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Author Topic: Immigration Controversy - Open wording thread  (Read 29428 times)
stables
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« on: May 13, 2010, 09:39:49 AM »

Now that the community has voted for the immigration topic we will now begin working on wording papers. The topic selection committee will share their ideas and research process with the community and we invite your participation as well. Anyone can submit a wording paper by Friday May 28th.

The immigration controversy paper is attached for your review. Please use this thread to start discussion of potential wording options.

Thank to all of the controversy paper authors for their good work.

* Immigration Controversy Paper.pdf (273.47 KB - downloaded 8624 times.)
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Gordon Stables
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cramhelwich
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« Reply #1 on: May 17, 2010, 10:30:24 AM »

I have a "wording paper" related question:

Has anyone found a good definition of "restriction" in the context of immigration/asylum policy? By good, I mean one that is inclusive/exclusive while providing a rationale for said inclusion/exclusion. Contextual usage abounds with an implied meaning of "that which limits immigration," but I have yet to see anything approaching a dispositive treatment of the phrase.

This seems like an important issue, since there are an array of policies that "limit immigration" with varying degrees of directness. Border checkpoints/patrols restrict unauthorized entry--are they an "immigration restriction?" I have no idea. My fear is that "proximity searches" create an unwieldy topic. We obviously survived "missions" last year without a good definition, but...

So, verb stem, anyone?
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kevin kuswa
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« Reply #2 on: May 17, 2010, 12:46:02 PM »

DCH,

You've pointed to exactly what we need.  It is tough to find good inclusive/exclusive definitions of "restrictions on immigration" or "restrictions on immigrants."  If someone has located a good card on those phrases, let us know.  As a result, we are looking into specifying what we mean by "immigration" more specifically.  Therefore, through some solid work from Gordon, Steve, and Jarrod, we are looking at "restrictions on visas, legal permanent residence, naturalization, and/or asylum."  I believe there are groups forming in each of those four areas and perhaps another group on social services/public benefits.

Another issue to report to those working on wording papers: we do not *have* to use "reduce restrictions" in all of our wording options.  There may be better phrases to get at the kinds of cases we want to include.

If any of you are interested, contact Gordon to volunteer for some research and join a research group.

Here's one of the better contextual cards I've located thus far on restrictions that mentions more than simply "barriers to entry."  There are other issues raised by this evidence and it's not really a card that limits the phrase for topicality purposes, but it might help the conversation.

NATIONAL IMMIGRATION LAW CENTER, ’06 (Sept., Facts About Immigrants’ Low Use of Health Services and Public Benefits, www.caimmigrant.org/document.php?id=99, accsed 5/15/10)

Federal Law Imposes Harsh Restrictions on Immigrants’ Eligibility for Public Benefits That Don’t Apply to Other Residents.  Undocumented immigrants are not eligible for federal public benefits, such as income supplements (e.g., Social Security, Supplemental Security Income (SSI), and Temporary Assistance for Needy Families (TANF)), health care (Medicaid and Medicare), and food stamps. Federal law also imposes harsh restrictions on lawfully present immigrants’ eligibility for public benefits. Most documented immigrants cannot receive federal Medicaid, TANF, food stamps, or SSI during their first five years or longer in the U.S., regardless of how much they have worked or paid in taxes. These punitive restrictions depart from the traditional principle that immigrants, who have the same obligation to pay taxes and meet other civic duties as citizens, should not be subject to a separate, stricter set of eligibility rules. Many states view these restrictions as unfair and detrimental to the health and well being of the public. Over half have used their own funds to ensure that immigrant families who were rendered ineligible for federal benefits can secure critical services.


Thanks for the post.  Any and all feedback welcome.

Sincerely,

Kevin
« Last Edit: May 17, 2010, 06:41:59 PM by kevin kuswa » Logged
rubaie
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« Reply #3 on: May 17, 2010, 07:24:08 PM »

This definitely isn't exclusive or inclusive, but it does provide insight for how to recognize a "restriction on immigration/immigrants" as opposed to other restrictions --

Adam Lounsbury, '8. "A NATIONALIST CRITIQUE OF LOCAL LAWS PURPORTING TO REGULATE THE HIRING OF UNDOCUMENTED WORKERS," 71 Alb. L. Rev. 415, Lexis.

