our conviction that it is not people who are (by virtue of their 'identity') unequal, whom we then necessarily relate to as 'unequals', but that inequality is a matter of treating and being treated unequally. Conversely, we cannot assume that if there are two 'equals', their relations will necessarily be (or remain) equal. Rather, we should investigate how relationships of potential equality may, through the action of one or the other or both agents involved, be restructured into relations of dominance and submission. Action – and especially the will to power and violence - is a vital factor in the continually changing 'structure' of a relationship, combining with those factors we normally consider to constitute the structural context of the relation. This means engaging also with the discourses which construct violence as a phenomenon but obliterate the agent's decision to violate. Our unwillingness to recognize the will of those who act violently as their will to act violently, our readiness to exonerate violent behaviour by means of spurious explanations, not only betrays our primary identification with the subjects of violence and our la.ck of solidarity with the victim.s. It is itself an act of violence: the exercise of ideological violence, of the power of a discourse which legitimates violence, stigmatizes the victims, and treats people not as the agents of their own actions but as material for ('our') social policy. Ideology, however, is not just made by others; we are all of us subjects of ideology - as the producers of our own thinking and as the recipients of other people's discourse - unless we resist such ideological structures of thought and discourse in a continual critique of Ideology Itself


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Their solution does not have the ability to solve and will actually further perpetuate the harms of the status quo. Kappeler, Susanne. The Will to Violence: The Politics of Personal Behavior. October 14, 1988.


Resistance to violence however cannot consist of violence. Violence may change the direction of violence, invert the roles of violator and victim, but it necessarily affirms the principle of violence, whatever else it may achieve. And it adds new victims to the world — victims of our own making, not to mention more violent perpetrators, whose ranks we have decided to join. While in extremity and under the threat of our lives we may not have any means other than violence to secure our survival, most of us most of the time are not in such situations, though we glibly speak of ‘survival’. Instead, we would have ample opportunity in situations of no such threat to challenge the legitimacy of violence and to practise alternatives — above all by deciding not to use violence ourselves.


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Jury intent is irrelevant. The only thing that matters is that individual action to reduce injustice and violence is taken. Nayar, Jayan. "RE-FRAMING INTERNATIONAL LAW FOR THE 21ST CENTURY: Orders

Of Inhumanity." Transnational Law & Contemporary Problems. October 14, 1988. Web. October 12, 2015. <https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=9+Transnat%27l+L.+%26+Contemp.+Probs.+599&key=edd417ed21cb67e253b98b908b7fd6ac>.

My questioning is not of intent, or of commitment, or of the sincerity of those who advocate world-order transformations. Rather, my questionings relate to a perspective on "implications." Here, there is a very different, and more subtle, sort of globalized world-order that we need to consider--the globalization of violence, wherein human relationships become disconnected from the personal and are instead conjoined into distant and distanced chains of violence, an alienation of human and human. And by the nature of this new world-ordering, as the web of implication in relational violence is increasingly extended, so too, the vision of violence itself becomes blurred and the voice, muted. Through this implication into violence, therefore, the order(ing) of emancipatory imagination is reinforced. What we cannot see, after all, we cannot speak; what we refuse to see, we dare not speak.

Non-ViolentDrugOffendersAC November/December2015

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Non-ViolentDrugOffendersAC

Strategy Guide

This aff is pretty awesome because the literature is so precise on the question of jury

nullification making nationwide marijuana legalization inevitable. This is the aff you want to

read if you want to read a utilitarian aff that draws from multiple extinction scenarios. There was

an entire college policy debate topic about legalization (2014-15), where one of the topic areas

was marijuana; there were so many extinction scenarios on that topic about legalizing pot that

you’d be able to utilize similar literature.

The plan text would be: The United States criminal justice system should notify juries in

trials about non-violent marijuana possession that they have the right to nullify.

You could also make a racism argument about how arrests/sentencing for marijuana

possession are biased against black people. There’s lots of literature on this as well. You’d have

to prepare, though, for arguments about why the aff’s reformism (the aff proposing some small

change to the system that doesn’t resolve larger, structural questions of racism) is valid and

necessary. We need incremental changes to the law that make things better than they were

yesterday; otherwise we’ll get nowhere.

Extinction scenarios you could pursue with an aff about marijuana:

--Cartels: Mexican drug cartels thrive off of marijuana sales to US consumers. Legalization

destroys this black market, making the cartels too weak to carry out the violence they’d

perpetuated throughout Mexico. The impact is Mexican instability which would be bad for a

variety of reasons.


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--Federalism: Legalizing marijuana gives more power to the states, providing an essential check

against an all-powerful federal government that tells states like Colorado and Washington what

to do. This will inspire states to pursue innovative policy reforms on other issues. Federalism is

the best governmental model and solves a variety of impacts.

--Economy: Legalization of marijuana will create a new, booming industry that will majorly

grow the economy. In addition, with the tax revenue we’d get from a legal market, we could put

more funding into stuff like education and infrastructure which are vital to a healthy economy.

Of course, for all three of those you would get to nuclear war or some environmental problem.

The cards exist, and these debates are fun.


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Jury nullification is key to marijuana federalism.

McKnight, Aaron. "Jury Nullification As A Tool To Balance The Demands Of Law And Justice." BYU Law Review. October 14, 1988. Web. October 09, 2015. <http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2890&context=lawreview>.

Through exercise of its nullification power, a jury can provide a check on legislatures to protect against unjust laws, a check on prosecutors that are unjustly applying the laws, and a check on judges who may be interpreting the law with too much rigidity. Jury nullification can also serve as a useful tool in balancing federalism, protecting states from the federal government’s encroachments into what have traditionally been the states’ determinations of criminal liability.166 For example, it can protect people who rely on state law that allows certain behavior while the federal government attempts to prosecute that same behavior. A current example of this is jury nullification’s ability to protect people from federal convictions in states that have legalized the use of marijuana.167 Jury nullification could also have practical implications in a hypothetical—yet foreseeably possible—case in which federal law requires people authorized to perform marriages to perform them for both heterosexual and homosexual couples while some states’ laws may still be resistant to such a requirement. In this way, jury nullification would act as an additional check or limitation, preventing abuse of government power.


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Jury nullification ensures defendants can challenge marijuana possession charges. Dane, Lily. "Good News: Jury Nullification Is Interfering With Marijuana Convictions." The

Daily Sheeple. October 14, 1988. Web. October 09, 2015. <http://www.thedailysheeple.com/good-news-jury-nullification-is-interfering-with-marijuana-convictions_072014>.

About three years ago, a judge in Montana threw out a man’s criminal marijuana possession charge because he could not find a jury that would convict the man for simple possession of marijuana: Ed Forchion is also known as NJ Weedman. He’s a medical marijuana patient who was diagnosed with bone cancer 13 years ago. A New Jersey state trooper pulled Forchion over for a minor traffic violation in 2010. That stop escalated into a search of his vehicle, during which police found more than a pound of marijuana and a large amount of cash. Forchion faced up to 10 years in prison for “possession with intent to distribute”, but he took a unique approach to his jury trial: he represented himself in court, and argued not only for his innocence but also against the morality of the law itself. “The only reason I’m standing here is because I happened to know about jury nullification. And I used it.”


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Jurors have the power to nullify, but aren't always informed of that-jurors have a right to be told-that ensures marijuana cases can't get prosecuted. Dane, Lily. "Good News: Jury Nullification Is Interfering With Marijuana Convictions." The


Courts around the country are having more trouble prosecuting marijuana cases because of increasing awareness of a constitutional doctrine called jury nullification. Under the Bill of Rights, jurors have the power to find a defendant not guilty if they find the law in question is flawed – even if the person being accused actually did smoke pot (or commit another victimless crime). In his NY Times piece titled Jurors Need to Know That They Can Say No, Paul Butler explained the history and purpose of nullification: The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.” Unfortunately, though, jurors are not always informed about the option, Butler goes on to explain: In 1895, the Supreme Court ruled that jurors had no right, during trials, to be told about nullification. The court did not say that jurors didn’t have the power, or that they couldn’t be told about it, but only that judges were not required to instruct them on it during a trial.


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Jury nullification leads to not guilty verdicts for people arrested for marijuana possession-Doug Darrell proves. Dane, Lily. "Good News: Jury Nullification Is Interfering With Marijuana Convictions." The


In 2012, 59-year-old New Hampshire resident Doug Darrell was arrested after a National Guard helicopter flying over his home found he was growing 15 marijuana plants in his backyard. At Darrell’s trial, jurors nullified the case against him. His case was unusual – during the trial, the judge, per request from defense attorney Mark Sisti, notified the jury of their nullification power by reading them the following: “Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.” Last June, New Hampshire passed a bill that explicitly allows defense attorneys to tell jurors about jury nullification.


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Courts aren't informing juries of the right to nullify, but that must change-people shouldn't become victims of the drug war. Dane, Lily. "Good News: Jury Nullification Is Interfering With Marijuana Convictions." The


But many courts still do not inform juries of the right to nullify, and some say prosecutors will weed out potential jurors who reveal that they are aware of that right, per the Informed Jury Association: I believe the reason why prosecutors don’t want a juror to know about jury nullification are because they know that if people were to be aware of this that they would lose. The big bad tiger called government does not like losing. They will intentionally screen out potential jurors who they think will impose jury nullification, or are aware of it. If you contest a cannabis charge, they feel impelled to stack the deck against you to use the jurors to support their weak law. Jury nullification works, and it’s exactly why the prohibition of alcohol was overturned years ago. It is up to us, as Americans, to ensure that our fellow citizens don’t become a victim of the senseless – and astronomically expensive –“drug war”.


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Jury nullification in marijuana cases is key to making our laws fairer. Butler, Paul. "Jurors Need To Know That They Can Say No." New York Times. October 14,

1988. Web. October 09, 2015. <http://www.nytimes.com/2011/12/21/opinion/jurors-can-say-no.html?_r=1>.

IF you are ever on a jury in a marijuana case, I recommend that you vote “not guilty” — even if you think the defendant actually smoked pot, or sold it to another consenting adult. As a juror, you have this power under the Bill of Rights; if you exercise it, you become part of a proud tradition of American jurors who helped make our laws fairer. The information I have just provided — about a constitutional doctrine called “jury nullification” — is absolutely true. But if federal prosecutors in New York get their way, telling the truth to potential jurors could result in a six-month prison sentence. Earlier this year, prosecutors charged Julian P. Heicklen, a retired chemistry professor, with jury tampering because he stood outside the federal courthouse in Manhattan providing information about jury nullification to passers-by. Given that I have been recommending nullification for nonviolent drug cases since 1995 — in such forums as The Yale Law Journal, “60 Minutes” and YouTube — I guess I, too, have committed a crime. The prosecutors who charged Mr. Heicklen said that “advocacy of jury nullification, directed as it is to jurors, would be both criminal and without constitutional protections no matter where it occurred.” The prosecutors in this case are wrong. The First Amendment exists to protect speech like this — honest information that the government prefers citizens not know. Laws against jury tampering are intended to deter people from threatening or intimidating jurors. To contort these laws to justify punishing Mr. Heicklen, whose court-appointed counsel describe him as “a shabby old man distributing his silly leaflets from the sidewalk outside a courthouse,” is not only unconstitutional but unpatriotic. Jury nullification is not new; its proponents have included John Hancock and John Adams. The doctrine is premised on the idea that ordinary citizens, not government officials, should have the final say as to whether a person should be punished. As Adams put it, it is each juror’s “duty” to vote based on his or her “own best understanding, judgment and conscience, though in direct opposition to the direction of the court.”


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Even if jury nullification has sometimes been used in racist way, that doesn't justify opposing nullification in its entirety. Butler, Paul. "Jurors Need To Know That They Can Say No." New York Times. October 14,


Nullification has been credited with helping to end alcohol prohibition and laws that criminalized gay sex. Last year, Montana prosecutors were forced to offer a defendant in a marijuana case a favorable plea bargain after so many potential jurors said they would nullify that the judge didn’t think he could find enough jurors to hear the case. (Prosecutors now say they will remember the actions of those jurors when they consider whether to charge other people with marijuana crimes.) There have been unfortunate instances of nullification. Racist juries in the South, for example, refused to convict people who committed violent acts against civil-rights activists, and nullification has been used in cases involving the use of excessive force by the police. But nullification is like any other democratic power; some people may try to misuse it, but that does not mean it should be taken away from everyone else.


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Arrest and incarceration rates for marijuana possession are unfairly high-jurors concerned about racial bias will nullify. Butler, Paul. "Jurors Need To Know That They Can Say No." New York Times. October 14,


How one feels about jury nullification ultimately depends on how much confidence one has in the jury system. Based on my experience, I trust jurors a lot. I first became interested in nullification when I prosecuted low-level drug crimes in Washington in 1990. Jurors here, who were predominantly African-American, nullified regularly because they were concerned about racially selective enforcement of the law. Across the country, crime has fallen, but incarceration rates remain at near record levels. Last year, the New York City police made 50,000 arrests just for marijuana possession. Because prosecutors have discretion over whether to charge a suspect, and for what offense, they have more power than judges over the outcome of a case. They tend to throw the book at defendants, to compel them to plead guilty in return for less harsh sentences. In some jurisdictions, like Washington, prosecutors have responded to jurors who are fed up with their draconian tactics by lobbying lawmakers to take away the right to a jury trial in drug cases. That is precisely the kind of power grab that the Constitution’s framers were so concerned about. In October, the Supreme Court justice Antonin Scalia, asked at a Senate hearing about the role of juries in checking governmental power, seemed open to the notion that jurors “can ignore the law” if the law “is producing a terrible result.” He added: “I’m a big fan of the jury.” I’m a big fan, too. I would respectfully suggest that if the prosecutors in New York bring fair cases, they won’t have to worry about jury nullification. Dropping the case against Mr. Heicklen would let citizens know that they are as committed to justice, and to free speech, as they are to locking people up.


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Jury nullification can be used to ensure justice in medical marijuana cases. JuryAssociation, FullyInformed. "Jon Peditto To Use Jury Nullification Strategy In MMJ Case."

FIJA. January 10, 2015. Web. October 09, 2015. <http://fija.org/2015/10/01/jon-peditto-to-use-jury-nullification-strategy-in-mmj-case/>.

This week we have learned of a courageous New Jersey resident who is openly pursuing a jury nullification strategy in a medical marijuana jury trial coming up at the Ocean County Courthouse in Towns River, NJ. Jon Peditto is a photographer and marijuana grower and activist who was arrested in 2012 and charged with several counts regarding completely victimless marijuana-related offenses. Despite knowing how biased courts are against jury nullification, and after turning down several plea bargains and the option of having his offenses handled through drug court (which circumvents the right to trial by jury), Peditto is opting for trial by jury and is openly pursuing a jury nullification strategy. In this interview with Ken Wolski, Executive Director of the Coalition for Medical Marijuana New Jersey, Peditto discusses his case in detail, including why he is opting to exercise his Sixth Amendment right instead of forfeiting it to go through the alternative drug court. Exercising one’s right to trial by jury virtually guarantees that if one is convicted, one will suffer substantially more punishment than what one would suffer under a plea bargain. We refer to this as the arithmetic of injustice.


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Jury nullification is symbolically important-it sends a message against unjust marijuana laws. JuryAssociation, FullyInformed. "Jon Peditto To Use Jury Nullification Strategy In MMJ Case."


The cost of trial by jury is the difference between the sentence imposed under a plea bargain (i.e. what the prosecution thinks is a just sentence for the offenses committed) and the sentence imposed if one is convicted in a trial by jury. All of that extra punishment is for no other purpose than to bully defendants into forfeiting their Constitutionally-guaranteed right and to punish and make examples of them if they refuse to knuckle under to abusive authority. “To get in there and talk to a jury, they’re gonna add decades to your sentence. They’re gonna add decades. They don’t want anybody talking to juries. I absolutely am sure of this,” notes Jon Peditto. “Most attorneys won’t go to trial, mainly because they never do and they’re uncomfortable doing them. It’s actually work. They have to work for a living, which is something they don’t like to do like most people. Let’s get this done fast. So plea bargaining is the new America. Again, I can’t tell you how dangerous this is,” Peditto emphasizes. Peditto speaks of his experience with the judge in his case, who so far seems a bit confused that he is not taking plea deals. “Why am I not taking these plea deals? One after another after another. I can see the confusion on his face. But I think now we’re getting to the point where he knows that I just want to talk to these twelve people. And I want to send a clear message, not just to the state of New Jersey but to everybody, that juries will NOT convict peaceful marijuana cases,” Peditto says.


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Marijuana possession charges are unfair-we should inform juries of their right to nullify. JuryAssociation, FullyInformed. "Jon Peditto To Use Jury Nullification Strategy In MMJ Case."


Jon has previously shared his thoughts on jury nullification in cannabis cases on the Garden State Cannabis website. He noted that cultivating 15 marijuana plants in New Jersey is classified as a Class A felony, 1st degree, putting this completely victimless offense legally in the same category as murder, manslaughter, and rape. “Even without juries being informed of jury nullification, cases have been won here in New Jersey with jurors, after watching defendant testimony, deciding for either moral or personal reasons not to convict, concluding that the charges were unjust,” Peditto said. Peditto’s case is a sobering reminder of why it is CRITICAL to educate everyone about jurors’ full legal authority and their responsibility to deliver just verdicts, even if it requires setting aside the law to do so. We are currently looking for volunteers starting immediately for juror rights outreach both at the Ocean County Courthouse in Toms River, New Jersey, and at the Union County Courthouse in Elizabeth, New Jersey. If you would like to join one of these efforts please contact us at [email protected] or 406-442-7800. If nobody is available to take your call, please leave a message letting us know which courthouse you are interested in volunteering at and your contact information and we will get back to you as soon as possible. Thank you!


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Nullification ended prohibition of alcohol, and it'll end marijuana prohibition too-growing number of Americans opposing marijuana arrests now. Newman, Tony. "Jury Nullification: An Important Tool Against Drug War Injustices?."

Huffington Post. January 10, 2015. Web. October 09, 2015. <http://www.huffingtonpost.com/tony-newman/jury-nullification-an-imp_b_1165640.html>.

Mr. Butler points out that nullification was credited with ending our country's disastrous alcohol prohibition as more and more jurors refused to send their neighbors to jail for a law they didn't believe in. Butler says we need to do the same with today's marijuana arrests. There is growing recognition that today's drug laws are ineffective and unfair. For the first time ever, a recent Gallup poll found that 50 percent of Americans want to legalize the use of marijuana. Despite half of our country wanting to end marijuana prohibition, the war on marijuana users is as vicious as ever. There were more than 750,000 arrests last year for marijuana possession alone. In New York City, marijuana possession was the #1 reason people were arrested last year, making up 15 percent of all arrests.


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Jury nullification is key-we can't expect our leaders to change marijuana laws without bottom-up pressure. Newman, Tony. "Jury Nullification: An Important Tool Against Drug War Injustices?."

Huffington Post. January 10, 2015. Web. October 09, 2015. <http://www.huffingtonpost.com/tony-newman/jury-nullification-an-imp_b_1165640.html>.

People hoping for change should not expect it to come from our "leaders" in Washington. While most of our elected officials know in their hearts that our drug war is an utter failure that fills our prisons while doing nothing to help people struggling with addiction, there is deafening silence when it comes to offering alternatives to the war on drugs. Democrats and Republicans are both cowardly and opportunistic and don't want to give up their "tough on crime" credentials. Here is where jury nullification comes in. If our leaders aren't going to stop the madness, maybe it is up to our peers to say enough is enough. In Montana last year, a group of five prospective jurors said they had a problem with someone receiving a felony for a small amount of marijuana. The prosecutors were freaked out about the "Mutiny in Montana" and were afraid they were not going to be able convince 12 jurors in Montana to convict. The judge said, in a major New York Times article, "I've never seen this large a number of people express this large a number of reservations" and "it does raise a question about the next case." The highest profile group to call for jury nullification for drug offenses is from the creators of the HBO hit series The Wire. David Simon and the other creators of The Wire wrote a passionate piece in Time magazine where they called on Americans to join them in the use of jury nullification as a strategy to slow the drug war machine. From the article: "A long habit of not thinking a thing wrong, gives it a superficial appearance of being right," wrote Thomas Paine when he called for civil disobedience against monarchy -- the flawed national policy of his day. In a similar spirit, we offer a small idea that is, perhaps, no small idea. It will not solve the drug problem, nor will it heal all civic wounds. It does not yet address questions of how the resources spent warring with our poor over drug use might be better spent on treatment or education or job training, or anything else that might begin to restore those places in America where the only economic engine remaining is the illegal drug economy. It doesn't resolve the myriad complexities that a retreat from war to sanity will require. All it does is open a range of intricate, paradoxical issues. But this is what we can do -- and what we will do. If asked to serve on a jury deliberating a violation of state or federal drug laws, we will vote to acquit, regardless of the evidence presented. Save for a prosecution in which acts of violence or intended violence are alleged, we will -- to borrow Justice Harry Blackmun's manifesto against the death penalty -- no longer tinker with the machinery of the drug war. No longer can we collaborate with a government that uses nonviolent drug offenses to fill prisons with its poorest, most damaged and most desperate citizens." Forty years after President Richard Nixon launched the "war on drugs" the casualties continue to mount with no end in sight. We need to step up our efforts to end this war at home and stop sending our loved ones to cages because they have a drug problem. We have more power than we realize. If the people lead, the leaders will follow.


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The war on drugs is an utter failure-too many people are getting arrested for non-violent, low-level offenses-that destroys communities. JuryAssociation, FullyInformed. "Push Back Against Drug War Profiteering With Jury

Nullification." FIJA. January 10, 2015. Web. October 09, 2015. <http://fija.org/2013/09/30/push-back-against-drug-war-profiteering-with-jury-nullification/>.

Morgan Walker reports on MSNBC.com on the sheer failure that is the United States’ 40-year war on drugs. The numbers document an incredible waste: -more than $1 trillion of taxpayer earnings wasted -37 million people incarcerated (and many more innocents’ lives destroyed because of that) for nonviolent drug offenses -rate of drug use by high school students is virtually unchanged in 40 years and drug overdose rates are actually increased So why, especially in this unstable economy where many are barely or not making ends meet, does government confiscate so much of our hard-earned income to pour into this black hole of ineffective and devastating drug policy? Walker explains the perverse incentive: How profits help drive the war on drugs During the Reagan administration, the government started incentivizing drug arrests by handing out grants to police departments fighting drug crimes. An arrest in a state like Wisconsin could bank a city or county an extra $153. In 34 years in the Seattle Police Department, Norm Stamper learned about those incentives first hand, and he believes they are “corrupting the system.” “What we have seen with this drug war are insane numbers of Americans being arrested for nonviolent, very low level drug offenses, in the tens of millions of numbers, and what do we have to show for it?” he asked on Tuesday’s PoliticsNation. He said drugs are more readily available than when Nixon “first declared war against them.” Not only do government agents profit from harming our communities in this way, but so does an increasingly corporatized prison industry that abuses incarcerated individuals for cheap labor to pad corporate pocketbooks.


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Increased jury nullification for marijuana charges makes eventual repeal of marijuana prohibition inevitable. JuryAssociation, FullyInformed. "Push Back Against Drug War Profiteering With Jury

Nullification." FIJA. January 10, 2015. Web. October 09, 2015. <http://fija.org/2013/09/30/push-back-against-drug-war-profiteering-with-jury-nullification/>.

But all this can come to a halt if we start doing one thing consistently: Vote Not Guilty. Refuse to be complicit in an abusive system which decimates our quality of life and destroys our communities by pitting neighbor against neighbor over victimless offenses for government and corporate benefit at our expense. Your conscientious acquittal by Not Guilty vote on all victimless charges not only protects the individual whose life is in your hands, but its social effects ripple out beyond that. As future victims of the state see more peaceful individuals protected by conscientious acquittal, they will feel more confident in exercising their right to trial by jury and be less likely to crumble in the face of prosecutorial bullying and accept plea deals. As prosecutors see fewer and fewer convictions, they will be publicly embarrassed by their professional failures and forced to justify under public scrutiny their wasteful activities. And as it becomes apparent that criminalization of victimless drug offenses simply cannot be enforced without jurors’ cooperation, the focus of law enforcement will be taken off these non-crimes and legislation against them will be more and more laughable, eventually trailing off and being repealed as was alcohol prohibition. When you have a chance to serve as an independent juror, please: Show up and get on the jury. Shut up about jury nullification during voir dire and deliberations or you could be excluded or removed from the jury, leaving the defendant with no fully informed juror who will acquit. Stand up for what is right and exercise your right to nullify when a just verdict requires it.

PluralismAC November/December2015

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PluralismAC

Strategy Guide

This aff provides a unique take on the framework debate; it also encourages people to engage

heavily in the stock topic debate. Ethical pluralism is the view that we have a variety of duties

that stem from our personal relationships but cannot be reducible to a single theory of what

morality demands. The stringency of our duties is contextual to circumstance; we must use our

intuitive reasoning as mature moral reasoners to determine which duties win out. Pluralism is

concerned with prima facie duties, or duties that hold true in most circumstances but not all,

whereas other moral theories are concerned with absolute moral duties that hold true in all

circumstances. For example, utilitarianism says that we are always obligated in every

circumstance to maximize happiness, ensuring the greatest good for the greatest number of

people. Deontology says that we are always obligated in every circumstance to never tell lies,

keep all of our promises, and not kill people.

We have duties both to avoid unjustly harming people and to uphold the rule of law. So, the rule

of law NC is partially correct; their framework is right that the rule of law is ethically significant,

but it’s wrong in assuming that the rule of law is therefore the only salient ethical consideration

for this topic. While both justice and the rule of law are important, we should analyze the

specifics of jury nullification to determine which wins out.

Jury nullification is preferable, on this view, because our obligation to avoid unjustly harming

defendants is pretty strong when you think intuitively about criminal justice. The Huemer cards

are great at explaining this.


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This aff changes up the weighing debate a little bit; no longer can you claim that one impact

automatically and always precedes some other, or that certain impacts matter to zero degree

under your framework. You’d have to weigh in a more intuitive manner; for example, “yes,

morally speaking we should try to avoid human extinction, but the chance of jury nullification of

all things causing human extinction is less than .0001%” or “yes, morally speaking it would be

wrong that jury nullification is democratically unaccountable—but it’s actually not, and holds

judges and prosecutors accountable for unjustly sentencing people who don’t deserve to go to

jail”


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Jury nullification occurs when there are illegal acts that are morally blameless. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.

October 09, 2015. <http://philpapers.org/archive/HUETDT.pdf>.

The kind of jury nullification with which I am concerned occurs when a defendant is prosecuted for an act that was illegal but morally blameless. Almost everyone admits that there are such acts. During World War II, some German citizens illegally hid Jews to protect them from persecution by the Nazis. In the pre-Civil War era, some Americans illegally helped slaves to escape from their masters via the Underground Railway. During the 1960’s, some Americans illegally burned their draft cards in protest of the Vietnam War. All of these actions were not only blameless but positively praiseworthy.


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Obeying the law is a prima facie duty that can be overridden for the sake of justice. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Second, even those who defend the notion of a general duty to obey the law defend only a prima facie duty, and not one that appears extremely strong. The duty to obey the law has been said, for example, to arise out of an obligation to avoid free riding, to treat other citizens as equals, or to promote just institutions in one’s society. While each 5 of these obligations has some intuitive force, none appear to be exceptionally powerful and difficult to override.


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We have a prima facie duty to avoid unjustly harming people. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Imagine that you are walking down a public street with a flamboyantly-dressed friend, when you are accosted by a gang of gaybashing hoodlums. The leader of the gang asks you whether your friend is gay. You have three alternatives: you may answer yes, refuse to answer, or answer no. You are convinced that either of the first two choices will result in a beating for your friend. However, you also know that your friend is in fact gay. Therefore, how should you respond? This is hardly an ethical dilemma. Clearly, you should answer no. No person with a reasonable and mature moral sense will have difficulty with this case. Granted, it is usually wrong to lie, but the importance of avoiding inaccurate statements pales in comparison to the importance of avoiding serious and unjust injury for your friend. The case illustrates a simple and uncontroversial ethical principle: it is prima facie wrong to cause another person to suffer serious undeserved harms. This is true even when the harm would be directly inflicted not by oneself but by a third party. Indeed, it may be one’s positive duty to prevent such harms, when one can do so at trivial cost. The duty to avoid contributing to serious, unjust harms may perhaps be overridden in extreme cases, but it is not easily overridden. It would not be just, for example, to punish an innocent man to prevent an angry mob from rioting, even if one believed the riots would cause considerably greater harm than the punishment the innocent defendant would suffer. This suggests that the right not to 6 be unjustly punished is overridden, if at all, only by very serious considerations.


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Since the defendant is morally blameless, juries have an obligation to vote not guilty. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


The gaybasher case appears analogous to the jury nullification case. By stipulation, we are considering the case of a morally blameless defendant, who therefore does not deserve punishment. On the face of it, undeserved punishment constitutes an unjust harm. In most cases of interest, judicial punishment will be much more harmful than a beating, involving months or years of forced confinement in dangerous and extremely unpleasant conditions. Therefore, a juror has, if anything, a much stronger reason to avoid causing the blameless defendant to be judicially punished than you have to avoid causing your friend to be beaten by hoodlums. A jury that votes to convict a defendant can predict that this will result in judicial punishment of the defendant, even more surely than you could predict the violence your friend would suffer at the hands of the hoodlums in the above example.Therefore, the jury should not vote to convict. Just as you should tell the hoodlums your friend is not gay, the jury should tell the state that the defendant is not guilty. Whether the “not guilty” verdict should be construed as a lie is immaterial, since the imperative of avoiding serious unjust harms is of far greater import than the relatively trivial imperative to avoid making inaccurate statements.7


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The thesis of the aff is that jurors have a duty to nullify in the face of injustice because it is prima facie wrong to cause unjust harm. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


In short, there is a simple and obvious argument for jury nullification: 1. It is prima facie wrong to cause unjust harm to others. 2. To convict a defendant for a morally blameless violation of law is to cause unjust harm to that defendant, for: a. To convict a defendant is to cause the defendant to be punished. b. One does not deserve punishment for a morally blameless act. c. Undeserved punishment is an unjust harm. 3. Therefore, it is prima facie wrong to convict a defendant for a morally blameless violation of law. This argument establishes not only an entitlement but a duty of jury nullification in cases of blameless law-violations. This is no trivial or easily overridden duty, for it derives directly from the duty to avoid causing unjust harms. The more serious an unjust harm is, the stronger is the moral duty to avoid bringing it about. Since judicial punishments are typically very serious harms, the duty of jury nullification, when it comes into play, is typically a very weighty duty.


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Even if the aff violates the jury oath, breaking promises is permissible if doing so avoids unjust harms. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


In the United States, jurors are usually required to swear an oath promising to apply the law as given them by the judge. Jury nullification violates that oath. This seems to provide a reason against nullification and in favor of applying the law as given by the judge.9 Nearly all ethicists, however, recognize that it is sometimes permissible to break a promise. Three ethical principles governing the obligation of promises seem relevant here. To begin with, it is normally permissible to break a promise when necessary to prevent serious and undeserved harms to another person. For instance, suppose you have promised to pick a friend up from the airport, but on the way, you encounter an injured accident victim in need of medical assistance. It would be permissible, if not obligatory, to assist the accident victim, even though doing so will prevent you from picking up your friend. And this is true regardless of whether your friend will be understanding about your failure to pick him up.


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Promises based on unjust coercion aren't ethically binding. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Second, a promise prompted by a threat of unjust coercion is typically not ethically binding. If a gunman threatens to shoot you 10 unless you promise to pay him $1,000, that promise will have no moral force. Thus, if you escape the gunman after making the promise, you have no moral obligation at all to deliver $1000 to him. The same goes for unjust threats against third parties: if a gunman threatens to shoot your neighbor unless you promise to pay $1,000 to the gunman, that promise, too, is invalid. If the neighbor escapes after you have made the promise, you have no obligation at all to hand over the money.


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It's permissible to break a promise to avoid unjust harm. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Third, even when a promise is initially valid, it is permissible to break the promise if doing so is necessary to forestall a threat of unjust harm from the person to whom the promise was made. The promisee in such a case has no valid complaint, since it is his own threatened unjust behavior that makes it necessary to break the promise. For example, suppose I have voluntarily promised to lend you my rifle next weekend. Before the week-end arrives, you credibly inform me that you intend to use the rifle to murder several people. In this case, I should not still lend you the rifle. It is not merely that my prima facie obligation to keep the promise is outweighed by the need to prevent several murders. Rather, your threat of unjust harm completely cancels any obligation I would have had to keep my promise to you. I would not, for example, owe you compensation, or even an apology, for my breaking of my promise to you. You have no valid complaint at all, since your own unjust threat forced me to break the promise.


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The salient factors that justify breaking promises apply for jury nullification. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


All three of these principles are operative in the case of the juror’s oath to apply the law. First, since the harms suffered by an unjustly convicted defendant are usually extremely serious, the need to avert those harms would normally justify the breaking of a promise, even if there were no further special conditions in the case. Second, however, the juror’s oath is not a valid promise to begin with, since jurors who are aware of the injustice of the law applicable to a given case are essentially forced to take the oath in order to prevent the state from inflicting unjust harms on the defendant. Since jurors know that the court will automatically exclude them from the jury if they decline the oath, and that in most cases the resulting jury could not be trusted to acquit the defendant, a given juror’s only feasible means of preventing punishment of a defendant under an unjust law is to falsely promise to apply the law.11 Third, even if the juror’s promise to apply the law were initially valid, any prima facie obligation created by that promise is cancelled if and when the state–the party to whom the promise was made–makes an unjust threat that can only be averted by breaking that promise. The juror’s oath thus has no moral force at all in a case in which the application of the law would be unjust.


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Jury nullification isn't lawless. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


The first interpretation is that jury nullification is “lawless” in the sense that it is illegal. This is simply false. No law requires a juror to vote “guilty” if the juror believes the defendant has been proven to have violated a law. It is recognized on all sides that, whether they are right or wrong in doing so, juries have the legal power to nullify. The 14 fact that a jury chose to nullify does not constitute legal grounds for appeal by the prosecution, nor can any juror be punished for choosing to nullify


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Jury nullification doesn't undermine rule of law or risk anarchy. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


The second and more important interpretation is that jury nullification is inconsistent with the rule of law, understood as the principle that the justice system should operate entirely by definite, known rules, as opposed to subjective human judgment. Jury nullification decreases the predictability of trial outcomes, and it results in some defendants being treated unequally: of two defendants guilty of the same crime, one might be convicted and the other go free due to differing jury assessments regarding the justice of the law under which the defendants were charged. Some critics warn that tolerance 15 for jury nullification would therefore lead to “anarchy.”16 This argument is very difficult to make out in a plausible manner. When a juror is faced with a defendant prosecuted for blameless lawbreaking, it is very difficult to sympathize with the idea that the juror should vote to inflict unjust harm on this individual in order to ensure uniformity in the imposition of injustice across all similar defendants. There are at least three reasons for this. One reason is that the justice system is rife with both unpredictability and subjective judgment, quite apart from jury nullification. The majority of crimes are never solved by the police, so one who violates the law cannot know whether he will ever be caught. Police are allowed discretion in deciding whether to make an 17 arrest, and prosecutors are allowed discretion in deciding to whether to charge suspects, even when there is sufficient evidence to support a charge. When suspects are prosecuted, different juries may make different judgments about the factual evidence, rendering jury trial outcomes unpredictable even without nullification. No one claims that any of these phenomena render our system “anarchic” or “lawless.”18 Themarginal increase in unpredictability due to a given jury’s decision to nullify is negligible and hardly likely to push society over the threshold into anarchy.


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Unjust harms outweigh the necessity of uniform standards of law. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Second, even if one had the power to eliminate all such uncertainties, it is absurd to prefer that all members of some group suffer severe and unjust harms rather than that only some do, merely on the grounds that the uniform imposition of injustice is more predictable or egalitarian than nonuniform injustice. Consider an analogy. Suppose you know from recent newspaper reports that several gay people have already been beaten by homophobic hoodlums. When you encounter the gaybashing gang, should you instruct the gang to beat your friend, so as to ensure uniformity of treatment? Surely one should not cause an individual to suffer serious unjust harms merely because others in your situation have done so.


