October 18, 2004

Volokh Slips Down to NYC

by PG

As noted on his own blog, Eugene Volokh will be speaking about Mechanisms of the Slippery Slope Monday, at 12:30 pm at Columbia Law school, and at 3:30 pm at Fordham Law School. I don't know about the Fordham event, but the one at Columbia is sponsored by the Federalist Society. The very short version of Volokh's paper is here, the slightly longer version is here, the 53 page version here and all 91 pages are here in html, here in pdf.

For my money, the cost-lowering type of slippage is most likely to be able to overcome the "we ought not make a sound decision today, for fear of having to draw a sound distinction tomorrow" jab at slippery slopes. With cost-lowering, especially in the literal sense, there is no distinction to overcome, except perhaps that between the expenditure of X and the expenditure of X + 1. In other words, it's a practical concern rather than a principled one, and I think practical concerns slip more easily.

UPDATE: Some notes from the CLS event below the fold. For those who object to them as sketchy and uninformative, be aware that these are probably better than my notes for most of the classes I attend. Prof. Volokh apparently was blogging immediately before the pizza arrived; I wonder what he thinks of Wikipedia's summary of his ideas, as well as the Wiki view of controversial events.

Introducing Eugene Volokh, Federalist Society president Blaine Evanson cited the Conspiracy as his greatest claim to fame, or at least as how Evanson himself knew of Volokh. Volokh joked that actually his claim to fame was having clerked for Kozinski a year before Dean David Schizer.

Prof. Volokh made great use of the overhead projector during his talk, putting up several quotes and what appeared to be bits of an outline.

"[I]t is proper to take alarm at the first experiment on our liberties.
"The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents.
"They saw all the consequences in the principle, and they avoided the consequences by denying the principle."

This was James Madison, the Fedhead himself, speaking against a threepenny tax to support religious teachers. He had a problem with the proposal itself, but some in his audience may have thought, Why make a big fuss over threepence? And so he argued that even if one found the threepenny acceptable, one should oppose it because it would result in greater demands.

Although his paper seeks to make the slippery slope respectable instead of pooh-poohed as a fallacy, Prof. Volokh also is skeptical of those who see the movement from point A to point B as instantaneous, those who say "Today this, tomorrow the Inquisition." (Perhaps because it would undercut his argument, Prof. Volokh ignored that nobody expects the Spanish Inquisition.)

"As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity…
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters...
"It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings."

Prof. Volokh asked for someone to guess the origin of this quote. Someone who had taken First Amendment and remembered it? One student guessed Justice Holmes, but Volokh said that Holmes did not believe slippery slope arguments. He was a pragmatist who liked short steps and thought that the Court could prevent them from leading to excessive overreaching. Looking back on McCarthyism, Justice Black remarked, Holmes said that the small step would never lead to a large step while this Court sits, yet look at what has happened to the Communists even as the Court sits.

Volokh then put up the quote from the end of his law review article, regarding the slippery slope to banning smoking. The careful observer says, "this doesn’t show that the ban on machines led to the ban on smoking in public places. Even if people had blocked the ban on machines, the ban on smoking still would have happened. It’s possible that some other force led to both A and B." True, it's hard to prove that slippage has happened.

Volokh pointed out that it is not hypocritical or dishonest to dislike both A and B and make a slippery slope argument to an audience that dislikes only B. This is particularly useful with regard to people who argue against gay marriage on the grounds that it will lead to state sanctioned bigamy and incest; obviously making such arguments indicates that one thinks gay marriage is on a similar moral plane, but that does not preclude one from persuading people based on that slope.

What we'd like to know: how likely is A to lead to B? what are the mechanisms by which A may lead to B? how can we persuasively argue that A is or is not likely to lead to B?

There are many kinds of slippery slopes, and taxonomy can help identify unexpected consequences. Even if you don't buy some kinds of slippery slope arguments for a particular issue, others might be more applicable. Volokh discussed his example from the Legal Affairs piece, gun registration as leading to confiscation, and noted how his taxonomy -- alter people’s attitudes, be one of several small steps (small change tolerance), increase political momentum, increasing political power, lower cost, legally enabling -- would apply. He then turned to an example more appealing to liberals, the use of cameras on street corners for law enforcement.

