Working Papers

One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections. These instruments figure prominently in current reforms, but controversy has begun to swirl around their use. The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor. Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime). First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores). So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria. Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines. Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest. Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

Industry has organized increasingly effective self-governance initiatives since the 1980s. Almost all of these are based on large retailers’ economic leverage over global supply chains. This article documents commonalities in six of the best-studied examples – coffee, dolphin-safe tuna, fisheries, lumber, food processing, and artificial DNA – and offers straightforward economic and political theories to explain them. The theories teach that oligopoly competition can strongly constrain private power so that firms are answerable to a shadow electorate of consumers. Furthermore, rational retailers will find cede significant power to suppliers and NGOs. The arguments generalize traditional claims that free markets constrain private power and suggest an explicit framework for deciding when private politics are legitimate.

Legal scholars usually analyze copyright as an incentive and sometime obstacle to creation. This encourages us to see publishers as middlemen who siphon off rents that would be better spent on authors. By comparison, recent social science research emphasizes that word-of-mouth markets are highly imperfect. This means that many deserving titles will never find readers unless some publisher takes the trouble to market them. But this second view is deeply subversive. After all, the need for publishers – and reward – does not end when a book is published. At least in principle, copyright should last forever. 

The trouble with this argument is that it assumes what ought to be proven. How much effort do publishers really invest in finding forgotten titles? And does vigorous marketing attract more readers than high copyright prices deter? This article looks for answers in the history of 20th Century print publishers and today’s Print-on-Demand and eBook markets. We argue that, far from promoting dissemination, copyright frequently operates to suppress works that would otherwise erode the price of new titles. This pathology has gotten dramatically worse in the Age of eBooks. Meanwhile, public domain publishers are facing their own crisis. Mid-20th Century books had large up-front costs. This deterred copyists. By comparison, digital technologies make it easy for copyists to enter the market. This has suppressed profits to the point where many public domain publishers spend little or nothing on forgotten titles.

The article concludes by reviewing possible reforms. Partial solutions include clarifying antitrust law so that firms have more freedom to implement price discrimination; modifying copyright so that consumers can re-sell used eBooks; letting on-line markets limit the number of publishers allowed to post redundant public domain titles on their sites; and strengthening non-commercial institutions for finding, curating, and delivering quality titles to readers.