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Even if uniformity in law matters, the juror should not make their decision based on whether it promotes uniform standards of justice. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Third, the sort of social policy considerations raised by critics of nullification are foreign to the kind of concern for justice in the individual case that is normally the hallmark of criminal justice. The function of a criminal trial is to do justice by that defendant–that is, to punish the defendant in the case at hand if and only if he has done something that deserves punishment. The function of a trial is not to mete out punishment that will be convenient to some larger social policy objective irrespective of the defendant’s own desert. This point is widely accepted in other contexts. Thus, suppose you are on the jury in a case in which you believe that the defendant did not in fact perform the acts of which he is accused. But suppose you also believe that, for whatever reason, most other juries, in similar circumstances, would vote to convict the defendant. No one would argue that in such a situation, you should vote to convict the apparently innocent defendant so as to ensure greater predictability or uniformity in the criminal justice system as a whole. Such considerations would rightly be regarded as irrelevant; the question is whether this particular defendant is in fact guilty.


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Even if jury null has been misused for racist purposes, jury null is ethical on balance. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Not all instances of jury nullification are as salutary as the case of John Peter Zenger. During America’s more racist past, southern juries, out of sympathy for the defendants, sometimes voted to acquit those guilty of hate crimes. It is impossible to say how many cases of jury nullification involve this sort of abuse of the jury’s power and how many involve morally reasonable exercises of the jury’s power. There is room for concern as to whether jury nullification is on the whole a force for good or a force for evil.20 But while this concern might provide a reason for designing institutions that render jury nullification less common, it is difficult to see how it could provide a reason for an individual jury or jury member not to nullify the law. Suppose you are on a jury in a trial in which the defendant is accused of violating an unjust law, and you are considering a nullification vote. Your motivation is not racist, and you know that it isn’t. You know that your motivation is the injustice of the law. It is difficult to see how the fact that some racist juries have voted to acquit defendants who should have been punished negates the very strong reason that you have, in this case, to acquit the defendant. The fact that others have done A for bad reasons does not make it wrong for one to do A for good reasons. Consider again the example of the gang of hoodlums. Suppose that you are just about to lie to the gang, when it occurs to you that many people have lied for bad reasons. In fact, surely there have been more cases of corrupt lying in human history than there have of morally justified lying. It would be absurd to suggest that this historical fact somehow negates the reason that you have for lying in this case, or that you are morally bound to always tell the truth merely because more lies have been harmful than have been beneficial.


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Jury null is key to rectifying injustice; repealing unjust laws alone can't solve. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Perhaps the suggestion is that jury nullification is rendered unnecessary by the option of political activism, because the repeal of the unjust law would end the injustice without resort to nullification. There are two problems with this suggestion. The first is that in most cases, an individual jury member’s probability of successfully changing public policy is approximately zero. This is not to deny that broad political movements carried forth by thousands or millions of citizens often cause changes in public policy. But the individual juror does not have control of thousands or millions of others; the individual must decide on his own actions. And the individual’s probability of making the difference to the success or failure of a broad social movement is typically negligible. The second problem is that, even if an individual juror had the option of repealing the law, that repeal would come too late for the particular defendant in the trial for which the juror is now serving. By hypothesis, the unjust law exists as of the time of trial. And the immediate motivation for nullification is not to change the law; the immediate motivation for nullification is to secure justice for the defendant presently before the court–to ensure that that individual is not unjustly punished. The suggestion that one convict the defendant and then later petition the legislature for political change does nothing to secure justice for that individual. 24


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The idea that jury nullification places cognitive and emotional burdens on juries is irrelevant--ignores our ethical duty to avoid unjust harm. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Some argue that the doctrine of jury nullification places excessive burdens on juries. If juries must judge not only the facts of the case before them but also the morality of the law, then juries will face great cognitive and emotional burdens. Whenever a defendant is punished, the jury will feel responsible for the punishment, which may impose a significant psychological burden in cases in which the justice of the law is open to debate. It is much easier on the jury to allow them to simply determine the facts and place responsibility for the laws on the legislature.25 This argument involves more solicitude for the psychological comfort of those who punish others than for the rights or welfare of those who may be subject to punishment. Psychologists have found that the social diffusion of responsibility is one of the key factors facilitating the abuse of power. People are far more willing to inflict unjust harm on others when the moral responsibility for the harm is unclear or divided among many parties, when those deciding to inflict the harm need not directly confront the victim, and when those directly inflicting the harm can refer responsibility to some authority figure. A decent respect for human dignity requires that, if an individual is to be subjected to severe, intentional harms, someone who actually sees the individual and hears that individual’s story should take responsibility for the harm. But regardless of the question of social policy, the ethical point is that a jury is in fact responsible for the punishment of a defendant whom they convict. If you inform a gang of gaybashers that your friend is gay, knowing that this will result in their violently attacking him, you cannot evade responsibility for the results. Imagine someone arguing that to say you have a right to lie to the gang would give you a feeling of responsibility that might prove psychologically burdensome to you–and therefore, that you have no right to lie to the gang. This argument is surely to be rejected. Likewise, whatever psychological burdens might result from a recognition of the duty of jury nullification, the duty is nonetheless real.


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"You should change the law instead" is a non-sequitur; jury null and political activism aren't mutually exclusive. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Some critics, while acknowledging that unjust laws exist, argue that the proper remedy is to change the law through political activism, rather than to nullify the law in the jury room.23 At first glance, the recommendation of attempting to change the law through political activism is a non sequitur, since political activism and jury nullification are mutually compatible. An individual may agitate to change a law with equal vigor whether or not the individual has served on a jury that voted to nullify that law in a particular case. Therefore, the idea that political activism to change unjust laws is desirable does not provide a reason against nullification.


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The idea that jury nullification is unaccountable assumes legislation is more accountable, but that's inaccurate. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


3.6. The Undemocratic Nature of the Jury Defenders of jury nullification have characterized juries as representatives of the people, serving to preserve the community’s values against potentially oppressive elites. Critics, however, 27 complain that juries are often unrepresentative of the community, that they are accountable to no one, and that their decisions are unreviewable. Legislators, by contrast, are chosen by all of the voters 28 and are accountable to the voters. Therefore, the laws passed by the legislature are more representative of community values than the opinion of a particular jury. Does this argument establish the wrongfulness of jury nullification? There are four reasons why it does not. First, the naive assumption that legislation invariably represents shared values simply in virtue of the existence of democratic elections ignores the extensive literature in public choice theory. Legislation can diverge from community values for numerous and well-known reasons, including the facts that elections are influenced by charisma, campaign funding, and other factors extraneous to candidates’ policy positions; that voters are aware of only a tiny portion of candidates’ positions; that voters often choose a political candidate merely as the lesser of two evils; and that victorious candidates are not required in any case to remain faithful to the positions they took during the campaign.29


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Juries are better capable of evaluating specific applications of the law than general public opinion. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Second, even when the law reflects public opinion in general, the great mass of the public is ignorant of the specifics of any given criminal case. A rule that seems acceptable in general may have unacceptable implications in individual cases, particularly where there arise unusual circumstances not anticipated by those formulating the rule. Only those who are apprised of the circumstances of a particular case are in a position to evaluate whether the application of the law to that individual case would be unjust.30


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The unanimity requirement means juries will uniquely check unjust punishments. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Third, the requirement of unanimity among twelve individuals all familiar with the facts of a given case provides a far more rigorous check against unjust punishments than a simple principle of majority rule. In the context of criminal justice, it is widely recognized that an imposition of unjust punishment is much worse than a mere failure to impose just punishment; hence, it is said that it is better to allow many guilty individuals to go free than to punish a single innocent person.31 Even if we naively assume that public policy invariably reflects majority opinion, a blanket commitment to apply the law in all cases allows individuals to be punished for conduct that only 51% of the population deems worthy of punishment.32 This extremely low standard for punishment is not consistent with a genuine recognition of the moral seriousness of coercive punishment and of the grounds for caution in applying such punishment


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The ethical question of jury null is that of individual jurors' responsibilities, not whether majority will is just. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Fourth and most importantly, majority will does not make an unjust act just. The historical examples of grave injustices carried out with the imprimatur of the majority are too well-known to require enumeration here. One may of course worry that a jury of twelve is as likely as the rest of society to harbor prejudices that lead to its approving of unjust laws. But that is not the question here. Our question is not one of public policy or the design of institutions, interesting as those questions may be. Our question is one of individual conduct. It is the question of what an individual juror ought to do when confronted with a case of blameless lawbreaking. If one believes that the defendant has done no wrong, one must regard the judicial punishment of the defendant as an injustice. The fact that such punishment would be supported by the majority of one’s society, if indeed it would be, does nothing to render the punishment just, and it provides at most very little ground for one to doubt one’s own opinion. If one believes, for example, that drug prohibition is unjust, the news that a narrow majority of one’s own society supports prohibition should not convince one that prohibition is just after all. The fact that juries in general may be unreliable at determining what is just, if indeed they are, is likewise irrelevant. What is relevant to the ethical duty of the individual juror is whether this defendant has done wrong for which he deserves to be punished. Sometimes, of course, the juror simply does not know whether some conduct is right or wrong. But other times, one does know. And when one knows that the defendant’s conduct was not wrong, one also knows that punishing the defendant would be unjust.


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Neg args about the desirability of jury null as public policy aren't relevant to aff offense. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Most of the arguments “against jury nullification” are not ethical arguments directed at individual acts of nullification, but rather public policy arguments addressed to the desirability of a general policy of encouraging nullification. While this public policy issue certainly merits discussion, it is not the issue that confronts any individual in the jury room. The individual in the jury room must decide how to vote in the specific case before him, and that decision ought to turn, first and foremost, on what is required to treat the individual defendant presently before the court with justice.


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The aff outweighs. We value the law because of justice. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


Much of the opposition to jury nullification may be motivated by a kind of visceral reverence for law and authority. It may therefore be worth reminding those who are animated by such reverence of the reasons for which law is to be valued to begin with. We value respect for law (at least, we ought to do so) not because of some drive to follow rules merely as such, but because law is a tool in the service of justice. It is a tool for protecting the rights of individuals. If, therefore, law is to serve its function and remain worthy of our respect, it cannot be divorced from the demands of morality and justice. We cannot say, “Let the law be enforced, and justice be damned,” as categorical opponents of nullification would have us say. If there is no such thing as justice, or if we can never discern it, then we have no grounds for respecting the law. But if there is such a thing as justice, and if we have some means of discerning it, then it may sometimes happen that an individual can see some particular law to be unjust. To hold that even in such a case, those who violate the law still ought to be 16 punished is to fetishize a mere tool, to the point of valuing its preservation over that of the goal for the sake of which the tool was invented.


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We cannot say jury nullification is unethical when juries are morally obligated to nullify. Huemer, Michael. "The Duty To Disregard The Law." PhilPapers. October 14, 2015. Web.


I have focused herein on the question of individual ethics, setting aside the political question of to what extent the state ought to encourage or discourage jury nullification. In closing, I want to briefly remark on that political question. It seems to me that, once we recognize the moral duty in certain cases to disregard the law, it is very difficult to maintain that public institutions ought to officially oppose jury nullification. It is not incoherent, but it isvery strange to hold that it ought to be the official policy of the state–as in fact it presently is–to aggressively discourage people from acting, in certain circumstances, in the only morally decent manner available to them. To make it a rule to instruct jurors that they cannot do something which they in fact not only can do but are often morally obligated to do seems, on its face, a duplicitous and fundamentally unethical position.33

BiopowerAC November/December2015

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BiopowerAC

Strategy Guide

This is a fairly straight forward critical affirmative. Basically you will be

critiquing various forms of power relations present in the criminal justice system that

subjugate different portions of the population such as minority and transgendered persons

this can be established using the Butler. The argument will also critique the idea of the

criminal justice system as whole using the idea of criminality as a way to separate various

groups of people from society. Multiple authors in this file support the idea of jury

nullification as a form of active resistance to these biopolitical power relations due to

nullifications message of rejecting what were thought to be accepted norms. The file

contains both deontological reasons and utilitarian justifications, such as genocide

prevention, to use jury nullification as to reject biopower.


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Jury Nullification relocates power from trials by exposing as lies what is taken as true by the courts Constable, Professor of Rhetoric at UC Berkeley, 1991 (Marianne. Polity: “Foucault &

Walzer: Sovereignty, Strategy & the State”, Vol. 24, No. 2, Winter, 1991, page 272-273 http://www.jstor.org.ezproxy.uky.edu/stable/3235041 BW)

The crux of Foucault's distinctions between popular justice and courts is that popular justice, a matter of collective action by the masses against their enemies, is two-sided and one-the "popular"-side wins. The essence of a court, on the other hand (reminiscent of Martin Shapiro's "triad"10), is the outside imposition of a rule to which all parties are assumed to submit: there is no justice until the court declares it. To Foucault, the type of tribunal suggested by the Maoists, which elucidates or rationalizes the people's position, is not a "court in the true sense of the word. 1 Thus emerges the first aspect of Foucault's politics: a distrust of the ability of a third party-in this case a court, in other works the state-to represent others, whether they be persons, or subordinate groups, or popular, or dominant groups. Foucault urges resistance against both the particular apparatus of the court, and its third-party form: The forms of this judicial system, and the ideology that is associated with them, must become the target of our present struggle ... re-employing a form like that of the court, with all that is implied in it-the third-party place of the judge, reference to a law or to impartiality, effective sentencing-must also be subjected to very rigorous criticism; and, for my part, I cannot see using this form as valid except in a case where one can, in parallel with a bourgeois trial, conduct an alternative trial which can expose as lies what is taken as truth in the former, and its decisions as an abuse of power.'2 The end of the quotation shows that while Foucault acknowledges that we live in an age where the "truth" is that of the court or of the state, he refuses to believe in such truth. He does not tell us when state power is corrupted or systematically misused, as Walzer would have him do, but that it is. He finds the source of systemic corruption in the falsehood of the third-party's claim to reach a single third-party "truth" in matters where there exist two sides. The state, as opposed to the court, is not even a "third-party." Foucault challenges not only the existence of the state as a representative entity, but also the unity or even dichotomy of what it is the state is meant to represent. He challenges not only the notion of fundamental contradiction which a bourgeois state apparatus introduces and augments,"3 but also the notion that any thing or idea, including Walzer's demos, somehow could underlie the state. In so doing, Foucault attacks the very roots of the Western political tradition, making a far more radical claim than Walzer's analysis acknowledges.

*Ellipsis from source


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Particular Jury Nullifications are disruptive to relations of power, exposing their nexus as lies Constable, Professor of Rhetoric at UC Berkeley, 1991 (Marianne. Polity: “Foucault &

Walzer: Sovereignty, Strategy & the State”, Vol. 24, No. 2, Winter, 1991, page 273-274 http://www.jstor.org.ezproxy.uky.edu/stable/3235041 BW)

For Foucault, there is no "distillation of a single will ... from the particular wills of a multiplicity of individuals" nor a "unitary, singular body animated by the spirit of sovereignty."'7 There is no "deeper" consensus, no overarching spirit, no activating central mechanism, so there cannot be an entity, a state, whether Hobbesian or Rousseauist, to represent it. Neither can a unity, a theory of something underlying sovereignty, express what there is. Instead, Foucault describes a "field of power" that provides insights into the myths of right, law, consensus, community, and whatever else political philosophy has taken as the origin or basis of sovereignty-including that in which Walzer would have us believe. By conceiving of the truths offered by political theory or the "theory of right and sovereignty," if not as lies, at least as fictions, Foucault invites us to disbelieve them without denying or resolving the problems of legitimacy and obligation on their own terms. Legitimacy, obligation, and the state thus become decentered; the crucial issue, despite the importance Walzer gives it, can no longer be that of the sovereign state overstepping its bounds, for this formulation of politics presumes the truth of the theory of sovereignty. Foucault rids us of the old theory of power's emphasis on "the problem of right and violence, law and illegality, freedom and will, and especially the state and sovereignty."" But while he thrusts aside the traditional concerns of political theory, Foucault cannot totally disregard the state. It is, after all, a creation of our still-existing knowledge of law and sovereignty, and institutions that are known as state apparatus are involved in relations of power. In dealing with the state, though, Foucault's point is not to show simply that the state (or right or law) is unjust or an instrument of domination.19 Such a position, like that of the Marxists, would imply the acceptance of the juridical claim that the state or the law ought to be just and not mere domination. Asserting the falsehood of the claim that the state is just would reaffirm the privileged place of the state as the target of political resistance and would embroil one in the issue of the truth or untruth of claims about sovereignty. This is not Foucault's project. By treating the truths of the juridical model as fictions, rather than as assertions whose truths are controverted, Foucault's question becomes how such fictions came to be knowledge, how the theory of sovereignty came to be our way of defining and delimiting power, and how that power came to be and be seen as the power of the state.


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Moral Obligation for Jury Nullification to address Racial Oppression Butler, Associate Professor of Law and George Washington and Former DC Prosecutor, 1996

(Paul. J Marshall Law Review: “Race-Based Jury Nullification: Case-in-Chief” http://library.jmls.edu/pdf/ir/lr/jmlr30/39_30JMarshallLRev911(1996-1997).pdf)

These jurors, I think, are saying there are too many African Americans whose problems are being treated by punishment. In Washington, D.C. 42 percent of young black men are under criminal justice supervision.' There has been a huge increase in this rate in recent years, and it is mainly due to the war on drugs. Violent crime in the United States, thank God, is decreasing, and yet every year the incarceration of African-Americans increases, all due to drug crimes. So in my article in the Yale Law Journal I proposed selective nullification. Now, I am a former prosecutor. Nullification is a partial cure that I come to reluctantly and for moral reasons. To me it is not enough to say that there is a power to nullify; there also has to be some moral basis for this power. In the article I make several moral claims as to the power. I am going to quickly tell you about two.


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Selective Jury Nullification, such as in the face of injustice, is a moral obligation Butler, Associate Professor of Law and George Washington and Former DC Prosecutor, 1996


One is this phenomenon of democratic domination. It is a critical race concept. The reason why I believe that African American jurors have a moral claim to selective nullification is based on this idea that they do not effectively have a say; they do not have the say that they should in the making of the law. They are the victims of the tyranny of the majority. People as diverse as Owen Fiss and Lani Guinier have often made this argument.' Let me tell you how it works in the context of the criminal justice system. With every crime bill, the Black Political Caucus-the national one or the one in the state-will make the argument, "Hey, guys, instead of spending all this money building prisons, let's spend some money on rehabilitation, on job training, on education. Those are the root causes of crime." In the Black Political Caucus' belief, the white majority will just say no. It will be legislated away, as we saw happen in the two most recent crime bills. That is always the case. We know that there are better ways to stop crime than prison building, including, for example, financial incentives for kids to stay in school. Rand Corporation released a report that said you prevent more crime per dollar spent by giving kids money to stay in school than you do by building prisons.


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Disproportionate Sentencing Guidelines, which are propped up by the Punishment Regime, provide a unique moral justification for Nullification Butler, Associate Professor of Law and George Washington and Former DC Prosecutor, 1996


The second most powerful way to stop crime is parental training, teaching some of these kids who are having babies how to be good parents. Studies show that such training prevents more crime than the deterrent effect of prison. Now, that does not shock a lot of you. It does not shock a lot of legislators either, but, unfortunately, the majority seems to prefer the punishment regime. We have certainly seen that with powder cocaine versus crack cocaine today. You all know the disparity: you get the same punishment for one gram of crack that you get for 100 grams of powder.2 A lot of African-Americans and other people thought that that was unfair. The political majority's response to the African-American community was, "Well, if you don't like racially biased disparity, don't acquit crack dealers; what you ought to do is change the law." The way you change the federal sentencing law is to lobby the U.S. Sentencing Commission. At least that is the way you always did it before this proposal for jury nullification. The Sentencing Commission was lobbied by civil rights groups, and they agreed that that disparity was unfair. They recommended to the U.S. Congress and to the President that the crack-versus-powder disparity be changed. However, for some reason the U.S. Congress and the President, Bill Clinton, just said no. They preferred the punishment regime. Again, this is typical when it comes to the way lawmakers deal with the criminal justice system as it applies to African-Americans. "Democratic domination" is Derrick Bell's name for it, and for me it is a moral reason as to why nullification is appropriate.


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Compliance among Black Jurors with the symbolic and pacifying role assigned to them can only be undermined with selective Nullification Butler, Associate Professor of Law and George Washington and Former DC Prosecutor, 1996


The third moral claim African-Americans have to the power of jury nullification is what I call the symbolic role of black jurors. If you look at Supreme Court cases, they often have the occasion to discuss black jurors. They do so because of our country's sad history of excluding black people from juries. The Court said that is a bad thing because black jurors serve this symbolic function. Essentially they symbolize the fairness and the impartiality of the law. The Court says that excluding black jurors undermines public confidence in the criminal justice system. The Court has also found that black jurors are especially important in race-related cases. The Court has held in those cases, that "emotions in the affected community [are] inevitably heated and volatile."' So the potential presence of African-American jurors "calms the natives." That is my language, not the Court's. That is important, because again, it restores public confidence in the integrity of the criminal justice system that is necessary, the Court said, to preserve community peace. What about an African-American juror who endorses racial critiques of the American criminal justice system? She does not hold any confidence in the integrity of the system. So if she is aware of the implicit message that the Supreme Court says her presence sends, maybe she does not want to be the vehicle for that message. Again, that brings us to selective nullification. For violent crimes, for crimes with victims, there should be no nullification. If the juror is convinced beyond a reasonable doubt in such cases, then she should convict and be happy to do so. In my experience prosecuting cases for violent crimes, Washington, D.C. jurors are happy to put those people in prison. It is in everybody's interests to get those people off the streets, and certainly these jurors are acting in their self interests. In Chicago, for example, jurors know that nullified, violent African-American criminals are not going to move to the largely white communities of Bridgeport or Cicero; they are going to move to the predominantly black South Shore, they are going to move to the primarily African-American West Side. Thus, these jurors have no interest in emancipating violent African-American criminals. The problem is that separating violent criminals from their communities is not the main use of prisons. Most people are in prison for nonviolent conduct.


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The apartheid of drug sentencing justifies Nullification. Butler, Associate Professor of Law and George Washington and Former DC Prosecutor, 1996


The political protest part is to encourage an end to this madness of locking up African-Americans when white people do not get locked up for the identical crimes. Again, this is borne out by those drug statistics.' According to the Justice Department, black people do not use drugs any more than whites-it is just that African-Americans get locked up more for drug charges. People ask what the black community would look like if drug offenders were not incarcerated. We know the answer to that: it would look like the white community. Again, the white community does not resort to the punishment regime for dealing with drug problems. I agree with that. I think punishment is not a smart way to deal with substance abuse. I think that when it comes to law enforcement, what is good enough for white people is good enough for AfricanAmericans. I hope that nullification would encourage rehabilitation for non-criminal means of dealing with the problem. I do not like drugs. I wish people would not use them. I have seen them ruin people's lives. I might also add that I have seen alcohol ruin people's lives, but I also do not support locking up alcohol users and distributors. So I hope that nullification will spark the return of rehabilitation and crime prevention.


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The Law assumes the potentiality of criminals in terms of their relation to the group, nullification disrupts this process Crampton, associate professor of Geography at the University of Kentucky, 2003 (Jeremy.

American Congress on Surveying & Mapping Cartography and Geographic Information Science 2.30. Go Cats. BW)

In this section I shall outline how security is predicated on two governmental rationalities--that of discipline and that of biopower. As I mentioned previously, both discipline and biopower are ways of dividing and grouping either individuals or populations according to norms (biopower is so-called because it deals with biological factors of birth and death rates, fecundity, issues affecting the health of a population, and so on). In order to understand how governmentality arose we can examine discipline and biopower in the context of historical changes in juridicality and criminality. Prior to the legal reforms of the 18th and early 19th centuries, Foucault argued the law focused on the nature of the crime committed, the evidence of guilt or innocence, and the system of penalties to be applied. In other words: crime and punishment. The person of the criminal was important only insofar as he or she was the individual to which the crime would be attributed. With the reforms, this hierarchy was reversed, the crime was merely an indicator of something more significant--the "dangerous individual" ( Foucault 1977, p. 252). The law was now interested in the potential danger of the individual: "The idea of dangerousness meant that the individual must be considered by society at the level of his potentialities, and not at the level of his actions; not at the level of the actual violations of an actual law, but at the level of the behavioral potentialities they represented" ( Foucault 2000b, p. 57, original emphasis). Punitive responses thus had to be appropriately tailored to perceived threat. Policies are built to deal with dangerousness and threat and may include changing the way data are categorized. For example, knowledge about deaths from terrorism was recently given its own statistical categories following September 11. Deaths and injuries from terrorism were previously counted as homicides. The National Center for Health Statistics (NCHS) will now use several new categories divided by the type of attack, such as "destruction of an airplane, firearms, a biological weapon or a nuclear bomb," and has introduced a new death category for suicide terrorists (Anon 2002). We can understand the emergence of thematic mapping in the early nineteenth century as a similar preventative measure; to get a better description of where potential threats to the health of a population such as crime, poor education, and high birth rates were occurring. From this knowledge it became possible to differentiate neighborhoods of the city and to classify space in terms of dangerousness. These maps produced a picture of normality and abnormality. It also became paramount to identify and locate dangerous people or places, based on the risk they posed.


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Racism is a form of biopower Biermann and Mansfield, professors of Geography at the University of Washington, 2014

(Christine and Becky. Environment and Planning D Society and Space: “Biodiversity, purity, and death: conservation biology as Biopolitics” volume 32, pages 258. BW https://www.academia.edu/15984882/Biodiversity_purity_and_death_conservation_biology_as_biopolitics)

In particular, we show that modern conservation science is shaped by a biopolitical logic that emphasizes distinctions between biological kinds and develops interventions based on these distinctions—a logic that also informs racial, biological distinctions among humans. Ideas of abnormality and normality are produced and reproduced through racial projects, most of which are not racist per se but nonetheless engage in racial signification (Omi and Winant, 1994). In other words, biopolitical strategies rely on “logics of racial difference” (Moore et al, 2003, page 18) to delineate between their target population and others. Even as such sharp biological distinctions (ie, between races) are called into question when applied to human populations, distinctions between biological kinds are generally deemed both appropriate and scientific when applied to nonhuman populations.


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Biopower requires divisions in race Biermann and Mansfield, professors of Geography at the University of Washington, 2014

(Christine and Becky. Environment and Planning D Society and Space: “Biodiversity, purity, and death: conservation biology as Biopolitics” volume 32, pages 261. BW https://www.academia.edu/15984882/Biodiversity_purity_and_death_conservation_biology_as_biopolitics)

These decisions rely on distinctions between normalcy and aberrance, between biological advantages and threats. But not only must biopower distinguish between good and bad, it must also “maximize the good circulation by diminishing the bad” (Foucault, 2007, page 18). The division between what must be maximized, or made to live, and what must be diminished, or allowed to die, is based not on inherent value of an organism but rather on its supposed relation to the population. Foucault (2003) explains: “The enemies who have to be done away with are not adversaries in the political sense of the term; they are threats, either external or internal, to the population and for the population” (page 256). Foucault explicitly calls this process of differentiation “racism”, which he defines as “the break between what must live and what must die. … [It] is a way of fragmenting the field of the biological that power controls” (2003, pages 254–255). Indeed, not only is race the fragmentation of the biological, but, drawing on ideas of evolution, such fragmentation is about biologically improving life as a whole: “ racism justifies the death-function in the economy of biopower by appealing to the principle that the death of others makes one biologically stronger insofar as one is a member of a race or population, insofar as one is an element in a unitary living plurality” (2003, page 258). In her genealogy of race Ladelle McWhorter expands on this, explaining that racism in its modern incarnation is “racism against the abnormal”, the fundamental concern of which is not skin color but abnormality more broadly (2009, page 42). Racism is “a set of power relations that produce effects we call anti-Semitism and white supremacy. But racism is not identical with and exhausted by attitudes and actions that hurt people of color or Jews, as so many people suppose. It encompasses these phenomena, but it also exceeds them” (McWhorter, 2009, page 34). The construction of race is hinged on a broader notion of biological abnormality, which is conceptualized as threats to the norm. Racism is therefore about reducing these threats, whether through complete eradication or, more likely, through forms of management, calculation, surveillance, and punishment. It seems, then, that the theory of evolution was central to the development of biopolitics; it was used to underwrite new forms of state racism, which sanctioned death in order to protect life.


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Legal system is unjust for queer and trans individuals, and particularly queer and trans individuals of color Leavitt, JD, magna cum laude, Seattle University, 2012 (Adrien. Seattle Journal for Social

Justice: "Queering Jury Nullification: Using Jury Nullification as a Tool to Fight Against the Criminalization of Queer and Transgender People," Vol. 10: Iss. 2, Article 2. http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1615&context=sjsj BW)

The experiences of these seven women are not unusual or isolated incidents for queer people, particularly queer people of color. Queer and transgender people,19 especially ones of color, experience the “continu[ed] The experiences of these seven women are not unusual or isolated incidents for queer people, particularly queer people of color. Queer and transgender people,19 especially ones of color, experience the “continu[ed] Examples of criminalization of queer identities are abundant. Queer people are profiled by the police and arrested at an alarming rate under the pretext of enforcing laws such as quality of life, lewd conduct, public indecency, and loitering with the intent to solicit.24 Despite the United States Supreme Court’s 2003 decision in Lawrence v. Texas, 25 in which it struck down sodomy laws and held that sexual intimacy at home between consenting adults is constitutionally protected, queer people continue to be arrested and prosecuted under archaic “Crimes Against Nature” laws.26 Such laws outlaw engaging in oral or anal (but not vaginal) sex for a fee and, upon conviction under these laws, require registration as a sex offender.27 Queer people are also often victimized by the police even when they are calling for help, particularly in instances involving same-sex domestic violence where police assume “mutual combat” is at play rather than domestic violence or determine the perpetrator based on heteronormative presumptions about gender roles.28 Once they become criminal defendants, queer people are plagued by archetypes that define them as sexually deviant and sadistically violent.29 In prison, queer people experience extremely high rates of verbal, physical, and sexual abuse; indeed, sexual orientation is the single greatest determinant of sexual abuse in prisons.30 While these issues are deserving of attention, mainstream gay activism31 is focused on obtaining legal rights that benefit the most privileged members of the LGBT community, such as access to marriage and inclusion in hate crime legislation. This leaves the most vulnerable members of the queer community, particularly ones of color, with urgent and life-threatening problems.32


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Jury Nullification solves queer and trans court injustice Legal system is unjust for queer and trans individuals, and particularly queer and trans individuals of color Leavitt, JD, magna cum laude, Seattle University, 2012 (Adrien. Seattle Journal for Social


Although the work of mainstream LGBT organizations does not adequately address the needs of queer and trans people, the radical queer movement is fighting against state-sanctioned violence through community organizing and activism.33 Within this movement, individual queers and their like-minded allies can ameliorate the harm imposed by the criminal legal system through the use of a little known avenue: jury nullification. Jury nullification is the process by which a jury ignores the evidence in a criminal trial and acquits an otherwise guilty defendant because the jury objects to the law or its application to a particular defendant.34 By refusing “to be bound by the facts of the case or the judge’s instructions regarding the law, . . . the jury votes its conscience.”35 Although jury nullification has a long history predating the United States Constitution, the doctrine was reimagined and reinvigorated in the 1990s in response to the racist criminalization and mass incarceration of black people in the United States.36 In his groundbreaking article, “Racially Based Jury Nullification: Black Power in the Criminal Justice System,” Paul Butler, a professor at George Washington University Law School and former federal prosecutor, called upon black jurors to subvert America’s racist criminal legal system through jury nullification.37 Specifically, Butler urged black jurors to nullify in cases where black defendants are on trial for certain nonviolent offenses, often thought of as “victimless” crimes.38 Butler asserted that the black community is best suited to decide what conduct, when perpetrated by members of its community, should be punished; thus, black jurors should resist finding black defendants guilty for these nonviolent crimes under unjust laws formulated by a legal system controlled by white lawmakers and law enforcers.39 Heeding Butler’s call for black jury nullification, black jurors can safely reduce the number of black people incarcerated, help alleviate the suffering of the black community by reducing the number of its members who are sent to prison, and stand up against fundamentally racist laws.40 Queer people and their allies should adopt and expand Butler’s proposal as a tool to subvert the criminal punishment system in order to fight against structural racism, protest the policing of deviant sexual and gender identities, and reduce the violence perpetrated against queer people by the criminal punishment system. Through this updated call for queer jury nullification, which is focused on the transformative goal of prison abolition, queer jurors and their allies will begin to ameliorate the harmful effects of the criminalization of non-heteronormative sexual and gender identities and simultaneously protect members of their community from the violence of prisons.41


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Legal system is unjust for queer and trans individuals, and particularly queer and trans individuals of color

Leavitt, JD, magna cum laude, Seattle University, 2012 (Adrien. Seattle Journal for Social Justice: "Queering Jury Nullification: Using Jury Nullification as a Tool to Fight Against the Criminalization of Queer and Transgender People," Vol. 10: Iss. 2, Article 2. http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1615&context=sjsj BW)

In response to the disproportionate impact of the criminal legal system on black people and their communities, Paul Butler published a groundbreaking article in which he called for black jurors to use a system of strategic jury nullification in order to reduce the number of black people sent to prison.134 Through his suggested strategy, Butler hoped to begin to ameliorate the immeasurable damage inflicted by the criminal legal system on the black community.135 To achieve strategic black jury nullification, Butler offered a three-part proposal for black jurors.136 First, in cases of inherently wrong and violent crimes, like murder, rape, and assault, black jurors should “consider the case strictly on the evidence presented, and, if they have no reasonable doubt that the defendant is guilty, they should convict.”137 Next, in cases stemming from wrong but nonviolent acts, such as theft or perjury, black jurors should consider nullifying, although there should be no presumption in favor of it.138 Finally, with offenses that are wrong simply because they are prohibited, including victimless crimes such as drug possession, there should be a presumption in favor of nullification by black jurors; in other words, black jurors should nullify in cases involving malum prohibitum139 crimes.140 Comparing black jury nullification to forms of civil disobedience used by the black community during the civil rights struggle of the 1960s, Butler refers to black jurors willing to follow his call for black jury nullification as “Martin Luther King jurors.”141 Indeed, as a form of civil disobedience, the implementation of Butler’s strategy would result in fewer black people in prison, reducing the harshest consequences of the racialized criminalization of crime—the severely disproportionate imprisonment of blacks.142 By reducing the number of black people in prison, black communities could become stronger and safer; in fact, in states where prison populations have decreased, crime has subsequently fallen.143 Moreover, Butler asserts that by nullifying only in cases involving nonviolent, victimless, yet criminalized behavior, public safety benefits because violent, dangerous lawbreakers are still sent to prison.144 Ultimately, by implementing Butler’s proposal for strategic nullification, black jurors send an important message: that they demand change in the criminal legal system.145


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Legal system is unjust for queer and trans individuals, and particularly queer and trans individuals of color Leavitt, JD, magna cum laude, Seattle University, 2012 (Adrien. Seattle Journal for Social


In Butler’s view, black jurors have the moral right to nullify for four primary reasons. First, although some may view nullification as a betrayal of democracy because it inappropriately subverts the rule of law, Butler argues that black citizens have the moral right to subvert the law because “democracy” in the United States has betrayed black Americans more than they could ever betray it.146 Participation in criminalized conduct by black Americans is often a response to oppression, racism, and white supremacy, and “[p]unishing black people for the fruits of racism is wrong if that punishment is premised on the idea that it is the black criminal’s ‘just deserts.’”147 For legal system through “dismantl[ing] the master’s house with the master’s tools.”148 In his second justification of black jury nullification, Butler draws upon legal realism and critical legal theory. He asserts that the ideal of the “rule of law” is simply infeasible because the law is “indeterminate and incapable of neutral interpretation.”149 Indeed, even if a judge genuinely attempts to be neutral, she or he is so vulnerable to personal and social biases that true neutrality is impossible.150 As a result, nullification is appropriate to fight against these inextricable biases.151 Moreover, even if true neutrality were possible, it may not be desirable because no general principle of law can lead to justice in every case; indeed, this is another endorsement of the moral validity of jury nullification.152 In his third justification, Butler argues that even for those who are unwilling to accept the proposition that the rule of law is a myth, it is still appropriate to nullify in certain cases brought under unjust laws because no person is under a moral obligation to follow such laws.153 Drawing upon the work of Martin Luther King, Jr., Butler emphasizes that “morality requires that unjust laws not be obeyed” and explains that the law inappropriately uses punishment to treat social problems that are a result of racism, rather than addressing these social problems through redistribution of wealth, medical care, or other social services.154 Finally, addressing the claim that jury nullification is antidemocratic, Butler argues that blacks are unable to achieve meaningful progress through electoral politics by influencing the legislation through voting or lobbying, and therefore Butler, the primary goal of black jury nullification is to subvert the criminal must protect themselves from the tyrannical majority through jury nullification.155 As Butler frames it, “African-Americans should embrace the antidemocratic nature of jury nullification because it provides them with the power to determine justice in a way that majority rule does not.”156


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Injustice for Queer and Trans Folk Now Leavitt, JD, magna cum laude, Seattle University, 2012 (Adrien. Seattle Journal for Social


Policing of deviant sexualities and gender identities lies at the core of queer criminalization, which, in turn, is inextricably intertwined with the racialized constructions of categories of crime. According to the New York City AntiViolence Project, “[y]oung queer people of color, transgender youth, homeless and street involved youth are . . . vulnerable to police violence,” and “transgender [people] are at a greater risk of experiencing police violence and misconduct than non-trans people.”200 While laws that facially discriminate against queer people, such as sodomy laws, have been struck down as unconstitutional, the criminalization of non-heteronormative sexualities and gender identities continues through “quality of life” policing, which became the popular paradigm of policing starting in the 1990s.


