The Slope Is Rarely So Slippery

oldladyjury-300x199In his blog the Art of Advocacy, Baltimore lawyer Paul Mark Sandler suggests a counter to the slippery slope argument: “The ‘slippery slope’ argument falsely assumes that once you take a moderate first step in a particular direction, a catastrophic chain of events will follow. In many cases, a better metaphor would be a staircase with many safe steps along the way.”  (No link to this blog because, like many legal blogs, it died a premature death.)

I like this metaphor. My problem with slippery slope arguments is that in real life, slopes are rarely slippery. Looking at this same metaphor through a different lens, George Will wrote earlier this year that life is lived on a slippery slope: taxation could become confiscation; police could become gestapos. But the benefits from taxation and police make us willing to risk that our judgment can stop slides down dangerous slopes.

Believe me, I know plaintiffs’ lawyers have made the slippery slope argument as well. I have myself. But it seems like more of an argument I hear from defense lawyers.

Slippery Slope and the NRA

For the last 80 years, the NRA has been able to fend off gun control legislation with the slippery slope argument to the point of suppressing legislation that even its own members support.  The perfect example is background checks to buy a gun.   Most NRA members support a background check to buy a gun.  They may like owning guns but they don’t like crazy people owning guns.  A stunning 96% of all Americans support such legislation.  Is there anything that 96% of us agree on in 2019?  But the NRA still opposes the legislation and SUCCESSFULLY opposes any comprehensive background check bill.

It is the slippery slope argument.  “I think what they’ll do is turn this universal check on the law-abiding into a universal registry of law-abiding people,” warned Wayne LaPierre, the NRA’s executive vice president. “Obamacare wasn’t a tax until they wanted it to be a tax.”  They are against banning cop-killer bullets because it is a “Trojan horse” to a backdoor national gun control scheme.

I don’t begrudge people their lobbying groups.  But these groups don’t represent all of us or even their members.  When they have oversized powers, the results are not so good.

More on Slippery Slopes

  • Frederick Schauer, Slippery Slopes, 99 Harv. L. Rev. 361, 368-69 (1985).  The “slippery slope argument necessarily contains the implicit concession that the proposed resolution of the instant case is not itself troublesome. By focusing on the consequences for future cases, we implicitly concede that this instance is itself innocuous, or perhaps even desirable.”  So in other words, it might be good for this case but we can’t do it because if we do, people will take this and run with it beyond where they should.
  • Blogger Eugene Volokh’s law review article on The Mechanism of the Slippery Slope.  This is also in Harvard Law Review which is apparently a little obsessed with slippery slopes.
  • Explanation of a good explanation of slippery slopes from Texas State (which, I note, is a real school, and not a made-for-tv school that offers Smash Williams and Tim Riggins scholarships).
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