at: we meet
Should denotes an expectation the aff will be enacted
American Heritage Dictionary 2K
Used to express probability or expectation
Means the USFG should take action
Steinberg and Freeley ‘8
David Director of Debate at U Miami, Former President of CEDA, officer, American Forensic Association and National Communication Association. Lecturer in Communication studies and rhetoric. Advisor to Miami Urban Debate League, Masters in Communication, and Austin, JD, Suffolk University, attorney who focuses on criminal, personal injury and civil rights law, Argumentation and Debate Critical Thinking for Reasoned Decision Making, TWELFTH EDITION
Most propositions on matters of policy contain the word should (or ought)—for example, “Resolved: That such-and-such should be done.” In a debate on a policy proposition, should means that intelligent self-interest, social welfare, or the national interest prompts this action and that it is both desirable and workable. When the affirmative claims a policy “should” be adopted, it must show that the policy is practical—but it is under no obligation to show that it would be adopted. The affirmative must give enough detail to show that if implemented, it would work. It may be impossible, within the time limitations of the debate, for the affirmative to give all the details, but it must at least show the outline of its policy and indicate how the details could be worked out. For example, in a debate on federal funding for education, the affirmative could not reasonably be expected to indicate how much money each state would receive under its plan, but it would be obliged to indicate the method by which the amount of the grants would be determined. It would be pointless for the negative to seek to show that the affirmative’s plan could not be adopted by demonstrating that public opinion is against it or that the supporters of the plan lack sufficient voting strength in Congress.
Red pedagogy demands dialogic engagement with the state
Sany Grande, 2007, Critical Pedagogy: Where are We Now?, p. 330-31
Andre Lorde’s essay, The Masters Tools Not Dismantle the Master's House, is one of the most quoted essays in academic history and, I would also venture to say, one that needs rethinking. While it is self-evident that indigenous knowledge is essential to the process of decolonization, l would also argue that the Masters tools are necessary. Otherwise, to take Audrey Lorde seriously means to create a dichotomy between the tools of the colonizer and those of the colonized. Such a dichotomy leaves the indigenous scholar to grapple with a kind of “Sophie’s Choice" moment where one feels compelled to choose between retaining their integrity (identity) as a Native scholar by employ in only indigenous knowledge or to “sell out” and employ the frames of Western knowledge. What does it mean for indigenous scholars to engage Western knowledge? Does it signify a final submission to the siren’s song, seducing us into the colonialist abyss with promises of empowerment? Or is it the necessary first step in reclaiming and decolonizing an intellectual inquiry room-of our own.’ Such questions provoke beyond the bounds of academic exercise, suggest instead the need for an academic exorcism.
The demon to be purged is the specter of colonialism. As indigenous scholars, we live within, against` and outside of its constant company` witnessing its various manifestations as it shape shifts its way into everything from research and public policy to textbooks and classrooms. Thus. the colonial tax of Native scholars not only requires a recognition of personal identity but also an analysis of how whole nations get trans- or (dis) figured when articulated through Western frames of knowing. As Edward Said observes. “institutions, vocabulary, scholarship, imagery, doctrines, even colonial bureaucracy and colonial styles” all support to the Westem discourse" (Said, 1985, p, 2). ln other words, is it possible to engage the grammar of empire without replicating its effects.’
At the same time indigenous entertain these ruminations, Native communities continue to be impacted and transformed by the forces of colonization, rendering the “choice” of whether to employ Western knowledge in the process“ of defining indigenous pedagogies essentially moot. ln other words, by virtue of living in this world and having to negotiate the forces of colonization, indigenous scholars are given no choice but to know, understand, and acquire the grammar of empire as well as develop the skills to contest it. The relationship between the two is not some liberal dream of multicultural harmony but rather the critical and dialogical tension between competing moral visions.