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Jury Nullification Solves- Prison Reformists Leavitt, JD, magna cum laude, Seattle University, 2012 (Adrien. Seattle Journal for Social


Queer and allied jurors who are prison reformists should follow Butler’s three-part system of strategic jury nullification. First, in cases of violent, inherently wrong crimes, queer jurors should consider the case based strictly on the evidence presented and should subsequently convict a queer defendant if they have no reasonable doubt that the defendant is guilty. Next, in cases involving nonviolent, yet still morally reprehensible crimes, queer jurors should consider nullification, but without a presumption in favor of nullification. Finally, in cases of nonviolent, malum prohibitum crimes, queer jurors should nullify.257 As with Butler’s call for black jury nullification, reform-based queer jury nullification will decrease the number of queer people imprisoned for nonviolent and victimless offenses, such as those arrested as a result of “quality of life” policing regimes. In these cases, queer jurors and their allies can begin to ameliorate the violence experienced by queer and trans people in prisons.


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Jury Nullification Solves- Prison Abolitionists Leavitt, JD, magna cum laude, Seattle University, 2012 (Adrien. Seattle Journal for Social


More expansively, queer jurors who are prison abolitionists can use jury nullification to effect transformative change. Simply put, queer abolitionist jurors should always nullify. In this application, jury nullification becomes a highly effective tool to subvert the racist, homophobic, transphobic, violent, and unjust criminal legal system. While this conception of jury nullification is more expansive than Butler’s—and therefore may exceed the logic used by him to show that black jury nullification is morally permissible—abolitionbased queer jury nullification is nonetheless morally justifiable. In fact, abolition-based queer jury nullification furthers Butler’s primary goal of reducing the burden of imprisonment on vulnerable communities. Indeed, as highlighted previously, the collateral consequences of imprisoning queer and trans people are intolerably severe and can only be remedied by the abolishing the prison system and replacing it with a more humane and healing method of addressing antisocial behavior.258 Like black jury nullification, queer jury nullification is morally justifiable due to the continuing and systematic failure of the democratic system in the United States to protect queer people, typified by the criminalization of queer identities. Queer people and their sympathizers should not be morally obligated to enforce a system that perpetrates violence on them and members of their community. While the ideal of the “rule of law” suggests neutral interpretation and application, in reality this is impossible to achieve. As a result, the law cannot lead to justice in every case, making queer jury nullification appropriate to ameliorate the deeply held stereotypes and assumptions made about those who refuse to subscribe to heteronormative sexualities and gender identities. Additionally, queer people’s underrepresentation as legal decision makers had the result of creating a legal system reflecting norms that were not assented to by queers and other political minorities. As in the Magna Carta era, without another method of changing these unjust laws, jury nullification is the appropriate avenue. Finally, regardless of the facts of the case or the law at issue, queer jury nullification is morally justified simply to avoid sending queer people into inherently violent prisons where they are likely to be sexually and physically abused, subjected to verbal harassment and degradation, and forced to endure the physiological punishment of nearly constant segregated isolation.


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Jury Nullification as a tool of Prison Abolition challenges structural racism, undermines the criminalization of sexual and gender identities and reduces ant-queer and anti-trans violence Leavitt, JD, magna cum laude, Seattle University, 2012 (Adrien. Seattle Journal for Social


Instead, all jurors should use jury nullification to totally subvert the criminal legal system. For black jurors, this subversion is morally justifiable because, “in the United States, race has always played a central role in constructing presumptions of criminality,” which has ultimately resulted in the use of prisons to control and incapacitate blacks on an enormous scale.265 For queer and trans jurors, jury nullification is similarly morally justifiable. Nonheteronormative queer and trans identities are criminalized, due to a perception of moral deviance that is ultimately deemed impermissible, and then subjected to the violence of prisons, which is unbearably acute for queer people. Ultimately, abolition-based jury nullification challenges structural racism, undermines the criminalization of deviant sexual and gender identities, and reduces the violence perpetuated against queer and trans people by the criminal legal system.


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A2 Let the Guilty Go Butler, Associate Professor of Law and George Washington and Former DC Prosecutor, 1996


Our radical critics, on the other hand, might encourage incarceration of African-Americans when it has some proven social benefit, some utilitarian benefit, usually like rehabilitation or incapacitation or sentencing with a proven deterrent effect. This is an important point because one almost never hears any racial critic saying that black murderers or rapists or child abusers should not be punished. That includes African-American jurors who engage in jury nullification. In fact, in my experience, black jurors are happy to send violent black criminals to prison, because these jurors, like most jurors, have good sense. It is almost always in the interests of the community to isolate dangerous people, even if the reason those people are dangerous might be due to circumstances beyond their control.


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Power's Drive To Manage And Order The World in Predictable Ways Does Violence On A Planetary Scale And Ensures Planetary Destruction Santos, Boaventura de Sousa, 2003 , Professor of Sociology at the School of Economics,

University of Coimbra (Portugal) and Distinguished Legal Scholar at the University of Wisconsin-Madison Law School. He is Director of the Center for Social Studies of the University of Coimbra and Director of the Center of Documentation on the Revolution of 1974, at the same University., "Collective Suicide?" March 28, 2003 online http://www.ces.fe.uc.pt/opiniao/bss/072en.php]

According to Franz Hinkelammert, the West has repeatedly been under the illusion that it should try to save humanity by destroying part of it. This is a salvific and sacrificial destruction, committed in the name of the need to radically materialize all the possibilities opened up by a given social and political reality over which it is supposed to have total power. This is how it was in colonialism, with the genocide of indigenous peoples, and the African slaves. This is how it was in the period of imperialist struggles, which caused millions of deaths in two world wars and many other colonial wars. This is how it was in Stalinism, with the Gulag and in Nazism, with the holocaust. And now today, this is how it is in neoliberalism, with the collective sacrifice of the periphery and even the semiperiphery of the world system. With the war against Iraq, it is fitting to ask whether what is in progress is a new genocidal and sacrificial illusion, and what its scope might be. It is above all appropriate to ask if the new illusion will not herald the radicalization and the ultimate perversion of the western illusion: destroying all of humanity in the illusion of saving it. Sacrificial genocide arises from a totalitarian illusion that is manifested in the belief that there are no alternatives to the present-day reality and that the problems and difficulties confronting it arise from failing to take its logic of development to its ultimate consequences. If there is unemployment, hunger and death in the Third World, this is not the result of market failures; instead, it is the outcome of the market laws not having been fully applied. If there is terrorism, this is not due to the violence of the conditions that generate it; it is due, rather, to the fact that total violence has not been employed to physically eradicate all terrorists and potential terrorists.This political logic is based on the supposition of total power and knowledge, and on the radical rejection of alternatives; it is ultra- conservative in that it aims to infinitely reproduce the status quo. Inherent to it is the notion of the end of history. During the last hundred years, the West has experienced three versions of this logic, and, therefore, seen three versions of the end of history: Stalinism, with its logic of insuperable efficiency of the plan; Nazism, with its logic of racial superiority; and neoliberalism, with its logic of insuperable efficiency of the market. The first two periods involved the destruction of democracy. The last one trivializes democracy, disarming it in the face of social actors sufficiently powerful to be able to privatize the State and international institutions in their favour. I have described this situation as a combination of political democracy and social fascism. One current manifestation of this combination resides in the fact that intensely strong public opinion, worldwide, against the war is found to he incapable of halting the war machine set in motion by supposedly


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democratic rulers. At all these moments, a death drive, a catastrophic heroism, predominates, the idea of a looming collective suicide, only preventable by the massive destruction of the other. Paradoxically, the broader the definition of the other and the efficacy of its destruction, the more likely collective suicide becomes. In its sacrificial genocide version, neoliberalism is a mixture of market radicalization, neoconservatism and Christian fundamentalism. Its death drive takes a number of forms, from the idea of "discardable populations", referring to citizens of the Third World not capable of being exploited as workers and consumers, to the concept of "collateral damage", to refer to the deaths, as a result of war, of thousands of innocent civilians. The last, catastrophic heroism, is quite clear on two facts: according to reliable calculations by the Non-Governmental Organization MEDACT, in London, between 48 and 260 thousand civilians will die during the war and in the three months after (this is without there being civil war or a nuclear attack); the war will cost 100 billion dollars, enough to pay the health costs of the world's poorest countries for four years.


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Biopolitics in an attempt to secure life makes genocide and war inevitable. Newman, Saul 2004 (Department of Political Science--University of Western Australia,

“Terror, Sovereignty and Law: On the Politics of Violence”, German Law Journal, No. 5, 2004) http://research.gold.ac.uk/3505/

This inscription of violence and war in the framework of the social finds its modern permutation in what Foucault terms “biopolitics.” The “race wars” of earlier periods have now become codified in modern political discourses that have as their central concern the preservation of the biological life of the species. The target of politics in contemporary societies, according to Foucault, is the administration of life itself. This designates a new form of power – “biopower.” The operation of power is now aimed at the regulation, calculation and administration of populations. Violence is still inscribed at the heart of these modern societies. However, the crucial difference with modern regimes of biopower is that, unlike sovereign regimes, where blood was shed symbolically on behalf of the sovereign, now wars are waged on a massive scale by states on behalf of the populations they administer. Sovereign societies, according to Foucault, were characterised by the symbol of the sword and the right of the sovereign to either take life or to spare it. The symbolic register of these societies was a supreme power over life and death: “The sovereign exercised his right of life only by exercising his right to kill… Its symbol was, after all, the sword.”[24] Sovereign societies were characterised by the power of the spectacle – witness the “spectacle of the scaffold,” whose grotesque horrors and excessive violence Foucault described in the execution of the regicide Damiens.[25] Power was exercised here in a highly symbolic fashion, through a violence that was excessive, spectacular and ritualised. Punishment involved, for instance, the literal sacrifice of the body of the condemned. Foucault argues that this notion of violence as spectacle and symbolic sacrifice is no longer characteristic of modern societies, in which power operates in a quiet, methodical, regulative fashion. Modern societies, by contrast, are characterised by an entirely different register and technology of power – one in which the symbolic power of the sovereign to take life has been supplanted by a power that operates at the level of population and whose principle is to secure life. This modern technology of power is no less bloody, according to Foucault – having produced unprecedented genocides and holocausts. However, its symbolic order is non-violent. That is to say, it is based on the principle of the preservation, rather than the sacrifice, of life.


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Disciplinary power makes war inevitable in a world where one’s subjectivity is rendered to the state for the sake of protecting one’s life and rights.

Clifford, Michael 2001 Political Genealogy after Foucault: Savage Identities , Routledge, pg. 43-45 http://philpapers.org/rec/CLIPGA

The private autonomous individual serves, or can serve, a very important political function in the modern state, a function tied to the state's new (i.e., beginning roughly with the Treaty of Westphalia) historical status as a nation in competition with other nations. The competition between nations takes many forms, not the least of which is war. Thus, the state has need of soldiers, to protect its interests, to serve as the instruments of its preservation and the index of its strength. The state has recourse to disciplinary mechanisms required to turn individuals into good soldiers, at least from a technical point of view. Yet is this enough to ensure that these individuals will “lay their life on the line” for the sake of the state? The soldier is not to be understood as simply a body trained in the tactics of warfare, but rather as someone who “fights for his country.” Through discourses of patriotism and nationalism, which are disseminated through institutional channels to individuals from at least the time they are able to “pledge allegiance, ” disciplinary power binds the individual to the nation, and in so doing helps to preserve the integrity of the nation itself. 23 One instrument for this integration, but by no means the only one, is the linking of the nation conceptually with the preservation of the individual's rights and freedoms. Through the notion of the private autonomous individual the state is able to mobilize the masses in the service of its own protection and preservation. 24 Here is precisely where the discourse of rights and freedoms is brought into play and the nation becomes an enunciative modality for the emergence of political subjects. In fact, as we shall see in the next section, much of modern political identity is informed by reference to a national identity, either positively or negatively. 25 Moreover, this identity is structured and animated by the discourse of threat that we saw take shape in Enlightenment political philosophy.


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Biopolitical Power Ensures The Right To Destroy Certain Forms Of Subjects

Dean 2001 Mitchell Dean, Professor at Macquerie University, "STATES OF IMAGINATION" 2001 p. 53 https://books.google.com/books?isbn=0761941878

Consider again the contrastive terms in which it is possible to view biopolitics and sovereignty. The final chapter in the first volume of the History of Sexuality that contrasts sovereignty and biopolitics is titled "Right of Death and Power over Life." The initial terms of the contrast between the two registers of government is thus between one that could employ power to put subjects to death, even if this right to kill was conditioned by the defense of the sovereign, and one that was concerned with the fostering of life. Never- theless, each part of the contrast can be further broken down. The right of death can also be understood as "the right to take life or let live"; the power over life as the power "to foster life or disallow it." Sovereign power is a power i distinguishes between political life (bios) and mere existence or bare life (zoe). Bare life is included in the constitution of sovereign power by its very exclusion from political life. In contrast, biopolitics might be thought to include zoe in bios: stripped down mere existence becomes a matter of political reality. Thus, the contrast between biopolitics and sovereignty is not one of a power of life versus a power of death but concerns the way the different forms of power treat matters of life and death and entail different conceptions of life. Thus, biopolitics reinscribes the earlier right of death and power over life and places it within a new and different form that attempts to include what had earlier been sacred and taboo, bare life, in political existence. It is no longer so much the right of the sovereign to put to death their enemies but to disqualify the life—the mere existence—of those who are a threat to the life of the population, to disallow those deemed "unworthy of life," those whose bare life is not worth living.


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Biopolitics justifies the elimination of the other who threatens the sanctity and biological purity of the society Michael Dillon, May 2005. Lancaster University. “Cared to Death: The Biopoliticised Time

of Your Life” http://www.foucault-studies.com/no2/dillon.pdf.

Contra Ojakangas, then, biopolitics does reclaim the death function, for a number of reasons and in a variety of changing ways. It must do so. Reclaiming the death function is integral to its logic. It also reflects the changing operational dynamics of biopolitics. In relation to biopolitical logic: “In the biopower system… killing, or the imperative to kill, is acceptable only if it results not in a victory over political adversaries, but in the elimination of the biological threat to and the improvement of the species or race.” It is acceptable and biopolitically necessary to kill, if not necessarily in the nomological sense of being exposed to death formulated in Agamben’s thesis of bare life. In relation to the operationalisation of biopolitics: if biopolitics is to promote, protect and invest life, it must engage in a continuous assay of life. This continuous biopolitical assaying of life proceeds through the epistemically driven and continuously changing interrogation of the worth and eligibility of the living across a terrain of value that is constantly changing. It is changing now, for example, in response to what the life sciences are teaching about what it is to be a living thing. It is changing as biopolitical investment analysts (politicians, risk analysts, governmental technologisers) also interrogate where the best returns on life investment happen to be located in the manifold circulation and transformation of life locally and globally. Life itself mutates in and through these very circuits, not least in relation to molecular biology and electronic communication. We can broadly interpret life science now to range from molecularised biology, through digitalization, to the new social and managerial sciences of development now prominent in the fields of global governmentality, global development policies, human security and even military strategic discourse including, for example, ‘Operations Other than War”.


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Dehumanization outweighs nuclear war, environmental destruction and genocide – makes them all inevitable Berube, David, 1997 Nanotechnology Magazine, "Nanotechnological Prolongevity: The

Down Side," June/July http://www.cla.sc.edu/ENGL/faculty/berube/prolong.htm

Assuming we are able to predict who or what are optimized humans, this entire resultant worldview smacks of eugenics and Nazi racial science. This would involve valuing people as means. Moreover, there would always be a superhuman more

super than the current ones, humans would never be able to escape their treatment as means to an always further and distant end. This means-ends dispute is at the core of Montagu and Matson's treatise on the dehumanization of humanity. They warn: "its destructive toll is already greater than that of any war, plague, famine, or natural calamity on record -- and its potential danger to the quality of life and the fabric of civilized society is beyond calculation. For that reason this sickness of the soul might well be called the Fifth Horseman of the Apocalypse.... Behind the genocide of the holocaust lay a dehumanized thought; beneath the menticide of deviants and dissidents... in the cuckoo's next of America, lies a dehumanized image of man... (Montagu & Matson, 1983, p. xi-xii). While it may never be possible to quantify the impact dehumanizing ethics may have had on humanity, it is safe to conclude the foundations of humanness offer great opportunities which would be foregone. When we calculate the actual losses and the virtual benefits, we approach a nearly inestimable value greater than any tools which we can currently use to measure it. Dehumanization is nuclear war, environmental apocalypse, and international genocide. When people become things, they become dispensable. When people are dispensable, any and every atrocity can be justified. Once justified, they seem to be inevitable for every epoch has evil and dehumanization is evil's most powerful weapon.

Evidence for the Negative



CapitalismBadNC November/December2015

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CapitalismBadNC

Strategy Guide

This is your standard neolib/capitalism kritik. The most important thing to win in

this debate is the link. If you win the link, even if you don’t win the alternative, you can

make a lot of straight turns to the aff, which should allow you to win the round. The link

in this case is that things like jury nullification help mask capitalist abuses by allowing

people to feel like they are making a difference against injustice and participating in

democratic institutions but really these democratic principles are really tools of the

capitalist state. The alternative is a complete rejection of neoliberalism as evidenced by a

rejection of jury nullification. Now even if you don’t win the alt if the aff fails to beat

back even one of the turns it’s pretty easy negative ballot.


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NC 1: Jury Nullification gives the "common person" the false idea that they are participating in democratic institutions and making important policy decisions. Iontcheva, Jenia. " Jury Sentencing As Democratic Practice." Virginia Law Review. October 14,

2015. Web. October 12, 2015. <http://www.jstor.org/stable/3202435?seq=1#page_scan_tab_contents>.

The jury's power to sentence was related to its power to decide the law in another important way. In the eighteenth and nineteenth centuries, jurors frequently used their power to determine legal matters as a way of challenging or nullifying unjust legislation.52 As widely documented by legal historians, colonial jurors often refused to enforce navigation acts and acquitted persons accused of seditious libel in protest against the unfairness of these laws.53 Similarly, prior to the Civil War, juries in the North acquitted defendants indicted for violating the Fugitive Slave Law.54 Jurors also acquitted defendants in capital cases when the death penalty seemed a disproportionate punishment for the underlying crime.55 This widespread nullification may have prompted several more states to grant juries the authority to decide the punishment in capital cases.56 Allowing the jury leeway in sentencing, the reasoning went, was more acceptable than the numerous acquittals resulting from the jury's reluctance to impose the death penalty in particular cases. As the nullification cases demonstrate, the jury-whether at trial or at sentencing-operated as a deeply political institution in the early republic.57 It played a central part in the American system of checks and balances.58 Many compared juries to legislatures because juries provided an opportunity for direct popular participation in government.59 The Anti-Federalists were especially concerned that as the central government acquired new powers, it would grow distant from the concerns of ordinary citizens.6 Against this background, juries became the embodiment of the ideal of a decentralized democracy. They were seen as the vehicle through which community concerns could be made to bear on important political decisions.


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NC 2: Despite the fact that everyone believes that democracy is the political system that causes the least amount of injustice, existing democracies prove that democracy only benefits the wealthy. Dean, Jodi. Democracy and Other Neoliberal Fantasies: Communicative Capitalism and Left

Politics. October 14, 2015. Web. October 12, 2015. <https://www.dukeupress.edu/democracy-and-other-neoliberal-fantasies/>.

Real existing constitutional democracies privilege the Wealthy. As they install, extend, and protect neoliberal capitalism, they exclude, exploit, and oppress the poor, all the While promising that everybody wins. The present value of democracy relies on positing crucial determinants of our lives and conditions outside the frame of contestation in a kind of “no go zone” These suppositions regarding growth, investment, and profit are politically off -limits, so it’s no Wonder that the Wealthy and privileged evoke democracy as a political ideal. It can’t hurt them. The expansion and intensification of networked communications technologies that was sup posed to enhance democratic participation integrates and consolidates communicative capitalism. Nevertheless, the left continues to present our political hopes as aspirations to democracy Despite democracy's inability to represent justice in the Wake of political submission to a brutalized, financialized, punishing global market, left political and cultural theorists appeal to arrangements that can be filled in, substantialized, by fundamentalisms, nationalisms, populisms, and conservatisms diametrically opposed to social justice and economic equality. Calling for democracy leftists fail to emphasize the divisions necessary for politics, divisions that should lead us to organize against the interests of corporations and their stockholders, against the values of fundamentalists and individualists, and on behalf of collectivist arrangements designed to redistribute benefits and opportunities more equitably.


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Link: Jury Nullification and other legal system measures reinforce systems of capitalism. Trubek, David. "Max Weber On Law And The Rise Of Capitalism." Faculty Scholarship Series.

January 01, 1972. Web. October 12, 2015. <http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4993&context=fss_papers>.

The "event" he sought to explain was the fact that the modern system of industrial (or "bourgeois") capitalism emerged in Europe but not in other parts of the world. Law, he felt, had played a part in this story. European law had unique features which made it more conducive to capitalism than were the legal systems of other civilizations. To demonstrate and explain the significance of these features for economic development, Weber included the sociology of law within his general sociological theory. Thus the monumental treatise Economy and Society, which sets forth a comprehensive analysis of his sociological thought, includes a detailed discussion of the types of law, a theory of the relationship between law and the rise of industrial capitalism, and comparative sociological studies which attempt to verify his theory.


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NC 4: The alternative is to reject jury nullification as an instance of neoliberalism. VonWerlhof, Claudia. "The Globalization Of Neoliberalism, Its Consequences And Some Of Its

Basic Alternatives.” January 01, 1972. Web. October 12, 2015. MISSING URL.

Still, euphoria would be out of place. An alternative to neoliberalism is not created through analysis and protest alone but must be practiced. Opinions on how to do this differ. Some discuss ‘‘alternatives’’ that are none: a reform of the WTO; ‘‘control’’ of globalization through NGOs; a return to Keynesianism; a restoration of ‘‘social market economy’’; or even a revival of socialism. Such ideas ignore reality and trivialize the problem. Neoliberalism shows every day that much more is at stake. Neoliberalism is an apocalypse, a ‘‘revelation,’’ because the reality it creates makes it impossible for neoliberalism to justify itself. Nor can we consider the corporations harmless ‘‘players.’’ There is no ambiguity. As a consequence, the perpetrators of neoliberal politics simply lie about what is happening. The only good thing about neoliberalism is that it reveals the truth about ‘‘Western civilization’’ and ‘‘European values.’’ This means that people now have the chance to draw the right conclusions about what is really needed. What is really needed, of course, is nothing less than a different civilization. A different economy alone, or a different society or culture will not suffice. We need a civilization that is the exact opposite of neoliberalism and the patriarchal capitalist world system it is rooted in. The logic of our alternative must be one that completely undermines the logic of neoliberalism.113 Neoliberalism has turned everything that would ensure a good life for all beings on this planet upside down. Many people still have a hard time understanding that the horror we are experiencing is indeed a reality*a reality willingly produced, maintained and justified by ‘‘our’’ politicians. But even if the alternative was half implemented*no more plundering, exploitation, destruction, violence, war, coercion, mercilessness, accumulation, greed, corruption*we would still be left with all the damage that the earth has already suffered.


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Impact: Neoliberalism has led to an increase in incarceration rates through jailing anyone who is not a member of the elite. This straight turns the aff. Giroux, Henry. "The Terror Of Neoliberalism: Rethinking The Significance Of Cultural

Politics." College Literature. January 01, 1972. Web. October 12, 2015. <http://muse.jhu.edu/journals/lit/summary/v032/32.1giroux.html>.

The destruction of the welfare state has gone hand-in-hand with the emergence of a prison-industrial complex and a new state that is largely used to regulate, control, contain, and punish those who are not privileged by the benefits of class, color, and gender (Cole 1999). How else to explain a national prison population that has grown from 200,000 in 1973 to slightly over two million in 2004, while “another 4.5 million are on probation and parole”(Calvi 2001, 40). More specifically, neoliberalism has become complicitous with this transformation of the democratic state into a national security state that repeatedly uses its military and political power to develop a daunting police state and military-prison-education-industrial complex to punish workers, stifle dissent, and undermine the political power of labor unions and progressive social movements (Lutz 2002).


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Impact: The pressures of the market will always come before and curtail rights claims. This ensures that injustice will always be present in a neoliberal world. Boetsch, LeopoldoRodriguez. "NEOLIBERALISM AND DEMOCRACY." PRIVREDNA

IZGRADNJA. January 01, 1972. Web. October 12, 2015. <http://scindeks-clanci.ceon.rs/data/pdf/0032-8979/2005/0032-89790502017B.pdf>.

A new question necessarily opens up. What degree of political freedom is to be found alongside neoliberal democracy? The limits seem determined primarily by what neoliberalism considers the needs of capital accumulation. That is, economic policy-making must be kept out of reach of popular pressures, by legislation whenever possible, or through the creation of artificial barriers otherwise. Legislation may guarantee an independent Central Bank, strict observance of an exchange rate policy, the reduction of union power, the sacrosanctity of private property, a balanced budget, etc. Other barriers to popular participation may involve a reduction in the access provided to the representatives of popular groups to the higher echelons of policy-making, the placement of indirect forms of representative selection -such as electoral colleges or single-member districts- the criminalization and harassment of social movements, etc. Policy-making lies outside of politics; in the hands of a cadre of professionals, who convinced the superiority of their knowledge acquired by technical training are, as John Markoff (1996, p. 119) notes "open to violating the will of electorates or disagreeing with bureaucratic superiors." In order to keep legal and artificial barriers in place, neoliberal governments may recur to further reductions in political freedoms: such as the imposition of rules by presidential decree, or the curtailment of freedoms of speech, press and assembly. The degree of democracy and political freedom then becomes a function of the needs of markets." Where pressures for redistribution are high - representing a threat to neoliberal principles of private property, market supremacy and capital accumulation- political freedoms will necessarily be curtailed to prevent democratic impulses from launching at the throat of the neoliberal political order.


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Alt Solv: By rejecting the affirmatives position on jury nullification we create the space for the struggle against capitalism to continue. Holloway, John. Crack Capitalism. January 01, 1972. Web. October 12, 2015.

<https://www.yumpu.com/en/document/view/13986518/holloway20-20crack20capitalism/29>.

A crack is the perfectly ordinary creation of a space or moment in which we assert a different type of doing. 'No, in this space, in this moment, we are not going to do what capitalist society expects of us. We are going to do whatever we consider necessary or desirable.' We take the moment or space into our own hands and try to make it a place of self determination, refusing to let money (or any other alien force) determine what we do.This is surely what all the 'ordinary people' mentioned at the beginning of the book have in common: the refusal to let the logic of money shape their activity, the determination to take a space or moment into their own hands and shape their lives according to their own decisions. In some cases, this is direct and un-theorised: the friends who form a choir because they like to sing, the nurse who really tries to help her patients, the car worker who spends as much time as possible on his allotment. In other cases, it is part of an understanding that the rule of money is the centre of a whole system of social organisation, a system of domination that we call capitalism: in that case, the refusal to let money determine our activity is part of a conscious rejection of capitalism and understood as part of the struggle against capitalism: the theatre director in Vienna, the people of Cochabamba who fought against the privatisation of water, the peasants in Chiapas who struggle to change their communities, and so on. It is not that there is any clear division between those who are 'class conscious' and those who are not: there is rather a constantly shifting spectrum of awareness of the resonances and implications of what they are doing, an awareness that may be only indirectly connected to the impact of the actions themselves.


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Alt Solv: We must reject neoliberalism in every shape and form. Harvey, David. "Organizing For The Anti-capitalist Transition.” January 01, 1972. Web.

October 12, 2015. <http://davidharvey.org/2009/12/organizing-for-the-anti-capitalist-transition/>.

The failings of past endeavors to build a lasting socialism and communism have to be avoided and lessons from that immensely complicated history must be learned. Yet the absolute necessity for a coherent anti-capitalist revolutionary movement must also be recognized. The fundamental aim of that movement is to assume social command over both the production and distribution of surpluses. We urgently need an explicit revolutionary theory suited to our times. I propose a "co-revolutionary theory" derived from an understanding of Marx's account of how capitalism arose out of feudalism. Social change arises through the dialectical unfolding of relations between seven moments within the body politic of capitalism viewed as an ensemble or assemblage of activities and practices: a) technological and organizational forms of production, exchange, and consumption b) relations to nature c) social relations between people d) mental conceptions of the world, embracing knowledges and cultural understandings and beliefs e) labor processes and production of specific goods, geographies, services, or affects f) institutional, legal and governmental arrangements g) the conduct of daily life that underpins social reproduction. Each one of these moments is internally dynamic and internally marked by tensions and contradictions (just think of mental conceptions of the world) but all of them are co-dependent and co-evolve in relation to each other. The transition to capitalism entailed a mutually supporting movement across all seven moments. New technologies could not be identified and practices without new mental conceptions of the world (including that of the relation to nature and social relations). Social theorists have the habit of taking just one of


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these moments and viewing it as the "silver bullet" that causes all change.They are all wrong. It is the dialectical motion across all of these moments that really counts even as there is uneven development in that motion. When capitalism itself undergoes one of its phases of renewal, it does so precisely by co-evolving all moments, obviously not without tensions, struggles, fights, and contradictions. But consider how these seven moments were configured around 1970 before the neoliberal surge and consider how they look now, and you will see they have all changed in ways that re-define the operative characteristics of capitalism viewed as a non-Hegelian totality. An anti-capitalist political movement can start anywhere (in labor processes, around mental conceptions, in the relation to nature, in social relations, in the design of revolutionary technologies and organizational forms, out of daily life, or through attempts to reform institutional and administrative structures including the reconfiguration of state powers). The trick is to keep the political movement moving from one moment to another in mutually reinforcing ways. This was how capitalism arose out of feudalism and this is how something radically different called communism, socialism, or whatever must arise out of capitalism. Previous attempts to create a communist or socialist alternative fatally failed to keep the dialectic between the different moments in motion and failed to embrace the unpredictabilities and uncertainties in the dialectical movement between them. Capitalism has survived precisely by keeping the dialectical movement between the moments going and constructively embracing the inevitable tensions, including crises.


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Specificity in movements against neoliberalism is bad because it allows the elites to subvert and coopt the movement. Harvey, David. "A Brief History Of Neoliberalism.” October 14, 2015. Web. October 12, 2015.

<https://books.google.com/books?id=CKUiKpWUv0YC>.

The effect of such movements has been to shift the terrain ofpolitical organization away from traditional political parties andlabour organizing into a less focused political dynamic of socialaction across the whole spectrum of civil society. What suchmovements lose in focus they gain in terms of direct relevance toparticular issues and constituencies. They draw strength frombeing embedded in the nitty-gritty of daily life and struggle, but inso doing they often find it hard to extract themselves from the localand the particular to understand the macro-politics of whatneoliberal accumulation by dispossession and its relation to therestoration of class power was and is all about.


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By claiming that neoliberalism is inevitable, we allow it to continue indefinitely without challengers. Heron, Taitu. "Globalization, Neoliberalism And The Exercise Of Human Agency." International

Journal of Politics, Culture, and Society. October 14, 2015. Web. October 12, 2015. <http://link.springer.com/article/10.1007%2Fs10767-007-9019-z>.

The Western universalism implicit in the neoliberal approach assumes that application of these policies will amount to economic success in every country which undergoes neoliberal policy reform. Rooted in neoclassical economics, neoliberal policies assumes that implemen-tation of privatization, liberalization and deregulation will always guarantee very specific results regardless of the social and cultural contexts within which they may be subjected to (Girvan 2000, p. 71). At another level, universalism may be a diplomatic mask which government officials, IFI officials, statesmen and leading transnational elites of the G7 wear to disregard the power dimensions involved in the politics of neoliberalism. As such, this could be argued as aggressive-materialist agency aimed at protecting and maximizing the profits of a neoliberal project, at the expense of mounting social exclusion of people; and further limiting more positive expressions of human agency. This issue of social exclusion is important in understanding the destructive nature of aggressive-materialist behaviour and how it can deprive persons of agency and overburden others unnecessarily. These changes in the capitalist world economy have been exercised by the power of governments and corporations, and far from being inevitable, uncontrollable or positively integrating, they reflect concrete acts of human agency with specific goals and interests to defend and uphold. This idea of governments as powerless to the forces of modern capitalism/globalization serves only to mythologize the workings of the system itself. What a policy has created another policy can alter. This assertion of inevitability, approaches development in a very linear fashion, where each period is a culmination of the changes that preceded it and therefore touted as a very 'natural' progression in the order of things (Weeks 1999). Any prior policy is now deemed anachronistic and irrelevant to the 'new' times and more advanced stage of society that we are supposed to be living in. And we must ask advanced for whom? And this leads us to ponder on the classism in such a materialist approach that is by its very nature, devoid of seeing the history and the development of human society as cyclical and transformative processes. We would do well to recall the triumphalist call of imperial dominance of capital over labour in the nineteenth century, when its ideologues proclaimed the dawning of a new era and that domination would be eternal. That period ended in a devastating war among various European nations and the Russian Revolution(Weeks 1999).

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RuleofLawNC

Strategy Guide

This NC is the most stock negative argument. It’s an argument that, when you’re

negative, you should definitely consider being well-prepared to defend. When you’re aff, you

should make sure that your block to this NC is absolutely great, because this NC will be the most

popular.

Stock cases are stock for a reason; they’re prevalent in the literature and make a pretty

decent argument. Jury nullification requires juries to avoid the facts of the case, to avoid the

question of legality, and instead judge by conscience. If juries did this, we would never have a

consistent and stable set of rules for people to follow since whether people were punished for

breaking those rules would be highly contingent on the subjective opinions of juries.

You should definitely couple this NC with a counterplan about prosecutorial discretion.

You could argue that it’s better for prosecutors to decide whether they should go on with

prosecuting, rather than for juries to decide that someone’s “not guilty” when they actually broke

a law, not only in terms of the aff’s impacts but your own, rule of law.

An argument that’s pretty devastating against this NC is that it’s ridiculous for us to say

that certain unjust laws should be accepted by individuals on juries just because, “well, it’s the

law.” Some laws are just too unjust for us to, with a clean conscience, sentence someone because

of them; an unjust law is no law at all.


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To hedge against this argument, you should be winning turns about how jury nullification

leads to unjust outcomes. There, you could say—“even if they win that unjust laws shouldn’t be

followed, jury nullification actually results in just laws being undermined, so their impact

analysis about unjust laws doesn’t justify an aff ballot”

In addition, you should argue that your NC is about the importance of maintaining

consistent and non-arbitrary rules of conduct, codified within a legal system; lots of injustice is

both against current law AND treats people arbitrarily. You should also say that the solution to

their arguments is not that juries should nullify, but that jurors should join social movements that

push for repeal of these unjust laws.


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Jury nullification is arbitrary and undemocratic; no group of 12 people should get to override the law. CHICAGO TRIBUNE. "The Dangers Of Jury Nullification.” October 14, 2015. Web. October

09, 2015. <http://articles.chicagotribune.com/2014-01-27/opinion/ct-jury-nullification-edit-0127-20140127_1_jury-nullification-law-professor-jurors>.

The law may indeed be unfair, as some laws are. But it's not the right or duty of jurors to waive sections of the criminal code with which they disagree. The promotion of jury nullification rests on the assumption that 12 randomly chosen individuals are entitled to override the democratically expressed will of the citizenry.


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There is no guarantee that a jury will only nullify bad laws. CHICAGO TRIBUNE. "The Dangers Of Jury Nullification.” October 14, 2015. Web. October


It's true that there is considerable history in England and America of juries disregarding their instructions on principle. Before the Civil War, Northern juries sometimes refused to enforce the Fugitive Slave Act, preferring to forgive defendants who helped escaped slaves. But there is no guarantee that a runaway jury will suspend only bad laws.


