Mario J. Rizzo and Douglas Glen Whitman, “Little Brother Is Watching You: New Paternalism on the Slippery Slopes [pdf].” Arizona Law Review 51: 685-739, 2009.
• A slippery slope argument is one suggesting that adopting a policy in the instant case will increase the probability of another, substantially more worrisome policy in a “danger case” (Schauer’s terminology) down the road.
• When cases vary along a continuum, then it might be hard to settle on a stable dividing line; such situations seem ripe for slippery slopes. Legal precedents can slide down the slope, for example, because of the inability to distinguish nearly (but not precisely) identical cases.
• Policies involve fixed costs that, once paid, make it inexpensive (in terms of resources) to slide down the slope.
• The common law typically endorses business customs and practices as its method of establishing defaults. Choice architects are not similarly disciplined, and hence are likely to both shift and increase transactions costs.
• Soft paternalists shift the frame into one where intervention is the default condition, and the only question is how much to intervene. They do not sufficiently distinguish between public and private policies.
• There is an inescapable arbitrariness in assigning any single discount rate for welfare comparisons involving quasi-hyperbolic people. A similar point applies to siding with cold state or hot state preferences.
• Soft paternalism can crowd out, perhaps completely, self-regulation.
• Quasi-hyperbolic policymakers will overvalue short-term gains and undervalue long-term costs.
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