AT: no topical version
Lack of political engagement turns the aff—isolates the aff to a privileged and insular position disconnected from native communities
Elvira Pulitano, associate professor in the Ethnic Studies Department at California Polytechnic State University, 2003, Toward a Native American Critical Theory, p. 91-2
From his chapter on Wynema Womack turns to a discussion of two Creek intellectuals, Alexander Posey (1873-1908) and Louis Oliver (1901-91), whose work presents characteristics of "authentic" Creek literature. According to Womack, Posey's immersion in local politics as well as his Creekcentric philosophy make him a perfect model for modern writers. Similarly, the writing of Louis Oliver, with its emphasis on Creek landscape, stories, and spiritualism, provides a significant image of Creek intellectualism. 17 By contrast a literature such as that produced by mixedblood authors in the past few decades - which departs from the body and the culture of the people, from the communities, and from a specific sense of landscape- inevitably fails tribalist concerns and appeals to sovereignty. Like Warrior, Womack is suspicious of a literature such as Vizenor's trickster fiction that embraces the jargon of postmodern theory since, in this specific case, Native authors fail to incorporate tribal realities. He writes: "If we are going to liberate words from fixed meanings and celebrate their amorphous shape-shifting qualities, might we need to recognize not only that tricksters shape-shift but that witches shape-shift also? Is there a balance called for here, an acknowledgment that sometimes fixed meanings are necessary, other times free play, as well as an honest recognition that both can be abused? ... What happens to political struggles when a concept like identity is deconstructed? ... I am waiting for the day when Native people will be addressed on their own terms" (Red on Red 205).
Statements such as these inevitably raise a series of questions. Can Womack's work still maintain, as the product of the University of Minnesota Press, its professed Creekcentrism? Does the fact that Womack holds a professorship at the University of Lethbridge (in Alberta) change the way in which he speaks to his own community? Can a book written, as Red on Red is, in response to the charge that only whites can "do theory" speak to Native communities in their own terms? Can Womack justify grounding his study in a notion of Creekcentrism when that study must, as it does, inevitably engage Western literary theory (even if only to attack it)?
Ultimately, Womack is writing from a privileged position within the academy, his audience largely other academics, not Native communities. Red on Red remains, therefore, a sophisticated work of literary criticism and, as such, inaccessible to those members of a Native audience who cannot approach it from a similarly privileged position. To a certain extent, and all the more ironically perhaps, Womack's position resembles that of the privileged diasporic Third World so often critiqued by fervent opponents of postcolonialism, people such as Aijaz Ahmad, who argues that postcolonial theorizing is a matter of class and institutional privilege and a flight from collective socialites into the abstraction of metropolitan theory.
The affirmative’s absolute refusal of censorship becomes a new regulatory norm – their conception of enforced silence ignores the radical possibilities of what we do and don’t talk about
Brown, professor of women’s studies and legal studies, 1995
(Wendy, “Constitutions and 'Survivor Stories': In the 'folds of our own discourse' The Pleasures and Freedoms of Silence,” 3 U Chi L Sch Roundtable 185)
Insurrectionary acts and movements require breaking silence--silence about the very existence as well as the activity or injury of the collective insurrectionary subject. Even dreams of emancipation cannot take shape unless the discursively shadowy or altogether invisible character of those subjects, injuries, events, or activities are supplanted with articulation, whether through slave ballads, the flaunting of forbidden love, the labor theory of value, or the quantification of housework. Nor are the silences constitutive of dominance broken forever when they are broken once. They do not shatter the moment their strategic function has been exposed but must be assaulted repeatedly with stories, histories, theories, discourses in alternate registers until this assault finally triumphs such that the silence itself is rendered articulate as an historically injurious force. Thus have the subjugated and marginalized proceeded against the variety of silences tucked into the universal claims of humanist discourse for the last several centuries. But if the silences in discourses of domination are a site for insurrectionary noise, if they are the corridors we must fill with explosive counter-tales, it is also possible to make a fetish of breaking silence. Even more than a fetish, it is possible that this ostensible tool of emancipation carries its own techniques of subjugation--that it converges with non-emancipatory tendencies in contem- porary culture (for example, the ubiquity of confessional discourse and rampant personalization of political life), that it establishes regulatory norms, coincides with the disciplinary power of confession, in short, feeds the powers we meant to starve. While attempting to avoid a simple reversal of feminist valorizations of breaking silence, it is this dimension of silence and its putative opposite with which this Article is concerned. In the course of this work, I want to make the case for silence not simply as an aesthetic but a political value, a means of preserving certain practices and dimensions of existence from regulatory power, from normative violence, as well as from the scorching rays of public exposure. I also want to suggest a link between, on the one hand, a certain contemporary tendency concerning the lives of public figures--the