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Jury nullification undermines the rule of law. CHICAGO TRIBUNE. "The Dangers Of Jury Nullification.” October 14, 2015. Web. October


For judges to offer this as an option, as the New Hampshire bill proposes, would undermine the rule of law. The power to nullify is not the same as the right to do so. Because of the power granted to juries and the nature of deliberations, they are free to acquit or convict for any reason they choose. But to disregard the law presumably means disregarding as well the oath they take to reach a "true verdict" based on the law and the facts.


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The Supreme Court says jury nullification is wrong. CHICAGO TRIBUNE. "The Dangers Of Jury Nullification.” October 14, 2015. Web. October


The U.S. Supreme Court has made it clear such behavior does not fall within the rightful prerogatives of the individuals chosen to decide guilt and innocence. It ruled in 1895 that "in the courts of the United States, it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence."


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A federal judge agrees--jury nullification should not be encouraged by judges. CHICAGO TRIBUNE. "The Dangers Of Jury Nullification.” October 14, 2015. Web. October


Federal Judge Jose Cabranes wrote in a 1997 decision that "the power of juries to 'nullify' or exercise a power of lenity is just that – a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent."


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We should not defy the law in order to pursue alleged justice. CHICAGO TRIBUNE. "The Dangers Of Jury Nullification.” October 14, 2015. Web. October


No one would argue that juries should convict an innocent defendant merely because they resent the burdensome requirements placed on prosecutors. Such verdicts would mean defying the law in the alleged pursuit of justice.


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Jury nullification undermines the rule of law and the integrity of democratic institutions. CHICAGO TRIBUNE. "The Dangers Of Jury Nullification.” October 14, 2015. Web. October


This renegade approach is not something a state governmnet, charged with making and enforcing laws on behalf of its citizens, should encourage. Jurors who disagree with legislated prohibitions are morally entitled to work to change them. But they have no business putting their preferences above what democratic institutions have decided.


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Jury nullification undermines rule of law and faith in the criminal justice system. Reinhart, Liz. "The Zimmerman Verdict And Jury Nullification." Jurist. July 08, 2013. Web.

October 09, 2015. <http://jurist.org/dateline/2013/08/liz-rinehart-jury-nullification.php>.

The most abhorrent consequence of reverse jury nullification is that it results in punishment for a defendant who has either not broken a recognized law or who has not been proven guilty beyond a reasonable doubt. Reverse nullification licenses juries to apply their own personal prejudices and idiosyncratic values rather than the orderly, unbiased, application of fact to law. The risk is not hypothetical. An empirical study [PDF]found that juries given nullification instructions spent less time considering evidence. They were also more likely to convict "unsympathetic" defendants, such as drunk drivers and more likely to acquit "sympathetic" defendants, like those who kill out of mercy. Similar to Lon Fuller's Rex in The Morality of Law, juries permitted to nullify can change laws to fit circumstances and characteristics of individual defendants until the results become completely unpredictable and impossible to follow, increasing the instability and lack of faith in the criminal justice system. While this charge can easily be leveled against traditional nullification, the difference with reverse jury nullification is that, instead of sending a guilty defendant home, an innocent defendant goes to jail.


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Jury nullification leads to unfair, racist application of the law. Reinhart, Liz. "The Zimmerman Verdict And Jury Nullification." Jurist. July 08, 2013. Web.


By comparison, reverse jury nullification receives limited press. Yet, like nullification, reverse nullification has played a role in perpetuating racial injustice. There can be no denying that all-white juries have convicted black defendants based on a belief that the defendants should be punished rather than on evidentiary proof. The shameful show trials of the Scottsboro Boys which produced, but did not culminate in, the historic decision of Powell v. Alabama should serve as a reminder that juries are susceptible to the same hate and fear that warp a legal system. While most law students study Powell for the rule that defendants in capital trials have a due process right to counsel, the facts of the case and the numerous, farcical trial proceedings illustrate how significantly — and how recently — the American criminal justice system could be manipulated to convict black defendants based on flimsy evidence because prosecutors could rely on the racist sympathies of their juries.


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Even if certain laws are unjust, we shouldn't have vigilante juries. Reinhart, Liz. "The Zimmerman Verdict And Jury Nullification." Jurist. July 08, 2013. Web.


Admittedly, in the case of reverse nullification, the defendant can still appeal or the trial court can set aside the verdict, but neither options are foolproof. More generally, if the argument for nullification is that the legal system is so flawed that it must be subject to an additional check by the jury, then it seems irrational to remove existing restrictions by disregarding evidentiary standards or requirements of a crime. Zimmerman has been accused of vigilantism and Stand Your Ground laws of encouraging vigilantism. Both are valid claims, but the solution to vigilante justice is not to encourage vigilante juries.


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Juries have no right to ignore the law. Reinhart, Liz. "The Zimmerman Verdict And Jury Nullification." Jurist. July 08, 2013. Web.


In its closing argument, the prosecution hinted that the jury could use "common sense" if they found that the evidence and witness testimony were not enough to convict. It was not a direct call for reverse nullification, but it certainly acknowledged what so many were already thinking: the prosecution had failed to make its case. Understandably, the prosecution, and those who wanted Zimmerman to be convicted, hoped that the jury would look past that infirmity and focus on the terrible prospect of finding that a man can pursue and kill an unarmed teenager without punishment. The jury, however, apparently listened to their instructions: "If you fail to follow the law, your verdict will be a miscarriage of justice. Even if you do not like the laws that must be applied, you must use them. For two centuries we have lived by the Constitution and the law. No juror has the right to violate rules we all share."


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Jury nullification will not result in more just outcomes. Reinhart, Liz. "The Zimmerman Verdict And Jury Nullification." Jurist. July 08, 2013. Web.


Florida's governor Rick Scott has shown no interest in changing or repealing the state's self-defense laws. It is tempting for opponents to advocate any means necessary, including jury nullification, to invalidate Stand Your Ground or combat biased application of the law, but doing so will only exacerbate the belief that the American criminal justice system is broken and run amok. As the emotional interview with Juror B29 indicates, applying facts to the law can require painful discipline and can lead to equally painful outcomes. There is no reason to believe, however, that giving juries the authority to ignore the law will achieve more just results. To the contrary, as history has shown, it will accomplish quite the opposite.


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Jury nullification leads to arbitrary application of the law--unlike prosecutors, juries have too limited information. Kerr, Orin. "The Problem With Jury Nullification." The Washington Post. October 08, 2015.

Web. October 09, 2015. <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/10/the-problem-with-jury-nullification/>.

First, prosecutors know the facts needed to make decisions in the name of justice while juries generally don’t. Prosecutors are supposed to make a decision to prosecute after learning things like the suspect’s criminal record, the full scope of his conduct (including the inadmissible parts), how much a prosecution might deter future crimes, and what the punishment might be if the suspect is convicted. Prosecutors can get the facts and make a call. We might disagree with a prosecutor’s decision, of course. But the prosecutor at least has access to the information needed to make the decision. Jurors usually don’t have that information. Jurors are not told what they would need to know to decide what is just. We keep such information away from jurors to help ensure a fair trial and preserve other values in the criminal justice system. The jurors normally don’t know about the defendant’s criminal record and past bad acts, as we don’t want the jury to just assume that someone who has done bad things before is probably guilty this time, too. Jurors aren’t told of the inadmissible evidence, such as evidence excluded under the Fourth, Fifth, and Sixth Amendment, to encourage compliance with those provisions of the Constitution. And we don’t explain to jurors why a particular prosecution is thought to further the purposes of punishment because, among other reasons, doing so would take a lot of time and distract jurors from the question of guilt or innocence. In that system, encouraging jury nullification is a recipe for arbitrariness instead of informed judgment.


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Jury nullification is not democratically accountable. Kerr, Orin. "The Problem With Jury Nullification." The Washington Post. October 08, 2015.


Second, jury discretion is less democratically accountable than prosecutorial discretion. Criminal prosecutions are democratically accountable in two ways. First, before the crime occurs, the elected legislature must enact a law saying that, in general, the conduct should be punished. Second, after the crime occurs, elected executive officials and their employees must make a judgment that the specific conduct by the specific individual merits prosecution. Because prosecutors are repeat players who work for elected politicians, prosecutorial decisions in the aggregate are ultimately subject to review by a majority of the voters. If the voters don’t like how a prosecutor’s office has exercised discretion, the voters normally can vote to throw out the head of the office. Both the general judgment ex ante and the specific judgment ex post have to match for a prosecution to be brought.


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Jury nullification will not make the system more accountable. Kerr, Orin. "The Problem With Jury Nullification." The Washington Post. October 08, 2015.


I recognize the intuitive appeal of jury nullification. If you don’t like a particular kind of case that keeps being brought, jury nullification might look like a way to bring about a better world. If you’re the juror, your nullification can singlehandedly undo the decisions of the legislators and executive officials (and the sheep who voted them into office) who are so obviously wrong about the public interest. The more confident you are in your abilities to understand what others don’t, the better jury nullification sounds. But consider that people with your wisdom and judgment can’t be on every jury. When you consider all the juries, the effect of encouraging nullification is likely to make the system more arbitrary and less accountable rather than more wise.


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The affirmative justifies executive clemency not nullification. Kerr, Orin. "The Problem With Jury Nullification." The Washington Post. October 08, 2015.


Finally, some of the arguments for jury nullification sound like arguments for executive clemency in slight disguise. Executive clemency should be a critical part of any criminal justice system. Decisions to grant executive clemency are made by a democratically accountable office, however, after a review of all the facts. That’s not true with jury nullification.


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Juries are not democratically accountable. Kerr, Orin. "The Problem With Jury Nullification." The Washington Post. October 08, 2015.


It’s a different picture with juries. You might think of juries as a representative of “the People” and therefore assume they are democratically accountable. But note that in criminal cases, the law normally requires juries to be unanimous in order to render a guilty verdict. It takes only a single juror to block a conviction. The evidence can be overwhelming, and eleven of the jurors can believe fervently that a particular case is the most compelling prosecution ever brought. But a single juror, accountable to no one, can put the kibosh on the case based on his own vision of justice that may have no connection to anyone else’s. We don’t normally think of placing all the power in one unelected person who answers to no one as a democratically accountable approach.

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NietzscheK

Strategy Guide

This is a traditional critical negative. The argument is focusing on the power relation

between jurors and with society as a whole. Jurors view nullification as source of power

through which they attempt to order the world in a "just" way and strive for a

minimization of immoral and unjust practices. These attempts to express power and

create order are meaningless because we are all powerless and disorder is inevitable.

Their strive to create order creates both a fear of the unknown and the other as the

unknown is what causes disorder in the world we attempt to exert power over. The strive

to create order also causes a lapse into nihilism (general Nietzsche argument about

resentment and sufferings inevitability). The alternative is to essentially reject the

affirmative and embrace life as it is. There is an inevitability to ordering within the world

and only by accepting it can we actually avoid nihilism and disorder. This can be run

against many cases but may be very effective against cases that directly address the

various power relations within the criminal justice system.


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Jurors view nullification as a way to exercise power and control. Crist, Matthew. "“Jury Nullification: A Moral Duty”.” April 15, 2008. Web. October 15, 2015.

<http://thelibertarianrepublic.com/jury-nullification-moral-duty/>.

Georgia v. Brailsford, 3 U.S. 1 (1794). While I disagree with C.J. Jay’s construction of jury nullification being a right, I agree the jury has the power and privilege to do it; what’s more is when the power of the state is being exacted upon a defendant pursuant to an unjust law or immoral law, the jury has the moral duty to find the facts in the defendant’s favor. Because the jury’s finding of not guilty cannot normally be appealed by the state, the jury has absolute power over the outcome of the case. C.J. Jay’s construction of jury nullification implies that it is a violation of the civil rights to due process of the defendant if a jury is not instructed that it can disregard the law in every case. Of course that is too broad of an interpretation; but he is correct that the jury has the power to determine the law through it’s indissoluble right to determine the facts of the case – though C.J. Jay was not precisely clear on that matter.


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Nullification is viewed through he terms of power and control – fixing the world by taking power from the government and giving it to the people. D’Amato, David. "An Introduction To Jury Nullification.” April 15, 2005. Web. October 15,

2015. <http://www.libertarianism.org/columns/introduction-jury-nullification>.

In law school, I was taught that the function of the jury is to determine the facts — what actually happened — thereafter applying the law to those facts in strict accordance with the judge’s instructions. Jury nullification challenges this arrangement, submitting that the jury may also examine and assess the law itself, independently deciding whether the law is just and whether they ought to give it force. Eminent legal scholar and one-time Dean of Harvard Law School Roscoe Pound famously opined that “jury lawlessness is the great corrective of law in its actual administration.” In theory and in practice, jury nullification has important implications for libertarians, limiting government power as exercised through the courts and decentralizing decision-making authority. It allows jurors to act essentially as an ad hoc committee, charged with conscientiously reviewing the validity of a law rather than merely applying it thoughtlessly and mechanically, as instructed. It thus offers the ordinary citizen an opportunity for genuine engagement, for critical thinking and sincerely voting on values at a moment when it can really make a difference. Instead of seeing the law as a specialized and abstruse field, closed off to the layperson, the ideas behind jury nullification propose that the opinions and the conscience of the individual are at least as important as either the black-letter law or the judgments of ostensible legal experts. Jury nullification therefore represents a truly populist philosophy and tradition, shifting power back to the people. In United States history, there seems to be an inverse relationship between the power of government and the importance of the role of the jury, jurors being a “check on the excesses of democratic government” — the tyranny of the majority.1


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Jury Nullification is used as an expression of power. Mathews, Kevin. "Jury Nullification: Why Every American Needs To Learn This Taboo

Verdict.” April 15, 2005. Web. October 15, 2015. <http://www.truth-out.org/opinion/item/23929-jury-nullification-why-every-american-needs-to-learn-this-taboo-verdict>.

Jury nullification is undoubtedly feared because of its ability to upset the system. A jury that considers drug laws to be outrageous can nullify. A jury that is aware of the mass inequality in incarceration rates and believes a defendant was targeted via racial profiling can nullify. A jury that believes a harmless defendant is a victim of the prison industrial complex rather than a perpetrator can nullify. This counter-verdict exists so that citizens can right the wrongs inherent in our supposed “justice” system. Of course, as the New York Times points out, jury nullification hasn’t always been used to “do good.” Historically, racist southern juries have nullified cases involving hate crimes and overly optimistic juries have nullified instances of police brutality, unwilling to fault police officers. However, if you agree that an informed jury can produce the correct verdict, nullification remains a valuable tool in the pursuit of justice.


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Juries use the power of nullification to shape the world through their decisions – historically proven in the Jim Crow south. "The Dangers Of Jury Nullification." Chicago tribune. April 15, 2005. Web. October 15, 2015.

<http://articles.chicagotribune.com/2014-01-27/opinion/ct-jury-nullification-edit-0127-20140127_1_jury-nullification-law-professor-jurors>.

In 1955, two white men went on trial in Mississippi for the murder of Emmett Till, a black 14-year-old from Chicago who supposedly had been too friendly to a white woman. In the Jim Crow South, there was never much change of conviction, and they were acquitted by a jury that deliberated for barely an hour. The two men, free of the danger of prosecution, later acknowledged their guilt. That case and many like it are worth keeping in mind in any consideration of the place of jury nullification in the criminal justice system. Some libertarian groups argue for informing juries that they have the prerogative of ignoring the law and acquitting the defendant when they think the law is unjust. George Washington University law professor Paul Butler recommends that black jurors free black defendants prosecuted for minor drug crimes even if they are guilty — what he calls "racially based jury nullification." New Hampshire has gone further. A 2012 law permits defense lawyers to tell juries they may nullify the law if they choose. A bill now in the state legislature would require judges to inform jurors of that power. In 2012, a jury delivered a not guilty verdict for a man charged with growing marijuana after his lawyer argued the law was unfair. The law may indeed be unfair, as some laws are. But it's not the right or duty of jurors to waive sections of the criminal code with which they disagree. The promotion of jury nullification rests on the assumption that 12 randomly chosen individuals are entitled to override the democratically expressed will of the citizenry. It's true that there is considerable history in England and America of juries disregarding their instructions on principle. Before the Civil War, Northern juries sometimes refused to enforce the Fugitive Slave Act, preferring to forgive defendants who helped escaped slaves. But there is no guarantee that a runaway jury will suspend only bad laws. For judges to offer this as an option, as the New Hampshire bill proposes, would undermine the rule of law. The power to nullify is not the same as the right to do so. Because of the power granted to juries and the nature of deliberations, they are free to acquit or convict for any reason they choose. But to disregard the law presumably means disregarding as well the oath they take to reach a "true verdict" based on the law and the facts. The U.S. Supreme Court has made it clear such behavior does not fall within the rightful prerogatives of the individuals chosen to decide guilt and innocence. It ruled in 1895 that "in the courts of the United States, it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence."For judges to offer this as an option, as the New Hampshire bill proposes, would undermine the rule of law. The power to nullify is not the same as the right to do so. Because of the power granted to juries and the nature of deliberations, they are free to acquit or convict for any reason they choose. But to disregard the law presumably means disregarding as well the oath they take to reach a "true verdict" based on the law and the facts. The U.S. Supreme Court has made it clear such behavior does not fall within the rightful prerogatives of the individuals chosen to decide guilt and innocence. It ruled in 1895 that "in the courts of the United States, it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them to be from the evidence." Federal Judge Jose Cabranes wrote in a 1997 decision that "the power of juries to 'nullify' or exercise a power of lenity is just that – a power; it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent."


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Jurors think they have ultimate power because double jeopardy prevents re-prosecution when in fact a single case cannot order the world. "Jury Nullification Ethics: Denver’s District Attorney Tries To Make It Illegal To Teach Jurors

About The Power Of Juries.” February 15, 2008. Web. October 15, 2015. <http://ethicsalarms.com/2015/08/02/jury-nullification-ethics-denvers-district-attorney-tries-to-make-it-illegal-to-teach-jurors-about-the-power-of-juries/>.

Jury nullification is the doctrine, rich in jurisprudential and American history, that declares that juries have the power and the right to reject what they believe are either unjust criminal laws or unjust prosecutions, and acquit defendants who may have been proven guilty on the evidence, essentially nullifying the law by refusing to enforce it. They definitely have that power: once a citizen is declared not guilty, that citizen cannot be tried again. The dilemma is that neither judges nor lawyers are permitted to let juries know about nullification, since nullification defies the law. A defense lawyer mentioning it in a closing argument risks a mistrial, and bar sanctions. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is written whether they agree with the law or not. In only a few states are jurors expressly permitted to judge both the facts and the law of the case. In 2012, New Hampshire passed a unique law explicitly allowing defense attorneys to inform juries about jury nullification.


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The search for order in the world through an expression of power produces a violent will to order in which chaos can’t be eliminated breeding resentment. Saurette, Paul. "I Mistrust All Systematizers And Avoid Them: Nietzsche, Arendt, And The

Crisis Of The Will To Order In International Relations Theory.” February 15, 2008. Web. October 15, 2015. <http://mil.sagepub.com/content/25/1/1.full.pdf>.

According to Nietzsche, the philosophical foundation of a society is the set of ideas which give meaning to the phenomenon of human existence within a given cultural framework. As one manifestation of the Will to Power, this will to meaning fundamentally influences the social and political organisation of a particular community.5 Anything less than a profound historical interrogation of the most basic philosophical foundations of our civilization, then, misconceives the origins of values which we take to be intrinsic and natural. Nietzsche suggests, therefore, that to understand the development of our modern conception of society and politics, we must reconsider the crucial influence of the Platonic formulation of Socratic thought. Nietzsche claims that pre-Socratic Greece based its philosophical justification of life on heroic myths which honoured tragedy and competition. Life was understood as a contest in which both the joyful and ordered (Apollonian) and chaotic and suffering (Dionysian) aspects of life were accepted and affirmed as inescapable aspects of human existence.6 However, this incarnation of the will to power as tragedy weakened, and became unable to sustain meaning in Greek life. Greek myths no longer instilled the self-respect and self-control that had upheld the pre-Socratic social order. 'Everywhere the instincts were in anarchy; everywhere people were but five steps from excess: the monstrum in animo was a universal danger'.7 No longer willing to accept the tragic hardness and self-mastery of pre-Socratic myth, Greek thought yielded to decadence, a search for a new social foundation which would soften the tragedy of life, while still giving meaning to existence. In this context, Socrates' thought became paramount. In the words of Nietzsche, Socrates saw behind his aristocratic Athenians: he grasped that his case, the idiosyncrasy of his case, was no longer exceptional. The same kind of degeneration was everywhere silently preparing itself: the old Athens was coming to an end—And Socrates understood that the world had need of him —his expedient, his cure and his personal art of self-preservation.8 Socrates realised that his search for an ultimate and eternal intellectual standard paralleled the widespread yearning for assurance and stability within society. His expedient, his cure? An alternative will to power. An alternate foundation that promised mastery and control, not through acceptance of the tragic life, but through the disavowal of the instinctual, the contingent, the problematic. In response to the failing power of its foundational myths, Greece tried to renounce the very experience that had given rise to tragedy by retreating/escaping into the Apollonian world promised by Socratic reason. In Nietzsche's words, '[rationality was divined as a saviour.,,it was their last expedient. The fanaticism with which the whole of Greek thought throws itself at rationality betrays a state of emergency: one was in peril, one had only one choice: either to perish, or be absurdly rational…9 Thus, Socrates codified the wider fear of instability into an intellectual framework. The Socratic Will to Truth is characterised by the attempt to understand and order life rationally by renouncing the Dionysian elements of existence and privileging an idealised Apollonian order. As life is


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inescapably comprised of both order and disorder, however, the promise of control through Socratic reason is only possible by creating a 'Real World' of eternal and meaningful forms, in opposition to an 'Apparent World' of transitory physical existence. Suffering and contingency is contained within the Apparent World, disparaged, devalued, and ignored in relation to the ideal order of the Real World. Essential to the Socratic Will to Truth, then, is the fundamental contradiction between the experience of Dionysian suffering in the Apparent World and the idealised order of the Real World. According to Nietzsche, this dichotomised model led to the emergence of a uniquely 'modern understanding of life which could only view suffering as the result of the imperfection of the Apparent World. This outlook created a modern notion of responsibility in which the Dionysian elements of life could be understood only as a phenomenon for which someone, or something, is to blame. Nietzsche terms this philosophically-induced condition ressentiment and argues that it signalled a potential crisis of the Will to Truth by exposing the central contradiction of the Socratic resolution. This contradiction, however, was resolved historically through the aggressive universalisation of the Socratic ideal by Christianity. According to Nietzsche, ascetic Christianity exacerbated the Socratic dichotomisation by employing the Apparent World as the responsible agent against which the ressentiment of life could be turned. Blame for suffering fell on individuals within the Apparent World, precisely because they did not live up to God, the Truth, and the Real World. As Nietzsche wrote, '1 suffer: someone must be to blame for it' thinks every sickly sheep. But his shepherd, the ascetic priest tells him: 'Quite so my sheep! someone must be to blame for it: but you yourself are this someone, you alone are to blame for yourself,—you alone are to blame for yourself '—This is brazen and false enough: but one thing is achieved by it, the direction of ressentiment is altered." Faced with the collapse of the Socratic resolution and the prospect of meaninglessness, once again, 'one was in peril, one had only one choice: either to perish, or be absurdly rational...'12 The genius of the ascetic ideal was that it preserved the meaning of the Socratic Will to Power as Will to Truth by extrapolating ad absurdium the Socratic division through the redirection of ressentiment against the Apparent World! Through this redirection, the Real World was transformed from a transcendental world of philosophical escape into a model towards which the Apparent World actively aspired, always blaming its contradictory experiences on its own imperfect knowledge and action. This subtle transformation of the relationship between the dichotomised worlds creates the Will to Order as the defining characteristic of the modern Will to Truth. Unable to accept the Dionysian suffering inherent in the Apparent World, the ascetic ressentiment desperately searches for 'the hypnotic sense of nothingness, the repose of deepest sleep, in short absence of suffering".n According to the ascetic model, however, this escape is possible only when the Apparent World perfectly duplicates the Real World. The Will to Order, then, is the aggressive need increasingly to order the Apparent World in line with the precepts of the moral Truth of the Real World. The ressentiment of the Will to Order, therefore, generates two interrelated reactions. First, ressentiment engenders a need actively to mould the Apparent World in accordance with the dictates of the ideal, Apollonian Real World. In order to achieve this, however, the ascetic ideal also asserts that a 'truer', more complete knowledge of the Real World must be established, creating an ever-increasing Will to Truth. This self-perpetuating movement creates an interpretative structure within which everything must be understood and ordered in relation to the ascetic Truth of the Real World. As Nietzsche suggests, [t]he ascetic ideal has a goal—this goal is so universal that all other interests of human existence seem, when compared with it, petty and narrow; it interprets epochs, nations, and men inexorably with a view to this


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one goal; it permits no other interpretation, no other goal; it rejects, denies, affirms and sanctions solely from the point of view of its interpretation.14 The very structure of the Will to Truth ensures that theoretical investigation must be increasingly ordered, comprehensive, more True, and closer to the perfection of the ideal. At the same time, this understanding of intellectual theory ensures that it creates practices which attempt to impose increasing order in the Apparent World. With this critical transformation, the Will to Order becomes the fundamental philosophical principle of modernity. *Ellipsis from source


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The addiction to security creates a self-fulfilling prophecy in which inability to order the world becomes a threat to humanity. This redirects our perpetual resentment against the unknown, which triggers inexplicable hatred for life. DerDerian, James. "The Value Of Security: Hobbes, Marx, Nietzsche, And Baudrillard.”

October 17, 1998. Web. October 15, 2015. <http://www.ciaonet.org/book/lipschutz/lipschutz12.html>.

We have inherited an ontotheology of security, that is, an a priori argument that proves the existence and necessity of only one form of security because there currently happens to be a widespread, metaphysical belief in it. Indeed, within the concept of security lurks the entire history of western metaphysics, which was best described by Derrida "as a series of substitutions of center for center" in a perpetual search for the "transcendental signified." 1 From God to Rational Man, from Empire to Republic, from King to the People--and on occasion in the reverse direction as well, for history is never so linear, never so neat as we would write it--the security of the center has been the shifting site from which the forces of authority, order, and identity philosophically defined and physically kept at bay anarchy, chaos, and difference. Yet the center, as modern poets and postmodern critics tell us, no longer holds. The demise of a bipolar system, the diffusion of power into new political, national, and economic constellations, the decline of civil society and the rise of the shopping mall, the acceleration of everything --transportation, capital and information flows, change itself--have induced a new anxiety. As George Bush repeatedly said--that is, until the 1992 Presidential election went into full swing--[Now] "The enemy is unpredictability. The enemy is instability." 2 One immediate response, the unthinking reaction, is to master this anxiety and to resecure the center by remapping the peripheral threats. In this vein, the Pentagon prepares seven military scenarios for future conflict, ranging from latino small-fry to an IdentiKit super-enemy that goes by the generic acronym of REGT ("Reemergent Global Threat"). In the heartlands of America, Toyota sledge-hammering returns as a popular know-nothing distraction. And within the Washington beltway, rogue powers such as North Korea, Iraq, and Libya take on the status of pariah-state and potential video bomb-site for a permanently electioneering elite. There are also prodromal efforts to shore up the center of the International Relations discipline. In a newly instituted series in the International Studies Quarterly , the state of security studies is surveyed so as to refortify its borders. 3 After acknowledging that "the boundaries of intellectual disciplines are permeable," the author proceeds not only to raise the drawbridge but also to caulk every chink in the moat. 4 Recent attempts to broaden the concept of "security"to include such issues as global environmental dangers, disease, and economic and natural disasters endanger the field by threatening "to destroy its intellectual coherence and make it more difficult to devise solutions to any of these important problems." 5 The field is surveyed in the most narrow and parochial way: out of 200-plus works cited, esteemed Third World scholars of strategic studies receive no mention, British and French scholars receive short shrift, and Soviet writers do not make it into the Pantheon at all. The author of the essay, Stephen Walt, has written one of the better books on alliance systems; 6 here he seems intent on constructing a new alliance within the discipline against "foreign" others, with the "postmodernist" as arch-alien. The tactic is familiar: like many of the neoconservatives who have launched the recent attacks on "political correctness," the "liberals" of international relations make it a habit to base their criticisms on secondary accounts of a category of thinking rather than on a primary engagement with the specific[s] (and often differing) views of the thinkers themselves. 7


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Rejecting their ordering of the world is a prerequisite to reducing global violence. Burke, Anthony. "Ontologies Of War: Violence, Existence And Reason.” October 17, 2015.

Web. October 15, 2015. <https://muse.jhu.edu/journals/theory_and_event/v010/10.2burke.html>.

My argument here, whilst normatively sympathetic to Kant's moral demand for the eventual abolition of war, militates against excessive optimism.86 Even as I am arguing that war is not an enduring historical or anthropological feature, or a neutral and rational instrument of policy -- that it is rather the product of hegemonic forms of knowledge about political action and community -- my analysis does suggest some sobering conclusions about its power as an idea and formation. Neither the progressive flow of history nor the pacific tendencies of an international society of republican states will save us. The violent ontologies I have described here in fact dominate the conceptual and policy frameworks of modern republican states and have come, against everything Kant hoped for, to stand in for progress, modernity and reason. Indeed what Heidegger argues, I think with some credibility, is that the enframing world view has come to stand in for being itself. Enframing, argues Heidegger, 'does not simply endanger man in his relationship to himself and to everything that is…it drives out every other possibility of revealing…the rule of Enframing threatens man with the possibility that it could be denied to him to enter into a more original revealing and hence to experience the call of a more primal truth.'87¶ ¶ What I take from Heidegger's argument -- one that I have sought to extend by analysing the militaristic power of modern ontologies of political existence and security -- is a view that the challenge is posed not merely by a few varieties of weapon, government, technology or policy, but by an overarching system of thinking and understanding that lays claim to our entire space of truth and existence. Many of the most destructive features of contemporary modernity -- militarism, repression, coercive diplomacy, covert intervention, geopolitics, economic exploitation and ecological destruction -- derive not merely from particular choices by policymakers based on their particular interests, but from calculative, 'empirical' discourses of scientific and political truth rooted in powerful enlightenment images of being. Confined within such an epistemological and cultural universe, policymakers' choices become necessities, their actions become inevitabilities, and humans suffer and die. Viewed in this light, 'rationality' is the name we give the chain of reasoning which builds one structure of truth on another until a course of action, however violent or dangerous, becomes preordained through that reasoning's very operation and existence. It creates both discursive constraints -- available choices may simply not be seen as credible or legitimate -- and material constraints that derive from the mutually reinforcing cascade of discourses and eventswhich then preordain militarism and violence as necessary policy responses, however ineffective, dysfunctional or chaotic.¶ ¶ The force of my own and Heidegger's analysis does, admittedly, tend towards a deterministic fatalism. On my part this is quite deliberate; it is important to allow this possible conclusion to weigh on us. Large sections of modern societies -- especially parts of the media, political leaderships and national security institutions -- are utterly trapped within the Clausewitzian paradigm, within the instrumental utilitarianism of 'enframing' and the stark ontology of the friend and enemy. They are certainly tremendously aggressive and


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energetic in continually stating and reinstating its force.¶ ¶ But is there a way out? Is there no possibility of agency and choice? Is this not the key normative problem I raised at the outset, of how the modern ontologies of war efface agency, causality and responsibility from decision making; the responsibility that comes with having choices and making decisions, with exercising power? (In this I am much closer to Connolly than Foucault, in Connolly's insistence that, even in the face of the anonymous power of discourse to produce and limit subjects, selves remain capable of agency and thus incur responsibilities.88) There seems no point in following Heidegger in seeking a more 'primal truth' of being -- that is to reinstate ontology and obscure its worldly manifestations and consequences from critique. However we can, while refusing Heidegger's unworldly 89 nostalgia, appreciate that he was searching for a way out of the modern system of calculation; that he was searching for a 'questioning', 'free relationship' to technology that would not be immediately recaptured by the strategic, calculating vision of enframing. Yet his path out is somewhat chimerical -- his faith in 'art' and the older Greek attitudes of 'responsibility and indebtedness' offer us valuable clues to the kind of sensibility needed, but little more.¶ ¶ When we consider the problem of policy, the force of this analysis suggests that choiceand agency can be all too often limited; they can remain confined (sometimes quite wilfully) within the overarching strategic and security paradigms. Or, more hopefully, policy choices could aim to bring into being a more enduringly inclusive, cosmopolitan and peaceful logic of the political. But this cannot be done without seizing alternatives from outside the space of enframing and utilitarian strategic thought, by being aware of its presence and weight and activating a very different concept of existence, security and action.90¶ ¶ This would seem to hinge upon 'questioning' as such -- on the questions we put to the real and our efforts to create and act into it. Do security and strategic policies seek to exploit and direct humans as material, as energy, or do they seek to protect and enlarge human dignity and autonomy? Do they seek to impose by force an unjust status quo (as in Palestine), or to remove one injustice only to replace it with others (the U.S. in Iraq or Afghanistan), or do so at an unacceptable human, economic, and environmental price? Do we see our actions within an instrumental, amoral framework (of 'interests') and a linear chain of causes and effects (the idea of force), or do we see them as folding into a complex interplay of languages, norms, events and consequences which are less predictable and controllable?91 And most fundamentally: Are we seeking to coerce or persuade? Are less violent and more sustainable choices available? Will our actions perpetuate or help to end the global rule of insecurity and violence? Will our thought? *Ellipsis from source


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Focus on body counts turns the AC. DerDerian, James. "The Value Of Security: Hobbes, Marx, Nietzsche, And Baudrillard.”

October 17, 1998. Web. October 15, 2015. <http://www.ciaonet.org/book/lipschutz/lipschutz12.html>.

Conventions of security act to suppress rather than confront the fears endemic to life, for "…life itself is essentially appropriation, injury, overpowering of what is alien and weaker; suppression, hardness, imposition of one's own forms, incorporation and at least, at its mildest, exploitation--but why should one always use those words in which slanderous intent has been imprinted for ages." 35 Elsewhere Nietzsche establishes the pervasiveness of agonism in life: "life is a consequence of war, society itself a means to war." 36 But the denial of this permanent condition, the effort to disguise it with a consensual rationality or to hide from it with a fictional sovereignty, are all effects of this suppression of fear. The desire for security is manifested as a collective resentment of difference--that which is not us, not certain, not predictable. Complicit with a negative will to power is the fear-driven desire for protection from the unknown. Unlike the positive will to power, which produces an aesthetic affirmation of difference, the search for truth produces a truncatedlifewhich conforms to the rationally knowable, to the causally sustainable. In The Gay Science , Nietzsche asks of the reader: "Look, isn't our need for knowledge precisely this need for the familiar, the will to uncover everything strange, unusual, and questionable, something that no longer disturbs us? Is it not the instinct of fear that bids us to know? And is the jubilation of those who obtain knowledge not the jubilation over the restoration of a sense of security?" The fear of the unknown and the desire for certainty combine to produce a domesticated life, in which causality and rationality become the highest sign of a sovereign self, the surest protection against contingent forces. The fear of fate assures a belief that everything reasonable is true, and everything true, reasonable. In short, the security imperative produces, and is sustained by, the strategies of knowledge which seek to explain it. Nietzsche elucidates the nature of this generative relationship in The Twilight of the Idols : The causal instinct is thus conditional upon, and excited by, the feeling of fear. The "why?" shall, if at all possible, not give the cause for its own sake so much as for a particular kind of cause --a cause that is comforting, liberating and relieving... That which is new and strange and has not been experienced before, is excluded as a cause. Thus one not only searches for some kind of explanation, to serve as a cause, but for a particularly selected and preferred kind of explanation--that which most quickly and frequently abolished the feeling of the strange, new and hitherto unexperienced: the most habitual explanations. A safe life requires safe truths. The strange and the alien remain unexamined, the unknown becomesidentifiedasevil,andevilprovokeshostility--recyclingthedesireforsecurity. ¶ [CONTINUES]¶ The point of Nietzsche's critical genealogy is to show that the perilous conditions that created the security imperative--and the western metaphysics that perpetuate it--have diminished if not disappeared; yet, the fear of life persists: "Our century denies this perilousness, and does so with a good conscience: and yet it continues to drag along with it the old habits of Christian security, Christian enjoyment, recreation and evaluation." 46 Nietzsche's worry is that the collective reaction against older, more primal fears has created an even worse danger: the tyranny of the herd, the lowering of man, the apathy of the last man which controls through conformity and rules through passivity. The security of the sovereign, rational self and state comesatthecostofambiguity,uncertainty,paradox--allthatmakesafreelifeworthwhile. *Ellipsis from source


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The affirmative attempts to preserve stability and order, but neither are critical to existence. That causes complicity with structural violence that renders lack of order as dirt, disease, and undesirability. Campbell, David. "Writing Security.” October 17, 1992. Web. October 15, 2015.

