http://www1.law.ucla.edu/~volokh/slippery.htm
You are a legislator, a voter, a judge, a commentator, or an advocacy group leader. You need to decide whether to endorse decision A, for instance a partial-birth abortion ban, a limited school choice program, or gun registration. You think A, on its own, might be a fairly good idea, or at least not a very bad one. But you�re afraid that A might eventually lead other legislators, voters, or judges to support B, which you strongly oppose�for instance, broader abortion restrictions, an across-the-board school choice program, or a total gun ban. What does it make sense for you to do, given your opposition to B, and given your awareness that others in society might not share your views? Should you heed James Madison�s admonition that �it is proper to take alarm at the first experiment on our liberties,�[1] and firmly oppose something that you might have otherwise supported were it not for your concern about the slippery slope? Or should you accept the immediate benefits of A, and trust that even after A is enacted, B will be avoided? Slippery slopes are, I will argue, a real cause for concern, as legal thinkers such as Madison, Jackson, Brennan, Harlan, and Black have recognized.[2] And these arguments comport at least partly with our own experience: We can all identify situations where a first step A has led to a later step B that might not have happened without A, though we may disagree about exactly which situations exhibit this quality.[3] A may not logically require B�but for political and psychological reasons, it can help bring B about.[4] But, as legal thinkers such as Lincoln, Holmes, and Frankfurter have recognized, slippery slope arguments are of limited utility.[5] We accept, because we must, some speech restrictions. We accept some searches and seizures. We accept police departments, though creating such a department may lead to arming it, which may lead to some officers being willing to shoot innocent civilians, which may eventually lead to a police state (and all this has happened with the police in some places). Yes, each first step involves risk, but it is a risk that we need to run. This need makes many people impatient with slippery slope arguments.[6] The slippery slope argument, the flip response goes, is the claim that �we ought not make a sound decision today, for fear of having to draw a sound distinction tomorrow.�[7] To critics of slippery slope arguments, the arguments themselves sound like a slippery slope: If you accepted this slippery slope argument, then you�d end up accepting the next one and then the next one until you eventually slip down the slope to rejecting all government power (or all change from the status quo), and thus �break down every useful institution of man.�[8] Exactly why, they ask, would accepting, say, a restriction on �ideas we hate� �sooner or later� lead to restrictions on �ideas we cherish�?[9] If the legal system is willing to protect the ideas we cherish today, why wouldn�t it still protect them tomorrow, even if we ban some other ideas in the meanwhile? And of course, even if one thinks slippery slopes are possible, what about cases where the slope seems slippery both ways�where both alternative decisions seem capable of leading to bad consequences in the future?[10] My aim here is to analyze how we can sensibly evaluate the risk of slippery slopes, a topic that has been surprisingly underinvestigated.[11] I think the most useful definition of slippery slopes is a broad one, which covers all situations where decision A, which you might find appealing, ends up materially increasing the probability that others will bring about decision B, which you oppose.[12] If you are faced with the pragmatic question �Does it make sense for me to support A, given that it might lead others to support B?,� it shouldn�t much matter to you whether A would lead to B through logical mechanisms or psychological ones, through judicial ones or legislative ones, or through a sequence of short steps or one sharp change. Nor should it matter to you whether or not A and B are on a continuum where B is in some sense more of A, a condition that would in any event be hard to define precisely.[13] The question is whether A might lead to some harmful decisions in the future, through whatever mechanisms. To answer this question, we need to think�without any artificial limitations�about the entire range of possible ways that A can change the conditions (whether those conditions are public attitudes, political alignments, costs and benefits, or what have you) under which others will consider B. The slippery slope is a familiar label for many of the most common examples of this phenomenon: When someone says �I oppose partial-birth abortion bans because they might lead to broader abortion restrictions,� or �I oppose gun registration because it might lead to gun prohibition,� the common reaction is �That�s a slippery slope argument.� But whatever one calls these arguments, the important point is that the observer is asking the question �Does it make sense for me to support A, given that it might lead others to support B?,� which breaks down into �How much do I like A?,� �How much do I dislike B?,� and, the focus of this article, �How likely is A to lead others to support B?�[14] And this last question in turn requires us to ask �What are the mechanisms through which A can lead others to support B?� ... _______________________________________________ http://www.mccmedia.com/mailman/listinfo/brin-l