A court's ability to critically analyze a field preemption problem is directly related to the proper characterization of the field in which the federal statute is operating. 102 In fact, depending upon how a court chooses to define IRCA - either as an employment regulation or, alternatively, as an immigration regulation- will dramatically impact whether IRCA's employment provisions are an expression of  [*436]  the federal government's exclusive dominance in the field of immigration. 103

There exists, here, some basis for determining whether IRCA's requirements are an immigration or employment regulation. Fortunately, the legislative history and the statutory structure and purpose provide insight as to whether IRCA is an immigration or employment regulation. Recall that Congress chose to impose employee work eligibility requirements on employers as a method of prospectively ameliorating the immigration problem. 104 Additionally, IRCA augmented the statutory scheme of the INA as a method to reinforce a system that was failing to effectively regulate migrant populations. 105 These two propositions, considered contemporaneously, provide some evidence that Congress intended the restrictions on employment to function as the national mechanism for controlling immigration. This leads to the inference that although IRCA embodies functional attributes of both an employment and immigration regulation, the statute is most fairly characterized as an immigration regulation.

The reasoning in De Canas v. Bica 106 supports the hypothesis that IRCA's employment restrictions should be characterized as an immigration regulation. In De Canas, the Court ruled on the validity of a California statute designed to regulate the employment of undocumented workers. 107 It is important to note, however, that this decision was delivered prior to the adoption of IRCA, so the Court was not in the position to directly decide the issue of preemption based on IRCA. The opinion opens by recognizing federal preeminence in the area of immigration regulations. 108 But,  [*437]  Justice Brennan, who wrote for the unanimous court, noted:
 
The Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised. For example, ... . [numerous cases] remain authority that, standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration ... . 109
 
In fact, later in the opinion, he noted that the INA did not formally address "matters affecting employment of illegal aliens"; however, he tacitly suggested that if Congress had acted in the field of immigrant employment, state action would have been precluded. 110 The point is that predating the adoption of IRCA, no immigration regulation on the federal level concerned the employment of aliens other than peripherally. 111 However, the regulatory landscape was significantly altered with the adoption of IRCA in 1986. Given the Court's implicit recognition that an immigration regulation could use employment as its proxy, the conclusion that IRCA presents itself as an immigration control measure and not a regulation of employment seems inevitable. 112

Having established that IRCA operates as an immigration regulation, we may now proceed to discuss field preemption of immigration regulations. First, it is well settled that the federal  [*438]  government holds the key to entry into this country and maintains the power to control access to its borders. 113 The effect of this broad power is to exclude states from acting in this field of federal dominance.
« Last Edit: May 17, 2010, 07:27:10 PM by rubaie » Logged
JimClarion
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« Reply #4 on: May 18, 2010, 10:51:59 AM »

Unfortunately I don't have a lot of time in the short-term to do much in terms of cutting cards and so forth (unless someone would like to take over the slew of house obligations I need to roll through in the immediate present) but I found the following article that may/not be useful:

Cox, Adam B. "IMMIGRATION LAW'S ORGANIZING PRINCIPLES." University of Pennsylvania Law Review 157.2 (2008): 341-393. Academic Search Complete. EBSCO. Web. 18 May 2010.

I don't think it's been cited yet.  The article deals with efforts to distinguish between selection and regulation rules in immigration law.  The author of the essay concludes that an effort to distinguish between different types of restrictions is pointless because one can functionally substitute for the other, there are cites of court cases and other authors who do think restrictions can be differentiated along pre-entry and post-entry lines. 

...Back to painting...

Jim 
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kevin kuswa
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« Reply #5 on: May 18, 2010, 12:11:19 PM »

Thanks Brian and Jim.  Those should help.  For folks collecting citations, two books have been helpful in sorting out current policy and immigration restrictions.  Not only do many authors talk about "immigration restrictionists" vs. "immigration proponents," there is also a consensus that border policies are not just at the physical border.  There are "point-of-entry" restrictions in place, but that is only part of the picture.  Take a look at Robert Koulish, Prof. Law at Philadelpia U., 2010 (Immigration and American Democracy, Routledge).  The other one is by three University of Texas faculty: Givens, Freeman, and Leal, Profs. of Government @ UT-Austin, 2009 (Immigration Policy and Security).  Keep the replies coming.

Sincerely,

Kevin
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Whit
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« Reply #6 on: May 18, 2010, 12:53:18 PM »

This evidence is old, so I don't know if the parameters it lays out would still be true, but it seems like a good definition of 'restriction' that is rooted in the INA:

HARVARD LAW REVIEW 1983 (“Developments in the Law Immigration: Policy and the Rights of Aliens” 96 Harv. L. Rev. 1286, April, l/n)
B. Instrumental Provisions. -- Instrumental provisions are designed either to restrict immigration flows or to encourage immigration of certain aliens. The provisions that restrict immigration are expressed in quantitative and qualitative terms. Quantitative restrictions set ceilings on the number of aliens to be admitted. Qualitative restrictions segregate, from among the vast pool of prospective immigrants, the aliens with characteristics deemed "undesirable" by the legislature. The provisions that encourage immigration award preferences and grant exemptions from restrictive provisions; aliens with American relatives or, to a far lesser extent, with needed occupational skills, are the beneficiaries.

