November/December Topic Analysis (NSDA LD)

Introduction

            I put together this set of thoughts after discussing the process of choosing topics with a few students. This is a rough sketch at best of the various topics and how they will play out, but It is hopefully somewhat helpful in helping some choose how best to vote on the upcoming topic selection. To that purpose, my goal is to give a brief description of the topics and potential ground issues, as well as where I think the most trouble for these topics will be appear. 

I should note that this discussion will be mostly centered around a more traditional debate perspective. While I enjoy the more technical aspects of national circuit, attempting to detail the various specific plans that will occur and then the litany of counterplans, disadvantages, and critical arguments that could apply is a bit beyond what I have time to do in one article. There will be some brief mention of where I think the round would go in such a case, but given the proclivity towards specifying within the resolution, it would be difficult to give a full account. 

Topic 1: In the United States the use of mandatory arbitration clauses as a condition of employment ought to be prohibited. 

            This topic suffers from the unfortunate position of having a highly interesting topic which requires both a technical knowledge of how the process of arbitration works and more straightforward resolutions in its set.  This is not to say that the topic is necessarily dense (at least, I would be hesitant to think it is any more difficult than a resolution which combined both patent law and medical innovations simultaneously). At its most basic, mandatory arbitration clauses require that disputes between either a consumer or employee and the business that either sales to or hires them must be resolved outside of the court system, and instead be assessed by person(s) not directly involved in the dispute. Theoretically, this should resolve much of the concerns in a more efficient manner, while simultaneously reducing the burden on courts and the legal system more broadly (Salomon & Villiers, 2014). 

            However, as must be the case otherwise there would not be a resolution, this does not always (if often) occur. Arbitration clauses are generally included by the company itself and are written in a manner consistent with promoting their welfare over those of the consumer/employee. Arbitration clauses can reduce the ability to engage in class action lawsuits, as well as have been linked to the inability to hold employers accountable for hostile environments (Sherwin, 2018). In addition, such cases do not receive the same public scrutiny due to the more closed door system of arbitration while simultaneously resulting in as few as 9% of all cases being settled in favor of consumers/employees (Leonhardt, 2019). 

            The arguments for arbitration are more procedural in nature. Arbitration should, and most likely is, quicker in most cases due to a more streamlined process overall (Murray, 2019). Arbitration can also, potentially, allow both sides to help decide who will hear the case overall, and may decide things beyond the initial conflict in their decision. Given this, a perfected system of arbitration could, potentially, be a more effective tool than courts, but this effectiveness is generally created by removing the safeguards that courts have to help those who go through the process reach an equitable solution. 

            While this does provide potential ground between the two sides, the issue comes in the wording of the topic for my assessment. Because it is a ban, as opposed to a positive action to produce change, both sides are incentivized to try to define the ground they wish as opposed to engage directly. For the affirmative, traditional debates will require them to defend the elimination of nearly all forms of mandatory arbitration. However, they may still wish to defend that optional arbitration ought to be maintained, leaving both sides in a strange space of the amount to which arbitration exists being undecided. For the negative, the best defenses of arbitration are either selective restrictions (arbitration can’t be used for x cases), increased regulation (arbitration selection processes can be made better for example) or some other alteration which improves the process. 

            These are fairly normal arguments on most topics, but the fact that arbitration is unlikely to be fully understood by most judges initially combined with the disagreements on the allowance of counterplans and modifications to the status quo for the negative at traditional tournaments means that the affirmative may be left without core ground that they can readily access from round to round. For more technical tournaments, the specification of a plan text can help alleviate these concerns, but only by reversing the issue back to the negative, especially with many of the worst issues of arbitration (discrimination based on gender, orientation, race, etc.) being difficult to defend outside of saying that those instances are unique and ought to be banned while mandatory arbitration for other cases ought to be maintained. My worry then is whether this topic becomes focused on process discussions as opposed to substantive, both at the traditional and technical levels, and therefore it is not my first choice of the three topics. 

Topic 2: A just government ought to recognize an unconditional right of workers to strike. 

            If I were to wage a guess, this topic seems the most likely of the three to be chosen. Due to just having started a trade-based topic, along with an easy to understand mechanism which is defended, most debaters will gravitate towards this as a default option to avoid repetition while also securing a literature base that they can instinctually understand. My one caveat is that the combination of both “just government” and “unconditional” will scare off some towards one of the other two, as they are too vague in one case or so absolute as to harm the flexibility one would hope for from the affirmative. Before diving too much more into these issues though, some background on the topic. 

            Strikes have been a general tool of labor movements in order to organize and put pressure on businesses for either unliked or outright unethical practices. While there are some strikes that are recorded in the BC’s, the concept of the strikes as a more common and unified action for political demands during the industrial revolution (New World Encyclopedia, N.D.). This was driven by a few forces, but the most prevalent was the increased centralization of labor and the distancing of production from profit. As individuals were increasingly detached from the selling of what they produced, it was necessary for them to find different ways to get the businesses they worked for to negotiate on wages and other benefits of employment.

