Law & Economics Working Papers
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. But the conventional view pays little attention to interest groups. Step-by-step change poses a serious problem when it alters 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 encourage that they be similarly regulated. The laws that emerge on the incrementalist's path may therefore not mark progress toward socially desirable or democratic outcomes. Examples include environmental standards, smoking bans, disability accommodations, and minimum age legislation, but nearly all law can be seen as incrementalist, just as most tradeoffs might be described as on slippery slopes. The incrementalism problem is most striking where a prior regulatory step is, from the perspective of those who must comply, costly to reverse. The problem is reduced where there is real learning from experience; it is enlarged where advocates of change implement a divide-and-conquer strategy to separate defending interests. It is possible that compensation policies or even moratoria on certain kinds of regulation can be used to decrease wasteful rent-seeking and to minimize the interest-group problem.
Saul Levmore, "Interest Groups and the Problem with Incrementalism " (John M. Olin Program in Law and Economics Working Paper No. 501, 2009).