The Cost of Making Exceptions

June 6, 2010

by Mario Rizzo  

As a political and legal culture, we do not know how to deal with slippery-slope tendencies. The recent discussion (here and here, and many other places) of the public-accommodations provision of the Civil Rights Act of 1964 has made me more conscious of this issue.  

I am willing to agree for purposes of this post that the law forbidding private storeowners, hotels, and other merchants to discriminate on the basis of race was morally justified under the institutional conditions of the day.  

The problem, from my perspective, is that the cost of making exceptions to general principles is not sufficiently appreciated. Benefits may exceed costs in a particular case, but if these costs are not fully recognized, the course of action taken may lead to bad decisions down the road. 

To be more specific: I believe that freedom of association, interpreted broadly, is a very important value. Much of the classical liberal social order is based on it. People enter into transactions voluntarily. This implies, of course, that they may also refrain from transacting. Normally we do not ask why. The terms and setting of a transaction – whether it is economic or social – is up to the relevant parties. If other individuals seek either to coerce a transaction or forcibly prevent it, they violate the principle of free association (and more).  

It takes serious circumstances to justify any departure from this important principle. Unlike some libertarians, I do not believe that the principle is inviolable. This is because we do not know enough to establish or, at least, support rules that admit of no exceptions. Often we do not sufficiently understand the implications of a rule until we are faced with particular circumstances.  

Suppose, for example, that unless I kill a perfectly innocent individual a million other innocent people will definitely die. (This could be a variant of Bernard Williams’s story of Jim and the Indians. A madman credibly threatens to kill these people unless I kill the innocent one. No factual assumptions that permit us to get out of this dilemma are allowed, ex hypothesi) I would very reluctantly kill the innocent person.  

Of course, this is a fantastic story. But I am just trying to illustrate that it is foolish to say that we should not consider making exceptions. Even David Hume admitted the appropriateness of exceptions in certain cases. He cautioned, however, that the exceptions should be rule-like and not arbitrary. 

The unfortunate public-policy precedent set by the accommodations law is that the principle of freedom of association can be trumped any time some social good can be thereby attained. This goes far beyond limiting the principle in order to eradicate the Jim Crow laws and practices of the old south.   

Perhaps I am stating the precedent too broadly. No one yet tells me who my friends can be or whom I must marry (although they do tell me whom I may marry). There is still a certain truly private personal sphere.  

We must, however, distinguish legal precedent from the broader public-policy precedent. The latter is no respecter of state and federal distinctions or of “precise” definitions of interstate commerce. What it goes to is the idea that private persons must arrange their economic transactions in such a way as to benefit people whom they may not want to benefit.  

Thus, we have moved from the original public accommodations law to laws requiring non-discrimination of other groups who were never slaves nor subject to Jim Crow. Affirmative action laws require actively searching for people who fit “special” (exceptional?) categories. Quotas are often present in every way but name. 

By ignoring slippery-slope tendencies we make ourselves more vulnerable to them. “If we have done this, why should we not do that?” becomes the operative dynamic. Planners have visions of a just society in which certain criteria of association are approved and other disapproved. They seek small differences between the previous exception and a further exception and exploit the seeming continuity. The process continues. 

To recognize the slippery-slope dynamic does not, in itself, mean that we must reject a particular exception to a general principle. The circumstances might warrant the exception. But if we recognize the dynamic – explicitly and with regret – we may lessen the chances that the exception will erode the general rule. Freedom of association is a broad and desirable principle of social organization. The correction of specific injustices should not be allowed to destroy it.

17 Responses to “The Cost of Making Exceptions”

  1. Bill Stepp Says:

    The fantastic story that it is in accord with libertarian principles to kill someone to prevent the definite murder of a million people demands an equally fantastic reply: no it’s not. The only libertarian response is to attempt to kill the would-be murderer of a million innnocents. The alternative is less of a crime than killing a million people, but is a crime nonetheless. I think Rothbard would have agreed.

