You’ve heard of slippery slopes (If you haven’t check out Volokh’s article on the Mechanism of the Slippery Slope). Now, David Schraub posted a fascinating article on “Sticky Slopes.” (H/T Legal Theory Blog)
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 would imagine a possible case of a sticky slope could apply to many public interest groups that fight for potential phyric victories. For example, the Institute for Justice decided to take Kelo to the Supreme Court, even though many experts warned them they could lose. The group was faced with an option. Maintain the status quo, or take a risk. If they maintain the status quo of Berman and Midkiff, things would be bad, but no new precedents would be set. If they rolled the dice, they could risk a decision that makes future victories for property rights tougher.
Unfortunately, the Court took the latter route, and basically foreclosed any meaningful review of eminent domain cases.
Thus, the decision in Kelo can largely be seen as a judicial Sticky Slope, despite the fact that Kelo has generated many positive enactments by state legislatures.
I look forward to reading the article in detail, but this is a very interesting concept.