(a) Quantitative Restrictions on Immigration: Quotas and  [*1337]  Preferences. -- The Immigration and Nationality Act currently contains two independent numerical ceilings. First, a worldwide quota permits 270,000 aliens -- exclusive of refugees, "special" immigrants, and "immediate relatives" of United States citizens and permanent resident aliens -- to come to the United States each year. 19 Second, aliens seeking to enter under the worldwide quota are limited by a ceiling of 20,000 immigrants per country. 20

A seven-tier preference system governs selection of immigrants under these numerical limits. 21 The first, second, fourth, and fifth preference categories are allotted to relatives of United States citizens or permanent resident aliens 22 and serve to reunite families. 23 The third and sixth preference categories are allotted to immigrant workers 24 whose labor is needed in the domestic economy. 25 All other potential immigrants are placed in a seventh category and receive no preference: visas are available only to the extent that visas in preference categories are not used, 26 a circumstance that last occurred in 1978. 27

The existing allocation of visas among preference categories gives priority to family unification over recruitment of skilled labor for the domestic economy. 28 Eighty percent of visas are allocated to family reunification preferences; twenty percent to occupational preference categories. 29 Unallocated visas in higher preference categories "drop down" and become available  [*1338]  only to lower family reunification categories (and the nonpreference category). 30

Of the two numerical limits, the worldwide quota generates the most controversy, reflecting public concern over high unemployment and the perceived negative effects of immigration. 31 Although virtually all experts concede the necessity of setting some limits on immigration, 32 evaluating proposed immigration levels is complicated because the effects of immigration are imperfectly understood, occur far in the future, and depend on factors unrelated to immigration flows. Irreconcilable differences exist between expert estimates of the impact of immigration on the size of the American population, 33 on the vitality of the American economy, 34 and on the assimilative capacity of American culture. 35 Consequently, proposed numerical  [*1339]  ceilings range from less than zero (that is, net emigration) 36 to levels above the current worldwide ceiling. 37

(b) Qualitative Restrictions on Immigration: Exclusions. -- Congress first passed legislation excluding "undesirable" aliens in 1875. 38 Over the following century, Congress has repeatedly reaffirmed existing exclusions and added new ones; 39 ultimately, thirty-three classes of excludable aliens have accumulated. 40 These classes may be grouped into seven broad categories: 41 immoral aliens, 42 subversive aliens, 43 alien workers possessing skills already available domestically, 44 criminal aliens, 45 physically or mentally ill aliens, 46 aliens who would be dependent on social welfare services, 47 and aliens who have violated admissions regulations. 48 Exclusion of these aliens, however, depends not only on legislation by Congress, but also on judicial construction and executive branch administration.
« Last Edit: May 18, 2010, 01:01:30 PM by Whit » Logged
Whit
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« Reply #7 on: May 18, 2010, 05:51:03 PM »

The INA also seems to be a potential way to limit out asylum seekers/refugees:

Jennifer LINDSLEY 2004 (J.D. Candidate – University of Wisconsin, “All Relevant Factors: Gender in the Analysis of Exceptional and Extremely Unusual Hardship,” 19 Wis. Women’s L.J. 337, Fall, l/n)
n6. Undocumented immigrants are those who are not authorized to remain in the United States under the Immigration and Nationality Act. Enid Trucios-Haynes, "Family Values" 1990's Style: U.S. Immigration Reform Proposals and the Abandonment of the Family, 36 Brandeis J. Fam. L. 241, 241 n.2 (1997). The Immigration and Nationality Act has other classifications for people living in the United States who are not citizens. Id. Lawful permanent residents (LPRs) have "green cards" and are considered legal immigrants but are not considered citizens. Id. There are also temporary classifications for students, professional workers, asylees, and refugees that are nonimmigrant classifications for non-citizens but allow those people to remain in the United States legally. Id. When a person is here without legal documentation and without being a member of one of the excepted classes in the Immigration and Nationality Act, they are considered undocumented or illegal immigrants. Id
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kelly young
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« Reply #8 on: May 19, 2010, 11:28:50 AM »

The INA also seems to be a potential way to limit out asylum seekers/refugees:

