The Legal Analyst: A Toolkit for Thinking about the Law

By Ward Farnsworth | Go to book overview

18 Slippery Slopes
With Eugene Volokh

Slippery slopes are familiar to anyone who has spent more than ten minutes arguing about anything. You suggest that people should have to register their handguns; I reply that it’s a slippery slope: next thing you know, everyone’s handguns will be confiscated. Someone says they favor gay marriage, and back comes the argument that it will put us on a slippery slope toward legalized polygamy. Or perhaps you favor assisted suicide, or a ban on hateful speech, and in either case your antagonist describes a “parade of horribles” that could follow—mercy killings, or a ban on other kinds of speech. You are warned that after the first decision the camel’s nose will be under the tent, or that the decision will serve as an entering wedge for a worse one, but the slippery slope will do fine as a placeholder for all those metaphors. The general structure of it is always the same. The decision at hand—“decision one,” let us say—is acceptable (or so we may assume), but it might lead to a second decision later that sounds scarier: confiscating everyone’s guns, making polygamy legal, and so forth. But of course the people who want decision one say that it by no means must lead to decision two, and they dismiss the concern about slippery slopes as a cliché. So how do you know when worries about them are just a distraction from the issue at hand? In this chapter we’ll think about some answers to these questions—some reasons why a first decision can make a second one more likely later.

1. The first decision lowers the cost of the second one. The first reason is quite practical: sometimes decision one makes decision two less expensive. If everyone registers their handguns, then confiscating them later will be easier. We will know where the guns are; we will be able to find them right away. It still might not happen, of course; the fact that confiscation is easier need not change anyone’s view of other parts of the question—the moral side, the constitutional side, and so on. But the costs and benefits of a decision are always an important feature of it. And remember that decisions get made at the margin. In this case that means the question won’t be the total cost of confiscating guns; it will be the additional, incremental cost. In other words, decisions about confiscation will begin, “well, as long as we’ve already got them all registered …”

-172-

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The Legal Analyst: A Toolkit for Thinking about the Law
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Acknowledgments xi
  • Part I - Incentives 1
  • 1 - Ex Ante and Ex Post 3
  • 2 - The Idea of Efficiency 13
  • 3 - Thinking at the Margin 24
  • 4 - The Single Owner 37
  • 5 - The Least Cost Avoider 47
  • 6 - Administrative Cost 57
  • 7 - Rents 66
  • 8 - The Coase Theorem 75
  • Part II - Trust, Cooperation, and Other Problems for Multiple Players 85
  • 9 - Agency with Eric Posner 87
  • 10 - The Prisoner's Dilemma 100
  • 11 - Public Goods 109
  • 12 - The Stag Hunt 117
  • 13 - Chicken 126
  • 14 - Cascades 136
  • 15 - Voting Paradoxes 144
  • 16 - Suppressed Markets with Saul Levmore 152
  • Part III - Jurisprudence 161
  • 17 - Rules and Standards 163
  • 18 - Slippery Slopes with Eugene Volokh 172
  • 19 - Acoustic Separation 182
  • 20 - Property Rules and Liability Rules 188
  • 21 - Baselines 198
  • Part IV - Psychology 207
  • 22 - Willingness to Pay and Willingness to Accept- The Endowment Effect and Kindred Ideas 209
  • 23 - Hindsight Bias 218
  • 24 - Framing Effects 224
  • 25 - Anchoring 230
  • 26 - Self-Serving Bias, with a Note on Attribution Error 237
  • Part V - Problems of Proof 247
  • 27 - Acoustic Separation 249
  • 28 - Standards of Proof 257
  • 29 - The Product Rule 273
  • 30 - The Base Rate 281
  • 31 - Value and Markets 294
  • Notes 305
  • Author Index 329
  • Subject Index 335
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