A Concluding Thought on Jury Nullification and Plans – Bob Overing

By Bob Overing

1 – S’quo or No

I watched an octas debate at the Glenbrooks this year between Ollie Sussman from Cambridge Rindge and Latin and Neal Kapoor from Lake Highland Prep on the jury nullification topic and the following exchange occurred in the first minute of CX:

            Neal: Does your aff advocate taking an action or forms of jury nullification in the status quo?

            Ollie: I say jury nullification is a good idea.

            Neal: So what do I have to defend?

            Ollie: That jury nullification is bad.

            Neal: But you say in your aff that DAs to jury nullification don’t have uniqueness because jury nullification already exists in the status quo?

            Ollie: Fine, I won’t go for that. I’ll defend more jury nullification than the status quo.

I saw a number of debates on the jury nullification topic where questions of ‘what does the aff defend’ and ‘which side is the status quo’ made a difference. Unfortunately, these questions didn’t always get resolved in cross-X, and they could sometimes impact the outcome of the debate. The problem is that jury nullification does exist in the status quo, but unlike a legislative act that either is law or isn’t, there could be more jury nullification. The aff can specify whether they defend status quo jury nullification or an increase in jury nullification, but many debaters neglected to do so [1]. This could qualify or entirely destroy offense under many types of frameworks, especially consequentialist advantages and disadvantages. Most would agree that it’s unfortunate if this debate gets sorted out in late rebuttals or in sparse line-by-line commentary rather than in an easy, clear way in the AC.

2 – Who Perceives

A second ambiguity had to do with the phrase “in the face of perceived injustice.” A debate I judged at the Glenbrooks between Jonas LeBarillec from Peninsula and Derek Zhang from Mountain View came down to the following distinction. Some affs advocated jury nullification in every circumstance C (e.g. a trans-person on trial) described by the aff as an injustice. Other affs advocated jury nullification only when juries in circumstance C perceived injustice. Put another way, the aff could fiat nullification in a circumstance or fiat nullification when juries perceive injustice. Choice of interpretation on this issue had huge implications for offense on both sides. For example, the neg can argue that bigoted jurors can nullify in harmful ways on one interpretation and not the other. This DA could outweigh aff offense or function as offense to an NC framework, so its validity was important to a variety of debates.

3 – Plans, Still Good

Of course, I think the solution is plans. On a topic with huge ambiguities, the affirmative must specify. And sometimes the only or best way to do that is a parametricized advocacy: a plan.

Even if there is a best interpretation of the resolution, if that’s not obvious from reading it, the aff should specify early on. Doing so increases clash and prevents unnecessary argumentation assuming the wrong or both interpretations. A debate that comes down to an interpretational issue that makes up less than 10% of the total argumentation is a bad debate. The work and research the debaters did to master the topic is useless. Further, the debates can be difficult for judges to resolve. Does the 1AR get to claim what the aff’s interpretation “really was?” Or does the neg get to stick the aff to whichever side the neg chooses? If the neg doesn’t read topicality, do they lose out on contesting the aff’s interpretation in the 2NR if it only becomes clear in the 1AR? These are paradigmatic issues, and debaters and judges should try to minimize the number of debates that come down to a judge’s whims rather than the skill of debaters. Reading a plan resolves all of these questions by clearly staking out an advocacy in the AC.

This may seem like a roundabout way to justify plans, but it scores big on one of the sentiments a lot of anti-plans people express: the topic and its wording matter. One complaint I hear about plans and policy-style argument is that it’s a one-size-fits-all way to debate regardless of the topic. The objection cuts both ways. Some topics require major specification, even plans, to produce good debates. These are examples where the justifications for some pet theory of topicality, parametrics, or semantics just don’t outweigh the pragmatic need for plans. Having a principled theory (of T, plans, etc.) is nice, but when it doesn’t work and produces bad debates, it might need rethinking.

End Notes:

[1] A lot of LD topics involve actions that exist in the status quo and could be increased to varying degrees. My senior year, we debated assisting individuals in need and targeted killing, two practices that exist in the status quo and could be increased. Recently, we’ve had food security, conditions on humanitarian aid, environmental protection, and truth-seeking in the CJS. All of these are more like the jury nullification topic than topics like the living wage or the right to be forgotten, which exist or do not exist. In policy, the resolutions are carefully written to include language like increase, decrease, or establish to make clear that the aff defends a shift from the status quo. Like it or not, LD doesn’t have it that easy.

Bob Overing | Co-Director

Bob is a co-director of Premier, coach for Loyola in Los Angeles, and debater for the USC Trojan Debate Squad. As a senior in high school, he was ranked #1, earned 11 bids and took 2nd at TOC. In college, he cleared at CEDA and qualified to the NDT. His students have earned 60 career bids, reached TOC finals, and won many championships.