Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces legal protections for marginalized groups as they gain political power. Informally, sticky slopes can also develop through backlash, through legal arguments whose valences drift from their original intention, or through social exhaustion at grappling with the problem of inequality to seemingly little effect. I argue that attentiveness to sticky slopes is important for two reasons. First, awareness of the prospect of a sticky slope can be important in long term social movement strategizing. Where social movements are in pursuit of a cluster of related political ends, they will want to choose their tactics carefully so as to minimize the degree that their past accomplishments can be turned against them. Second, when deployed by legal actors, sticky slope arguments sometimes do not play true causal roles, but instead act as a mask for other, less tolerable justifications. Unmasking sticky slope logic can force legal policymakers to be more explicit about the rationales and implications of their decision.
I'll be presenting this paper at the 2010 Law and Society Conference this May, in a panel entitled "Social Change in Unexpected Ways". The discussant is scheduled to be Gerald Rosenberg, Lecturer in Law and Associate Professor of Political Science at the University of Chicago, and author of The Hollow Hope: Can Courts Bring About Social Change? Any comments you have are greatly appreciated -- I love getting feedback.
And I might note, in blogging solidarity, that this paper originally was a blog post I wrote back in May of 2008.
5 comments:
What Rosneberg gets a shout-out but not your eminent co-panelists?
No -- you, I'm ashamed to know.
The synthesized upshot if I were to read both your draft and Volokh's work is that courts do whatever they want, right?
A few things. first, i really enjoyed the paper. I think its on a topic that isnt considered nearly enough and is an excellent piece of scholarship. Also i saw your cite to PG so that was pretty cool. lots of long footnotes which was interesting.
My first point isnt really with the arguments but with the terminology of sticky slope. My visualization of the concept worked better when i thought of a vertical grade. a sisyphian slope where every step forward makes the next that much harder. so not a major point.
Part of the issue as i have always seen it is the unwillingness of courts to assume overt agency. With the rise of textualism and a more conservative judiciary the idea of the judicial branch as social actors has taken a serious hit.
the interplay between judges who see the action of minority groups in political spheres with their understanding of the role of the modern judiciary seems critical to me. The courts as generally undemocratic institutions prefer to kick things into the legislatures and to more democratic processes. California is a good example. after prop 8 the court capitulated even in the face of adverse legislative action. Sticky slopes arise at least in part due to the judiciary's desire to avoid social policy.
also im not sold on the backlash and counter mobilization theories. i think as much as it could represent an activation effect then maybe. i dont think many opponents to an idea are "created" by events so much as activated by them. it is of course dependent on the priority ordering. as you mention it is possible for a federalist to be opposed to expansion of minority rights when the process runs afoul of their preferences on this topic. However, on issues such as minority rights i do not think that there are many people who truly have no opinion about them. So when the federalist turns against the expansion based on federalist policy you would probably be seeing an expression of aversion, a neutral cover for expressing an already opposed view.
Also i saw your cite to PG so that was pretty cool.
That was sweet, but [puts on articles editor hat] it's so getting cut in the first round of edits :-)
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