For Law Students: Slippery Slopes and Lateral Thinking

I write for the benefit of law students to explain a type of argument. I do so by describing a real example presented by law students themselves. The argument is "the slippery slope." It has other names too, such as"the thin edge of the wedge;" "the camel's nose in the tent;" and "the parade of horribles."

I cannot help but be skeptical about this claim. The slogan "the slippery slope" is often interjected without further explanation. I train law students to doubt any assertion that is not followed by analysis. Some declarations seem to present that weakness more often than not.

The so-called "slippery slope" refers to a decision that might appear to be good on its own, but which somehow will lead to later, perhaps unforeseeable, outcomes that are not optimal. The implicit contention is that if you agree, for instance, to extend a deadline in this instance then you will be forced to do so for the next supplicant. But in the former there is a compelling excuse such as a natural disaster. An earthquake and loss of all electrical power renders a student unable to turn in a term paper that is due. In the latter, it is lacking. Failure to back up a computer file that has culminated in loss of that term paper is user error.

The injunction to one's self is to say "no" now to avoid having to say "yes" in the future. Don't step foot onto the path to begin with, because it will veer off to an unhappy place.

This line of reasoning depends on an assumption that is not usually articulated. The crux is that the two cases, now and in the future, are so similar, it is impossible to stop the slide down the incline. A professor who taught me Constitutional Law, Fred Schauer, wrote a definitive scholarly article revealing the nature of the regression. He argued that "the slippery slope" should not persuade us at all, if we are capable of drawing a line along that gradient.

There's no inherent slipperiness with dissimilar cases. Say "yes" now, say "no" later. If that is feasible, there is no worry. Take each case as it comes.

Law school, then law practice -- for that matter, the totality of the Anglo-American common law tradition -- is based on such an ability. The technique is "distinguishing" precedent. In a system that depends on deciding the case at hand as the prior case was decided, valuing consistency, the question is whether the circumstances before us now are the same as the fact pattern that led to the opinion in the book, insofar as the relevant facts are concerned. If the answer is yes, then the result ought to be identical; if the answer is no, then the result need not (but might be) identical. Judges, legislators -- parents and teachers no less -- perform this task daily, of denial. Society cannot function if people cannot say "no" effectively.

Yet there is a catch. There always is. It may be that whether a slope is slippery, and how much so, is determined less by reason than emotion. As Oliver Wendall Holmes put it, "the life of the law has not been logic, it has been experience."

There may be principle for saying "yes" now and "no" later, but that may not be politically doable. A rational distinction might not make an emotional difference.

Here is an actual "slippery slope" dilemma. At the law school I led, UC Hastings, a few years back we started a little program. At Commencement in the spring, as hundreds of students would march across stage, shake hands, and receive their diploma, we invited a handful of VIP alumni to join the officiants to congratulate a son or daughter who was graduating. They were asked to take part in the ritual of "hooding," the attachment of the velvet cape as a symbol of academic attainment. The first VIP alumnus happened to be a public official, someone good to court. The VIP came up, affixed the "hood," then accompanied their graduate child as if they also were to be applauded for the accomplishment of the J.D. -- which of course they were.

Our thinking, as is nine times of ten in the back of our heads, is that this exercise would serve "institutional advancement." That is a euphemism for fundraising. We hoped that the alumnus from a generation earlier, bonding with their child who was that moment joining them as a member of this community, would be prompted to send a contribution. While plausible as an idea, it turned out to be ineffective. People who were not donors were not inspired by this single event, and that isn't a great surprise. It would be wrong for the "hooding" opportunity to look excessively transactional, as if we were expecting them to pay for the privilege. Ill will does not generate financial support, but good will might not either.

One might have predicted what ensued. As people learned about VIP "hooding," more and more started to request it. Alumni parent and graduating child gave way to alumni relative of graduating cousin to recent alumni with graduating fiancee to alumni friend who was "like family" to friend (not an alumnus even) without whom it would not have been possible to make it through. One after another, the concept was extended. The slope was as slippery as could be.

Each request was accompanied by the sincere statement that the person was as important as a parent. Any hint of impending refusal was met with rage at the failure to treat a consumer properly. There was an allegation of favoritism. A "legacy" graduate was being privileged over someone whose parents could not possibly have matriculated at an elite school.

The students were right -- I do not hesitate as a higher education leader to say students are generally right. The line between parent and "X" who is "just like a parent" is formal rather than functional. Our administrators were not about to get into the business of assessing whether an individual truly was like a parent or not. Nor would it be appropriate to divulge our ulterior motive.

We had created a mess for ourselves. The "slippery slope" is another form of the warning about the best of intentions.

It was a classic "collective action" problem. We, the authorities, should not begrudge the graduate who wishes to upgrade the occasion for herself and her loved ones. As we accumulated a list of "VIP hooders," however, we added to program bit by bit by bit. The audience has its patience tested already by watching hundreds of strangers, when for each family only one person is of interest. To most in the auditorium, each incremental ceremony is aggravating delay.

When I am presiding for three hours over what must be made meaningful, I have ample time to observe phenomenon and mull over how to improve processes. At even fifteen seconds per graduate (assuming no fumbling), that is 100 minutes total. I'd estimate robing by itself doubled the length of Commencement.

Then the Associate Dean had a brilliant idea. It made everyone feel special. It also enhanced efficiency. (People hate it when you talk about efficiency in open terms, but they detest inefficiency when they have to endure it.)

What she did was transform the "hooding." She moved it. By having it occur off stage in advance, everyone was able to have a relevant "hooder" with as much pomp as desired. She enlisted faculty for those who didn't have family to participate, she added backdrops with the school logo; and she made it a preliminary celebration before everyone lined up for the processional. A photo was taken of each mini-, private "hooding."

I would not be overstating it to say that as much as I was grateful to my colleague for all she did, this single innovation of hers was what I appreciated most. It was perfect. Her insight likely came because she was new in her job. She brought the proverbial fresh set of eyes to a recurring headache.

She was demonstrating the power of "lateral thinking." She reframed the scenario. She looked to the underlying, shared goals. The Associate Dean's team was oriented toward service to students. They wanted what students wanted. It was about creating positive experiences for all graduates, with a moment when they were able to bring in people important to them. It wasn't about whether a particular person fit within a defined category or not, forcing choices that are pointless.

The moral of the story is that "the slippery slope" is real. It arises when being nice ends up being foolish. People care about whether you are nice to them, not whether you were nice to the last person. They are aggrieved if they are not granted what others are, no matter the justification.

But the further moral is that "lateral thinking" works. There are means to alter the landscape. The downhill vanishes.