            For the affirmative then, there are numerous arguments concerning the specifics of workplace treatment that can be discussed. This has become more salient in the world of Covid-19, where such decisions as mask requirements, testing, and quarantining of workers may all be necessary steps in order to prevent the spread of a disease through a business (Bahn et al., 2020). However, demands have not only been for safety requirements, but also for hazard pay and other benefits. In addition to direct demands, large scale strikes have been mobilized to protest gender-based violence in countries such as Mexico (BBC, 2020). Because of this, the topic can encompass both direct economic issues and social concerns where the mobilization of individuals across industries becomes possible. 

            The problem of this topic is with the negative, however. As a general rule, while there are reasons why a right to strike is not a right, there is not a reason why strikes are universally problematic. Rather, the heart of the negative ground is isolating the particular times where a right to strike ought to be abridged. Strikes by medical workers, whether in response to workplace conditions or political concerns, risks the lives of patients and reduces the quality of care (Li & Ng, 2021). Public sector employees have been banned from striking in many states for much of the past century as well, with the argument that their services are too important to allow to go unfulfilled due to the dependence of the public on them (Girardin, 2020). There are some potential economic ramifications that could also be concerned, but that again depends on the specific industry, the length of the strike, and other specific parameters. 

            What this means for this debate then is that while the affirmative does have good ground for why strikes can be beneficial, the core of the negative analysis will be focused on the term “unconditional”. So long as conditions can be provided (indeed, much of current strike law from the United States where most debaters will pull from is a conditional allowance for strikes), then the round should go to the negative. However, unlike in other resolutions where the affirmative has the flexibility to provide their own conditionals or argue that they outweigh those edge cases, the inclusion of that specific term means that the negative is accurate to argue that any condition, requirement, or limitation would justify voting against the resolution. For this reason, I would personally choose the arbitration topic before voting for the strikes topic, especially given the abbreviated nature of November/December topics, where many debaters may get only a few tournaments to sort out the issues of the resolution’s wording. 

Topic 3: The United States ought to condition trade agreements on adherence to enforceable labor standards. 

            Before going into this topic, I must admit that I am somewhat biased towards trade-based discussions. Much of my research interest in undergraduate and into graduate school focused on the implications of income and wealth inequality, of which the advent of globalization was impossible to ignore. With that in mind, in my opinion, this is the best of the three topics in terms of being fairly easy to dive into in terms of research while maintaining good ground between the two sides. Trade agreements have received increased focus and criticism in the past decade (most notably in the 2016 Presidential Election) and both sides have a clear divide in ground in my estimation.

            To begin with, the affirmative has both empirical studies as well as a variety of alternative mechanisms to point towards than current trade policies. Most of the United States trade policies for the past century can be described as a move towards free trade/liberalization (Destler, 2016). Much of this was accomplished via general negotiations, while since the 1980’s the trend has been towards bilateral agreements (which is most likely the heart of the agreements this topic will deal with). Because of this, much of economic activity of the 20th century and into the 21st deals extensively with the trade decisions that can be demonstrations of how current trade policies fail. In particular, the production of goods overseas and then transferred to the United States (as well as other Western countries) continually rely on the exploitation of workers in those countries (White, 2015). This includes unsafe working conditions, the use of child labor (or outright slavery in some cases), as well as gendered, class, and racial exploitation (Balch, 2021; Mezzadri, 2016). Trade agreements therefore represent one avenue to create dispute and enforcement mechanisms to incentivize the development of better protections for workers globally (CRS, 2020). Through their creation, the United States would have a formal manner to investigate and punish the reduction of workers’ rights for the purpose of trade expansion by other countries. 

            For the negative, there are several avenues. The one that is most immediately accessible through research is that of economic growth/trade/development literature. The argument is that the growth of the economy improves the outcomes for workers in countries in the long term, both in income and rights analysis (Salimi, 2014). This argument has been routinely criticized, albeit with more intensity domestically in the past decade, due to both the timeframe of expected gains to society and whether it is plausible due to expanding class inequalities but remains the most direct refutation to policies that attempt to raise labor standards in addition to trade liberalization. In addition to this, the efficacy of trade agreements to be the enforcement mechanism has been questioned, with whether countries would agree to them if they included such provisions being one avenue, with attempts to improve on previous standards being criticized as being uneven (Samuels, 2016). This is in addition to questions of whether those standards which are included would even be effective in the first place. These are prior to considerations of whether the United States overseeing global work standards will merely be a new way it can dictate economic policies for other countries, ultimately allowing for further exploitation when convenient for the United States (Pamar, 2018). If liberalization is merely to legitimate the actions of the United States when convenient, then it stands to reason that there may be little, if nothing, that can be done to trade agreements to make them truly serve the interest of workers internationally. 

            Because of this, both the affirmative and negative have multiple routes to crafting cases while staying well within a core set of literature. It also avoids the potential of smaller support/critiques of the topic which may make it difficult for engagement, allowing for a broader engagement from both sides regardless of the strategic decisions of their opponent. 