confession or extraction of every detail of private and personal life (sexual, familial, therapeutic, financial) and, on the other, a certain practice in feminist culture: the compulsive putting into public discourse of heretofore hidden or private experiences--from catalogues of sexual pleasures to litanies of sexual abuses, from chronicles of eating disorders to diaries of homebirths, lesbian mothering, and Gloria Steinam's inner revolution. In linking these two phenomena--the privatization of public life via the mechanism of public exposure of private life on the one hand, and the compulsive/compulsory cataloguing of the details of women's lives on the other--I want to highlight a modality of regulation and depoliticization specific to our age that is not simply confessional but empties private life into the public domain, and thereby also usurps public space with the relatively trivial, rendering the political personal in a fashion that leaves injurious social, political and economic powers unremarked and untouched. In short, while intended as a practice of freedom (premised on the modernist conceit that the truth shall make us free), these productions of truth not only bear the capacity to chain us to our injurious histories as well as the stations of our small lives but also to instigate the further regulation of those lives, all the while depoliticizing their conditions. My concern with what might be called compulsory feminist discursivity and the presumed evil of silences has yet another source. Notwithstanding American academic feminism's romance with Foucault, there is an oddly non- or pre-Foucauldian quality to much feminist concern with censorship and silencing. In these formulations, expression is cast either as that which makes us free, tells our truth, puts our truth into circulation, n3 or as that which oppresses us by putting "their" truth into circulation in the form of pornography, hate speech, harassment or simply the representation of the world from "the male point of view." n4 If one side in the debate argues for more expression on our part--for example, by making our own pornography or telling our own stories--and the other argues for less on "their" part, both sides nonetheless subscribe to an expressive and repressive notion of speech, its capacity to express the truth of an individual's desire or condition, or to repress that truth. Both equate freedom with voice and visibility. n5 Both assume recognition to be unproblematic when we tell our own story, and assume that such recognition is the material of power and pleasure. Neither, in short, confronts the regulatory potential of speaking ourselves. I think the whole contemporary debate over censorship--whether focused on porn or rap music--is necessarily bound to an expressive-repressive model of power and freedom, which may explain why those who feel passionately about both freedom and dignity have trouble finding their way in this debate. If the choice is cast either as the free circulation of music and pictures venerating rape, racism, and misogyny, or state repression of the same, how does one choose? To inaugurate a different kind of analysis of the relationship between silence, speech, and freedom, I want to turn to two passages in Foucault's work, the first from The History of Sexuality: Discourses are not once and for all subservient to power or raised up against it, any more than silences are . . . Discourse transmits and produces power; it reinforces it, but also undermines and exposes it, renders it fragile and makes it possible to thwart it. In like manner, silence and secrecy are a shelter for power, anchoring its prohibitions; but they also loosen its hold and provide for relatively obscure areas of tolerance. n6 Foucault here marks the ambiguity of silence in relationship to power, insisting that silence functions not only as a "shelter for power" n7 but also as a shelter from it. (Foucault's example is the putative freedom of homosexual practice in a historical age when there is no discourse for or about it). n8 This paradoxical capacity of silence to engage opposites with regard to power is rarely associated with Foucault's thinking due to his emphasis on discourse as power. Yet I do not think he is here reneging on this emphasis nor, in speaking of silence as a shelter from power, suggesting a pre-discursive existence to things. Critical here is the difference between what Foucault calls unitary discourses, which regulate and colonize, and those which do not perform these functions with same social pervasiveness, even as they do not escape the tendency of all dis- course to establish norms by which it regulates and excludes. It is through this distinction that one can make sense of Foucault's otherwise inexplicable reference to sex in the eighteenth century as being "driven out of hiding and constrained to lead a discursive existence," n9 or his troubling example of the village simpleton whose "inconsequential" habit of molesting young girls in exchange for pennies was suddenly subjected to medical, judicial, and popular scrutiny and condemnation. n10 Neither in these cases nor in others where Foucault seems to imply a "freer" because pre-discursive existence to certain practices would he appear to mean that they really occurred "outside" dis- course, but rather that they had not yet been brought into the pervasive regulatory discourses of the age--science, psychiatry, medicine, law, pedagogy, and so forth. n11 Silence, as Foucault affirms it, then, is identical neither with secrecy nor with not speaking. Rather, it signifies a relation to regulatory discourses, as well as a possible niche for the practice of freedom within those discourses. If, as Foucault insists, freedom is a practice (as opposed to an achievement, condition, or institution), then the possibility of practicing freedom inside a regulatory discourse occurs in the empty spaces of that discourse as well as in resistance to the discourse. Moreover, silence can function as speech in both ways at once, as in the following autobiographical example offered by Foucault: Maybe another feature of this appreciation of silence is related to the obligation of speaking. I lived as a child in a petit bourgeois, provincial milieu in France and the obligation of speaking, of making conversation with visitors, was for me something both very strange and very boring. I often wondered why people had to speak. n12