The part of the talk that I found most interesting was Prof. Volokh's mention of how to avoid the slippery slope. He said that substantive constitutional rights (speech, abortion, guns) are regulation-frustrating. But they can also be regulation-enabling, since they let people vote for A with less fear that it will lead to B. For example, if the courts really enforced the 2nd Amendment as an individual right, perhaps there would be less fear of the small steps like registration because people would feel secure in their retaining the right, just as there is little fear of parade permit regulations because of the strong enforcement of the 1st Amendment.

"Someone who trusts in the checks and balances of a democratic society in which he lives usually will also have confidence in the possibility to correct future developments.
"If we can stop now, we will be able to stop in the future as well, when necessary;
"therefore, we need not stop here yet."

Another interesting point was about multi peaked preference, i.e. people who would not vote for the middle-ground or minor restriction of A, but would vote for B. Perhaps compromise A position seems cost-inefficient; once you pay for A, why not use it for B?

Prof. Volokh put up a chart of multi-peaked preferences as applied to the war on drugs. The positions varied from "Drugs are good, restrict them as little as possible" to "Drugs are good, but contempt for the law is very bad" to "A little restriction is good, but hardcore enforcement is very bad" to "A little restriction is good, and no restriction is very bad" to "Drugs are bad, but contempt for the law is very bad" to "Drugs are bad, do as much as you can to stop them." While the people who did not perceive drugs as very harmful might not vote for initial legislation to ban drugs, once that legislation was in place, they might be susceptible to an argument that the law must be enforced and thus would vote for stringent enforcement of a law that they had not voted for in the first place.

This struck me as slightly implausible, but it applies to the foreign policy realm as well. I belong among the group of people who think that while the war in Iraq may have been started for the wrong reasons, and has not been conducted well, the United States nonetheless now has a responsibility to "win the peace."

"[T]he assault weapons ban is a symbolic … The real steps, like the banning of handguns, will never occur unless this one is taken first." – Charles Krauthammer.

Why would people’s attitudes about B be influenced by legislative decision on A? There is the expressive effect of law, the normative power of the actual (we have this law, therefore we ought to have this law), and rational ignorance. Most voters are not experts on many matters, so when asked a question like whether peyote is harmful, their instinct is to look at the law. The same for the question of whether warrantless searches for dialed phone numbers are unreasonable. In a society of pragmatists without fixed ideologies, precedent of legislatures and courts can alter attitudes because they are a source of knowledge as to whether something is desirable.

Slippery slopes are a real concern, and they operate in a variety of ways.
Taxonomy may help identify nonobvious slippery slope effects – and may help us make concrete arguments. Some things might help avoid slippery slopes: substantive constitutional rights, rational basis test in equal protection.

Slippery scope: example of speech restrictions based on creating a hostile environment. This is bad not only because it could lead to further restrictions, but because the broadness of language in the initial law permits excessive restriction. On the grounds of equality, or because drawing distinctions is too administratively difficult, the government will lump all distressing speech, even that with political value, into the same restricted category.

It can work the other way as well. Over time, equality/ administrative slippery slopes led to the expansion of free speech rights. The initial decisions protecting political speech were expanded to protect pornography. Or with euthanasia – shouldn't the psychologically pained be treated equally with the physically pained?

(I had to leave for class at this point. I hadn't realized that Prof. Volokh had some Russian accent remaining. Forget the intellect; I'm in love based entirely on how he says "pooh pooh.")

October 18, 2004 12:40 AM | TrackBack

The recent discussion on extending the assault weapons ban was a great example of misuse of the "slippery slope" argument. It had everything. On the one hand you had those who argued that the ban should be eliminated because it would lead inevitably to banning all guns while armed criminals roamed the streets unchecked. On the other side you had those who claimed that, if the ban wasn't extended, it would lead inevitably to an AK-47 with cop-killer bullets on every streetcorner. Nobody bothered to discuss the steps involved in going from the ban to their particular nightmare vision or the likelihood of each step actually occurring. As a result, they universally argued for or against the entire ban rather than discussing the merits of specific components. They all (at least those that received media exposure) were exclusively concerned with what might happen in future arguments at the expense of the discussion in front of them. In the end, we threw out the baby with the bathwater and the country is the poorer for it.

Posted by: Mojo at October 18, 2004 02:04 AM
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