<https://books.google.com/books?id=VyklLv6jjLgC>.

However one might begin to fathom the many issues located within¶ those challenges, our current situation leaves us with one certainty: because¶ we cannot escape the logic of differentiation we are often tempted by the¶ logic of defilement. To say as much, however, it {is} not to argue that we are¶ imprisoned within a particular and permanent system of representations. To¶ be sure, danger is more often than not represented as disease, dirt, or¶ pollution. As one medical text argues: 'Disease is shock and danger for¶ existence.'32 Or as Karl Jaspers maintains: 'Disease is a general concept of¶ non-value which includes all possible negative values.'33 But such concerns¶ have less to do with the intrinsic qualities of those conditions than the¶ modernist requirements of order and stability: 'Dirt offends against order.¶ Eliminating it is not a negative moment, but a positive effort to organize the¶ environment.'34 One might suggest that it is the extent to which we want to¶ organize the environment - the extent to which we want to purify our¶ domain - that determines how likely it is that we represent danger in terms¶ of dirt or disease. Tightly defined order and strictly enforced stability,¶ undergirded by notions of purity, are not a priori conditions of existence;¶ some order and some stability might be required for existence as we know it¶ (i.e., in some form of extensive political community), but it is the degree of¶ tightness, the measure of strictness, and the extent of the desire for purity¶ which constitutes danger as dirt or disease.


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The AC is a contradiction - the attempt to eliminate suffering denies the intrinsic relationship between suffering and a true affirmation of life. Anomaly, Jonny. "Nietzsche’s Critique Of Utilitarianism.” October 17, 2015. Web. October 15,

2015. <https://muse.jhu.edu/journals/journal_of_nietzsche_studies/v029/29.1anomaly.html>.

This is because, Nietzsche thinks, the opposite of these values—pain, suffering, inequality; in short, “evil”—is equally indispensable for the survival and happiness of the very herd that seeks to eradicate it. Accordingly, Nietzsche sharply criticizes Bentham’s hedonic calculus (which correlates happiness maximization with pain minimization) as inconsistent with utilitarian goals. In its place, Nietzsche stresses the necessity of physical suffering and intellectual struggle for the self-improvement of each and, by extension, the vitality and happiness of the group. He accordingly rebukes the proponent of any morality that makes the reduction of suffering its fundamental goal: “[I]f you experience suffering and displeasure as evil, worthy of annihilation and as a defect of existence, then it is clear that besides your religion of pity you also harbor another religion in your heart that is perhaps the mother of the religion of pity: the religion of comfortableness” (GS 338). This religion or, more specifically, morality— of comfort thwarts its own goals by attempting to eliminate all suffering (BGE 44).9 In a passage that anticipates what we now call the “hedonic paradox,” according to which pleasure is diminished when we pursue it directly, Nietzsche ridicules those who, like Bentham, seek to maximize individual or collective happiness by minimizing pain: “[H]ow little you know of human happiness, you comfortable and benevolent people, for happiness and unhappiness are sisters and even twins that either grow up together or, as in your case, remain small together” (GS 338).10 He goes on to underline the idiosyncratic nature of suffering and the simplemindedness of those who heedlessly strive to relieve the suffering of others. “It never occurs to them,” Nietzsche adds, “that … the path to one’s own heaven always leads through the voluptuousness of one’s own hell”. *Ellipsis from source


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The alternative is to embrace the eternal recurrence that is our life. Suffering is a gateway to liberation from the delusion of order. Without suffering, our life project becomes meaningless. Owen, David. "Nietzsche, Politics, And Modernity.” October 17, 1995. Web. October 15, 2015.

<https://books.google.com/books?id=8r_V1BBmCb0C>.

Let us begin by noting that this passage does not disclose a cosmological thesis but poses a hypothetical question: can you affirm (i.e., will) the eternal recurrence of your life? Nietzsche’s reference to a ‘a tremendous moment’ when one could make such an affirmation directs us to the moments of amor fati already discussed because we experience such moments as a justification or redemption of our being what we are (with all that this entails). In this context, we can grasp the relation of eternal recurrence to amor fati in this passage in a twofold sense. Firstly, the thought of eternal recurrence embodies the conceptual structure of amor fati in drawing out attention to the fact that to affirm the fleeting moments of the experience of amor fati entails not only affirming all the moments of one’s life prior to this experience and as such constitutive of its possibility but also affirming the necessity (eternal recurrence) of one’s being what one is. Secondly, the thought of eternal recurrence acts as a test of our present capacity to love fate, to embrace necessity of our being what we are, by posting the question ‘Do you desire this once more and innumerable times more?’ If we reflect on these two aspects of the thought of eternal recurrence, we can note that insofar as it reproduces the conceptual structure of the experience of amor fati so too the experiential structure of the affirmation of eternal recurrence reveals itself as the experience of amor fati; it is this which makes the thought of eternal recurrence a test of one’s capacity to love fate. In other words, our capacity to experience amor fati is tied to our capacity to affirm the thought of eternal recurrence; to affirm this thought truthfully is to experience amor fati. Of course, to experience a moment in which one can affirm the thought of eternal recurrence is not to say that one can go on affirming this thought; such moments are all too fleeting. But insofar as we can both identify the affirmation of the thought of eternal recurrence with the experience of amor fati and recognize the telos of human existence in the ideal of a human being who is amor fati incarnate (the Overman), the thought of eternal recurrence acts as an ethical imperative … But does the feeling of shame which attended our recognition of the ignoble character of certain of our actions have a necessary connection with the feeling of regrets? In a remark from his ‘positivist period’, Nietzsche comments: Remorse- never give way to remorse, but immediately say to yourself: that would merely mean adding a second stupidity to the first. –if you have done harm, see how you can do good. It is in this respect that I think that the thought of eternal recurrence is significant for past actions which one cannot in good conscience affirm, because in forcing us to confront the fact that our shameful past actions are constitutive of what we are, it reveals a way to redeem these actions by transforming them into motivational resources for overcoming our shame by becoming what we are. It reveals a way to redeem these actions by transforming them into motivational resources for overcoming our shame by the rule of eternal recurrence in its prospective role as ethical imperative. In other words, if the thought of eternal recurrence gains possession of us, we may experience this possession as feeling crushed (because we are ashamed of many of our past actions), yet precisely because this ‘feeling crushed’ is a feeling of a decrease of power, we are motivated to overcome this feeling and we recognize that we can overcome it by using it as an affective resource for performing noble actions in the future.


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Jury Nullification puts too much power for too few. Heffernan, Shannon. "Jury Nullification.” October 17, 1995. Web. October 15, 2015.

<http://www.lifeofthelaw.org/2014/06/jury-nullification/>.

Most people in the legal system think juries shouldn’t nullify. It’s too dangerous to put so much power in the hands of just twelve people. Still they can’t take away jurors ability to nullify without taking away other basic rights enshrined in the Constitution. But there are three ways the legal system tries to discourage nullification. First, as a juror, you take an oath that says you will uphold the law. Second, defense lawyers aren’t allowed to tell a jury to nullify. Third, most judges give instructions to a jury that basically tell them that they must find a defendant guilty if they broke the law. So juries may be able to nullify, but the system is set up to hide that.


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The alternative is to do nothing. This is an active choice of defenselessness and disorder. This acceptance of the danger of being alive is necessary. Nietzsche, Fredrich. "Human All Too Human.” October 17, 1980. Web. October 16, 2015.

<http://www.gutenberg.org/files/37841/37841-pdf.pdf>.

The Means towards Genuine Peace. No government will nowadays admit that it maintains an army in order to satisfy occasionally its passion for conquest. The army is said to serve only defensive purposes. This morality, which justifies self defence, is called in as the government's advocate. This means, however, reserving morality for ourselves and immorality for our neighbour, because he must be thought eager for attack and conquest if our state is forced to consider means of self defence. At the same time, by our explanation of our need of an army (because he denies the lust of attack just as our state does, and ostensibly also maintains his army for defensive reasons), we proclaim the neighbor [him] a hypocrite and cunning criminal, who would fain seize by surprise, without any fighting. a harmless and unwary victim. In this attitude all states face each other today. They presuppose evil intentions on their neighbour's part and good intentions on their own. This hypothesis, however, is an inhuman notion, as bad as and worse than war. Nay, at bottom it is a challenge and motive to war, foisting as it does upon the neighbouring state the charge of immorality, and thus provoking hostile intentions and acts. The doctrine of the army as a means of self defence must be abjured as completely as the lust of conquest. Perhaps a memorable day will come when a nation renowned in wars and victories, distinguished by the highest development of military order and intelligence, and accustomed to make the heaviest sacrifice to these objects, will voluntarily exclaim, "We will break our swords” and will destroy its whole military system, lock, stock, and barrel. Making ourselves defenceless (after having been the most strongly defended) from a loftiness of sentiment — that is the means towards genuine peace, which must always rest upon a pacific disposition. The so called armed peace that prevails at present in all countries is a sign of a bellicose disposition, of a disposition that trusts neither itself nor its neighbour, and, partly from hate, partly from fear, refuses to lay down its weapons. Better to perish than to hate and fear, and twice as far better to perish than to make oneself hated and feared — this must someday become the supreme maxim of every political community! — Our liberal representatives of the people, as is well known, have not the time for reflection on the nature of humanity, or else they would know that they are working in vain when they work for "a gradual diminution of the military burdens”. On the contrary, when the distress of these burdens is greatest, the sort of God who alone can help here will be nearest. The tree of military glory can only be destroyed at one swoop, with one stroke of lightning. But, as you know, lightning comes from the cloud and from above.


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The necessity for action and power leads to a fragmentary existence – prefer the alternative’s refusal of the aff and its acceptance of incoherence, danger and pain. Bataille, Georges. "Metaphysician Of Evil.” October 17, 2015. Web. October 16, 2015.

<https://www.scribd.com/doc/124297070/Bataille-On-Nietzsche-pdf>.

Nonetheless, I don't want my inclination to make fun of myself or act comic to lead readers astray. The basic problem tackled in this chaotic book (chaotic because it has to be) is the same one Nietzsche experienced and attempted to resolve in his work-- the problem of the whole human being. "The majority of people," he wrote, "are a fragmentary, exclusive image of what humanity is; you have to add them up to get humanity. In this sense, whole eras and whole peoples have something fragmentary about them; and it may be necessary for humanity's growth for it to develop only in parts. It is a crucial matter therefore to see that what is at stake is always the idea of producing a synthetic humanity and that the inferior humans who make up a majority of us are only preliminaries, or preparatory attempts whose concerted play allows a whole human being to appear here and there like a military boundary marker showing the extent of humanity's advance." ( The Will to Power) But what does that fragmentation mean? Or better, what causes it if not a need to act that specializes us and limits us to the horizon of a particular activity? Even if it turns out to be for the general interest (which normally isn't true), the activity that subordinates each of our aspects to a specific result suppresses our being as an entirety. Whoever acts, substitutes a particular end for what he or she is, as a total being: in the least specialized cases it is the glory of the state or the triumph of a party. Every action specializes insofar as it is limited as action. A plant usually doesn't act, and isn't specialized; it's specialized when gobbling up flies! I cannot exist entirely except when somehow I go beyond the stage of action. Otherwise I'm a soldier, a professional, a man of learning, not a "total human being." The fragmentary state of humanity is basically the same as the choice of an object. When you limit your desires to possessing political power, for instance, you act and know what you have to do. The possibility of failure isn't important--and right from the start, you insert your existence advantageously into time. Each of your moments becomes useful. With each moment, the possibility is given you to advance to some chosen goal, and your time becomes a march toward that goal--what's normally called living. Similarly, if salvation is the goal. Every action makes you a fragmentary existence. I hold onto my nature as an entirety only by refusing to act--or at least by denying the superiority of time, which is reserved for action. Life is whole only when it isn't subordinate to a specific object that exceeds it. In this way, the essence of entirety is freedom. Still, I can't choose to become an entire human being by simply fighting for freedom, even if the struggle for freedom is an appropriate activity for me--because within me I can't confuse the state of entirety with my struggle. It's the positive practice of freedom, not the negative struggle against a particular oppression, that has lifted me above a mutilated existence. Each of us learns with bitterness that to struggle for freedom is first of all to alienate ourselves. I've already said it: the practice of freedom lies within evil, not beyond it, while the struggle for freedom is a struggle to conquer a good. To the extent that life is entire within me, I can't distribute it or let it serve the interests of a good belonging to someone else, to God or myself. I can't acquire anything at all: I can only give and give unstintingly, without the gift ever having as


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its object anyone's interest. (In this respect, I look at the other's good as deceptive, since if I will that good it's to find my own, unless I identify it as my own. Entirety exists within me as exuberance. Only in empty longing, only in an unlucky desire to be consumed simply by the desire to burn with desire, is entirety wholly what it is. In this respect, entirety is also longing for laughter, longing for pleasure, holiness, or death. Entirety lacks further tasks to fulfill.) 7 You have to experience a problem like this to understand how strange it really is. It's easy to argue its meaning by saying, Infinite tasks are imposed on us. Precisely in the present. That much is obvious and undeniable. Still, it is at least equally true that human entirety or totality (the inevitable term) is making its initial appearance now. For two reasons. The first, negative, is that specialization is everywhere, and emphasized alarmingly. The second is that in our time overwhelming tasks nonetheless appear within their exact limits. In earlier times the horizon couldn't be discerned. The object of seriousness was first defined as the good of the city, although the city was confused with the gods. The object thereafter became the salvation of the soul. In both cases the goal of action, on the one hand, was some limited and comprehensible end, and on the other, a totality defined as inaccessible in this world (transcendent). Action in modern conditions has precise ends that are completely adequate to the possible, and human totality no longer has a mythic aspect. Seen as accessible in all that surrounds us, totality becomes the fulfillment of tasks as they are defined materially. So that totality is remote, and the tasks that subordinate our minds also fragment them. Totality, however, is still discernible. A totality like this, necessarily aborted by our work, is nonetheless offered by that very work. Not as a goal, since the goal is to change the world and give it human dimensions. But as the inevitable result. As change comes about, humanity-attached-to-the-task-of-changing-the-world, which is only a single and fragmentary aspect of humanity, will itself be changed to humanity-as-entirety. For humanity this result seems remote, but defined tasks describe it: It doesn't transcend us like the gods (the sacred city), nor is it like the soul's afterlife; it is in the immanence of "humanityattached …" We can put off thinking about it till later, though it's still contiguous to us. If human beings can't yet be consciously aware of it in their common existence, what separates them from this notion isn't that they are human instead of divine, nor the fact of not being dead: It's the duties of a particular moment. Similarly, a man in combat must only think (provisionally) of driving back the enemy. To be sure, situations of calm during even the most violent wars give rise to peacetime interests. Still, such matters immediately appear minor. The toughest minds will join in these moments of relaxation as they seek a way to put aside their seriousness. In some sense they're wrong to do so. Since isn't seriousness essentially why blood flows? And that's inevitable. For how could seriousness not be the same as blood? How could a free life, a life unconstrained by combat, a life disengaged from the necessities of action and no longer fragmented--how could such a life not appear frivolous? In a world released from the gods and from any interest in salvation, even "tragedy" seems a distraction, a moment of relaxation within the context of goals shaped by activity alone. More than one advantage accrues when human "reason for being" comes in the back way. So the total person is first disclosed in immanence in areas of life that are lived frivolously. A life like this--a frivolous life--can't be taken seriously. Even if it is deeply tragic. And that is its liberating prospect--it acquires the worst simplicity and nakedness. Without any guile I'm saying, I feel grateful to those whose serious attitudes and life lived at the edge of death define me as an empty human being and dreamer (there are moments when I'm on their side). Fundamentally, an entire human being is simply a being in whom transcendence is abolished, from whom there's no separating anything now. An entire human being is partly a clown, partly God, partly crazy


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…and is transparence. 8 If I want to realize totality in my consciousness, I have to relate myself to an immense, ludicrous, and painful convulsion of all of humanity. This impulse moves toward all meanings. It's true: sensible action (action proceeding toward some single meaning) goes beyond such incoherence, but that is exactly what gives humanity in my time (as well as in the past) its fragmentary aspect. If for a single moment I forget that meaning, will I see Shakespeare's tragical/ridiculous sum total of eccentricities, his lies, pain, and laughter; the awareness of an immanent totality becomes clear to me-- but as laceration. Existence as entirety remains beyond any one meaning-and it is the conscious presence of humanness in the world inasmuch as this is nonmeaning, having nothing to do other than be what it is, no longer able to go beyond itself or give itself some kind of meaning through action. *Ellipsis from Source


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The alternatives embracement of the status quo is the only way to affirm the beauty of life. Kabeer, Sadegh. "Rendering The Abysmal: A Reading Of Nietzsche's Eternal Return Of The

Same.” October 17, 2015. Web. October 16, 2015. <http://www.academia.edu/10106331/Rendering_the_Abysmal_A_Reading_of_Nietzsches_Eternal_Return_of_the_Same>.

Salomé argues that after his conception of the eternal recurrence Nietzsche became transfigured. His contradictions were not only heightened to an unbearable degree but he became irreparably torn between an unbridled loathing and an equally powerful desire to embrace the eternal recurrence of the same.[lxviii] Salomé concludes that madness was the only logical possibility for such a fractured and tormented soul. But these ad hominem remarks miss the point. Nietzsche’s credo that ‘Pain does not count as an objection to life’ flies in the face of Salomé’s diagnosis.[lxix] Rather than circumventing or merely resigning oneself to suffer existence interminably à la Schopenhauer, the task is to assimilate this very pain and suffering that has destroyed and crippled so many; the ‘free spirit’ is to ‘adopt a child’s attitude towards what used to constitute the seriousness of existence.’[lxx] The most solemn concepts of ‘God’ and ‘sin’ ‘will seem no more important to us than a child’s toy and a child’s pain seem to an old man, – and perhaps “the old man” will then need another toy and another pain, – still enough of a child, an eternal child!’[lxxi] This new existential comportment of the self evinces what is most essential in Nietzsche’s conception of the tragic. Nietzsche’s distinct and profound understanding of the tragedy of existence is perhaps the deepest of the chasms separating him from his predecessor Arthur Schopenhauer, and is visible as early as his first published work, The Birth of Tragedy (1872). For Nietzsche it is a matter not ofreconciliation or resignation, but as we have seen, of redemption immanently procured. ‘The type of a spirit that takes into itself and redeems the contradictions and questionable aspects of existence…Dionysus versus the ‘Crucified’: there you have the antithesis. It is not a difference in regard to their martyrdom – it is a difference in the meaning of it.[7] Life itself, its eternal fruitfulness and recurrence, creates torment, destruction, the will to annihilation…One will see that the problem is that of the meaning of suffering:[8] whether a Christian meaning or a tragic meaning. In the former case, it is supposed to be the path to a holy existence; in the latter case, being is counted as holy enough to justify even a monstrous amount of suffering. The tragic man affirms even the harshest suffering:[9] he is sufficiently strong, rich, and capable of deifying to do so. The Christian denies even the happiest lot on earth: he is sufficiently weak, poor, disinherited to suffer from life in whatever form he meets it. The god on the cross is a curse on life, a signpost to seek redemption from life; Dionysus cut to pieces is a promise of life: it will be eternally reborn and return again from destruction.’[lxxii] What separates the ‘Christian’[10] from the tragic man is what they take to be the meaning of their suffering and its significance within the greater scheme of things. For Nietzsche once again this is a matter of incorporation. The metabolism of the ‘Christian’ is unable to digest ‘the contradictions and questionable aspects of existence’ so he strives to negate this world and to seek salvation in another residing in ‘the beyond’. For the tragic man ‘adventure, danger and even pain…become a necessity’.[lxxiii] The tragic hero, the exemplar being Sophocles’ Oedipus, is defined by the free acceptance of his determination by fate. Heroically bearing the truth of one’s finitude is an act of affirmation that allows him to achieve something like authenticity, or even better, sovereign empowerment. Conclusion For


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Nietzsche, the doctrine of eternal recurrence stands opposed to the Day of Judgment, when eternal bliss and damnation will be handed down from on high.[lxxiv]‘Have I been understood? – Dionysus against the Crucified…’[lxxv] The Wiederkunft or ‘Second Coming’ of the spirit of great health, the overhuman, redeems mankind from two millennia of enslavement under the yoke of vengefulness and bad conscience. With the crucifixion of Jesus of Nazareth, God was ‘paying himself back’. God was ‘the only one able to redeem man from what, to znew affirmative praxis through his incorporation of the eternal recurrence of the same. Man’s redemption ceases to be beyond his grasp and that is why Nietzsche holds the Dionysian ideal of the eternal recurrence to be antithetical to the Day of Judgement: when man emerges as truly sovereign he becomes entitled to judge for himself.[lxxvii] The Dionysian philosopher flatly repudiates the loathsome desire for time’s end. The eternal recurrence of the same becomes synonymous with ‘the innocence of becoming’.[lxxviii] Each time our life repeats itself just as it was a thousand times before. But with each repetition we are different; each time we have incorporated the lessons of the previous recurrence, but have forgotten it in our innocence. This in turn affects the repetition of the same. Everything is the same and yet we have changed, which provokes everything to thus be renewed and invested with a novelty which had been absent hitherto. Upon the arrival of the final figuration of the overhuman the condemnation of man and existence itself will be banished once and for all – the overhuman will partake in his own redemption and thereby become ‘the meaning of the earth.’[lxxix] Only now does the final metamorphosis proclaimed by Zarathustra take hold: the lion becomes a child.[lxxx] The overman, guardian of the sacred ‘Yes’, wills his own will in the creation of new values so as to emerge a circulus vitiosus deus;[11] what Nietzsche calls elsewhere ‘the Roman Caesar with Christ’s soul.’[lxxxi] Error, falsehood, delusion, the passions etc… are not to be blindly swept aside – they are the stuff of knowledge and the well-spring of human civilization. The efforts of instrumental reason to placate and deprive nature of its abundance and vivacity are a road to nowhere, a veritable cul-de-sac. Its advocacy of an anthropomorphic and lopsided vision acts as merely another mask for the insatiable striving of the human organism as it assimilates alien forces in the quest for stable and secure conditions for the production and reproduction of life. Human beings however are moving apace toward self-destruction as they continue to live in thraldom to resentiment and bad conscience. Nietzsche admonishes us to cultivate counterdispositions in order to undercut the malign drives and habits responsible for the preponderance of those values which hasten and ensure the degeneration of the most vital and life-affirming instincts.[lxxxii] These cultural configurations must be defanged and set upon a new course. Nietzsche sees the doctrine of the eternal recurrence of the same as this possibility. It is to endow the earth with a new centre of gravity, breaking it out of its aimless stupor and select the composition of future (over)humanity. This task is not for the faint of heart. He tells us that we must first deracinate from each one of our souls every trace of compassion and pity before we will be able to proceed. It seems, almost despite himself Nietzsche has transposed an incarnation of the Day of Judgement into the immanent flow of time. ‘Damnation’ is stripped of the eternal – those not up to the challenge are instead assured their extinction – while those ‘free spirits’ who manage to incorporate the eternal recurrence will steer the course along which future generations will continue to develop and build: ‘Future history: more and more this thought will be victorious – and those who do not believe in it must ultimately die out in accordance with their nature! Only those who consider their existence to be capable of eternal repetition will remain: with such ones, though, a state is possible which no utopian has yet reached!’[lxxxiii]


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The affirmative’s rejection of insecurity drives them to a will to power in order to create order, causes a lapse into nihilism. DerDerian, James. "The Values Of Security: Hobbes, Marx, Nietzsche, And Baudrillard.”

October 17, 1998. Web. October 16, 2015. <https://s3.amazonaws.com/s3.libraryofsocialscience.com/pdf/Lipschutz--On_Security-2--Der_Derian-The_Value.pdf>.

Nietzsche transvalues both Hobbes's and Marx's interpretations of security through a genealogy of modes of being. His method is not to uncover some deep meaning or value for security, but to destabilize the intolerable fictional identities of the past which have been created out of fear, and to affirm the creative differences which might yield new values for the future. 33 Originating in the paradoxical relationship of a contingent life and a certain death, the history of security reads for Nietzsche as an abnegation, a resentment and, finally, a transcendence of this paradox. In brief, the history is one of individuals seeking an impossible security from the most radical "other" of life, the terror of death which, once generalized and nationalized, triggers a futile cycle of collective identities seeking security from alien others--who are seeking similarly impossible guarantees. It is a story of differences taking on the otherness of death, and identities calcifying into a fearful sameness. Since Nietzsche has suffered the greatest neglect in international theory, his reinterpretation of security will receive a more extensive treatment here. One must begin with Nietzsche's idea of the will to power, which he clearly believed to be prior to and generative of all considerations of security. In Beyond Good and Evil , he emphatically establishes the primacy of the will to power: "Physiologists should think before putting down the instinct of self-preservation as the cardinal instinct of an organic being. A living thing seeks above all to discharge its strength--life itself is will to power; self-preservation is only one of the most frequent results." 34 The will to power, then, should not be confused with a Hobbesian perpetual desire for power. It can, in its negative form, produce a reactive and resentful longing for only power, leading, in Nietzsche's view, to a triumph of nihilism. But Nietzsche refers to a positive will to power, an active and affective force of becoming, from which values and meanings--including self-preservation--are produced which affirm life. Conventions of security act to suppress rather than confront the fears endemic to life, for "… life itself is essentially appropriation, injury, overpowering of what is alien and weaker; suppression, hardness, imposition of one's own forms, incorporation and at least, at its mildest, exploitation--but why should one always use those words in which slanderous intent has been imprinted for ages." 35 Elsewhere Nietzsche establishes the pervasiveness of agonism in life: "life is a consequence of war, society itself a means to war." 36 But the denial of this permanent condition, the effort to disguise it with a consensual rationality or to hide from it with a fictional sovereignty, are all effects of this suppression of fear. The desire for security is manifested as a collective resentment of difference--that which is not us, not certain, not predictable. Complicit with a negative will to power is the fear-driven desire for protection from the unknown. Unlike the positive will to power, which produces an aesthetic affirmation of difference, the search for truth produces a truncated life which conforms to the rationally knowable, to the causally sustainable. In The Gay Science , Nietzsche asks of the


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reader: "Look, isn't our need for knowledge precisely this need for the familiar, the will to uncover everything strange, unusual, and questionable, something that no longer disturbs us? Is it not the instinct of fear that bids us to know? And is the jubilation of those who obtain knowledge not the jubilation over the restoration of a sense of security?" 37 The fear of the unknown and the desire for certainty combine to produce a domesticated life, in which causality and rationality become the highest sign of a sovereign self, the surest protection against contingent forces. The fear of fate assures a belief that everything reasonable is true, and everything true, reasonable. In short, the security imperative produces, and is sustained by, the strategies of knowledge which seek to explain it. Nietzsche elucidates the nature of this generative relationship in The Twilight of the Idols The causal instinct is thus conditional upon, and excited by, the feeling of fear. The "why?" shall, if at all possible, not give the cause for its own sake so much as for a particular kind of cause --a cause that is comforting, liberating and relieving... That which is new and strange and has not been experienced before, is excluded as a cause. Thus one not only searches for some kind of explanation, to serve as a cause, but for a particularly selected and preferred kind of explanation--that which most quickly and frequently abolished the feeling of the strange, new and hitherto unexperienced: the most habitual explanations. 38 A safe life requires safe truths. The strange and the alien remain unexamined, the unknown becomes identified as evil, and evil provokes hostility--recycling the desire for security. The "influence of timidity," as Nietzsche puts it, creates a people who are willing to subordinate affirmative values to the "necessities" of security: "they fear change, transitoriness: this expresses a straitened soul, full of mistrust and evil experiences." 39 The unknowable which cannot be contained by force or explained by reason is relegated to the off-world. "Trust," the "good," and other common values come to rely upon an "artificial strength": "the feeling of security such as the Christian possesses; he feels strong in being able to trust, to be patient and composed: he owes this artificial strength to the illusion of being protected by a god." 40 For Nietzsche, of course, only a false sense of security can come from false gods: "Morality and religion belong altogether to the psychology of error : in every single case, cause and effect are confused; or truth is confused with the effects of believing something to be true; or a state of consciousness is confused with its causes." 41 *Ellipsis from source

DrugWarTurns November/December2015

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DrugWarTurns

Strategy Guide

These arguments are for cases that deal with nonviolent drug offenders which will

most likely be one of the most popular affirmatives on the topic. These cards should be

paired with other strategies like the Democracy NC or the Rule of Law NC as well as a

topicality or theory violation. While most of the cards are only mildly offensive and by

the end of most round will probably be defensive in nature they will help you

strategically weigh between an affirmative that has many potential problems or a negative

that will more than likely have very little offense against it due to affirmative time

constraints and the likely hood that the affirmative will over cover theory. As long as you

can beat back theory in the 2NR these cards will pave a path toward negative wins.


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Jury Nullification dooms the war on drugs. Silverman, Steve. "How Jury Nullification Accelerates The Drug War’s Demise.” October 17,

1995. Web. October 15, 2015. <https://www.flexyourrights.org/jury-nullification-drug-war-demise/>.

Lindsay Lasalle, the panel’s moderator, sets the tone… “How many of you when you get a jury summons are super-excited? At the end of this panel, that should be your feeling. When you get that jury summons in the mail you should be excited because you know that this is a tool for activism to end the War on Drugs. You as one juror have the potential to change an individual case. And if enough individual cases get changed we can make an impact on the policies and laws that have so failed and are incarcerating hundreds of thousands of nonviolent drug offenders.”


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Ending the war on drugs destroys marginalized communities - addiction. Banks, James. "4 Reasons Why Ending The War On Drugs Would Be A Huge Mistake.”

December 11, 2013. Web. October 15, 2015. <http://mic.com/articles/73141/4-reasons-why-ending-the-war-on-drugs-would-be-a-huge-mistake>.

Legalizing Drugs Would Make Low Income Individuals More Vulnerable. People who favor legalization almost always mention how much money the government could make from a consumption tax on weed or crack. But the government making money is not a good thing if it is taken from the wrong revenue source. For instance, it is usually not a good thing when the government takes money that would otherwise be invested in the economy. That is why capital gain taxes are so low. It is also not a good thing if the government takes money from people who badly need it. Yes, drug addiction afflicts the rich as much as the poor, but these statistics are not a good indication of the future. One of the reasons why drug use has been comparatively high among the wealthy is because the ban on drugs has made them more expensive while cheaper legal forms of recreation, such as smoking, are more commonly amongst the poor. The poor also have fewer resources with which to break addictions and are also more affected by paying, say, a $20 tax on a pound of marijuana than a rich person would be by purchasing the same product for the same amount.


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Less sentencing for non violent offenders has caused a rise in drug related deathes. Dougherty, Kerry. "Laws That Punish Drug Dealers For Driving Up Deaths Are Needed.” May

10, 2008. Web. October 16, 2015. <http://hamptonroads.com/2015/10/laws-punish-drug-dealers-driving-deaths-are-needed>.

"Drug deaths outnumber Virginia highway fatalities in 2014." "Heroin deaths exceed traffic fatalities in Virginia." "Despite official efforts, heroin now more lethal than driving in Virginia." Geez. I hesitate to point this out, butheroin has always been more lethal than driving. You can tool around in a car from the time you're 16 until you're 80 and expect to escape unscathed. Dabble in heroin, and your life expectancy is almost certainly diminished. Seems to me, a bigger question is how are highway deaths and fatal drug overdoses related? The answer: They're not. Yet story after story pointed out that in 2014, highway deaths dropped from 741 to 700 while deaths from drug overdoses, including prescription opiates, rose sharply, from 661 to 728.


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Lack of major legal punishment keeps the prices low and deaths high – even nonviolent dealers should be punished for the deaths they cause. Dougherty, Kerry. "Laws That Punish Drug Dealers For Driving Up Deaths Are Needed.” May

10, 2008. Web. October 16, 2015. <http://hamptonroads.com/2015/10/laws-punish-drug-dealers-driving-deaths-are-needed>.

Doubtful, he said, noting that he knew families who had lost teens to drug overdoses. "What the kids are telling me is that heroin is cheap," Tsao said. "As cheap as marijuana. Cheaper than cocaine. "It's all marketing," he added. "The kids are offered free samples by drug dealers. Once they're hooked, there's a ready market for the product. It's economics 101." A spokeswoman for Attorney General Mark Herring confirmed Tsao's theory. "Based on everything we know from law enforcement and prosecutors, the price of heroin has plummeted," said Emily Bolton. In many cases, those addicted to prescription drugs switch to heroin, which is less expensive and easier to get, she said. Look, I've disagreed with Herring's positions on many - if not most - issues, but the attorney general is right to fight what appears to be a heroin epidemic in many parts of Virginia. We can debate the eventual legalization of drugs. Right now, we need to stop the carnage from illegal trafficking. Herring claims his office has been aggressively pursuing drug traffickers. In fact, 28 prosecutions have led to the confiscation of 95 kilos of heroin, with a street value of $19 million. If the price is still low, however, there must be a lot more out there. In the upcoming General Assembly session, Herring will support legislation to hold drug dealers responsible when the drugs they sell lead to death. While I don't support dram-shop laws for bartenders - mixologists aren't responsible for the actions of drunks - laws that punish drug dealers for the misery they inflict are desperately needed. Wait. Here's one way traffic deaths and drug overdoses ought to be linked. Kill someone with your car and - depending on the circumstances - you may face manslaughter charges. Kill someone by selling them heroin, you should face a similar fate. Or worse.


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‘Nonviolent drug users’ is a false distinction – most violent crimes are directly motivated by drug addictions or sales. Roth, Andrea. "Let's Consider Leniency For Many 'violent' Offenders Too.” May 10, 2008. Web.

October 16, 2015. <http://www.latimes.com/opinion/op-ed/la-oe-roth-non-violent-prison-clemency-20150724-story.html>.

Conceptualizing nonviolent drug offenders as somehow qualitatively different from other offenders creates a false distinction. Many crimes labeled “violent” under our criminal codes are either directly motivated by drug addiction or directly related to drug sales or possession. A heroin-addicted veteran who walks into a garage to steal tools to feed his drug habit has committed a first-degree burglary, a “violent” crime under many state codes. A drug-motivated unarmed robbery in which the offender pushes the victim, takes cash from his wallet, and runs away is also a “violent” crime under most state laws. A person who owns a firearm and has it in his house while engaging in a drug deal has committed a “crime of violence” under the federal sentencing guidelines. In short, “violent crime” is a legally constructed term that includes within its broad reach a great deal of drug-related conduct that wouldn't be considered “violent,” as Americans colloquially use that term.


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Lack of punishment for drug users would increase the crime rate. Jablonski, Ray. "Some Fear Obama's Plan To Reduce Federal Sentencing Guidelines Will

Increase Crime Rates.” May 10, 2008. Web. October 16, 2015. <http://www.cleveland.com/nation/index.ssf/2015/07/some_fear_obamas_plan_to_reduc.html>.

Politicians on both sides of the aisle are in support of reforming the criminal justice system. But some prosecutors and law enforcement officials believe letting these non-violent criminals back into society could cause crime rates to increase. Obama and his aides hope the bipartisan endorsements will help spur lawmakers into taking action to help resolve deep-seeded problems that have led to the largest prison population in the world, CNN reported. "The eyes of more Americans have been opened to this truth," Obama said in Philadelphia, as CNN reported. "The good news -- truly good news -- is that good people of all political persuasions are starting to think we need to do something about this." Both liberals and conservatives are backing justice reform due to the expense of mass incarceration and the mixed results of policies pushed three decades ago to limit parole, establish mandatory minimum sentences, impose long sentences for repeat felony offenders and increase drug sanction, Reuters reported. Since Congress enacted mandatory minimum sentences for drug crimes in the 1980s, the federal prison population has grown from 24,000 to more than 214,000, according to Families Against Mandatory Minimums, a group seeking sentencing changes. The Associated Press reported. The rate of people in jail in the United States on any given day was 231 per 100,000 in 2013, up from 96 per 100,000 three decades earlier, Reuters reported, citing federal data. Obama said the cost is over $80 billion a year to incarcerate people who often "have only been engaged in nonviolent drug offenses." "People are realizing there's a better way of doing this," Nancy Fishman, project director at the Vera Institute of Justice in New York, told Reuters. Fishman is co-author of a new report that argues jails are being misused. Fishman pointed to Washington, D.C., where most people are released on their own recognizance and the city has an 89 percent court appearance rate. She added cities are using increasingly sophisticated ways to assess the risk an accused person will not show up in court or will commit a crime while on release. But many police aren't so sure releasing people early is a plus for society, NPR News reported. "There has definitely been an uptick in burglary and theft from motor vehicles," Bill Blount, a Los Angeles police detective, told NPR, referring to California's Proposition 47, which reclassified a range of lower-level felonies down to misdemeanors and set roughly 3,000 prisoners free. Blount said thefts from autos are up 30 percent – in part because more drug users are staying out of jail now.