Jennifer LINDSLEY 2004 (J.D. Candidate – University of Wisconsin, “All Relevant Factors: Gender in the Analysis of Exceptional and Extremely Unusual Hardship,” 19 Wis. Women’s L.J. 337, Fall, l/n)
n6. Undocumented immigrants are those who are not authorized to remain in the United States under the Immigration and Nationality Act. Enid Trucios-Haynes, "Family Values" 1990's Style: U.S. Immigration Reform Proposals and the Abandonment of the Family, 36 Brandeis J. Fam. L. 241, 241 n.2 (1997). The Immigration and Nationality Act has other classifications for people living in the United States who are not citizens. Id. Lawful permanent residents (LPRs) have "green cards" and are considered legal immigrants but are not considered citizens. Id. There are also temporary classifications for students, professional workers, asylees, and refugees that are nonimmigrant classifications for non-citizens but allow those people to remain in the United States legally. Id. When a person is here without legal documentation and without being a member of one of the excepted classes in the Immigration and Nationality Act, they are considered undocumented or illegal immigrants. Id


Hey Whit, I'm not sure how you envision using INA's categories, but its seems like excluding asylum and refugees through the nonimmigrant classification for noncitizens would also exclude H-1B visas, which seems to narrow aff ground way too much.
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Whit
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« Reply #9 on: May 19, 2010, 12:33:38 PM »

I'm fully supportive of a topic that includes Refugees and Asylum Seekers, and I agree that a topic without them would be overly narrow. I just know that some had expressed displeasure at the amount of aff ground created by their inclusion, and wanted to point out a definition that might limit the topic down to undocumented immigrants.

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stables
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« Reply #10 on: May 19, 2010, 05:48:18 PM »

Thanks to everyone for their input and sorry for the delays. The work of the committee suggests that we have a good start and there are two sets of questions to answer in the wording work. I know this may seem simplistic at first, but I am trying to build in the good work and not over-complicate our task.

1) Which specific groups of individuals would benefit from the resolution? In other words, who has greater access to the full US social and legal system?

Our work suggests the first three groups:

1) Individuals on or seeking a visa (primarily specialized work or study)

2) Individuals seeking legal refuge (i.e, asylum) because of repression or violence in their homeland

3) Individuals in the US without a legal means of being here (i.e., undocumented folks)

These distinctions are important because we are trying to include folks who are included in the US definition of immigrant and resident. These definitions are from the U.S. Citizenship and Immigration Services (USCIS) (the government agency that oversees lawful immigration to the United States).

http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4f9f95c4f635f010VgnVCM1000000ecd190aRCRD&vgnextchannel=b328194d3e88d010VgnVCM10000048f3d6a1RCRD

Immigrant
See "Permanent Resident Alien"


http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9a1f95c4f635f010VgnVCM1000000ecd190aRCRD&vgnextchannel=b328194d3e88d010VgnVCM10000048f3d6a1RCRD

Permanent Resident Alien
An alien admitted to the United States as a lawful permanent resident. Permanent residents are also commonly referred to as immigrants; however, the Immigration and Nationality Act (INA) broadly defines an immigrant as any alien in the United States, except one legally admitted under specific nonimmigrant categories (INA section 101(a)(15)). An illegal alien who entered the United States without inspection, for example, would be strictly defined as an immigrant under the INA but is not a permanent resident alien. Lawful permanent residents are legally accorded the privilege of residing permanently in the United States. They may be issued immigrant visas by the Department of State overseas or adjusted to permanent resident status by U.S. Citizenship and Immigration Services in the United States.


2) In what way would these individuals benefit? Is it solely a question of legal residency status or are there other benefits?

A) Can more folks come here because of the benefits in the topic? This is the idea of reducing restriction allowing more folks here on visa, asylum, etc.

B) Can folks who are already here stay legally? (i.e., visas, guest worker program, etc.)

C) Can folks who are here (or would like to come here) become citizens (i.e., naturalization).

D) Are there other social resources which could be made available for individuals included in the topic?  The controversy paper mentions health care, education, social security. There has also been discussion of civil rights.

I think there is ample room for work on both questions. There are good questions about how the specific mechanisms (which we now loosely call 'restrictions') would function to allow much of what individuals envision as 'good' affirmatives. This also allows us to open the door to both folks who intend to come to the US (clearly a restriction) as well as those who might be here already.

My suggestion therefore is to ground the next phase of work in the three populations based groups with an additional group working specifically on social services. In other words, construct three working groups (visas, asylum, and undocumented) who are responsible to make sure that there are stem options that fully capture their core literature. These are some sample resolutions that have been mentioned by members of the committee:

R: That the USFG should substantially reduce its restrictions on immigration.
R: That the USFG should substantially reduce restrictions on immigration.
R: That the USFG should reduce significant restrictions on immigration.
R: That the USFG should substantially reduce its restrictions on immigrants.
R: That the USFG should substantially lower its barriers on immigration.

