Sunday, September 02, 2007

The Slippery Slopes

This is a common legal metaphor, is it not?


Eugene Volokh's take in his article, "Beyond the Slippery Slope":

My aim here is to analyze how we can sensibly evaluate the risk of slippery slopes, a topic that has been surprisingly underinvestigated. 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. 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.

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?”And this last question in turn requires us to ask “What are the mechanisms through which A can lead others to support B?”






Camel (A) sticks his nose under the tent (B), which collapses, driving the thin end of the wedge (C) to cause monkey to open floodgates (D), letting water flow down the slippery slope (E) to irrigate acorn (F) which grows into oak (G). [Illustration by Eric Kim, from author’s idea.]

It is these real-world mechanisms on which I will focus.Slippery slopes, camel’s noses, thin ends of wedges, floodgates, and acorns are metaphors, not analytical tools. My goal is to describe the real-world paths that the metaphors represent—to provide a framework for analyzing and evaluating slippery slope risks by focusing on the concrete means through which A might possibly cause B.

Specifically, I want to make the following claims, which are closely related but which are worth highlighting separately:

1. Though the metaphor of the slippery slope suggests that there’s one fundamental mechanism through which the slippage happens, there are actually many different ways that decision A can make decision B more likely. Many of these ways have little to do with the mechanisms that people often think of when they hear the phrase “slippery slope”: development by analogy, by decision A changing people’s moral or empirical assumptions about B, or by people becoming “desensitized” to decision B.



Larry Solum's take:

Lesson Number Two: Watch for Slippery Slopes

Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree?

You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off:

(1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening.

Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule."

When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon.


My take:

I have nothing useful to say. The above descriptions refer first to policy arguments, and second to law school hypotheticals. These are two of the best legal scholars in the nation giving you their wisdom for free. What have I to say? Nothing. I will just do my typical pfouffy spin. In real life, once you've crested that hill and can see the way down, you either have to retreat, have a deus ex machina way of getting airlifted off that hill, or go tumbling down.

The legal world and the real world is indeed a matter of degrees, and but often our actions dictate a "yes" or "no" result. Decisions are made that we have to live with, and there are consequences more severe than the actions that led to them.

There are things I feel strongly about, and yet there are always shades of distinction. It is hard to say that something is always bad. What is more common to say is that A is possibly bad, because it could lead to B, which is definitely bad, so best not to do A. Be very careful, and avoid A, because you definitely want to avoid B. This is distinct from saying "A is always bad."

But I say that t hings are always bad, all the time. Academic dishonesty: this is wrong. I am paranoid that one day I will misattribute something or confuse something that I've read with something and misappropriate it. So I toe this line most carefully. And yet, there are always ways to misattribute. There's always copying from oneself without attribution. Is that wrong? A black and white issue can get shady. There are a myriad of ways of inadvertant misattribution or reframing an issue in a way that is not-so-novel. And apparently, you can copy from yourself.

I feel strongly about so many things, and yet find that the past few years have shaken my "core" beliefs profoundly. I have become agnostic on so many issues. I don't know how, other than that the more I read and the more I independently think for myself, the less I am sure about my convictions. It's easier to have things spoonfed. The changes began my second year of law school, when all the hellishness of trying to run an ethnic student organization and being in a movement-driven academic discipline made me question my own convictions, or at least how I acted them out in life. My black-and-white beliefs started turning gray. I started realizing how one set of beliefs would lead to another, more pernicious set (and one that I did not intend). Essentialism and identity politics made me confront much more ugly sets of beliefs, but one that seemed to flow from that starting point. I would hear my org-mates or classmates say things that I could not myself believe, and yet they were justifying their beliefs with the same basic tenets, which were ostensibly progressive. I started wondering. I started changing. I arrive here, rather confused about what I believe, and what kinds of policies I would endorse--I start wondering about slippery slopes. I start wondering if my belief in A will lead to B, which is undesirable and in my opinion, wrong. I start losing my convictions. I start wavering in my belief in affirmative action and social welfare. What is going on?

Which is worse, uncompromising black-and-white conviction or too great fear of the slippery slope? Is one necessarily distinct from the other? My strongest moral opprobrium is reserved for the following: murder, torture, and adultery. I can think of ways to justify lying to protect someone else's feelings, and I can imagine that I would, like Jean Valjean, steal bread to feed my family. But wait, what about my black and white beliefs? Would I kill to protect my child? Actually, yes. I wouldn't do a cold-blooded revenge killing--extra-judcial murder is not the same as in that moment, trying to prevent someone from killing my baby. Torture? Okay, that is one thing I have not, and will not waver on. Torture is wrong, and no ends would justify that means for me. This is probably the best example of my fear of the slippery slope, that such devaluation of human life will lead to greater atrocities in this means-to-and-end argument. Most shockingly, my POW brother-in-law has actually argued that torture is justified, and I can't fathom how he arrives at this. Adultery? I can't waver on that one. It is better to break someone's heart than to break your vows.* By which I mean, break up with them if you intend to leave them for someone else. And refrain from cheating! Anything uncomfortably close to cheating probably is too close for comfort, and anything that you think smacks of something you should get only from your romantic partner (emotional or physical benefits) is something you should not get from anyone else. This is another type of slippery-slope fear, and how I will avoid behavior A if it leads to situation B, which may give rise to action C, which is wrong. Hmm, it seems that all of my black and white beliefs are quite strong, with very limited (if any) exceptions. But they're all prone to slippery slopes.

The slippery slopes lead me to black and white conclusions before they lead me to more severe, irreversible consequences. Slippery slope arguments help me avoid falling to the bottom. Perhaps you can climb your way back to the other side. Ex ante, I can try to make sure I do not reach that crest, that point of no turning back. Otherwise, there's always that ill-conceived strategy of relying on an air-lift away.

*Update, upon reconsideration of the movies "Closer" and "Unfaithful"--if there is no way of your partner finding out about one moment of failure and you will never do it again, should you tell? My belief is no, but then again, go back to my argument that it is okay to lie to protect someone else's feelings. This said, I still believe that cheating is always wrong.

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