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Incarceration and mandatory minimums for even nonviolent drug users are empirically effective for reducing violent crime – empirically reduced murders, rapes robberies and assaults. Jablonski, Ray. "Some Fear Obama's Plan To Reduce Federal Sentencing Guidelines Will

Increase Crime Rates.” May 10, 2008. Web. October 16, 2015. <http://www.cleveland.com/nation/index.ssf/2015/07/some_fear_obamas_plan_to_reduc.html>.

"That person needs to support his habit," Blount told NPR. "It's kind of like a spider web effect, where you have the drug user in the middle, and then this person is responsible for a multitude of other things." Eric Siddall, a Los Angeles prosecutor who serves on the board of the Association of Deputy District Attorneys, staunch opponents of Proposition 47, told NPR the increased penalties kept the criminals off the streets and made neighborhoods safer. But academics like Steven Raphael, an economist at the University of California, Berkeley, and an expert in the costs and benefits of a big prison population, told NPR it's not that simple. "What drove the increase over the last three decades was sort of a series of sentencing reforms that were just kind of layered on top of each other, decade after decade, especially during the '80s and '90s," Raphael told NPR. "And I don't know that there was really much attention being paid to the effectiveness of this particular tool. We have a fairly strong body of research that suggests as the incarceration rate goes up, the effectiveness of incarceration as a crime-control tool goes down." Steve Cook, president of the National Association of Assistant U.S. Attorneys, wrote an op-ed piece Thursday in USA Today defending mandatory minimum sentencing guidelines. "In the mid-1980s, we endured a wave of violent crime that was largely caused by the crack cocaine epidemic," Cook wrote. "Congress responded by enacting mandatory minimum penalties for drug trafficking, and law enforcement began using those mandatory minimum sentences to dismantle drug trafficking organizations. "By the early 1990s, we began to experience a steady, dramatic reduction in violent crime, including murders, rapes, robberies and assaults. As of 2013, violent crime rates were cut in half with similar reductions in property crime. That's no coincidence. Mandatory minimum penalties are the cornerstone of federal efforts to infiltrate and dismantle drug trafficking organizations."


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Statistically, empirically strong enforcement lowers crime rates. Nadelmann, Ethan. "Has The War On Drugs Reduced Crime?.” May 10, 2008. Web. October 16,

2015. <http://www.thirteen.org/closetohome/viewpoints/html/crime.html>.

Strong drug enforcement in the United States is correlated with dramatic reductions in crime, drug use, and drug addiction rates. Historically, permissive enforcement policies brought record murder and crime rates, peak drug use levels, and increased the addict population. Drug arrest rates are not an accurate measure of how tough the nation is on drugs. There are three times as many alcohol related arrests than drug arrests - is alcohol policy three times tougher than drug policy? If we legalize drugs, we may triple the number of drug arrests. To measure drug enforcement strength one must examine what happens to those arrested. A good method is to track the number of persons incarcerated for every thousand drug arrests. Periods of weak and strong drug policy can then be compared.

DemocracyNC November/December2015

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DemocracyNC

Strategy Guide

This is a policy style affirmative that argues that jury nullification undermines our

democracy. The argument centers around the link that court legitimacy is critical to

democracy and that by usurping the law through nullification we will call into question

the American criminal justice system. It’s faith in the criminal justice that is the

foundation of our democracy. Well you can run this as a traditional LD argument valuing

Democratic ideals through enforcing the laws it really functions better as an off case

position or a disadvantage to many different affirmatives. The impacts are many

utilitarian in that the center around preventing war but democracy also has some

humanitarian benefits and you can also argue that democracy is the root of many of the

rights that the AC tries to protect. This argument pairs well with CP’s that offer legal

alternatives to jury nullification.


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Widespread skepticism for nullification. MCELROY, WENDY. "Jury Nullification: Right, Remedy, Or Danger?.” December 11, 2013.

Web. October 15, 2015. <http://fee.org/freeman/jury-nullification-right-remedy-or-danger/>.

A key question for any strategy is whether it achieves its intended goal. With trial by jury or nullification the goal is to protect individuals against unjust law. Many critiques of its effectiveness are utilitarian and address how best to structure a jury. For example emphasis is placed on the need for a randomly chosen jury rather than a selected or screened one that can be sculpted by the State. Other critiques are more fundamental. For example juries can easily achieve the opposite of their intended goal; they can further injustice by refusing to convict those who are guilty of violating just law. Consider one historical type of jury nullification. In the early and mid-twentieth century, all-white juries in the South notoriously refused to convict whites who attacked or murdered blacks. The two early trials of Ku Klux Klan member Byron De La Beckwith for the 1963 murder of black civil rights activist Medgar Evers are shameful examples. Only in 1994, when the political climate had dramatically changed, was Beckwith convicted in a third trial. Jury nullification is also cited as a factor in the acquittal of police officers who use excessive force. Even when the violence is videotaped, juries are flagrantly reluctant to apply the law to on-duty officers as they would apply it to the average citizen. In short whether a jury likes a defendant can easily determine a verdict.


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Commitment to legal learning is the only way to prevent violence - indeterminacy in the law justifies illegality in every context. Ristroph, Alice. "Is Law? Constitutional Crisis And Existential Anxiety.” October 17, 2015.

Web. October 15, 2015. <http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1457&context=facpub>.

One reason to care whether law is in “crisis” concerns our own expectations of the function of law. A possible achievement is to offer an alternative to violence—as we saw in Levinson and Balkin’s account of the Constitution as enabling nonviolent dispute resolution.66 This might be called the anti-Thrasymachus view of law. Early in Plato’s Republic (before Socrates has tamed him), a young man called Thrasymachus describes justice as “the advantage of the stronger.”67 The claim is that might makes right, and Western political and legal thought has produced many efforts to prove Thrasymachus and his heirs wrong. If law distinguishes right from might, then it becomes important to say what law is, and to show that it exists. Hence, many ongoing jurisprudential debates about the criteria for a valid and functional system of law (including worries about legal indeterminancy) are motivated by worries about arbitrary power and violence.68 To show Thrasymachus to be mistaken, we want to showthat the rule of law is really different from the rule of (the strongest) men. In legal theory, we could view John Austin’s positivism— law as commands backed by threats of punishment—as a descendant of Thrasymachus’s claim.69 Here, I want to examine briefly one of the most influential, and most plausible, efforts to show that law is something more and different from the commands of a gunman: H. L. A. Hart’s response to Austin. Hart framed his discussion around the question, “What is law?”.70 But perhaps, as the Stoppard passage that opened this essay suggests, beginning with this question led us to conjure an image of law with various predicates that do not, as it turns out, include existence. A second form of existential anxiety, one that I suspect shapes present talk of crisis, is the anxiety thast Thrasymachus and Austin were right and law, if it is anything more than command and force, does not exist. For my purposes here, the critical features of Hart’s account are the rule of recognition and the internal point of view. Since, in most of The Concept of Law, Hart takes law’s existence for granted, it is helpful to look at the passages where law’s existence, or at least the existence of a particular form of law, is up for grabs. In his classic discussion of the question, “Is international law really law?”, H. L. A. Hart deployed the concepts of a rule of recognition and the internal point of view to conclude that international law was at most in a state of transition toward fully legal law, moving toward law properly so called but certainly not yet there.71 At the time he wrote The Concept of Law, Hart believed that international law departed from domestic (or “municipal”) law in that it lacked a widely accepted rule of recognition and in that states could not be said to take the internal point of view toward international obligations. (Hart’s argument has been challenged by many contemporary scholars of international law, but that particular dispute need not occupy us here.72) For law qua law to exist, Hart argued, there must be a rule of recognition under which the authoritative status of other rules was accepted or denied, and the officials who would apply the rule of recognition must themselves take the internal point of view toward it. That is, the officials needed to view the rule of recognition as a binding, authoritative guide to their own decisions. Suppose Hart was right and the rule of recognition and the internal point of view are


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conditions for the existence of law. Two questions arise: what is the rule of recognition for constitutional law, and who must hold the internal standpoint toward that rule? The Constitution itself initially seems a candidate for the rule of recognition, though the fact that the Constitution must itself be interpreted leads some theorists to amend this account and say that the rule of recognition must include authoritative statements of the meaning of the Constitution, under prevailing interpretive standards.73 As for the internal point of view, we might hope that all state officials would take this point of view toward constitutional rules.74 In other words, we might hope that every state actor would comply with the U.S. Constitution because it is the Constitution, not simply to avoid injunctions, or judicial invalidation of legislative action, or liability under 42 U.S.C. § 1983. But Hart’s theory does not demand universal adherence to an internal point of view. Even if legislators and other public officials complied with First or Fourth or Fourteenth Amendment doctrine only to avoid invalidation or § 1983 liability —even if these public officials were the equivalent of Holmes’s bad man—Hart might find that constitutional law still existed in a meaningful sense so long as the judges applying constitutional rules believed themselves to be bound by a constitutional rule of recognition.75 Here is a possibility, one I believe we must take seriously and one that prompts anxiety about the existence of constitutional law itself: there is no common rule of recognition toward which judges and other officials take an internal point of view.76 Individual judges may adhere to their particular understandings of the rule of recognition —the Constitution as interpreted by proper originalist methods, for example, or the Constitution as elucidated by popular understandings. But the fact that individual state actors follow their own rules of recognition in good faith does not satisfy Hart’s account of law, and it does not provide a satisfying alternative to Thrasymachus. (There is no reason, on the might-makes-right account, that the mighty cannot hold the good faith belief that they are pursuing a common good or acting pursuant to rule-governed authority. What matters is that their power is in fact traceable to their superior strength.) There is reason for academic observers to doubt the existence of a single rule of recognition in American constitutional law. There are too many core interpretive disputes, as discussed in Part I, and it is now widely accepted that constitutional rules are at least underdeterminatc. Should there be doubt about this claim, consider this feature of constitutional law textbooks: they include majority and dissenting opinions, and questions after each case frequently ask the reader which opinion was more persuasive. Those questions are not posed as rhetorical. For most constitutional decisions, we can say, it could have been otherwise. With a few votes switched, with a different line-up of Justices, the same precedents (and in some cases, the same interpretive methodology) could have produced a different outcome. Moreover, these suspicions of indeterminancy or underdetermi-nancy are not the unique province of the academy. Think of the discussions of Supreme Court appointments in presidential elections. Many voters, law professors or not, understand their vote for president to be also a vote for a certain kind of Justice and for certain kinds of constitutional outcomes. Discussions of Supreme Court appointments are often framed in terms of judicial methodology —”I will appoint judges who are faithful to the text of the Constitution” —but that language may be more a matter of decorum than of real constitutional faith. Judges, of course, are not ignorant of the charges of indeterminancy or of the politicization of judicial appointments. And it seems possible that the erosion of constitutional faith has reached the judiciary itself.771 claim no special insight into judicial psychology, but it seems implausible that the reasons for constitutional skepticism—the discussions of underdetermined rules, the contingency of outcomes based on 5-4 votes, and the great attention to swing justices such as Sandra Day O’Connor or Anthony Kennedy—have not influenced judges themselves. Here again it seems worthwhile to consider dissenting opinions. Justice Scalia’s polemics come to mind immediately; he has often accused his colleagues of acting


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lawlessly.78 Yet he keeps his post and continues to participate in a system that treats as law the determinations of five (potentially lawless) Justices. It is possible, I suppose, that Justice Scalia’s dissents express earnest outrage, that he is shocked (shocked) by decisions like Lawrence v. Texas79 and Boumediene. It is possible that he believes himself to be the last best hope of constitutional law properly so called. But it seems more likely that he shares the skepticism of academic observers of the Court. Though one can’t help but wonder whether judges are still constitutionally devout, I should emphasize here that my argument does not turn on a claim that judges are acting in good or bad faith. Individual judges may well take the internal point of view, in Hart’s terms, and strive faithfully to apply the principles they recognize as law. But it seems clear that American judges do not all hold the internal point of view toward a single, shared rule of recognition, given the nature of disagreements among judges themselves. If there are multiple rules of recognition, varying from judge to judge, then legal outcomes will depend on which judge is empowered to make the critical decision, and Thrasymachus is not so far off the mark. Contemporary judicial disagreement is profound, and it is not just a matter of Justice Scalia’s flair for colorful rhetoric. Consider Scott v. Harris, the recent decision granting summary judgment (on the basis of qualified immunity) to a police officer who had rammed a passenger car during a high-speed chase, causing an accident that left the driver a quadriplegic.80 Like most use-of-force opinions, the decision applies a deferential Fourth Amendment standard that gives police officers wide leeway. What is unusual about Harris is that, because the case arose as a civil suit under 42 U.S.C. § 1983, the critical question (whether the driver, Victor Harris, posed a sufficient threat to others’ bodily safety such that the use of deadly force was reasonable) was nominally a jury question, and at summary judgment, the court should have taken the facts in the light most favorable to the non-moving party—the injured driver. Thus, in earlier use-of-force cases that reached the Court as § 1983 claims, the Court articulated the Fourth Amendment standard and then remanded the case to the trial court.81 But in Harris, the Court had access to videotapes of the chase recorded by cameras on the dashboards of the police vehicles involved.82 In the view of the eight-Justice majority, the videotape “spoke for itself”: it made Harris’s threat to the public so clear that no reasonable juror could conclude that the officer’s use of force was unreasonable.83 Accordingly, the Supreme Court found the officer to be entitled to summary judgment.84 Doubtless there are many instances in which a court grants summary judgment to one party though non-judicial observers believe a reasonable juror could find for the other party. Harris is of particular interest, though, because the “reasonable juror” who might have found in favor of Victor Harris was clearly visible to the majority—in fact, this juror had a spokesman on the Court. Justice Stevens, the lone dissenter in Scott v. Harris, viewed the same videotape and found it to confirm the factual findings of the district court (which had denied the police offic-er’s motion for summary judgment).85 Though Justice Stevens was careful not to base his argument on an actual determination of the substantive Fourth Amendment question (chiding his colleagues for doing just that and thereby acting as “jurors” rather than judges),86 he viewed the video evidence and explained how one might conclude, perfectly reasonably, that Scott had used excessive force.87 In order for the eight Justices in the Harris majority to believe their own opinion, they would have to conclude that Justice Stevens lived outside the realm of reason. Harris is nominally a dispute about what reasonable jurors could conclude, rather than a direct argument about the meaning of a particular constitutional provision. But the two reactions to the videotape should call to mind Larry Tribe’s worry that American constitutional law is plagued by “deep and thus far intractable divisions between wholly different ways of assessing truth and experiencing reality.”88 It is not just abortion and assisted suicide that reveal profound disagreement about what is true and real. A videotape that “speaks for itself’ in the eyes of eight Justices says something entirely different to


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the ninth. Looking beyond the judiciary, consider the consequences of constitutional disagreement and constitutional indeterminancy for other government officials and for would-be critics of those officials. Earlier I noted that with sufficient constitutional indeterminancy, there’s no such thing as an unconstitutional president. A more extreme version of this argument is that with sufficient legal indeterminancy, there’s no such thing as illegality. When John Yoo wrote the Office of Legal Counsel memos that defend practices formerly known as torture, he was simply doing to bans on torture what critics had long argued it was possible to do for any law: he was trashing them.89 This was the spawn of CLS put to work in the OLC; deconstructions on the left are now deconstructions on the right.90 And that, of course, is cause for anxiety among those who would like to argue that George W. Bush or members of his administration acted illegally. As I suggested in the Introduction, this may be the Pyrrhic victory of critical legal studies: If the crits were correct, then there is no distinctively legal form of critique. About torture, indefinite detention, warrantless wiretapping, and so on, we can say I don't like it or it doesn’t correspond to my vision of the good, but we cannot say it’s illegal. To argue that the Bush administration violated the rule of law, we need to believe that the rule of law exists. But for 30 years or more, we have found reasons to doubt that it does.91 Perhaps it will seem that I am overstating the influence of legal realism and critical legal studies, or the doubts about law’s existence. I’m willing to entertain those possibilities, but I do want to emphasize that the focus is on constitutional law. It’s easy enough to believe in law when we see it applied and enforced by figures of authority in a recognized hierarchy. That is, the sentencing judge or the prison warden can believe in law—he has applied it himself. And the criminal should believe in law— he has felt its force. But these examples illustrate Austinian law: commands backed by force. What remains elusive, on my account, are laws that are truly laws given to oneself, and especially law given by a state to itself.92 That is why, in Part I of this essay, I suggested that brute force is a poor candidate to distinguish ordinary politics, or ordinary legal decisions, from extraordinary moments of crisis. What would be truly extraordinary is not the use of force, but its absence: a system of law truly based on consent and independent of sanction. The Constitution, in theory, is a law given unto oneself. By this I mean not simply that the Founders gave the Constitution to future generations, but that each successive generation must give the Constitution to itself: each generation must adopt the internal point of view toward the Constitution in order for it to be effective. Even once we have accepted the written text as authoritative, all but the strictest constructionists acknowledge that many meanings can plausibly be extracted from that text. (And even the strict constructionists must acknowledge that as a factual matter many meanings have been extracted; they deny only the plausibility of those varied readings.) Any law given unto oneself requires what Hart called the internal point of view, and what one more cynical might describe as self-delusion: it requires a belief that one is bound though one could at any minute walk away. It is possible, I think, that we have outwitted the Constitution: that we have become too clever, too quick to notice indeterminancy, even too post-modern to believe ourselves bound. A third possible explanation for contemporary references to crisis is professional malaise. It could be, as I suggested earlier, that after too many years of chewing what judges had for breakfast, professors have lost their appetites. It could be that the problems of originalists and historicists and popular constitutionalists don’t amount to a hill of beans in this crazy world. And if these possibilities have not crossed the law professor’s mind, they probably should. We might consider again Larry Tribe’s explanation of his decision to stop work on his treatise of American constitutional law. There are two questions of meaning there, one of which Tribe confronts directly and the other which he brushes off quickly. Most obviously, there is the search for constitutional meaning, as Tribe acknowledges, a search that cannot be concluded within the Constitution’s own text. “I see no escape from adopting some


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perspective…external to the constitution itself from which to decide questions not indisputably resolved one way or the other by the text and structure--------”9* Tribe goes on to wonder where these extra-constitutional criteria come from, and “who ratified the meta-constitution that such external criteria would comprise?”.94 Supreme Court Justices (and other judges) must struggle with these questions, given “the public authority that they have the enormous responsibility and privilege to wield.”95 But Tribe need not. He can simply decline to finish the treatise. If he declines to finish the treatise, though, we can’t help asking ourselves what was at stake, and what remains at stake. If the law professor lacks the responsibility of a judge, is his constitutional theory just an amusing hobby? What was the point of the constitutional law treatise, or of other efforts to discern coherent principles of constitutional law? The significance of a treatise is the question of meaning that Tribe brushes off quickly: he says a treatise is an “attempt at a synthesis of some enduring value” and insists that his decision is not based on doubts about whether constitutional treatises arc ever worthwhile.96 But Tribe’s letter leaves the “enduring value” of a treatise rather underspecified, and it is possible that current references to constitutional crisis in the academy stem from uncertainty about such questions of value. Is constitutional theory good for absolutely nothing? Only if we believe that the effort to resist Thrasymachus is futile or pointless. Constitutional theory is a species of legal and political theory, and the most intriguing forms of such theory are produced by worries that law and violence are too closely intertwined.97 Thus I suggested at the outset of this essay that existential anxiety is not always to be regretted, cured, or mocked. Such anxiety may be an important indication that we have noticed the ways in which Thrasymachus seems right, and we still care enough to try to prove him wrong.98 After so much talk of crisis and anxiety, consider an illustration from the dramatic genre. Tom Stoppard’s play Jumpers features a troupe of philosophy professors who double as acrobats: “Logical positivists, mainly, with a linguistic analyst or two, a couple of Benthamite utilitarians … lapsed Kantians and empiricists generally… and of course the usual Behaviorists… a mixture of the more philosophical members of the university gymnastics team and the more gymnastic members of the Philosophy School.”99 The Jumpers seem to practice what we would now identify as post-modern nihilism: One shoots and kills another, then conceals the murder with cheerful aplomb. Against these intellectually and physically adroit colleagues, the clumsy and old-fashioned Professor George Moore struggles to defend “the irreducible fact of goodness,”100 the possibility of a “moral conscience,” and the claim that “there is more in me than meets the microscope.”101 “Is God?” Moore wonders. He can neither shake nor defend his faith. Law schools, I think, are filled with moral sympathizers to Professor Moore who possess the skills of modern-day Jumpers.102 The current discourse of crisis is the latest manifestation of an old struggle between faith and doubt, and it is not one that we will resolve. On one hand, we have observed too much to believe (in law) unquestioningly. And on the other hand, we are determined to have law, even if we must make it ourselves. There was at least a smidgen of truth in John Finnis’s claim that scholars of critical legal studies were “disappointed … absolutists.”103 But it is not just crits that are disappointed when they look for law and see nothing. Few scholars of any stripe want to vindicate Thrasymachus. All of this is just to reiterate the difficulty, and perhaps the necessity, of giving a law unto oneself. If constitutional law did not exist, it would be necessary to invent it. *Ellipsis from source


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Giving up on legal institutions causes complacency. Lobel, Orly. "THE PARADOX OF EXTRALEGAL ACTIVISM: CRITICAL LEGAL

CONSCIOUSNESS AND TRANSFORMATIVE POLITICS.” October 17, 2015. Web. October 15, 2015. <http://harvardlawreview.org/2007/02/the-paradox-of-extralegal-activism-critical-legal-consciousness-and-transformative-politics/>.

Both the practical failures and the fallacy of rigid boundaries generated by extralegal activism rhetoric permit us to broaden our inquiry to the underlying assumptions of current proposals regarding transformative politics — that is, attempts to produce meaningful changes in the political and socioeconomic landscapes. The suggested alternatives produce a new image of social and political action. This vision rejects a shared theory of social reform, rejects formal programmatic agendas, and embraces a multiplicity of forms and practices. Thus, it is described in such terms as a plan of no plan,211 “a project of projects,”212 “anti-theory theory,”213 politics rather than goals,214 presence rather than power,215 “practice over theory,”216 and chaos and openness over order and formality. As a result, the contemporary message rarely includes a comprehensive vision of common social claims, but rather engages in the description of fragmented efforts. As Professor Joel Handler argues, the commonality of struggle and social vision that existed during the civil rights movement has disappeared.217 There is no unifying discourse or set of values, but rather an aversion to any metanarrative and a resignation from theory. Professor Handler warns that this move away from grand narratives is self-defeating precisely because only certain parts of the political spectrum have accepted this new stance: “[T]he opposition is not playing that game .... [E]veryone else is operating as if there were Grand Narratives ...”218 Intertwined with the resignation from law and policy, the new bromide of “neither left nor right” has become axiomatic only for some.219 The contemporary critical legal consciousness informs the scholarship of those who are interested in progressive social activism, but less so that of those who are interested, for example, in a more competitive securities market. Indeed, an interesting recent development has been the rise of “conservative public interest lawyer[ing].”220 Although “public interest law” was originally associated exclusively with liberal projects, in the past three decades conservative advocacy groups have rapidly grown both in number and in their vigorous use of traditional legal strategies to promote their causes.221 This growth in conservative advocacy is particularly salient in juxtaposition to the decline of traditional progressive advocacy. Most recently, some thinkers have even suggested that there may be “something inherent in the left’s conception of social change — focused as it is on participation and empowerment — that produces a unique distrust of legal expertise.”222 Once again, this conclusion reveals flaws parallel to the original disenchantment with legal reform. Although the new extralegal frames present themselves as apt alternatives to legal reform models and as capable of producing significant changes to the social map, in practice they generate very limited improvement in existing social arrangements. Most strikingly, the cooptation effect here can be explained in terms of the most profound risk of the typology — that of legitimation. The common pattern of extralegal scholarship is to describe an inherent instability in dominant structures by pointing, for example, to grassroots strategies,223 and then to assume that specific instances of counterhegemonic activities translate into a more complete transformation. This celebration of multiple micro-resistances seems to rely on an aggregate approach — an idea that the multiplication of practices will evolve into something


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substantial. In fact, the myth of engagement obscures the actual lack of change being produced, while the broader pattern of equating extralegal activism with social reform produces a false belief in the potential of change. There are few instances of meaningful reordering of social and economic arrangements and macro-redistribution. Scholars write about decoding what is really happening, as though the scholarly narrative has the power to unpack more than the actual conventional experience will admit.224 Unrelated efforts become related and part of a whole through mere reframing. At the same time, the elephant in the room — the rising level of economic inequality — is left unaddressed and comes to be understood as natural and inevitable.225 This is precisely the problematic process that critical theorists decry as losers’ self-mystification, through which marginalized groups come to see systemic losses as the product of their own actions and thereby begin to focus on minor achievements as representing the boundaries of their willed reality. The explorations of micro-instances of activism are often fundamentally performative, obscuring the distance between the descriptive and the prescriptive. The manifestations of extralegal activism — the law and organizing model; the proliferation of informal, soft norms and norm-generating actors; and the celebrated, separate nongovernmental sphere of action — all produce a fantasy that change can be brought about through small-scale, decentralized transformation. The emphasis is local, but the locality is described as a microcosm of the whole and the audience is national and global. In the context of the humanities, Professor Carol Greenhouse poses a comparable challenge to ethnographic studies from the 1990s, which utilized the genres of narrative and community studies, the latter including works on American cities and neighborhoods in trouble.226 The aspiration of these genres was that each individual story could translate into a “time of the nation” body of knowledge and motivation.227 In contemporary legal thought, a corresponding gap opens between the local scale and the larger, translocal one. In reality, although there has been a recent proliferation of associations and grassroots groups, few new local-statenational federations have emerged in the United States since the 1960s and 1970s, and many of the existing voluntary federations that flourished in the mid-twentieth century are in decline.228 There is, therefore, an absence of links between the local and the national, an absent intermediate public sphere, which has been termed “the missing middle” by Professor Theda Skocpol.229 New social movements have for the most part failed in sustaining coalitions or producing significant institutional change through grassroots activism. *Ellipsis from source


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Us legitimacy is necessary for I-Law effectiveness. Deller, Nicole. "Rule Of Power Or Rule Of Law?.” October 17, 2015. Web. October 15, 2015.

<http://lcnp.org/pubs/exesummary.pdf>.

The evolution of international law since World War II is largely a response to the demands of states and individuals living within a global society with a deeply integrated world economy. In this global society, the repercussions of the actions of states, non-state actors, and individuals are not confined within borders, whether we look to greenhouse gas accumulations, nuclear testing, the danger of accidental nuclear war, or the vast massacres of civilians that have taken place over the course of the last hundred years and still continue. Multilateral agreements increasingly have been a primary instrument employed by states to meet extremely serious challenges of this kind, for several reasons. They clearly and publicly embody a set of universally applicable expectations, including prohibited and required practices and policies. In other words, they articulate global norms, such as the protection of human rights and the prohibitions of genocide and use of weapons of mass destruction. They establish predictability and accountability in addressing a given issue. States are able to accumulate expertise and confidence by participating in the structured system established by a treaty. However, influential U.S. policymakers are resistant to the idea of a Treaty based international legal system because they fear infringement on U.S. sovereignty and they claim to lack confidence in compliance and enforcement mechanisms. This approach has dangerous practical implications for international cooperation and compliance with norms. U.S. treaty partners do not enter into treaties expecting that they are only political commitments that can be overridden based on U.S. interests. When a powerful and influential state like the United States is seen to treat its legal obligations as a matter of convenience or of national interest alone, other states will see this as a justification to relax or withdraw from their own commitments. When the United States wants to require another state to live up to its treaty obligations, it may find that the state has followed the U.S. example and opted out of compliance.


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International law is necessary to preventing nuclear war. Damrosch, Lori. "King’s, Beyond Confrontation, International Law For The Post-Cold War

Era.” October 17, 1995. Web. October 15, 2015. <http://www.jstor.org/discover/10.2307/2998076?uid=3739600&uid=2129&uid=2&uid=70&uid=4&uid=3739256&sid=21104653790263>.

The contemporary world has an ever increasing need for an international legal system that can respond to the demands of our time. Of the many reasons for this fact, we will survey only a few of the most salient. First and foremost is the increasing interdependence of all peoples. Even as the world is riven with many contradictions and conflicts, it is also becoming more integrated with a greater need for orderly, predictable conduct. Events, and especially natural and social disasters, even when they occur within a single country, have more noticeable effects on conditions in the world at large. The Chernobyl accident, the earthquake in Armenia, and even internal political processes underway in the territories of the former Soviet Union and Eastern Europe—these and many other events occurring within separate countries or regions have a global significance affecting the destiny of all peoples. The intertwining of the economic life of diverse countries todayis even greater than was the interdependence of different regions within the same state only half a century ago. Order and predictability of the behavior of actors on the international scene can be achieved first of all with the aid of social norms, among which international law occupies an important place. A second reason for the growth of the role of international law is inextricably connected with the first. The threat of a thermonuclear catastrophe, universal ecological crisis, and acute economic problems in developing countries are of global concern and endanger the very existence of humanity. Resolution of these problems demands coordinated efforts of all states and peoples, which would be impossible to achieve without the aid of international norms, procedures, and institutions. A third reason is the breathtaking political transformations of recent years. The changes that began in 1985 in the former Soviet Union and were unleashed in Eastern Europe have radically transformed the map of the world. Although it is impossible to give a final evaluation of the character and significance of these changes at the present time, it is possible to conclude that the fundamental global contradiction of the Cold War era—the contradiction between socialism and capitalism, which to a great extent determined not only the general climate in the world but also the role and significance of international law in it—has been overcome. In the Charter of Paris for a New Europe, 32 countries of Europe, together with the United States and Canada, affirmed that “the era of confrontation and division in Europe has ended.” The end has come not only for division in Europe, but also in the world at large. But this fact can hardly lead automatically to a non-contradictory, stable, world order. The acuteness of conflicts that are not connected with the so-called “fundamental contradiction of the epoch” can even intensify, as the unleashing of savage interethnic conflict in the former Yugoslavia and the former Soviet Union amply demonstrates. Nonetheless, it is precisely the cooperation between former ideological and political adversaries that can serve as the prerequisite and condition for the resolution of many of problems and conflicts. A vivid example may be found in the reaction of world society to the aggression of Iraq against Kuwait and the reining in of the aggressor with the aid of U.N. mechanisms in accordance with the U.N. Charter and other norms of international law.


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Jury nullification allows jurors to lie and hang juries for prejudicial purposes. Sisti, Mark. "Opinion: Jury Nullification: New Law Sparks Intense Debate: Part Of Doing The

Right Thing.” October 17, 1995. Web. October 15, 2015. <https://www.nhbar.org/publications/display-news-issue.asp?id=6675>.

Jury nullification is not without its critics. There are those who believe that jurors will lie in order to grab a seat on a petit jury and nullify a charge. This concern is no different from the concern that a person harboring a racial prejudice would lie to get seated on a jury in order to influence a conviction against another on the basis of race. We have laws that punish those who seek to lie to state officials, and the judges in this state do a great job informing jury venires of the potential penalties for such irresponsible conduct. Therefore, those fearing this conduct should be comforted by this state’s ongoing efforts to deter their misdeeds and protect the sanctity of the deliberation room.


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Court legitimacy is necessary for the spread of Democracy. Peretti, Terri. "In Defense Of A Political Court.” October 17, 1999. Web. October 15, 2015.

<http://press.princeton.edu/titles/6758.html>.

Should the Court lose its legitimacy and, consequently, its power, we in turn lose the benefits that only the Court can provide. Vitally important constitutional rights and liberties, as well as minority groups, would be unprotectedand would likely suffer at the hands of an indifferent or hostile majority. An additional loss of paramount importance is the ideal and the reality of the rule of law. All government action would be reduced to arbitrary will and force, rather than being justified according to reason and, thus, rendered legitimate. The consequences of the Court losing its legitimacy and the ability to play its specialized role, if we are to believe Philip Kurland, are horrible indeed.


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Democracy is necessary to prevent war. Diamond, Larry. "Promoting Democracy In The 1990s: Actors And Instruments, Issues And

Imperatives.” October 17, 1999. Web. October 15, 2015. <http://carnegie.org/fileadmin/Media/Publications/PDF/Promoting%20Democracy%20in%20the%201990s%20Actors%20and%20Instruments,%20Issues%20and%20Imperatives.pdf>.

Other Threats. This hardly exhausts the lists of threats to our security and well-being in the coming years and decades. In the former Yugoslavia nationalist aggression tears at the stability of Europe and could easily spread. The flow of illegal drugs intensifies through increasingly powerful international crime syndicates that have made common cause with authoritarian regimes and have utterly corrupted the institutions of tenuous, democratic ones. Nuclear, chemical, and biological weapons continue to proliferate. The very source of life on Earth, the global ecosystem, appears increasingly endangered. Most of these new and unconventional threats to security are associated with or aggravated by the weakness or absence of democracy, with its provisions for legality, accountability, popular sovereignty, and openness. LESSONS OF THE TWENTIETH CENTURY The experience of this century offers important lessons. Countries that govern themselves in a truly democratic fashion do not go to war with one another. They do not aggress against their neighbors to aggrandize themselves or glorify their leaders. Democratic governments do not ethnically "cleanse" their own populations, and they are much less likely to face ethnic insurgency. Democracies do not sponsor terrorism against one another. They do not build weapons of mass destruction to use on or to threaten one another. Democratic countries form more reliable, open, and enduring trading partnerships. In the long run they offer better and more stable climates for investment. They are more environmentally responsible because they must answer to their own citizens, who organize to protest the destruction of their environments. They are better bets to honor international treaties since they value legal obligations and because their openness makes it much more difficult to breach agreements in secret. Precisely because, within their own borders, they respect competition, civil liberties, property rights, and the rule of law, democracies are the only reliable foundation on which a new world order of international security and prosperity can be built.


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Don’t outright reject the law – prejudicial use doesn’t preclude the laws inherent value. Butler, Judith. ".” October 17, 1997. Web. October 15, 2015.

<http://monoskop.org/images/5/54/Butler_Judith_Excitable_Speech_A_Politics_of_the_Performative_1997.pdf>.

The state's exercise of this productive discursive function is underestimated in the writings that favor of hate speech legislation. Indeed, they minimize the possibility of a misappropriation by the law in favor of a view of the law as politically neutral and malleable. Matsuda argues that law, though formed in racism, can be redirected against racism. She figures the law as a set of "ratchet" tools, describing it in purely instrumental terms, and discounting the productive misappropriations by which it proceeds. This view invests all power and agency in the subject who would use such an instrument. However reactionary its history, this instrument can be put in the service of a progressive vision, thus "defying the habit of neutral principles to entrench existing power:' Later she writes: "nothing inherent in law ties our hands:' (50) approving of a method of doctrinal reconstruction. In other words, legal language is precisely the kind of language that can be cited into a reverse meaning, where the reversal takes a law with a reactionary history and turns it into a law with a progressive aim.


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Not just theory – we’re on the brink of a jury nullification crisis – statistics prove its already happening in the Bronx and DC. Jonakait, Randolph. "The American Jury System.” October 17, 2015. Web. October 15, 2015.

<https://books.google.com/books?id=C82eE7nOH6IC&pg=PA257&lpg=PA257&dq=jury+nullification+crisis&source=bl&ots=QqgV8X_zZJ&sig=Y8fHpaf_WGMnAPNRLPzYZqKLU6c&hl=en&sa=X&ved=0CB0Q6AEwAGoVChMI8r3Nh-nFyAIVQ5UNCh28nwb2#v=onepage&q&f=false>.