2nc at: law bad
‘Abandoning’ the law is impossible, but the attempt to do so produces ineffective social change
Orly Lobel, University of San Diego Assistant Professor of Law, 2007, The Paradox of Extralegal Activism: Critical Legal Consciousness and Transformative Politics,” 120 HARV. L. REV. 937, http://www.harvardlawreview.org/media/pdf/lobel.pdf
At first glance, the idea of opting out of the legal sphere and moving to an extralegal space using alternative modes of social activism may seem attractive to new social movements. We are used to thinking in binary categories, constantly carving out different aspects of life as belonging to different spatial and temporal spheres. Moreover, we are attracted to declarations about newness — new paradigms, new spheres of action, and new strategies that are seemingly untainted by prior failures.186 However, the critical insights about law’s reach must not be abandoned in the process of critical analysis. Just as advocates of a laissez-faire market are incorrect in imagining a purely private space free of regulation, and just as the “state” is not a single organism but a multiplicity of legislative, administrative, and judicial organs, “nonstate arenas” are dispersed, multiple, and constructed. The focus on action in a separate sphere broadly defined as civil society can be self-defeating precisely because it conceals the many ways in which law continues to play a crucial role in all spheres of life. Today, the lines between private and public functions are increasingly blurred, forming what Professor Gunther Teubner terms “polycorporatist regimes,” a symbiosis between private and public sectors.187 Similarly, new economic partnerships and structures blur the lines between for-profit and nonprofit entities.188 Yet much of the current literature on the limits of legal reform and the crisis of government action is built upon a privatization/regulation binary, particularly with regard to social commitments, paying little attention to how the background conditions of a privatized market can sustain or curtail new conceptions of the public good.189 In the same way, legal scholars often emphasize sharp shifts between regulation and deregulation, overlooking the continuing presence of legal norms that shape and inform these shifts.190 These false dichotomies should resonate well with classic cooptation analysis, which shows how social reformers overestimate the possibilities of one channel for reform while crowding out other paths and more complex alternatives. Indeed, in the contemporary extralegal climate, and contrary to the conservative portrayal of federal social policies as harmful to the nonprofit sector, voluntary associations have flourished in mutually beneficial relationships with federal regulations.191 A dichotomized notion of a shift between spheres — between law and informalization, and between regulatory and nonregulatory schemes — therefore neglects the ongoing possibilities within the legal system to develop and sustain desired outcomes and to eliminate others. The challenge for social reform groups and for policymakers today is to identify the diverse ways in which some legal regulations and formal structures contribute to socially responsible practices while others produce new forms of exclusion and inequality. Community empowerment requires ongoing government commitment.192 In fact, the most successful communitybased projects have been those which were not only supported by public funds, but in which public administration also continued to play some coordination role.193 At both the global and local levels, with the growing enthusiasm around the proliferation of new norm-generating actors, many envision a nonprofit, nongovernmental organization–led democratization of new informal processes.194 Yet this Article has begun to explore the problems with some of the assumptions underlying the potential of these new actors. Recalling the unbundled taxonomy of the cooptation critique, it becomes easier to identify the ways extralegal activism is prone to problems of fragmentation, institutional limitation, and professionalization. Private associations, even when structured as nonprofit entities, are frequently undemocratic institutions whose legitimacy is often questionable.195 There are problematic structural differences among NGOs, for example between Northern and Southern NGOs in international fora, stemming from asymmetrical resources and funding,1 9 6 and between large foundations and struggling organizations at the national level. Moreover, direct regulation of private associations is becoming particularly important as the roles of nonprofits increase in the new political economy. Scholars have pointed to the fact that nonprofit organizations operate in many of the same areas as for-profit corporations and government bureaucracies.197 This phenomenon raises a wide variety of difficulties, which range from ordinary financial corruption to the misrepresentation of certain partnerships as “nonprofit” or “private.”198 Incidents of corruption within nongovernmental organizations, as well as reports that these organizations serve merely as covers for either for-profit or governmental institutions, have increasingly come to the attention of the government and the public.199 Recently, for example, the IRS revoked the tax-exempt nonprofit status of countless “credit counseling services” because these firms were in fact motivated primarily by profit and not by the notfor-profit cause of helping