Lawyers Proving the ‘Slippery Slope’ is Real
By: Warner Todd Huston
If you’ve spent any time at all on Internet message boards or in college debate class you’ll have seen the rafters vibrate with righteous condemnation against the “slippery slope argument.” It is claimed that a worst case, ultimate extrapolation of a thing is a bad argument because it isn’t necessarily a truism. Supporters of the Second Amendment, for instance, are scolded by liberals when the supporter says that any new gun law is “one more step to banning guns.” The gun restricter says that the gun supporter is employing a “slippery slope” argument and that it is idiotic to claim that one new law must mean that a gun ban is the ultimate outcome. One doesn’t necessarily follow the other.
It is a logical conclusion, of course, that one step won’t necessarily lead to a series of other steps. But, humanity isn’t ruled by logic and those small steps that ultimately lead down the road to ruin are far more common than not. Here is another example of how one step led to another to bad effect and, as is far too often the case, the situation at hand was made in the arena of the law. And recently that slope descended even further down that road to hell.
In a recent Washington Post article, Curtis A. Bradley and Jack L. Goldsmith detailed a slippery slope situation that took 200 years to slide down when activists realized that they could warp the meaning of a law written in 1789 to fit their political goals in 1980. Naturally, those political goals were a leftist’s dream come true.
In 1789, the Alien Tort Statute became American federal law. This law was originally meant to give a more stable venue for cases brought against foreign litigants bringing consistency in U.S. law to such cases . It was also meant to help foreign governments avoid the confusion that would have resulted in having to take into consideration the practices of all our different states, giving them just one forum instead of 13 (now 50) to contend with. This helped ease any diplomatic tensions that might have occurred with foreign nations being forced to deal with so many different courts in the U.S. Seems like a logical law, right?
200 years later enter the radical left.
The statute hid in obscurity for almost 200 years before a federal appellate court in New York invoked it in 1980 to allow victims of human rights abuses committed abroad to sue foreign officials in U.S. courts. This holding turned the statute on its head by creating, rather than reducing, friction with other countries. It also spawned a cottage industry of human rights litigation.
The Post article says that the initial cases brought forth using this new interpretation of the 1789 law were “largely symbolic” and altered nothing imposing no real penalties. But soon radical leftists warped the law even more. New cases began to prove much farther reaching as U.S. corporations began to be targeted as “aiding and abetting” those charged with the so-called civil rights abuses occurring in other countries.
These cases are not merely symbolic — the U.S. corporations have deep pockets and U.S. bank accounts — and present enormous opportunities for judicial meddling in foreign relations.
A case brought against South Africa by class-action attorneys many years after apartheid ended is a “dramatic example,” say Bradley and Goldsmith. It was brought to a New York court in hopes of penalizing American corporations for having had dealings with South Africa during the years of apartheid.
The Bush administration opposed the litigation claiming that it would seriously impact the executive branch’s ability at diplomatic relations with the current South African government and would have “adverse consequences” on economic relations. Even the post-apartheid South African government opposed the litigation because they felt it interfered with its own policies “embodied by its Truth and Reconciliation Commission.” Even the Supreme Court ruled that the executive branch had privilege in dealing with South Africa.
But the arrogant New York court didn’t care.
This should have been enough for dismissal. Five years ago, the Supreme Court said in reference to the South Africa litigation that “there is a strong argument that the federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” Yet the New York court, unpersuaded, concluded that allowing the lawsuit to proceed “would not contradict American foreign policy in a manner that would ‘seriously interfere with important governmental interests.’ ” Thus it supplanted its foreign policy views for those of the federal government and refused to respect South Africa’s efforts to move its society forward.
Unfortunately, the activists in the New York court refused to dismiss the case despite so many voices opposed to it.
What is the result? This case can now go forward to interfere with the right of South Africa to reconcile with its own past in its own ways and could have major economic impact on our own economy by ruling that American firms are now liable for what some other country did with its people.
More significant, the court ruled that firms were liable for a foreign government’s human rights violations, even if they did not engage in the abuses or intend to facilitate them, as long as companies were aware that their business activities would substantially assist the government’s illegal practices. This put GM and Ford on the hook for supplying trucks that the South African government used to attack anti-apartheid activists, and IBM for providing computers and software that the government used to register and segregate individuals.
And thus the slippery slope is well traveled. From a law meant to help other nations to deal with our nation to one now warped to be used interfere with other nations dealing with their own people, we see this law misused by radical leftist activists as well as activist judges looking to find what they want in law instead of reading it as is.
So, next time someone says that a slippery slope argument is not valid, tell them of this South Africa case. Then remind them of Shakespeare’s derisive comment that first we must “kill all the lawyers.”