The situation has changed so dramatically that some feel the problem has been reversed. Their concern is not white juries acquitting white people in disregard of the law, but rather minority juries acquitting minority defendants in disregard of the law. Assertions of a new wave of "race-based" nullifications were fueled in part by Paul Butler’s controversial Yale Law journal article urging black jurors to acquit some black defendants despite the evidence." Butler's incendiary remarks were fanned by statistics originally published in a Wall street journal article the day after the 1995 acquittal of O.]. Simpson For the murder of this white wife. Roger Parloll summarizes "Bronx juries, it is asserted, acquit minority defendants at a 47.6 percent rate nearly three times the national acquittal rate of17 percent for all races. Hispanics in the Bronx are acquitted 37.6 percent of the time, the argument continues. There are similarly elevated acquittal rates in the heavily black jurisdictions of Washington, D.C.-about 28.7 percent-and Wayne County, Michigan, which includes Detroit-about 30 percent... Thus, the reader is invited to infer that the largely minority jurisdictions may be acquitting inappropriately high numbers of minority defendants out of, at least in part, race-based jury nullification.” National statistics on such issues are hard to come by, but Parloff could find almost no evidence For the cited acquittal rate oFI7 percent. The data, in- conclusive as they are, tended to point to a nationwide rate of closer to 28 percent, making the so-called elevated rates in Washington and Detroit merely average. Parloff concedes that the rates in the Bronx are high, but reminds us that these statistics alone do not prove the existence of widespread race-based nullification. He reports: "the nine experienced trial-level judges in the Bronx who agreed to talk with me … did not appear to be aware of a jury nullification crisis in their courts, nor did two prosecutors or two defense lawyers interviewed…’I consider [jury nullification] a rare bird indeed,' says William Hrabsky, first trial assistant in the Bronx, and an assistant district attorney For 24 years. He believes that inexperienced prosecutors blame jury nullification for their own 'bad prep' or for serious problems with their own witnesses… Many of the judges volunteered that jurors in the Bronx are far more skeptical of police officers' testimony than suburban jurors probably would be, since the qualities of their experiences with police are so different. *Ellipsis from source


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A strong national judiciary is key to global cooperation. Frank, Daniel. "Constitutional Interpretation Revisited: The Effects Of A Delicate Supreme

Court Balance On The Inclusion Of Foreign Law In American Jurisprudence.” May 03, 2007. Web. October 16, 2015. <https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=92+Iowa+L.+Rev.+1037&srctype=smi&srcid=3B15&key=a30be9665472a09185f67ff3b75170d1>.

Conservative politicians echo the sentiments of originalist Court members, weary of the Court's "dangerous" trend of citing foreign law in domestic constitutional matters2 3 reintroduced in Lawrence and Roper. For years, the Court largely decided not to participate in an ongoing judicial dialogue in which foreign law was seriously considered, even if the law was 239 not binding. Perhaps the real danger, though, stems from this insular posture and nonparticipation, which tend to perpetuate an unfavorable view of the United States (particularly of the U.S. judiciary) by the outside world.24 ° The originalists' refusal to look outward when dealing with basic civil liberties, "labeling them as idiosyncratic American values," effectively "declare[s] the world irrelevant to our Constitution. This traditional unwillingness to engage in transnational judicial dialogue on a meaningful level has already had an impact: "the U.S. Supreme Court is no longer viewed worldwide as a beacon or trailblazer on civil and individual rights."242 In the wake of September 1 1th, as President George W. Bush attempts to lead a worldwide coalition against terror, American judicial passivity feeds the outward perception that the United States "pays only lip service to the opinions of mankind."2 43 Originalist opposition to considering foreign law when interpreting the Constitution may, in turn, invite undue friction and ultimately strain U.S. foreign relations at a time when America seeks the military, political, and economic cooperation of other countries. Although 245 the U.S. Supreme Court is empowered to settle cases and controversies and not to mollify cross-border tensions, the scope of today's problems oftentimes demands that Justices understand and acknowledge foreign 246 law. According to Justice Ginsburg, "We are the losers if we neglect what others can tell us about endeavors to eradicate bias against women, minorities, and other disadvantaged groups. 247 Lawrence and Roper signaled to the world once again that the American judiciary values opinions of other nations and considers foreign law in constitutional matters, thereby acknowledging the world community without 248 compromising domestic legal norms. If such a course continues, a ripple effect may then ensue: as America's image abroad improves, the spirit of cooperation between countries increases, and the United States can serve as a more effective global leader. Admitting that certain outmoded practicesstate interference with private sexual conduct and the juvenile death penalty, for example-are similarly condemned abroad has helped steer the Court on the path to reclaiming its image abroad while maintaining the primacy of American domestic law. VI. CONCLUSION American law does not exist in a vacuum. The rigid textual analysis that originalists employ should not govern the manner in which the Court interprets the Constitution in the future. Lawrence and Roper offer great strides in according other nations the respect they deserve under the roadmap provided by our Founding Fathers. However, this does not mean that our Constitution should sacrifice its uniqueness at the expense of cooperating with the international community. Justice Breyer himself concedes that courts should use foreign law sparingly when


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circumstances present domestic constitutional issues centered on fundamental freedoms. 49 The lens through which Lawrence and Roper considered foreign law was specific, restricting foreign norms to a confirmatory role after laying a solid groundwork in American law.15 In this way, the Court seemed to prevent the usurpation of American ideals by foreign ones. 15 Michael Kirby, a Justice on Australia's High Court, warned that the United States "is in danger 'of becoming something of a legal backwater' if its courts continue to disregard foreign precedent."252 As long as the Court continues to limit the relevance of foreign law to issues that concern the protection of fundamental rights and does not seek to transpose foreign norms onto purely domestic affairs (e.g., American social-welfare practices not shared by other democratic nations), the real danger appears to be in America's refusal to participate in the ongoing, global judicial dialogue.


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A strong democracy is necessary for free trade. Henson, Jessica. "Democracy And Trade: An Empirical Study.” November 10, 2007. Web.

October 16, 2015. <www.jamus.name/research/ipe1.pdf>.

In closing, we return to the central question that motivated this paper do democracies trade more? The answer, at least within the context of this present study, is a qualified yes. Trade fosters the fertilization of ideas, and democracy is surely one of them. This finding has been demonstrated using the gravity specification for a very large panel dataset together with panel regression techniques. To that end this study has upheld the findings of earlier studies that demonstrate that democracies are more likely to trade with each other. It has, however, also shown that this result depends on several key assumptions. The key democracy variable seems to be sensitive to alternative renderings of time periods and cross sections—in the sense that the time series aspect of the data appears to drive the result—and democracy is also moderated by inter alia, economic size. As such, a one-size-fils-all theory of democratic processes and their political economic influences on trade flows and trade patterns is unlikely to be fruitful. Instead, future theoretical research should distinguish between the motivations of trading nations based not just on their broad political-institutional structures, but also on their level of economic development as well as global economic trends. Future theoretical research would naturally fall along the lines of attempting to build a more coherent model of how democracy affects trade outcomes. Existing research, as reviewed earlier, seldom provide an explicit basis for democracies affecting trade outcomes. Given the generally strong empirical evidence that suggests that the effects of democracy might be first order instead of second order, theoretical models of trade should consider explicitly accounting for this characteristic, instead of treating such outcomes as exogenous, as Grossman and Helpman (1994) do. Clearly, any model to this effect should also allow for heterogeneity between developed and developing countries, and. if possible, take into account the role of constraints and influences imposed by the external environment. In this regard, Mansfield et al. (2000) is an important step forward in this direction. (O'Rourke and Taylor 2006) also develop a model premised on a two-country Heckscher-Ohlin world.


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Empirically trade relationships are necessary for proliferation prevention. "Chapter 4: The Global Challenge Of WMD Terrorism." Office of the Coordinator for

Counterterrorism. May 10, 2008. Web. October 16, 2015. <http://www.state.gov/j/ct/rls/crt/2009/140890.htm>.

In this era of globalization, control of exports cannot occur only at national borders, but also must be a concern for the knowledge sharing at U.S. research universities, laboratories, and industry. The reduced domestic pool of qualified scientists and engineers has driven many U.S. companies, universities and laboratories to recruit foreign nationals in order to remain competitive. The increased presence of talented foreign science and engineering staff and students carries the risk of WMD technology transfers by way of “deemed exports.” (A deemed export is the release of information pertaining to the design and manufacturing of dual-use technology or source code to a foreign national within the confines of the United States borders.) In accordance with the Export Administration Regulations, several USG departments and agencies support a national effort to better control foreign access to sensitive dual-use technologies to prevent unauthorized transfers. STATE SPONSORSHIP OF TERRORISM: A KEY CONCERN A state that directs WMD resources to terrorists, or one from which enabling resources are clandestinely diverted, poses a grave WMD terrorism threat. Although terrorist organizations will continue to seek a WMD capability independent of state programs, the sophisticated WMD knowledge and resources of a state could enable a terrorist capability. State sponsors of terrorism and all nations that fail to live up to their international counterterrorism and nonproliferation obligations deserve continued scrutiny as potential facilitators of WMD terrorism. NON-STATE FACILITATORS: AN EMERGING THREAT State sponsors of terrorism with WMD programs represent just one facext of the overall risk of WMD terrorism. The non-governmental entities they use to facilitate their WMD programs have emerged as a growing proliferation threat in recent years that could eventually provide terrorists with access to materials and expertise that are particularly hard to acquire. In 2003, the United States and its international partners succeeded in interdicting a shipment of WMD-related material destined for Libya’s then-active nuclear weapons program. The facts surrounding this shipment indicated a transnational nuclear proliferation network reaching from East Asia to Europe, developed by Pakistani nuclear scientist A.Q. Khan. This network was making available sensitive technology and WMD-related materials to nations willing to pay. There is a risk that such non-state facilitators and their networks could provide their services to terrorist groups. The dismantling of the A.Q. Khan network revealed an uncomfortable truth about globalization. The very trends driving globalization, improved communications and transportation links, can enable the development of extended proliferation networks that may facilitate terrorist acquisition of WMD. Globalization requires that partner nations work together closely to prevent, detect, and disrupt linkages that may develop between terrorists and facilitators such as A.Q. Khan.


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Proliferation causes extinction. Kroenig, Matthew. "The History Of Proliferation Optimism: Does It Have A Future?.” May 10,

2008. Web. October 16, 2015. <http://www.npolicy.org/article.php?aid=1182&tid=30>.

Proliferation Optimism: Proliferation optimism was revived in the academy in Kenneth Waltz’s 1979 book, Theory of International Politics.[1][29] In this, and subsequent works, Waltz argued that the spread of nuclear weapons has beneficial effects on international politics. He maintained that states, fearing a catastrophic nuclear war, will be deterred from going to war with other nuclear-armed states. As more and more states acquire nuclear weapons, therefore, there are fewer states against which other states will be willing to wage war. The spread of nuclear weapons, according to Waltz, leads to greater levels of international stability. Looking to the empirical record, he argued that the introduction of nuclear weapons in 1945 coincided with an unprecedented period of peace among the great powers. While the United States and the Soviet Union engaged in many proxy wars in peripheral geographic regions during the Cold War, they never engaged in direct combat. And, despite regional scuffles involving nuclear-armed states in the Middle East, South Asia, and East Asia, none of these conflicts resulted in a major theater war. This lid on the intensity of conflict, according to Waltz, was the direct result of the stabilizing effect of nuclear weapons. Following in the path blazed by the strategic thinkers reviewed above, Waltz argued that the requirements for deterrence are not high. He argued that, contrary to the behavior of the Cold War superpowers, a state need not build a large arsenal with multiple survivable delivery vehicles in order to deter its adversaries. Rather, he claimed that a few nuclear weapons are sufficient for deterrence. Indeed, he even went further, asserting that any state will be deterred even if it merely suspects its opponent might have a few nuclear weapons because the costs of getting it wrong are simply too high. Not even nuclear accident is a concern according to Waltz because leaders in nuclear-armed states understand that if they ever lost control of nuclear weapons, resulting in an accidental nuclear exchange, the nuclear retaliation they would suffer in response would be catastrophic. Nuclear-armed states, therefore, have strong incentives to maintain control of their nuclear weapons. Not even new nuclear states, without experience in managing nuclear arsenals, would ever allow nuclear weapons to be used or let them fall in the wrong hands. Following Waltz, many other scholars have advanced arguments in the proliferation optimist school. For example, Bruce Bueno de Mesquite and William Riker explore the “merits of selective nuclear proliferation.”[2][30] John Mearsheimer made the case for a “Ukrainian nuclear deterrent,” following the collapse of the Soviet Union.[3][31] In the run up to the 2003 Gulf War, John Mearsheimer and Steven Walt argued that we should not worry about a nuclear-armed Iraq because a nuclear-armed Iraq can be deterred.[4][32] And, in recent years, Barry Posen and many other realists have argued that nuclear proliferation in Iran does not pose a threat, again arguing that a nuclear-armed Iran can be deterred.[5][33] What’s Wrong with Proliferation Optimism? The proliferation optimist position, while having a distinguished pedigree, hasseveral major problems. Many of these weaknesses have been chronicled in brilliant detail by Scott Sagan and other contemporary proliferation pessimists.[6][34] Rather than repeat these substantial efforts, I will use this section to offer some original critiques of the recent incarnations of proliferation optimism. First and foremost, proliferation optimists do not appear to understand contemporary deterrence theory. I do not say this lightly in an effort to marginalize or discredit my intellectual opponents.


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Rather, I make this claim with all due caution and with complete sincerity. A careful review of the contemporary proliferation optimism literature does not reflect an understanding of, or engagement with, the developments in academic deterrence theory in top scholarly journals such as the American Political Science Review and International Organization over the past few decades.[7][35] While early optimists like Viner and Brodie can be excused for not knowing better, the writings of contemporary proliferation optimists ignore the past fifty years of academic research on nuclear deterrence theory. In the 1940s, Viner, Brodie, and others argued that the advent of Mutually Assured Destruction (MAD) rendered war among major powers obsolete, but nuclear deterrence theory soon advanced beyond that simple understanding.[8][36] After all, great power political competition does not end with nuclear weapons. And nuclear-armed states still seek to threaten nuclear-armed adversaries. States cannot credibly threaten to launch a suicidal nuclear war, but they still want to coerce their adversaries. This leads to a credibility problem: how can states credibly threaten a nuclear-armed opponent? Since the 1960s academic nuclear deterrence theory has been devoted almost exclusively to answering this question.[9][37] And, unfortunately for proliferation optimists, the answers do not give us reasons to be optimistic. Thomas Schelling was the first to devise a rational means by which states can threaten nuclear-armed opponents.[10][38] He argued that leaders cannot credibly threaten to intentionally launch a suicidal nuclear war, but they can make a “threat that leaves something to chance.”[11][39] They can engage in a process, the nuclear crisis, which increases the risk of nuclear war in an attempt to force a less resolved adversary to back down. As states escalate a nuclear crisis there is an increasing probability that the conflict will spiral out of control and result in an inadvertent or accidental nuclear exchange. As long as the benefit of winning the crisis is greater than the incremental increase in the risk of nuclear war, threats to escalate nuclear crises are inherently credible. In these games of nuclear brinkmanship, the state that is willing to run the greatest risk of nuclear war before back down will win the crisis as long as it does not end in catastrophe. It is for this reason that Thomas Schelling called great power politics in the nuclear era a “competition in risk taking.”[12][40] This does not mean that states eagerly bid up the risk of nuclear war. Rather, they face gut-wrenching decisions at each stage of the crisis. They can quit the crisis to avoid nuclear war, but only by ceding an important geopolitical issue to an opponent. Or they can the escalate the crisis in an attempt to prevail, but only at the risk of suffering a possible nuclear exchange. Since 1945 there were have been many high stakes nuclear crises (by my count, there have been twenty) in which “rational” states like the United States run a risk of nuclear war and inch very close to the brink of nuclear war.[13][41] By asking whether states can be deterred or not, therefore, proliferation optimists are asking the wrong question. The right question to ask is: what risk of nuclear war is a specific state willing to run against a particular opponent in a given crisis? Optimists are likely correct when they assert that Iran will not intentionally commit national suicide by launching a bolt-from-the-blue nuclear attack on the United States or Israel. This does not mean that Iran will never use nuclear weapons, however. Indeed, it is almost inconceivable to think that a nuclear-armed Iran would not, at some point, find itself in a crisis with another nuclear-armed power and that it would not be willing to run any risk of nuclear war in order to achieve its objectives. If a nuclear-armed Iran and the United States or Israel have a geopolitical conflict in the future, over say the internal politics of Syria, an Israeli conflict with Iran’s client Hezbollah, the U.S. presence in the Persian Gulf, passage through the Strait of Hormuz, or some other issue, do we believe that Iran would immediately capitulate? Or is it possible that Iran would push back, possibly even brandishing nuclear weapons in an attempt to


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deter its adversaries? If the latter, there is a real risk that proliferation to Iran could result in nuclear war. An optimist might counter that nuclear weapons will never be used, even in a crisis situation, because states have such a strong incentive, namely national survival, to ensure that nuclear weapons are not used. But, this objection ignores the fact that leaders operate under competing pressures. Leaders in nuclear-armed states also have very strong incentives to convince their adversaries that nuclear weapons could very well be used. Historically we have seen that in crises, leaders purposely do things like put nuclear weapons on high alert and delegate nuclear launch authority to low level commanders, purposelyincreasing the risk of accidental nuclear war in an attempt to force less-resolved opponents to back down. Moreover, not even the optimists’ first principles about the irrelevance of nuclear posture stand up to scrutiny. Not all nuclear wars would be equally devastating.[14][42] Any nuclear exchange would have devastating consequences no doubt, but, if a crisis were to spiral out of control and result in nuclear war, any sane leader would rather be facing a country with five nuclear weapons than one with thirty-five thousand. Similarly, any sane leader would be willing to run a greater risk of nuclear war against the former state than against the latter. Indeed, systematic research has demonstrated that states are willing to run greater risks and, therefore, more likely to win nuclear crises when they enjoy nuclear superiority over their opponent.[15][43] Proliferation optimists miss this point, however, because they are still mired in 1940s deterrence theory. It is true that no rational leader would choose to launch a nuclear war, but, depending on the context, she would almost certainly be willing to risk one. Nuclear deterrence theorists have proposed a second scenario under which rational leaders could instigate a nuclear exchange: a limited nuclear war.[16][44] By launching a single nuclear weapon against a small city, for example, it was thought that a nuclear-armed state could signal its willingness to escalate the crisis, while leaving its adversary with enough left to lose to deter the adversary from launching a full-scale nuclear response. In a future crisis between a nuclear-armed China and the United States over Taiwan, for example, China could choose to launch a nuclear attack on Honolulu to demonstrate its seriousness. In that situation, with the continental United States intact, would Washington choose to launch a full-scale nuclear war on China that could result in the destruction of many more American cities? Or would it back down? China might decide to strike hoping that Washington will choose a humiliating retreat over a full-scale nuclear war. If launching a limited nuclear war could be rational, it follows that the spread of nuclear weapons increases the risk of nuclear use. Again, by ignoring contemporary developments in scholarly discourse and relying exclusively on understandings of nuclear deterrence theory that became obsolete decades ago, optimists reveal the shortcomings of their analysis and fail to make a compelling case. The optimists also error by confusing stability for the national interest. Even if the spread of nuclear weapons contributes to greater levels of international stability (which discussions above and below suggest it might not) it does not necessarily follow that the spread of nuclear weapons is in the U.S. interest. There might be other national goals that trump stability, such as reducing to zero the risk of nuclear war in an important geopolitical region. Optimists might argue that South Asia is more stable when India and Pakistan have nuclear weapons, but certainly the risk of nuclear war is higher than if there were no nuclear weapons on the subcontinent. In addition, it is wrong to assume that stability is always in the national interest. Sometimes it is, but sometimes it is not. If stability is obtained because Washington is deterred from using force against a nuclear-armed adversary in a situation where using force could have advanced national goals, stability harms, rather than advances, U.S. national interests. The final gaping weakness in the proliferation optimist argument, however, is that it rests on a


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logical contradiction. This is particularly ironic, given that many optimists like to portray themselves as hard-headed thinkers, following their premises to their logical conclusions. But, the contradiction at the heart of the optimist argument is glaring and simple to understand: either the probability of nuclear war is zero, or it is nonzero, but it cannot be both. If the probability of nuclear war is zero, then nuclear weapons should have no deterrent effect. States will not be deterred by a nuclear war that could never occur and states should be willing to intentionally launch large-scale wars against nuclear-armed states. In this case, proliferation optimists cannot conclude that the spread of nuclear weapons is stabilizing. If, on the other hand, the probability of nuclear war is nonzero, then there is a real danger that the spread of nuclear weapons increases the probability of a catastrophic nuclear war. If this is true, then proliferation optimists cannot be certain that nuclear weapons will never be used. In sum, the spread of nuclear weapons can either raise the risk of nuclear war and in so doing, deter large-scale conventional conflict. Or there is no danger that nuclear weapons will be used and the spread of nuclear weapons does not increase international instability. But, despite the claims of the proliferation optimists, it is nonsensical to argue that nuclear weapons will never be used and to simultaneously claim that their spread contributes to international stability. Proliferation Anti-obsessionists: Other scholars, who I label “anti-obsessionists” argue that the spread of nuclear weapons has neither been good nor bad for international politics, but rather irrelevant. They argue that academics and policymakers concerned about nuclear proliferation spend too much time and energy obsessing over something, nuclear weapons, that, at the end of the day, are not all that important. In Atomic Obsession, John Mueller argues that widespread fears about the threat of nuclear weapons are overblown.[17][45] He acknowledges that policymakers and experts have often worried that the spread of nuclear weapons could lead to nuclear war, nuclear terrorism and cascades of nuclear proliferation, but he then sets about systematically dismantling each of these fears. Rather, he contends that nuclear weapons have had little effect on the conduct of international diplomacy and that world history would have been roughly the same had nuclear weapons never been invented. Finally, Mueller concludes by arguing that the real problem is not nuclear proliferation, but nuclear nonproliferation policy because states do harmful things in the name of nonproliferation, like take military action and deny countries access to nuclear technology for peaceful purposes. Similarly, Ward Wilson argues that, despite the belief held by optimists and pessimists alike, nuclear weapons are not useful tools of deterrence.[18][46] In his study of the end of World War II, for example, Wilson argues that it was not the U.S. use of nuclear weapons on Hiroshima and Nagasaki that forced Japanese surrender, but a variety of other factors, including the Soviet Union’s decision to enter the war. If the actual use of nuclear weapons was not enough to convince a country to capitulate to its opponent he argues, then there is little reason to think that the mere threat of nuclear use has been important to keeping the peace over the past half century. Leaders of nuclear-armed states justify nuclear possession by touting their deterrent benefits, but if nuclear weapons have no deterrent value, there is no reason, Ward claims, not to simply get rid of them. Finally, Anne Harrington de Santana argues that nuclear experts “fetishize” nuclear weapons.[19][47] Just like capitalists, according to Karl Marx, bestow magical qualities on money, thus fetishizing it, she argues that leaders and national security experts do the same thing to nuclear weapons. Nuclear deterrence as a critical component of national security strategy, according to Harrington de Santana, is not inherent in the technology of nuclear weapons themselves, but is rather the result of how leaders in countries around the world think about them. In short, she argues, “Nuclear weapons are powerful because we treat them as powerful.”[20][48] But, she maintains, we could


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just as easily “defetish” them, treating them as unimportant and, therefore, rendering them obsolete. She concludes that “Perhaps some day, the deactivated nuclear weapons on display in museums across the United States will be nothing more than a reminder of how powerful nuclear weapons used to be.”[21][49] The anti-obsessionists make some thought-provoking points and may help to reign in some of the most hyperbolic accounts of the effect of nuclear proliferation. They remind us, for example, that our worst fears have not been realized, at least not yet. Yet, by taking the next step and arguing that nuclear weapons have been, and will continue to be, irrelevant, they go too far. Their arguments call to mind the story about the man who jumps to his death from the top of a New York City skyscraper and, when asked how things are going as he passes the 15th story window, replies, “so far so good.” The idea that world history would have been largely unchanged had nuclear weapons not been invented is a provocative one, but it is also unfalsifiable. There is good reason to believe that world history would have been different, and in many ways better, had certain countries not acquired nuclear weapons. Let’s take Pakistan as an example. Pakistan officially joined the ranks of the nuclear powers in May 1998 when it followed India in conducting a series of nuclear tests. Since then, Pakistan has been a poster child for the possible negative consequences of nuclear proliferation. Pakistan’s nuclear weapons have led to further nuclear proliferation as Pakistan, with the help of rogue scientist A.Q. Khan, transferred uranium enrichment technology to Iran, Libya, and North Korea.[22][50] Indeed, part of the reason that North Korea and Iran are so far along with their uranium enrichment programs is because they got help from Pakistan. Pakistan has also become more aggressive since acquiring nuclear weapons, displaying an increased willingness to sponsor cross-border incursions into India with terrorists and irregular forces.[23][51] In a number of high-stakes nuclear crises between India and Pakistan, U.S. officials worried that the conflicts could escalate to a nuclear exchange and intervened diplomatically to prevent Armageddon on the subcontinent. The U.S. government also worries about the safety and security of Pakistan’s nuclear arsenal, fearing that Pakistan’s nukes could fall into the hands of terrorists in the event of a state collapse or a break down in nuclear security. And we still have not witnessed the full range of consequences arising from Pakistani nuclear proliferation. Islamabad has only possessed the bomb for a little over a decade, but they are likely to keep it for decades to come, meaning that we could still have a nuclear war involving Pakistan. In short, Pakistan’s nuclear capability has already had deleterious effects on U.S. national security and these threats are only likely to grow over time. In addition, the anti-obsessionists are incorrect to argue that the cure of U.S. nuclear nonproliferation policy is worse than the disease of proliferation. Many observers would agree with Mueller that the U.S. invasion of Iraq in 2003 was a disaster, costing much in the way of blood and treasure and offering little strategic benefit. But the Iraq War is hardly representative of U.S. nonproliferation policy. For the most part, nonproliferation policy operates in the mundane realm of legal frameworks, negotiations, inspections, sanctions, and a variety of other tools. Even occasional preventive military strikes on nuclear facilities have been far less calamitous than the Iraq War. Indeed, the Israeli strikes on nuclear reactors in Iraq and Syria in 1981 and 2007, respectively, produced no meaningful military retaliation and a muted international response. Moreover, the idea that the Iraq War was primarily about nuclear nonproliferation is a contestable one, with Saddam Hussein’s history of aggression, the unsustainability of maintaining the pre-war containment regime indefinitely, Saddam’s ties to terrorist groups, his past possession and use of chemical and biological weapons, and the window of opportunity created by September 11th, all serving as possible prompts for U.S. military action in the Spring of 2003. The claim that nonproliferation policy is dangerous because it


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denies developing countries access to nuclear energy also rests on shaky ground. If anything, the global nonproliferation regime has, on balance, increased access to nuclear technology. Does anyone really believe that countries like Algeria, Congo, and Vietnam would have nuclear reactors today were it not for Atoms for Peace, Article IV of the NPT, and other appendages of the nonproliferation regime that have provided developing states with nuclear technology in exchange for promises to forgo nuclear weapons development? Moreover, the sensitive fuel-cycle technology denied by the Nuclear Suppliers Group (NSG) and other supply control regimes is not even necessary to the development of a vibrant nuclear energy program as the many countries that have fuel-cycle services provided by foreign nuclear suppliers clearly demonstrate. Finally, the notion that nuclear energy is somehow the key to lifting developing countries from third to first world status does not pass the laugh test. Given the large upfront investments, the cost of back-end fuel management and storage, and the ever-present danger of environmental catastrophe exemplified most recently by the Fukushima disaster in Japan, many argue that nuclear energy is not a cost-effective source of energy (if all the externalities are taken into account) for any country, not to mention those developing states least able to manage these myriad challenges. Taken together, therefore, the argument that nuclear nonproliferation policy is more dangerous than the consequences of nuclear proliferation, including possible nuclear war, is untenable. Indeed, it would certainly come as a surprise to the mild mannered diplomats and scientists who staff the International Atomic Energy Agency, the global focal point of the nuclear nonproliferation regime, located in Vienna, Austria. The anti-obsessionsists, like the optimists, also walk themselves into logical contradictions. In this case, their policy recommendations do not necessarily follow from their analyses. Ward argues that nuclear weapons are irrelevant and, therefore, we should eliminate them.[24][52] But, if nuclear weapons are really so irrelevant, why not just keep them lying around? They will not cause any problems if they are as meaningless as anti-obsessionists claim and it is certainly more cost effective to do nothing than to negotiate complicated international treaties and dismantle thousands of warheads, delivery vehicles, and their associated facilities. Finally, the idea that nuclear weapons are only important because we think they are powerful is arresting, but false. There are properties inherent in nuclear weapons that can be used to create military effects that simply cannot, at least not yet, be replicated with conventional munitions. If a military planner wants to quickly destroy a city on the other side of the planet, his only option today is a nuclear weapon mounted on an ICBM. Therefore, if the collective “we” suddenly decided to “defetishize” nuclear weapons by treating them as unimportant, it is implausible that some leader somewhere would not independently come to the idea that nuclear weapons could advance his or her country’s national security and thereby re-fetishize them. In short, the optimists and anti-obsessionists have brought an important perspective to the nonproliferation debate. Their arguments are provocative and they raise the bar for those who wish to argue that the spread of nuclear weapons is indeed a problem. Nevertheless, their counterintuitive arguments are not enough to wish away the enormous security challenges posed by the spread of the world’s most dangerous weapons. These myriad threats will be considered in the next section. Why Nuclear Proliferation Is a Problem The spread of nuclear weapons poses a number of severe threats to international peace and U.S. national security including: nuclear war, nuclear terrorism, emboldened nuclear powers,constrained freedom of action, weakened alliances, and further nuclear proliferation. This section explores each of these threats in turn. Nuclear War. The greatest threat posed by the spread of nuclear weapons is nuclear war. The more states in possession of nuclear weapons, the greater the probability that somewhere, someday, there is a catastrophic


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nuclear war. A nuclear exchange between the two superpowers during the Cold War could have arguably resulted in human extinction and a nuclear exchange between states with smaller nuclear arsenals, such as India and Pakistan, could still result in millions of deaths and casualties, billions of dollars of economic devastation, environmental degradation, and a parade of other horrors. To date, nuclear weapons have only been used in warfare once. In 1945, the United States used one nuclear weapon each on Hiroshima and Nagasaki, bringing World War II to a close. Many analysts point to sixty-five-plus-year tradition of nuclear non-use as evidence that nuclear weapons are unusable, but it would be naïve to think that nuclear weapons will never be used again. After all, analysts in the 1990s argued that worldwide economic downturns like the great depression were a thing of the past, only to be surprised by the dot-com bubble bursting in the later 1990s and the Great Recession of the late Naughts.[25][53] This author, for one, would be surprised if nuclear weapons are not used in my lifetime. Before reaching a state of MAD, new nuclear states go through a transition period in which they lack a secure-second strike capability. In this context, one or both states might believe that it has an incentive to use nuclear weapons first. For example, if Iran acquires nuclear weapons neither Iran, nor its nuclear-armed rival, Israel, will have a secure, second-strike capability. Even though it is believed to have a large arsenal, given its small size and lack of strategic depth, Israel might not be confident that it could absorb a nuclear strike and respond with a devastating counterstrike. Similarly, Iran might eventually be able to build a large and survivable nuclear arsenal, but, when it first crosses the nuclear threshold, Tehran will have a small and vulnerable nuclear force. In these pre-MAD situations, there are at least three ways that nuclear war could occur. First, the state with the nuclear advantage might believe it has a splendid first strike capability. In a crisis, Israel might, therefore, decide to launch a preemptive nuclear strike to disarm Iran’s nuclear capabilities and eliminate the threat of nuclear war against Israel. Indeed, this incentive might be further increased by Israel’s aggressive strategic culture that emphasizes preemptive action. Second, the state with a small and vulnerable nuclear arsenal, in this case Iran, might feel use ‘em or loose ‘em pressures. That is, if Tehran believes that Israel might launch a preemptive strike, Iran might decide to strike first rather than risk having its entire nuclear arsenal destroyed. Third, as Thomas Schelling has argued, nuclear war could result due to the reciprocal fear of surprise attack.[26][54] If there are advantages to striking first, one state might start a nuclear war in the belief that war is inevitable and that it would be better to go first than to go second. In a future Israeli-Iranian crisis, for example, Israel and Iran might both prefer to avoid a nuclear war, but decide to strike first rather than suffer a devastating first attack from an opponent. Even in a world of MAD, there is a risk of nuclear war. Rational deterrence theory assumes nuclear-armed states are governed by rational leaders that would not intentionally launch a suicidal nuclear war. This assumption appears to have applied to past and current nuclear powers, but there is no guarantee that it will continue to hold in the future. For example, Iran’s theocratic government, despite its inflammatory rhetoric, has followed a fairly pragmatic foreign policy since 1979, but it contains leaders who genuinely hold millenarian religious worldviews who could one day ascend to power and have their finger on the nuclear trigger. We cannot rule out the possibility that, as nuclear weapons continue to spread, one leader will choose to launch a nuclear war, knowing full well that it could result in self-destruction. One does not need to resort to irrationality, however, to imagine a nuclear war under MAD. Nuclear weapons may deter leaders from intentionally launching full-scale wars, but they do not mean the end of international politics. As was discussed above, nuclear-armed states still have conflicts of interest and leaders still seek to coerce nuclear-armed adversaries. This leads to the credibility problem that is at the


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heart of modern deterrence theory: how can you threaten to launch a suicidal nuclear war? Deterrence theorists have devised at least two answers to this question. First, as stated above, leaders can choose to launch a limited nuclear war.[27][55] This strategy might be especially attractive to states in a position of conventional military inferiority that might have an incentive to escalate a crisis quickly. During the Cold War, the United States was willing to use nuclear weapons first to stop a Soviet invasion of Western Europe given NATO’s conventional inferiority in continental Europe. As Russia’s conventional military power has deteriorated since the end of the Cold War, Moscow has come to rely more heavily on nuclear use in its strategic doctrine. Indeed, Russian strategy calls for the use of nuclear weapons early in a conflict (something that most Western strategists would consider to be escalatory) as a way to de-escalate a crisis. Similarly, Pakistan’s military plans for nuclear use in the event of an invasion from conventionally stronger India. And finally, Chinese generals openly talk about the possibility of nuclear use against a U.S. superpower in a possible East Asia contingency. Second, as was also discussed above leaders can make a “threat that leaves something to chance.”[28][56] They can initiate a nuclear crisis. By playing these risky games of nuclear brinkmanship, states can increases the risk of nuclear war in an attempt to force a less resolved adversary to back down. Historical crises have not resulted in nuclear war, but many of them, including the 1962 Cuban Missile Crisis, have come close. And scholars have documented historical incidents when accidents could have led to war.[29][57] When we think about future nuclear crisis dyads, such as India and Pakistan and Iran and Israel, there are fewer sources of stability that existed during the Cold War, meaning that there is a very real risk that a future Middle East crisis could result in a devastating nuclear exchange.

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AnthropocentrismNC

Strategy Guide

This strategy is one that argues that the inequalities in our criminal justice system are

rooted in how it deals with non-human species and can be used in variety of different ways that

would be palatable to different Judges .

Policy & Traditional Style

The argument here is going to be valuing justice, and providing a route to justice that currently

nonhumans are excluded from. Supporting jury nullification would only help reinforce a system

that at it’s core excludes nonhumans because they are not even granted the right to habeas corpus

(jury trials) under current law. This means that jury nullification can never be extended to

nonhumans in our current criminal justice system. The Wise evidence should be used first to

establish that historically nonhumans are things and lack rights. If you are debating in front of

judges who are inclined to policy style arguments you can look to extend a common law writ to

non-humans or grant status of legal personhood to some nonhumans like was done with

corporations giving nonhumans certain legal protections not currently available via animal

welfare laws. If you are in front of more traditional judges you can prove that the aff doesn’t

achieve justice by evaluating justice under the guise of equal protection and arguing that due to

nonhumans failure to access jury nullification it violates the standard of equal protection.

In front of K Judges

In front of K judges it’s a pretty easy argument to put together. An aff vote is defacto support of

the criminal justice process of our country which is historically rooted in anthropocentric

practices. Supporting anthropocentric institutions can lead to a wide variety of impacts including

extinction level ones in order to compete with util affs. Alternative choices include traditional

ones like an ethic of care which would even allow to access a floating pic using the Tudor

evidence.


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Epistemic practices must always be evaluated first because they involve the link between knowledge and how that knowledge is obtained, thus precluding knowledge itself. Individuals cannot evaluate their own epistemological assumptions objectively because their objections would be influenced by their epistemic practices. Thus it’s the duty of the judge to evaluate our epistemic practices. Kukla, Rebbeca.(2008). Naturalizing Objectivity. Perspectives on Science 16(3), 285-302.