Conclusion

            To be fair, I think all three topics can be interesting in terms of the literature that is researched. However, the specific wording of the Strike topic makes me hesitant on whether those interesting pieces of literature will come forth. Meanwhile, the Arbitration topic has good ground for each side and could potentially become a strong debate, it also has a potential issue of introducing little to no bright line due to voluntary arbitration for the affirmative or a more specific ban on mandatory arbitration for the negative that again could skew the debate. Specifying labor standards under the third topic is certainly possible but would not be able to resolve the general issues of enforcement since trade agreements so rarely have highly specific mechanisms to particular industries.

            That all being said, I hope everyone goes and votes for one of these topics and has a great end to the first topic and start to the next!

References

Bahn, K., Hertel-Fernandez, A., & Cumming, C. S. (2020, May 11). Why workers are engaging in collective action across the United States in response to the coronavirus crisis. Equitable Growth. Retrieved September 24, 2021, from https://equitablegrowth.org/why-workers-are-engaging-in-collective-action-across-the-united-states-in-response-to-the-coronavirus-crisis/.

Balch, O. (2021, February 12). Mars, nestlé and Hershey to face child slavery lawsuit in US. The Guardian. Retrieved September 24, 2021, from https://www.theguardian.com/global-development/2021/feb/12/mars-nestle-and-hershey-to-face-landmark-child-slavery-lawsuit-in-us.

BBC. (2020, March 9). Mexican women strike to protest against gender-based violence. BBC News. Retrieved September 24, 2021, from https://www.bbc.com/news/world-latin-america-51811040. 

Cimino-Isaacs, C. D., & Villarreal, M. A. (2020, December 18). Worker Rights Provisions in Free Trade agreements (FTAs). CRS Reports. Retrieved September 24, 2021, from https://crsreports.congress.gov/product/pdf/IF/IF10046. 

Destler. (2016, September 26). America's uneasy history with Free Trade. Harvard Business Review. Retrieved September 24, 2021, from https://hbr.org/2016/04/americas-uneasy-history-with-free-trade. 

Girardin, K. (2020, September 9). What happens if teachers go on strike? Empire Center for Public Policy. Retrieved September 24, 2021, from https://www.empirecenter.org/publications/what-happens-teachers-strike/. 

Leonhardt, M. (2019, September 10). Lawmakers want to give Americans back their right to Sue Companies. CNBC. Retrieved September 23, 2021, from https://www.cnbc.com/2019/09/10/lawmakers-want-to-give-americans-back-their-right-to-sue-companies.html.

Li, Y.-T., & Ng, J. (2021). Moral dilemma of striking: A medical worker’s response to job duty, public health protection and the politicization of strikes. Work, Employment and Society, 095001702098155. https://doi.org/10.1177/0950017020981554 

Mezzadri, A. (2016). Class, gender and the sweatshop: On the nexus between labour commodification and Exploitation. Third World Quarterly, 37(10), 1877–1900. https://doi.org/10.1080/01436597.2016.1180239 

Murray, J. (2019, July 22). What are the benefits and drawbacks of arbitration? The Balance Small Business. Retrieved September 23, 2021, from https://www.thebalancesmb.com/what-are-the-benefits-and-drawbacks-of-arbitration-398535.

New World Encyclopedia. (n.d.). Strike. Strike - New World Encyclopedia. Retrieved September 24, 2021, from https://www.newworldencyclopedia.org/entry/strike. 

Parmar, I. (2018). The US-led Liberal Order: Imperialism by another name? International Affairs, 94(1), 151–172. https://doi.org/10.1093/ia/iix240 

Salimi, F., Akhoondzadehi, T., & Arsalanbod, M. R. (2014). The Triangle of trade liberalization, economic growth and income inequality. Communications on Advanced Computational Science with Applications, 2014, 1–15. https://doi.org/10.5899/2014/cacsa-00026 

Salomon, C. (2014, April 17). The United States Federal Arbitration Act: a powerful tool for enforcing arbitration agreements and arbitral awards. Retrieved September 23, 2021, from https://m.lw.com/thoughtleadership/the-us-fed-arbitration-act. 

Semuels, A. (2016, January 25). The TPP's uneven attempt at Labor Protection. The Atlantic. Retrieved September 24, 2021, from https://www.theatlantic.com/business/archive/2016/01/tpp-mexico-labor-rights/426501/.

Sherwin, G. (2020, January 3). The Supreme Court favors forced arbitration at the expense of workers' rights. American Civil Liberties Union. Retrieved September 23, 2021, from https://www.aclu.org/blog/womens-rights/womens-rights-workplace/supreme-court-favors-forced-arbitration-expense-workers.

White, G. B. (2018, January 29). In 2015 is it possible to find clothing not made by exploited workers? The Atlantic. Retrieved September 24, 2021, from https://www.theatlantic.com/business/archive/2015/06/patagonia-labor-clothing-factory-exploitation/394658/.