Publication Date

2010

Publication Title

University of Pennsylvania Law Review

Abstract

Incrementalism, as opposed to dramatic change, is conventionally lauded in law as the prudent path of change-a path that gives credit to history and precedent. The conventional view, however, pays little attention to interest groups. Step-by-step change poses a serious problem when it rearranges the constellation of supporters and opponents of further moves. The core problem is that once an interest group loses and becomes subject to some regulation, it has reason to turn on its competitors and see to it that they also be regulated. The laws that emerge on the incrementalist's path therefore may not mark progress toward socially desirable or democratic outcomes. Examples of incrementalist laws include environmental standards, smoking bans, disability accommodations, and minimum-age legislation. Nearly all law, however, can be seen as incrementalist, just as most tradeoffs can be described as sliding on slippery slopes. The incrementalism problem is most striking when a prior regulatory step is costly to reverse from the perspective of those who must comply. The problem is alleviated when there is real learning from experience; it is exacerbated when advocates of change implement a divide-and-conquer strategy to separate defending interests. Compensation policies or even moratoria on certain kinds of regulation could possibly decrease wasteful rent seeking and minimize the interest-group problem.

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