The MIT Press. https://muse.jhu.edu/

On the one hand, a naturalized account of objectivity will understand standards and ideals of objectivity as grounded in local scientific practices. On the other hand, such an account will take some form of realism and anti-skepticism for granted; hence it cannot merely reduce standards of objectivity to what scientists actually do, for it must be possible for them to be wrong. They might get the world wrong, and indeed they might use the wrong methods to disclose it in the first place. As John Haugeland has argued, any epistemic practice must be able to distinguish between following its own conventional rules and actually getting the world right, and it must be able to recognize evidence that its own conventional practices are the wrong ones because they give incorrect results (Haugeland 1998). In other words, if we take objectivity to be a natural phenomenon, we cannot deflate it in the way that Hacking does when he claims: "We cannot reason as to whether alternative systems of reasoning are better or worse than ours, because the propositions to which we reason get their sense only from the method of reasoning being employed. The propositions have no existence independent of ways of reasoning toward them" (Hacking 1982, 65). The standards for getting the world right cannot be internal to the standards that govern our epistemic practices, for otherwise our epistemic practices would become immune from rational correction in the face of empirical evidence. Neither Daston and Galison nor Barad countenance such a relativistic reduction. Indeed, Daston and Galison write, "It is a misconception, albeit an entrenched one, that historicism and relativism stride hand in hand, that to reveal that an idea or value has a history is ipso facto to debunk it. But to show that [mechanical] objectivity is neither an inevitable [End Page 298] nor an eternal part of science passes no verdict on its validity, desirability, or utility . . . Between dogmatism and relativism stretches a wide plane of debate" (376).12 Nor do these authors accept the kind of incommensurability of epistemic perspectives that Hacking asserts. Bodies of practices governed by specific norms of objectivity are not paradigms in the strong Kuhnian sense that would enclose them within incommensurable worlds. Rather, Daston and Galison show how practitioners of different paradigms of representation argued with one another in detail about the relative merits of their different methods; ultimately, the measure of success was how well the representations accurately disclosed real features of the world. Similarly, Barad gives a careful account of how the early practitioners of


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quantum mechanics used evidence to argue with one another about how to properly observe quantum mechanical phenomena. Bodies of epistemic practice are empirically segregated but they are not fundamentally isolated from one another, and their practitioners can understand, [and] critique, and even respect one another's epistemic values. From a naturalized perspective, there is no coherent possibility of a transcendental stance outside all possible bodies of epistemic practices from which we can judge which one's deliverances are really really right. Different bodies of epistemic practice can be used to assess one another, and their practitioners can struggle with one another over which practices and standards of objectivity yield the best and most accountable results. But there is no such epistemic practice as the practice of stepping out of all such practices in order to assess their objectivity 'from above'. This will bother us only if we begin with the question-begging, anti-naturalistic assumption that such an impossible stance is the only one that counts as objective. Now this might seem to justify the sweeping rejection of self-effacing objectivity for which I criticized Barad above. For if there is no such thing as a transcendental perspective outside all local bodies of epistemic practices, then in an important sense the understanding of objectivity as self-erasure is simply incoherent, rather than merely limited and historically situated. Standpoint theory is deeply right, on this naturalized picture: knowledge is always and ineliminably the knowledge of a performative, concrete self who is situated within a particular, historically and socially contextualized body of norms. As natural beings engaged in natural epistemic practices, selves cannot adopt a stance outside of the nature they seek to know, and knowing is a material, interactive activity, and hence [End Page 299] there is no possibility of attaining objectivity by erasing the traces of the knowing self and its standpoint. Doesn't this make the ideal of mechanical objectivity fundamentally and unqualifiedly wrong-headed, as Barad, unlike Daston and Galison, believes?


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Anthropocentric ordering drives the exclusion and dehumanization of populations based on race, ethnicity and gender Kochi, Tarik 2009 , Sussex law school, Species war: Law, Violence and Animals, Law

Culture and Humanities Oct http://lch.sagepub.com/content/5/3/353.short

Grotius and Hobbes are sometimes described as setting out a prudential approach, 28 or a natural law of minimal content 29 because in contrast to Aristotelian or Thomastic legal and political theory their attempt to derive the legitimacy of the state and sovereign order relies less upon a thick con-ception of the good life and is more focussed upon basic human needs such as survival. In the context of a response to religious civil war such an approach made sense in that often thick moral and religious conceptions of the good life (for example, those held by competing Christian Confessions) often drove [drives] conflict and violence. Yet, it would be a mistake to assume that the categories of “survival,” “preservation of life” and “bare life” are neutral categories. Rather survival, preservation of life and bare life as expressed by the Westphalian theoretical tradition already contain distinctions of value – in particular, the specific distinction of value between human and non-human life. “Bare life” in this sense is not “bare” but contains within it a distinction of value between the worth of human life placed above and beyond the worth of non-human animal life. In this respect bare life within this tradition contains within it a hidden conception of the good life. The foundational moment of the modern juridical conception of the law of war already contains within it the operation of species war. The Westphalian tradition puts itself forward as grounding the legitimacy of violence upon the preservation of life, however its concern for life is already marked by a hierarchy of value in which non-human animal life is violently used as the “raw material” for preserving human life. Grounded upon, but concealing the human-animal distinction, the Westphalian conception of war makes a double move: it excludes the killing of animals from its definition of “war proper,” and, through rendering dominant the modern juridical definition of “war proper” the tradition is able to further institutionalize and normalize a particular conception of the good life. Following from this original distinction of life-value realized through the juridical language of war were other forms of human life whose lives were considered to be of a lesser value under a European, Christian, “secular” 30 natural law conception of the good life. Underneath this concern with the preservation of life in general stood veiled preferences over what particu-lar forms of life (such as racial conceptions of human life) and ways of living were worthy of preservation, realization and elevation. The business contracts of early capitalism, 31 the power of white males over women and children, and, especially in the colonial context, the sanctity of European life over non-European and Christian lives over non-Christian heathens and Muslims, were some of the dominant forms of life preferred for preservation within the early modern juridical ordering of war.


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Reject the Aff’s harmful anthropocentric assumptions at every turn to combat its devastating effect on human power relations and vote affirmative to subscribe to the philosophy of deep ecology. Gottleib, Roger, Cross Currents, “Ethics and Trauma: Levinas, Feminism, and Deep Ecology”

1994 http://www.crosscurrents.org/feministecology.htm

Such a realization can lead us to an ethics appropriate to our time, a dimension of which has come to be known as "deep ecology."(26) For this ethics, we do not begin from the uniqueness of our human selfhood, existing against a taken-for-granted background of earth and sky. Nor is our body somehow irrelevant to ethical relations, with knowledge of it reduced always to tactics of domination. Our knowledge does not assimilate the other to the same, but reveals and furthers the continuing dance of interdependence. And our ethical motivation is neither rationalist system nor individualistic self-interest, but a sense of connection to all of life.¶ The deep ecology sense of self-realization goes beyond the modern Western sense of "self" as an isolated ego striving for hedonistic gratification. . . . . Self, in this sense, is experienced as integrated with the whole of nature.(27)¶ Having gained distance and sophistication of perception [from the development of science and political freedoms] we can turn and recognize who we have been all along. . . . we are our world knowing itself. We can relinquish our separateness. We can come home again -- and participate in our world in a richer, more responsible and poignantly beautiful way.(28)¶ Ecological ways of knowing nature are necessarily participatory. [This] knowledge is ecological and plural, reflecting both the diversity of natural ecosystems and the diversity in cultures that nature-based living gives rise to.¶ The recovery of the feminine principle is based on inclusiveness. It is a recovery in nature, woman and man of creative forms of being and perceiving. In nature it implies seeing nature as a live organism. In woman it implies seeing women as productive and active. Finally, in men the recovery of the feminine principle implies a relocation of action and activity to create life-enhancing, not life-reducing and life-threatening societies.(29)¶ In this context, the knowing ego is not set against a world it seeks to control, but one of which it is a part. To continue the feminist perspective, the mother knows or seeks to know the child's needs. Does it make sense to think of her answering the call of the child in abstraction from such knowledge? Is such knowledge necessarily domination? Or is it essential to a project of care, respect and love, precisely because the knower has an intimate, emotional connection with the known?(30) Our ecological vision locates us in such close relation with our natural home that knowledge of it is knowledge of ourselves. And this is not, contrary to Levinas's fear, reducing the other to the same, but a celebration of a larger, more inclusive, and still complex and articulated self.(31) The noble and terrible burden of Levinas's individuated responsibility for sheer existence gives way to a different dream, a different prayer:¶ Being rock, being gas, being mist, being Mind,¶ Being the mesons traveling among the galaxies with the speed of light,¶ You have come here, my beloved one. . . . ¶ You have manifested yourself as trees, as grass, as butterflies, as


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single-celled beings, and as chrysanthemums;¶ but the eyes with which you looked at me this morning tell me you have never died.(32)¶ In this prayer, we are, quite simply, all in it together. And, although this new ecological Holocaust -- this creation of planet Auschwitz -- is under way, it is not yet final. We have time to step back from the brink, to repair our world. But only if we see that world not as an other across an irreducible gap of loneliness and unchosen obligation, but as a part of ourselves as we are part of it, to be redeemed not out of duty, but out of love; neither for our selves nor for the other, but for us all.


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The view of nonhumans as things and property is grounded in historical legal justifications. Wise, Steven. (1996). The legal thinghood of nonhuman animals. Boston College

Environmental Affairs Law Review , 23 (3). http://ebscohost.com

The legal thinghood of nonhuman animals has existed continuously since the dawn of law in Near Eastern and Western legal systems. It has cumbered nonhuman animals for so long because even the most fundamental legal rights of beings will go unrecognized by a society that accepts a hierarchical cosmology in which those beings are seen as inherently inferior or that fails to connect law to the values of liberty and equality. Though grounded in a horizontal cosmology, Mesopotamian law was divine power and not justice. Both aspects of Mesopotamian law were overthrown nearly 2,000 years ago, the former by the vertical cosmologies of the Hebrews, Greeks, and Romans, and the latter by the Greco-Roman idea of law as justice, and not merely divine power.


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Modern law continues the ancient legal tradition of nonhuman thinghood. Wise, Steven. (1996). The legal thinghood of nonhuman animals. Boston College

Environmental Affairs Law Review , 23 (3).http://ebscohost.com

The twentieth century also has witnessed the birth of scientific disciplines and discoveries that have powerfully supported Darwin's notion of evolution by natural selection and have steadily and more truly revealed the natures of both human and nonhuman animals.[475] Yet scientific facts that contradict beliefs so old and cherished that they appear self-evident may take a long time to illuminate judicial decisions.[476] The ancient idea of the legal thinghood of nonhuman animals will continue to grip the common law to the degree that judges are either affected by the disproven cosmologies upon which it rests or value precedent over justice. While many Americans still reject Darwinism and embrace primitive hierarchical cosmologies, few modern judges consciously rest their decisions upon them.[477] Numerous twentieth-century judicial decisions have characterized nonhuman animals as property, and continue to do so. The reason that an exceedingly small number of decisions actually have sought to justify the status of nonhuman animals as human property is that judges normally fail to perceive that it requires justification. As human slavery once was, the legal thinghood of nonhuman animals is accepted as a first principle.[478]


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While some non-humans have minor legal protections there is no way for a non-human to seek a legal remedy in the current legal system. Tudor, Steven. (2010). Some Implications for Legal Personhood of Extending Legal Rights to

Non-Human Animals. Australian Journal of Legal Philosophy .http://heinonline.org

Some non-human animals (whom I shall simply call 'animals' for convenience) are already the beneficiaries of various laws that impose duties on humans (and indeed artificial persons) not to harm them. Just one example is found in the Prevention of Cruelty to Animals Act 1986 (Vic), s 9, which makes it a criminal offence to commit an act of cruelty upon an animal. However, from my brief reading of the law, there appears to be no private action available (for example, in tort) whereby the animal victim of cruelty could seek its own legal remedy in the absence of criminal prosecution. Animals thus remain merely passive beneficiaries of the duties imposed on others.


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There can be ways for non-humans to be recognized as legal persons. Tudor, Steven. (2010). Some Implications for Legal Personhood of Extending Legal Rights to

Non-Human Animals. Australian Journal of Legal Philosophy .http://heinonline.org

Some might ridicule the idea of granting animals standing to enforce their rights, on the basis that even the most intelligent and sentient among them would be completely unaware of their rights and have no actual mental capacity to exercise their legal capacity to enforce them. Here the assumption is that a creature cannot be a legal person if it could not know that it was. The obvious answer here is that this situation is already well-known to the law. The law already recognises as legal persons certain human beings who lack the mental capacity to exercise their legal capacity themselves: the very young and certain kinds of disabled or infirm people. We have little trouble, conceptually, with the idea that such legal persons will need a guardian to act for them in legal contexts.


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There is no reason granting legal personhood to non-humans would undermine the law, that status has already been extended to corporations. Tudor, Steven. (2010). Some Implications for Legal Personhood of Extending Legal Rights to

Non-Human Animals. Australian Journal of Legal Philosophy . http://heinonline.org

Some people might fear that granting legal personhood to animals would involve a lowering of the status implied by 'legal person'. This seems to be because it is assumed that the criterion for granting legal personhood to animals would become the sole content of the meaning of legal personhood, such that all legal persons would be conceived of in terms of the lowest common denominator, such as sentience. The idea seems to be that where the boundary of a concept is extended, all those who are encompassed within the boundary will be treated as if they were just inside the boundary. Thus, human dignity, human sanctity, human reason and so on, which Naffine's Religionists and Rationalists have championed, would be sidelined, and human beings 'reduced' to be being just another species of 'sentient creature.' This, however, strikes me as not at all obvious. We can quite readily allow for various reasons for extending the scope of 'legal person' in various directions. That is to say, the reasons for extending legal personhood to animals, new born children, humans in a persistent vegetative state, ships, idols, corporations and so on, need not be the same or even significantly overlap. Thus there may in fact be no common denominator at all to the various criteria for admission to the class 'legal person'. This can then allow for various types of legal persons. Moreover, it can even allow for hierarchies within the circle of legal persons. The law already draws various hierarchical distinctions between types of legal person. For example, the privilege against self-incrimination extends only to human beings and not corporations.7 Perhaps I am just being a Legalist here in saying that, from a legal taxonomic point of view, there need be no fixed or common criteria for admission to the class 'legal person'. I prefer to think of it as a pragmatist approach, but perhaps pragmatism's flexibility becomes indistinguishable at times from Legalism's abstractness.


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An Ethic of care solves for the anthropocentric criminal justice system. Albright, Katrina. (2002). The Extension Legal Rights to Animals under a Caring Ethic: An

Ecofeminist Exploration of Steven Wise's Rattling the Cage. Natural ResourcesJounal42. http://lawschool.unm.edu/nrj/volumes/42/4/09_albright_rattling.pdf

An ecofeminist ethic of caring eliminates many of the restrictions inherent in Wise's theory in Rattling the Cage. A caring ethic does not require animals to provide proof of autonomy or rationality in order to benefit from legal rights, and it does not limit legal rights to chimpanzees and bonobos only. Further, a caring ethic does not rely on a legal system that is based on antiquated notions of a hierarchical chain of existence. It instead embraces compassion, kindness, and ethics as the basis of legal rights, as illustrated in earlier sections of this article. Importantly, it recognizes humanity's moral obligations to respect and protect the-bodily integrity and bodily dignity of nonhuman animals. Thus, in conclusion, animal advocates and legal reformers should work to incorporate ecofeminist principles in "rights" jurisprudence. Once policymakers have recognized the importance of our moral obligations and emotional relationships with nonhumans, legal rights for animals will naturally and necessarily follow.


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Legal personhood is a flexible concept and at times even fellow humans were treated as things just as non-humans are today. Mills , Blake. M., & Wise, Steven. (2015). The Writ De Homine Replegiando: A Common

Law Path to Nonhuman Animal Rights. CIVIL RIGHTS LAW JOURNAL , 25. http://civilrightslawjournal.com/issues/25.159.pdf

Nothing in these cases suggests any basis for a nonhuman animal to be denied the same opportunity. A human slave was a legal thing.106 Being a member of the same species as her owner had no impact on whether the slave had legal rights and the same has been true for prisoners and children.107 Moreover, legal personhood has not been restricted to human beings. The common law recognizes the legal personhood of legal constructs such as corporations and inani- mate objects such as vessels.108 As membership in the human species is neither a necessary nor a sufficient condition for legal personhood, it is not an appropriate basis for denying a nonhuman animal, or a person acting on its behalf, the use of the writ de homine replegiando to challenge her confinement. Nothing in the history of the writ’s usage in United States courts suggests otherwise.


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The Common Law Interpretation of Legal Personhood can Extend to non humans. Mills , Blake. M., & Wise, Steven. (2015). The Writ De Homine Replegiando: A Common

Law Path to Nonhuman Animal Rights. CIVIL RIGHTS LAW JOURNAL , 25.http://civilrightslawjournal.com/issues/25.159.pdf

PETA’s attempt to obtain judicial recognition of the rights of nonhuman animals failed, but the result can still be taken as a learning experience and as motivation to seek a new approach.189 It is no great controversy to argue as we have that under the common law, as opposed to under statutory interpretation, a legal “person” is not required to be a human being. A “person” in this sense is “a term of art;” it is not about biology.190 As one scholar has explained, it is instead about whether an entity has a legal right that should be protected, i.e., “[p]ersonhood is thus a conclusion, not a question.”191 There is no reason that nonhuman animals, many of whom possess similar capacities to humans, should not have the access to the same common law procedures as do other living beings nonetheless considered under the law to be things or property.


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Extending the writ of de homine replegiando to non-humans solves. Mills , Blake. M., & Wise, Steven. (2015). The Writ De Homine Replegiando: A Common

Law Path to Nonhuman Animal Rights. CIVIL RIGHTS LAW JOURNAL , 25.http://civilrightslawjournal.com/issues/25.159.pdf

A number of categories of legal non-persons have employed the common law writ de homine replegiando to obtain a jury decision on their legal personhood. The cases in which the writ has been utilized provide no reason why nonhuman animals, which have a similar legal status as those non-persons, should not be able to do the same. And most importantly, as a common law procedure, the writ is not subject to the type of legislative interpretation arguments that derailed PETA’s Thirteenth Amendment claim.192


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Writ de homine replegiando can be extended to non-humans and can free non-humans from oppressive detention. Mills , Blake. M., & Wise, Steven. (2015). The Writ De Homine Replegiando: A Common

Law Path to Nonhuman Animal Rights. CIVIL RIGHTS LAW JOURNAL , 25. http://civilrightslawjournal.com/issues/25.159.pdf

On its face, the writ de homine replegiando appears to be the best procedure for a nonhuman animal to challenge its detention. It is a writ of right so, at least initially, it should not be denied.46 It can be brought by a third-party on behalf of the nonhuman animal, which is a practical necessity.47 It allows for the immediate freedom of the nonhuman animal upon provision of a bond, which helps prevent any further damage due to confinement.48 If the writ is properly brought and supported, the propriety of the nonhuman animal’s confinement will be ruled upon by a jury, which may be more inclined to grant a nonhuman animal rights than would a judge.49


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Current Animal Rights Movements are Merely Animal Welfare Movements Wise, Steven . M. (2015, April 28). Animal Rights, Animal Wrongs: The Case for

NonhumanPersonhood.ForeignAffiarshttps://www.foreignaffairs.com/articles/2015-04-28/animal-rights-animal-wrongs

Around the world, what the media often refer to as “the animal rights movement” is taking off. Mass protests, fierce lobbying, litigation, and draft treaties have led to new legislation at the national, provincial, and city levels. It is now forbidden to use great apes in biomedical research, to bullfight in Catalonia, and to operate factory farms and slaughterhouses without adhering to the stricter rules governing the treatment and living conditions of livestock. However, with a few exceptions, these efforts are not truly about “animal rights” but about “animal welfare.


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Nonhumans are currently classified as legal things Wise, Steven . M. (2015, April 28). Animal Rights, Animal Wrongs: The Case for


One reason for this difference is that worldwide, animals are regarded as “legal things,” incapable of having rights and treated as articles of property. In contrast, humans are deemed “legal persons,” possessing intrinsic value and the capacity for an infinite number of legal rights as the owners of “legal things.” Another reason is that the term “animal” encompasses the enormously diverse biological kingdom of animalia, which comprises more than 1.25 million known species (with more to be discovered) that fall along a vast continuum of consciousness, sentience, general intelligence, and autonomy. It includes 60,000 vertebrates: 5,500 mammals, 10,000 birds, 6,200 amphibians, 30,000 fish, and 8,200 reptiles. The million-plus known invertebrates include about 950,000 varieties of insects, 81,000 mollusks, and 40,000 crustaceans.


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Non-humans such as cetaceans, great apes, elephants and other species are not protected under current welfare laws. Wise, Steven . M. (2015, April 28). Animal Rights, Animal Wrongs: The Case for


Animals at the continuum’s other end—including great apes, cetaceans (whales, dolphins, and porpoises), and elephants—possess a complex consciousness and self-consciousness, exquisite sentience, robust general intelligence, and a powerful sense of autonomy. They, too, have long received some protection from unnecessary cruelty. But rapid scientific advances over the last half century have demonstrated that their advanced levels of cognition leave them inadequately protected by anticruelty and similar legislation. For example, chimpanzees can reflect upon their thoughts. They have powerful memories, can anticipate and prepare for the future, and even have a sense of moral agency—they ostracize those who violate social norms and respond negatively to inequitable situations. When playing economic games, chimpanzees spontaneously make fair offers and have a simple understanding of numbers. They have a material, social, and symbolic culture. For example, through a discipline known as “chimpanzee archaeology,” it was discovered that some 4,300 years ago, chimps living in the rainforests of the Ivory Coast used stone tools to crack nuts. They passed this cracking technique over 200 generations of chimpanzees. These and other scientific advances have catalyzed a new and growing twenty-first-century “animal rights movement” that demands legal rights to protect these animals’ fundamental interests.


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It’s not about granting human rights to non-humans but rather about recognizing the rights that are entitled to other species. Wise, Steven . M. (2015, April 28). Animal Rights, Animal Wrongs: The Case for


These newer animal rights campaigners’ demands for fundamental legal rights for nonhumans are often misinterpreted as demanding “human rights” for nonhuman animals. But that is not correct; the new animal rights practitioners recognize that our subjects are not human. We are demanding legal rights that are appropriate to the levels of cognition that scientists are able to determine through their work with nonhuman animals both in the wild and in captivity. Therefore, chimpanzees are entitled to “chimpanzee rights,” elephants to “elephant rights,” and orcas to “orca rights.”


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The rights of nonhumans are in line with international law and failure to recognize those rights undermines our own concepts of morality and justice. Wise, Steven . M. (2015, April 28). Animal Rights, Animal Wrongs: The Case for


The Universal Declaration of Human Rights speaks, among other things, to humanity’s dignity, entitlement to equal and inalienable rights, recognition as a legal person, and rights to life, liberty, equality, security, and freedom from enslavement. There is no rational reason why autonomous and self-determining nonhuman animals should not also possess equal and inalienable rights, recognition as a legal person, and rights to life, liberty, equality, security, and freedom from enslavement. Over the centuries, we humans have slowly and painfully developed a core of near universal values and principles intended to protect our most fundamental interests. It is time we recognize that we share the planet with other species with similar fundamental interests and that our failure to protect those interests both wrongs the animals and subverts the core values and principles that protect our own.


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Anthropocentrism insulates notions of dominant hierarchies, which can inflict suffering on supposed inferior groups Pete Singer, May15, 2003,“Animal Liberation at 30” The New York Review of Books, Vol.

50, No. 8, http://www.animal-rights-library.com/texts-m/singer04.htm

In the text that followed, I urged that despite obvious differences between humans and nonhuman animals, we share with them a capacity to suffer, and this means that they, like us, have interests. If we ignore or discount their interests, simply on the grounds that they are not members of our species, the logic of our position is similar to that of the most blatant racists or sexists who think that those who belong to their race or sex have superior moral status, simply in virtue of their race or sex, and irrespective of other characteristics or qualities. Although most humans may be superior in reasoning or in other intellectual capacities to nonhuman animals, that is not enough to justify the line we draw between humans and animals. Some humans—infants and those with severe intellectual disabilities—have intellectual capacities inferior to some animals, but we would, rightly, be shocked by anyone who proposed that we inflict slow, painful deaths on these intellectually inferior humans in order to test the safety of household products. Nor, of course, would we tolerate confining them in small cages and then slaughtering them in order to eat them. The fact that we are prepared to do these things to nonhuman animals is therefore a sign of "speciesism"—a prejudice that survives because it is convenient for the dominant group— in this case not whites or males, but all humans.


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Anthropocentrism is a justification to dominate other humans Penelope Smith, No Date “Animal Communication Specialist”,,

http://www.anaflora.com/animalliberty/articles/penelope/pene-2.html

Many humans have an attitude that restricts their ability to understand or empathize with non-human animals and other life forms and has some serious consequences for all life on this planet. It is called anthropocentrism, or viewing man as the center or final aim of the universe. I refer to this in my book, Animal Talk, as the "human superiority complex" considering humans as superior to or the pinnacle of all forms of life. From the anthropocentric view, non-human beings that are most like human are usually considered more intelligent, for example, chimpanzees who learn to use sign language or dolphins who signal word or thought comprehension through touching electronic devices in their tanks. Animals or other life forms that don't express themselves in human ways by language or in terms easily comprehensible by common human standards are often considered less developed, inferior, more primitive or mechanistic, and usually of less importance than humans. This viewpoint has been used to justify using animals as objects for human ends. Since humans are the superior creatures, "dumb, unfeeling" non-humans can be disregarded, mistreated, subjugated, killed or whole species eliminated without much concern for their existence in itself, only their usefulness or lack of it to humankind. Many humans, as they see other animals are more like them in patterns of behavior and expression of intelligence, begin to respect them more and treat them with more regard for their rights. However, this does not transcend the trap of anthropocentrism. To increase harmony of life on Earth, all beings need to be regarded as worthy of respect, whether seen as different or similar to the human species. The anthropocentric view toward animals echoes the way in which many humans have discriminated against other humans because they were of different cultures, races, religions, or sexes. Regarding others as less intelligent or substandard has commonly been used to justify domination, cruelty or elimination of them. Too often people label what they don't understand as inferior, dumb, or to be avoided, without attempting to understand a different way of being. More enlightened humans look upon meeting people, things or animals that are different than themselves as opportunities to expand their understanding, share new realities, and become more whole.


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Anthropocentric thinking made Hurricane Katrina such a terrible disaster. Sacha Thompson 2008, The Role of the Environment in Poverty Alleviation,

http://www.rainforest-alliance.org/resources/documents /environment_role.pdf

In October 2004, Joel K. Bourne published an article in National Geographic depicting the devastation caused by a major hurricane tearing through New Orleans. In his article, hundreds of thousands of New Orleanians, many unable to evacuate before the storm, are drowned or trapped on rooftops as storm surges drive walls of water over the city’s levees. The floodwaters turn the city into a cesspool of contamination, toxic waste, decaying flesh, and disease. It is declared the worst natural disaster in the history of the United States (Bourne, 2004). As fantastic as this story seemed in 2004, the article is not entirely a work of fiction. Bourne interviewed several local engineers, fishermen, business owners, and scientists, all of whom agreed that Louisiana’s severely eroded wetlands—which protect the low-lying city of New Orleans from the severity of hurricanes—made Bourne’s disaster more of an inevitability than a possibility (Bourne, 2004). At 6:10 a.m. on August 29, 2005, Hurricane Katrina, a high-intensity Category 3 storm, made landfall in Louisiana (Knabb, Rhome, and Brown, 2005) and wreaked havoc on the city of New Orleans as if it used Bourne’s article for a blueprint.1 The destruction of Katrina was written all over the levee walls. New Orleans is a culturally rich and vital city carved out of the wetlands of the Mississippi Delta. Since its founding, it has been struggling to tame its surrounding environment—namely, to prevent the wetlands from swallowing the city whole. The massive feats of engineering that keep New Orleans dry and prosperous are truly a marvel. Ironically, these human-made marvels also aided Hurricane Katrina to cause as much destruction as it did. The destruction of the wetlands, the growth and exploitation of the oil industry, a deeply rooted legacy of racism, and ineffective governance jointly contributed to making Katrina the worst natural disaster in U.S. history. This chapter will explore the role that each of these factors played in the disaster. It will also offer suggestions drawn from the lessons of other disasters that may aid a rebuilt New Orleans in mitigating the devastation of the next, inevitable hurricane.


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Intellectual rejection of anthropocentrism solves extinction Seed, John, 1988, “Beyond Anthropocentrism,” from Thinking Like A Mountain - Towards

A Council Of All Beings, http://www.rainforestinfo.org.au/deep-eco/Anthropo.htm

When humans investigate and see through their layers of anthropocentric self-cherishing, a most profound change in consciousness begins to take place. Alienation subsides. The human is no longer an outsider, apart. Your humanness is then recognised as being merely the most recent stage of your existence, and as you stop identifying exclusively with this chapter, you start to get in touch with yourself as mammal, as vertebrate, as a species only recently emerged from the rainforest. As the fog of amnesia disperses, there is a transformation in your relationship to other species, and in your commitment to them. What is described here should not be seen as merely intellectual. The intellect is one entry point to the process outlined, and the easiest one to communicate. For some people however, this change of perspective follows from actions on behalf of Mother Earth. "I am protecting the rainforest" develops to "I am part of the rainforest protecting myself. I am that part of the rainforest recently emerged into thinking." What a relief then! The thousands of years of imagined separation are over and we begin to recall our true nature. That is, the change is a spiritual one, thinking like a mountain (3), sometimes referred to as "deep ecology". As your memory improves, as the implications of evolution and ecology are internalised and replace the outmoded anthropocentric structures in your mind, there is an identification with all life, Then follows the realisation that the distinction between "life" and "lifeless" is a human construct. Every atom in this body existed before organic life emerged 4000 million years ago. Remember our childhood as minerals, as lava, as rocks? Rocks contain the potentiality to weave themselves into such stuff as this. We are the rocks dancing. Why do we look down on them with such a condescending air. It is they that are immortal part of us. (4) If we embark upon such an inner voyage, we may find, upon returning to present day consensus reality, that our actions on behalf of the environment are purified and strengthened by the experience. We have found here a level of our being that moth, rust, nuclear holocaust or destruction of the rainforest genepool do not corrupt. The commitment to save the world is not decreased by the new perspective, although the fear and anxiety which were part of our motivation start to dissipate and are replaced by a certain disinterestedness. We act because life is the only game in town, but actions from a disinterested, less attached consciousness may be more effective. Activists often don't have much time for meditation. The disinterested space we find here may be similar to meditation. Some teachers of meditation are embracing deep ecology (5) and vice versa(6).


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Challenging anthropocentrism allows for adoption of a new morality Zeitler, Ulli, PhD, 1999, An integrated model of a decision making basis for environmental

impact assessment (EIA) of transport infrastructure investments,” http://trid.trb.org/view.aspx?id=639639

Impacts are relative in meaning, significance and extent to the particular moral subjects and their circumstances. For centuries it has been an uncontested assumption in modern liberal society to reserve the status of moral subjects to human beings and that of moral agents to a subclass of humanity, namely rational, experienced people. However recently, not only beyond moderne Western culture, but also as a result of critical reflection within that culture, this classical anthropocentric attitude has been repeatedly challenged. Considering the impact of our activities, Nature (not only human nature) has been awarded the status of moral relevance. Environmental impacts are not only impact of significance for human well-being and survival, but have some kind of moral importance of its own. It is now largely accepted that certain animals, plants and landscapes as well as urban heritages and natural resources should be preserved not only for present and future human societies, but partly also for their own sake and without identifiable utility effect. As a consequence, the class of moral subjects should be kept as open as possible.


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The Alt functions as an expansion of knowledge on human integration Hayward, Tim; University of Edinburgh; Feb 1997, Environmental Values, Vol. 6, No. 1

(February 1997), pp. 49-63, White Horse Press, “Anthropocentrism: A Misunderstood Problem,” jstor.com

The aim of overcoming anthropocentrism is intelligible if it is understood in terms of improving knowledge about the place of humans in the world; and this includes improving our knowledge about what constitutes the good of nonhuman beings. This kind of knowledge is significantly added to by objectivating science. There may also be a role for other kinds of knowledge - for instance, kinds characterised by empathetic imagining of how it might be like to be a member of another species (Cassano,1989); but here one must always be cautious about unwittingly projecting human perceptions on to beings whose actual perceptions may be radically different, since this would be to reintroduce just the sort of error that characterises ontological anthropocentrism.


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Failing to address the oppressive and dominating nature of humanities relationship to nature promotes anthropocentrism Bell, Anne C and Russell, Constance L 2000 Beyond Human, Beyond Words:

Anthropocentrism, Critical Pedagogy, and the Poststructuralist Turn, http://www.csse-scee.ca/CJE/Articles/FullText/CJE25-3/CJE25-3-bell.pdf

For this reason, the various movements against oppression need to be aware of and supportive of each other. In critical pedagogy, however, the exploration of questions of race, gender, class, and sexuality has proceeded so far with little acknowledgement of the systemic links between human oppressions and the domination of nature. The more-than-human world and human relationships to it have been ignored, as if the suffering and exploitation of other beings and the global ecological crisis were somehow irrelevant. Despite the call for attention to voices historically absent from traditional canons and narratives (Sadovnik, 1995, p. 316), nonhuman beings are shrouded in silence. This silence characterizes even the work of writers who call for a rethinking of all culturally positioned essentialisms. Like other educators influenced by poststructuralism, we agree that there is a need to scrutinize the language we use, the meanings we deploy, and the epistemological frameworks of past eras (Luke & Luke, 1995, p. 378). To treat social categories as stable and unchanging is to reproduce the prevailing relations of power (Britzman et al., 1991, p. 89). What would it mean, then, for critical pedagogy to extend this investigation and critique to include taken-for-granted understandings of “human,” “animal,” and “nature”? This question is difficult to raise precisely because these understandings are taken for granted. The anthropocentric bias in critical pedagogy manifests itself in silence and in the asides of texts. Since it is not a topic of discussion, it can be difficult to situate a critique of it. Following feminist analyses, we find that examples of anthropocentrism, like examples of gender symbolization, occur “in those places where speakers reveal the assumptions they think they do not need to defend, beliefs they expect to share with their audiences” (Harding, 1986, p. 112). Take, for example, Freire’s (1990) statements about the differences between “Man” and animals. To set up his discussion of praxis and the importance of “naming” the world, he outlines what he assumes to be shared, commonsensical beliefs about humans and other animals. He defines the boundaries of human membership according to a sharp, hierarchical dichotomy that establishes human superiority. Humans alone, he reminds us, are aware and self-conscious beings who can act to fulfill the objectives they set for themselves. Humans alone are able to infuse the world with their creative presence, to overcome situations that limit them, and thus to demonstrate a “decisive attitude towards the world” (p. 90). Freire (1990, pp. 87–91) represents other animals in terms of their lack of such traits. They are doomed to passively accept the given, their lives “totally determined” because their decisions belong not to themselves but to their species. Thus whereas humans inhabit a “world” which they create and transform and from which they can separate themselves, for animals there is only habitat, a mere physical space to which they are “organically bound.” To accept Freire’s assumptions is to believe that humans are animals only in a nominal sense. We are different not in degree but in kind, and though we might recognize that other animals have distinct qualities, we as humans are somehow more unique. We have the edge over other creatures because we are


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able to rise above monotonous, species-determined biological existence. Change in the service of human freedom is seen to be our primary agenda. Humans are thus cast as active agents whose very essence is to transform the world – as if somehow acceptance, appreciation, wonder, and reverence were beyond the pale. This discursive frame of reference is characteristic of critical pedagogy. The human/animal opposition upon which it rests is taken for granted, its cultural and historical specificity not acknowledged. And therein lies the problem. Like other social constructions, this one derives its persuasiveness from its “seeming facticity and from the deep investments individuals and communities have in setting themselves off from others” (Britzman et al., 1991, p. 91). This becomes the normal way of seeing the world, and like other discourses of normalcy, it limits possibilities of taking up and confronting inequities (see Britzman, 1995). The primacy of the human enterprise is simply not questioned. Precisely how an anthropocentric pedagogy might exacerbate the environmental crisis has not received much consideration in the literature of critical pedagogy, especially in North America. Although there may be passing reference to planetary destruction, there is seldom mention of the relationship between education and the domination of nature, let alone any sustained exploration of the links between the domination of nature and other social injustices. Concerns about the nonhuman are relegated to environmental education. And since environmental education, in turn, remains peripheral to the core curriculum (A. Gough, 1997; Russell, Bell, & Fawcett, 2000), anthropocentrism passes unchallenged.

Documents

Jury Nullification Brief