consumers get out of debt.200 Courts have long recognized that the mere fact that an entity is a nonprofit does not preclude it from being concerned about raising cash revenues and maximizing profits or affecting competition in the market.201 In the application of antitrust laws, for example, almost every court has rejected the “pure motives” argument when it has been put forth in defense of nonprofits.202 Moreover, akin to other sectors and arenas, nongovernmental organizations — even when they do not operate within the formal legal system — frequently report both the need to fit their arguments into the contemporary dominant rhetoric and strong pressures to subjugate themselves in the service of other negotiating interests. This is often the case when they appear before international fora, such as the World Bank and the World Trade Organization, and each of the parties in a given debate attempts to look as though it has formed a well-rounded team by enlisting the support of local voluntary associations.203 One NGO member observes that “when so many different actors are drawn into the process, there is a danger that our demands may be blunted . . . . Consequently, we may end up with a ‘lowest common denominator’ which is no better than the kind of compromises the officials and diplomats engage in.”204 Finally, local NGOs that begin to receive funding for their projects from private investors report the limitations of binding themselves to other interests. Funding is rarely unaccompanied by requirements as to the nature and types of uses to which it is put.205 These concessions to those who have the authority and resources to recognize some social demands but not others are indicative of the sorts of institutional and structural limitations that have been part of the traditional critique of cooptation. In this situation, local NGOs become dependent on players with greater repeat access and are induced to compromise their initial vision in return for limited victories. The concerns about the nature of both civil society and nongovernmental actors illuminate the need to reject the notion of avoiding the legal system
and opting into a nonregulated sphere of alternative social activism. When we understand these different realities and processes as also being formed and sustained by law, we can explore new ways in which legality relates to social reform. Some of these ways include efforts to design mechanisms of accountability that address the concerns of the new political economy. Such efforts include treating private entities as state actors by revising the tests of joint participation and public function that are employed in the state action doctrine; extending public requirements such as nondiscrimination, due process, and transparency to private actors; and developing procedural rules for such activities as standard-setting and certification by private groups.206 They may also include using the nondelegation doctrine to prevent certain processes of privatization and rethinking the tax exemption criteria for nonprofits.207 All of these avenues understand the law as performing significant roles in the quest for reform and accountability while recognizing that new realities require creative rethinking of existing courses of action. Rather than opting out of the legal arena, it is possible to accept the need to diversify modes of activism and legal categories while using legal reform in ways that are responsive to new realities. Focusing on function and architecture, rather than on labels or distinct sectors, requires legal scholars to consider the desirability of new legal models of governmental and nongovernmental partnerships and of the direct regulation of nonstate actors. In recent years, scholars and policymakers have produced a body of literature, rooted primarily in administrative law, describing ways in which the government can harness the potential of private individuals to contribute to the project of governance.208 These new insights develop the idea that administrative agencies must be cognizant of, and actively involve, the private actors that they are charged with regulating. These studies, in fields ranging from occupational risk prevention to environmental policy to financial regulation, draw on the idea that groups and individuals will better comply with state norms once they internalize them.209 For example, in the context of occupational safety, there is a growing body of evidence that focusing on the implementation of a culture of safety, rather than on the promulgation of rules, can enhance compliance and induce effective self-monitoring by private firms.210 Consequently, social activists interested in improving the conditions of safety and health for workers should advocate for the involvement of employees in cooperative compliance regimes that involve both top-down agency regulation and firmand industry-wide risk-management techniques. Importantly, in all of these new models of governance, the government agency and the courts must preserve their authority to discipline those who lack the willingness or the capacity to participate actively and dynamically in collaborative governance. Thus, unlike the contemporary message regarding extralegal activism that privileges private actors and nonlegal techniques to promote social goals, the new governance scholarship is engaged in developing a broad menu of legal reform strategies that involve private industry and nongovernmental actors in a variety of ways while maintaining the necessary role of the state to aid weaker groups in order to promote overall welfare and equity. A responsive legal architecture has the potential to generate new forms of accountability and social responsibility and to link hard law with “softer” practices and normativities. Reformers can potentially use law to increase the power and access of vulnerable individuals and groups and to develop tools to increase fair practices and knowledge building within the new market.