  2. Bill Stepp Says:

    Check that response. Killing a would-be murderer is not a crime, at least if he is about to commit his dasterdly deed. Exactly where to draw the line is, I don’t know.

  3. chidemkurdas Says:

    ‘By ignoring slippery-slope tendencies we make ourselves more vulnerable to them. “If we have done this, why should we not do that?” becomes the operative dynamic.’ Given how easy it is to slip down the slope — after all, you say this is justified, then why not another little step, and so on — the only way to avoid it would be to make laws sunset at some predetermined time.

  4. Mario Rizzo Says:

    Chidem,

    I do agree about the benefits of sunset laws with respect to slippery-slope processes.

    Bill,

    As to the point about killing the innocent person, the hypothetical does not admit of the possibility of killing the would-be mass murderer. So the alternative is as I stated. If Rothbard’s position would have been as you say, then I would have disagreed with him. I am not an advocate of “morality” though the heavens fall. Such is a mockery of true morality.

  5. Bill Stepp Says:

    Mario,

    Please walk me through how this would work. Who would decide what person would die? What would be the appropriate execution method? What if he/she resisted?
    What if you or a family member were selected to die? Would you go quietly?
    They’d have to break down a barricade and survive a hail of gunfire to get me.

  6. Glen Says:

    Mario, this is the single best response to the Rand Paul kerfuffle I’ve read. Well done.

  7. Troy Camplin Says:

    Hey, somebody’s gone and stolen my sunset law idea! :-)

  8. Roger Koppl Says:

    Troy is right; he was bringing the sunset idea to Title II in the earlier TM discussion Mario links to.

    Mario,

    I think you are right to say, “we do not know enough to establish or, at least, support rules that admit of no exceptions.” Right on. And the exceptions have exceptions, to which there are exceptions, and so on. I tend to think good social rules have a sort of fractal structure whereby you have exceptions and exceptions to the exceptions, and so on. If so, it would help explain why we have in our division of labor a special class of actors called “jurists.” They specialize in working out the fractal intricacies of the rule set enforceable through civil or criminal action. That thought then brings me to the common law. It seems that the requirement of nondiscriminatory public accommodation was part of the ancient common law.

    How does your argument connect to the common law? What about the passage in Blackstone about Inns or whatever not discriminating? Is it not a function of the common law to prevent slippery slopes? It’s a sort of Paul Rubin argument. We have a rule that omits a costly exception. Those costs result in a dispute that comes up in court and we articulate a rule creating an exception to the earlier rule. That new rule omits, however, a costly exception. And so on. The bumpy landscape thus created has a relatively high coefficient of friction; it is not a slippery slope. This sanguine view of the common law would seem to fit Hume’s admonition that exceptions be rule like. Part of the problem with Title II of CRA64, then is not really Title II at all, but the earlier Jim Crow laws that overrode common law principles, which had then to be reintroduced by clunky old legislation. Please share your reaction to these ruminations.

  9. Mario Rizzo Says:

    Roger,

    The problem of slippery-slopes applies to all systems of rules or law based on precedent. The common law is no exception. In my article with Glen on slippery slopes we show how the process can operate in a myriad of contexts.

    However, in this particular case of Title II the process was legislative and further laws were passed even citing the former as precedent.

    The common law “non-discrimination” requirement for inn-keepers developed in a very special context. Denying lodging at night might send a person back out on to the higway where robberies were not uncommon. The rejection was normally unpredictable and so people would be in a vulnerable position — subject to a temporary monopoly.

    The old south case was different. It was predictable — there were white/blacks only hotels. People would not be caught unawares.

    So I interpret the common law rule as part of a long series of rules that deal with temporary (and unpredictable) monopoly situations.

    Interpreted in that way the common law rule would not have evolved, for better or worse, into the general prohibition of racial discrimination in all public accommodations.

