Q&A with Lior Strahilevitz about Information and Exclusion

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3 Responses

  1. A.J. Sutter says:

    “[P]ublishing complete information about criminal histories for everyone would likely reduce the incidence of statistical discrimination, increasing the employment prospects of African American males as a group” — might there not be some other downsides of this publication, especially as might impact individuals’ personal lives? their access to other services? Couldn’t it result in other forms of discrimination not really relevant to past criminal records (e.g., considering, e.g., that not everyone with a record is a felon, but not everyone examining a criminal record makes that distinction)? E.g., what if some school wouldn’t let a child in because of his or her parent’s record? (Obviously, other pretexts could also be offered for excluding the child.) This particular proposal, at least, seems to rely on a utilitarian approach that’s both overly mechanical and too narrowly focused.

  2. Lior says:

    Thanks, A.J. Chapters nine and ten of the book are largely devoted to answering precisely those sorts of questions.

    I can’t summarize all my arguments in those chapters here, but remember that criminal history information is already widely available (for a price) and relied upon by many employers to predict future criminal behavior. The problem is that an unwillingness to pay that price sometimes prompts employers and other third parties to use racial and gender proxies to assess an applicant’s propensity to commit future crimes. The book considers whether a society with imperfect enforcement of antidiscrimination laws is best served by giving employers criminal history information for free, so as to discourage employers from using these more distasteful and unreliable short cuts to assess an applicant’s propensity to commit future crimes.

    The law could go in the direction of making criminal history information far more private than it presently is. That is Germany’s approach to this issue. But the First Amendment, as presently interpreted by the courts, constrains our own government’s ability to follow suit.

  3. Orin Kerr says:

    Sounds great– I look forward to reading it.