Interest Groups and the Problem with Incrementalism

Saul Levmore, University of Chicago Law School

Abstract

Interest Groups and the Problem with Incrementalism Saul Levmore* Abstract Incrementalism, as opposed to dramatic change, in law is conventionally lauded as the prudent path of change, and one that gives credit to history and precedent. But the conventional view pays little attention to interest groups. There is a serious problem with step-by-step change when it will alter the constellation of supporters and opponents of further moves. The core problem is that once an interest group loses and is subject to some regulation, it has reason to turn on its competitors and encourage similar regulation of them. There is little reason to be confident that the laws that emerge on the incrementalist’s path represent progress towards socially desirable or democratic outcomes. Examples include 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, irreversible. The problem is reduced where there is real learning-from-experience; it is enlarged where advocates of change have 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, or incrementalism, problem itself.