Each of the 'population' groups should be both assessing the core affirmative and negative ground in each area AND assessing the fit of that part of the topic with specific verbs/ stems. We need to make sure either a phrase like 'reducing restrictions on immigration' or a replacement is a workable foundation for work across each of the groups. In other words, the visa group will need to answer is the phrase 'immigration' can be used for these folks who are not here on a permanent basis. The undocumented group will need to answer if 'restriction' can be used to incorporate amnesty or back of the line provisions. Or any of the groups can assess if 'barrier' has meaning in their context. 

I think this is needed for two reasons. First, the more sophisticated public policy literature treats these groups in somewhat different terms. It is important that we utilize the most relevant details to prevent any major glitches. I think instead of trying to find phrases first, we should find the central advocacy literature for each population and then build back to this central controversy. We can follow the controversy paper's lead by keeping the groups but now testing various stems for specific populations.  Second, I do expect that we will have debates about wording options that include some or all of the populations. If we can assure that we can word a resolution that has visa, asylum and naturalization populations I do think we can provide resolutions with smaller sub-populations.

I did mention that we should convene a separate social services group. There will certainly be overlap, but because there is going to be a very diverse (and strong) set of opinions from the community on this section (because of the high school topic) we should prepare for the resolutions with and without these mechanisms. We will need dedicated work to see if there are specific services that would benefit any of the specific populations and/or minimize overlap with last year. In other words, I see this group as both coordinating with the first three, but also having its own mandate.

If this works, we will have four sets of proposals. Each sub-population will be able to speak with expertise on how a stem can access the literature in their area. When we get to the tough part of building the final wordings we can do our best to blend these together. We can also have social services items for the voters to consider.

I know this may sound overly simplistic, but I want a framework that allows us to move forward.

Here are the groups. Remember these are just folks assigned from the committee – we certainly welcome volunteers on each area and individuals willing to submit their own wording papers.


Group 1 - Individuals on or seeking a visa (primarily specialized work or study)
(Adrienne, Kathryn, Steve – focusing on H-2B Visa/Slave Labor)

Group 2 - Individuals seeking legal refuge (i.e, asylum) because of repression or violence in their homeland
(Gordon, Kevin, Sarah)

Group 3 - Individuals in the US without a legal means of being here (i.e., undocumented folks)
(Jarrod, Mike)

Group 4- Social Services
(Dave, Heather)


Thanks. Please let me know if you have any questions or concerns.

Gordon
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Gordon Stables
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stables
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« Reply #11 on: May 19, 2010, 09:18:22 PM »

One very important addendum to my earlier post. Because the topic work recognizes that there are many different populations who might be included in the topic and because many of these folks may or may be considered 'immigrants' by US law there are other ways to consider framing the topic. Folks seeking asylum, may not be considered immigrants because they may not be seeking US citizenship. There are some cards in my last post that highlights these issues.

To help address this concern the committee has been looking at the specific items that would include the important topical action included by the controversy paper. This working resolution was developed by committee members and should very much be considered as an option going forward.

Resolved: the USFG should substantially reduce its restrictions on visas, legal permanent residence, naturalization and/or asylum.

Sorry for my oversight here. This is part of the very good the committee has been busy with these past few days. If folks have questions, please let us know.

Gordon
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Gordon Stables
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ScottyP
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« Reply #12 on: May 20, 2010, 06:09:19 PM »

Is there a reason all the suggested resolutions have the word "substantially" in them?  Why do we keep using this meaningless word?
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kevin kuswa
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« Reply #13 on: May 21, 2010, 06:27:19 AM »

Scotty,

Be careful what you ask for or you'll be researching "most but not all of the following."  Smiley  In addition, all the draft topics do not use "substantially."

R: That the USFG should reduce significant restrictions on immigration.   

We are all working on better wordings and ways to access solid affirmatives without allowing tiny tiny tiny affs.  "Substantially" may not be the best route, but right now it's an indicator in the draft wordings that we need to find ways to balance between requiring the aff to run the entire topic and justifying a million minor repair affs.  No one is wedded to "substantially", but we are striving for a reasonable balance between miniscule and overly massive.

If you have a helpful alternative, send it out! 

Kevin
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anon1384
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« Reply #14 on: May 21, 2010, 10:48:06 AM »

Is there a reason all the suggested resolutions have the word "substantially" in them?  Why do we keep using this meaningless word?

because otherwise, youll be debating the advantages and disads of allowing elian gonzalez back
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