    But, as I said, there is sliding in the common law as well as in statute law.

  10. chidemkurdas Says:

    Well Troy, it’s a good idea. The basic concept is pretty old–goes back to ancient Rome, if I’m not mistaken. It comes up now and then. There was some discussion of sunsets in relation to the Patriot Act a while back.

    What I meant is that in general — whatever the merits of a law — a sunset clause is probably the only way to reduce vulnerability to slippery slopes, and even that may not deter further expansion.

  11. Roger Koppl Says:

    You’re right, Mario, I was totally neglecting your discussion of the common law in the Camel’s Nose paper co-authored with Glen Whitman. Oops. I was wrong to say unqualifiedly “it is not a slippery slope.”

    I did briefly scan your article again, but really briefly. Forgive me if I’m still off the mark, but I don’t recall you explicitly addressed the Rubinesque argument I very briefly sketched above. The idea is that suboptimal exceptions have a social cost that would increase the probability of a suit that might alter the precedent in the appropriate direction. In the pure blackboard version you would have the optimal set of exceptions, exceptions to the exceptions, and so on. As far as I know, the pure Rubin argument works only on the blackboard. But I tend to think the logic of it still applies. Details about how the world and the blackboard differ will decide how slippery the slope is really, but the self-regulatory logic I have outlined is another reason to prefer law to legislation, ceteris paribus.

  12. Mario Rizzo Says:

    I think the idea that inefficient (suboptimal)laws get litigated out of existence is not robust. Paul Rubin himself seemed to abandon it because he thought that rent-seeking was possible (and occurred) in common law contexts. But I admit that I haven’t thought about the original Rubin idea in the context of slippery slope analysis. Food for thought.

  13. Glen Says:

    Roger, there are many valid criticisms to the Rubin/Priest models of common-law efficiency. I used to be able to recite them off the top of my head, but now only one comes to mind. That criticism is that the social costs associated with an inefficient legal rule may be distributed unevenly, so that (say) the rule produces concentrated benefits and diffuse costs. As a result, those who have an incentive to challenge the rule in court in order to change the precedent will be unlikely to overcome their collective action problem.

  14. Roger Koppl Says:

    Glen,

    Sure. That’s why I said it works on the blackboard. There is trading at false prices, but we still use GE. So does Rubinesque reason have zero application to slippery slopes?

  15. Glen Says:

    Roger,

    Yes, I agree there are potential applications for slippery-slope analysis. As Mario said, we haven’t really thought this through yet. My instinct is that, once you incorporate criticisms like the one I stated above, the Rubin/Priest mechanisms might contribute to slippery slopes in some cases while resisting them in others. For instance, if a given rule of common law tends to create concentrated benefits and diffuse costs, then the beneficiaries will tend to be more successful in driving marginal extensions of that rule than the losers (maleficiaries?) will be in resisting them.


  16. Three observations/questions:

    (1) In the South, one went from a regime in which you must discriminate to one in whish you must not discriminate. Discrimination in the South was the product of legislation, and was often opposed by business. What would have happened if there were just federal pre-emption and repeal of the segregation laws? In Dallas business did not wait for legislation. In a carefully planned operation, all major Dallas businesses desegregated over a weekend. It ended voluntarily. It was, after all, bad business practice.

    (2)Thomas Sowell has repeatedly observed that Black progress was greater before the 1964 Civil Rights Act than after its passage. Are we defining the Act in terms of its stated intent, or its actual effects?

    (3)I believe the Roman law doctrine was to let justice be done even unto the consummation of the world. It was applied to free all slaves then on English soil. (Slavery was not recognized at common law and not authorized by statute within England.)

  17. Troy Camplin Says:

    I was mostly teasing about the sunset law idea being stolen from me. After all, I got the idea from Nietzsche. But I think all laws — excluding the constitution of a country — should have a sunset provision. If a law is worth having, it’s worth voting on again every 10 years.


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