Tuesday, October 15, 2013

Sticky Slopes on the California Law Review Website

Here's a link to a PDF of Sticky Slopes on the California Law Review's website, as well as the final abstract:
Legal literature is replete with references to the infamous "slippery slope"-situations in which 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 society's exhaustion with attempting to address the problem of inequality to seemingly little effect.

I argue that attentiveness to sticky slopes is important for three 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. Third, sticky slopes reveal how prior victories are themselves sites of social conflict and controversy over meaning, which social movements will want to turn to their preferred ends.
David Schraub, Sticky Slopes, 101 Calif. L. Rev. 1249 (2013).

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