In these excerpts, “Minority Report” functions less as a film than as a shared reference point: the Tom Cruise movie whose premise is that society can predict who will commit crimes and arrest people accordingly. Bob Zadek invokes it in three episodes to frame a single objection — that acting against a person or firm for what it might do, rather than what it has done, is offensive to the legal order. The guests who take up the image apply it to two different bodies of law: antitrust enforcement and pre-trial detention.
Antitrust and the doctrine of incipiency
In the antitrust episode, Ryan Young describes the Sherman Act as two pages long and notes that it does not define what it means by monopoly, a confusion he says persists 130 years later Antitrust 101 with Ryan Young (2019). Economists, he says, generally define a monopoly as a company powerful enough to lower its supply and raise its prices, harming consumers. But economists are not in charge of antitrust policy; judges decide cases under what Young calls the “Rule of Reason” standard, using whatever definition of monopoly they find reasonable, with no bright-line standard and consequent uncertainty for companies trying to plan.
Zadek presses the distinction between the power to act and the act itself: is a company a monopoly if it can reduce supply and raise prices, or only if it does? Young answers that the question has never been definitively answered and has been answered differently in different cases, usually based on past actions. He says the Justice Department generally does not have a “Department of Pre-Crime” like the one in Minority Report, but that there is an actual antitrust term, “incipiency,” under which a judge or regulator who sees market conditions that might in the future permit monopoly can act. Young says incipiency has been invoked rarely, especially in the 1950s and 1960s.
Zadek then supplies the hypothetical he returns to elsewhere: a federal criminal statute permitting arrest of a person with a higher than average likelihood of committing a crime. He asks whether such a statute could be tolerated “even for a minute,” and whether he is exaggerating in describing antitrust as law under which the mere power to do a bad act, without the act, is reason to break up an enterprise.
Preventive detention and the pre-crime objection
Rachel Barkow’s episode concerns pre-trial detention rather than antitrust, but Zadek reaches for the same film. He asks by what constitutional authority a government may lock up someone merely believed to have committed a crime but not convicted, and whether, on the same authority, it could lock someone up for a crime they might commit in the future Rachel Barkow on Fixing the Fundamentals of Criminal Justice (2019). Barkow answers that it is part of the police powers, because the Supreme Court has treated such detention as not punishment but a regulatory, preventive exercise of state power to prevent harm. She compares it to civil commitment, where the government must meet a high burden of showing a person is a danger to themselves or others, and says pre-trial detention is nothing like that: in the federal system there is a presumption of dangerousness for drug traffickers, and she states that something like 75 to 77 percent of all people in federal court are detained pre-trial under such presumptions.
Barkow also describes the risk-assessment tools that some jurisdictions have adopted in place of cash bail, including California’s, which she calls an imperfect first step with flaws. She says the tools are controversial because they must be designed carefully and because some predict any possible offending rather than the violent offending that concerns the public. She points to New Jersey as a model, where cash bail was eliminated and the risk assessment is a narrowly defined, validated instrument; she says the result has been an incredible reduction in pre-trial detention without an increase in crime, saving the state money and restoring liberty to people who have not been convicted. She notes that people from heavily policed neighborhoods can be classified as high risk because they have been stopped many times, making the assessment a self-fulfilling prophecy.
The bail reform debate
The later bail episode returns to the same analogy with a different guest. Zadek describes the argument that bail reform contributed to a rise in violent crime by releasing recidivist perpetrators, and calls it dishonest because it assumes that the likelihood of reoffending is an element in deciding bail Checking in on Bail Reform (2022). He asks Joe Lancaster whether a judge should consider a person’s tendency to commit another violent crime, given that the person before the judge is only suspected of a crime, and names the practice “preventive detention.”
Lancaster says the stated purpose of bail has nothing to do with whether someone reoffends, and that New York law specifically left out consideration of whether someone is likely to offend while out on bail, though judges are instructed to consider ability to pay. He says bail is handled at state and local levels and that he would feel uncomfortable dictating whether likelihood to offend should be considered, since judges can already take prior convictions into account; the pre-crime element makes him uncomfortable. He notes that New York loosened its reforms in 2020 and again in the days before the conversation, with Governor Hochul championing changes that let judges consider past gun use and past instances of violence.
On the data, Lancaster cites a report by the New York City Comptroller covering 2019, 2020 and 2021 — the full year before the reforms took effect and the two years after — finding that recidivism rates among people arrested, released on bail and reoffending were nearly identical before and after, between 3 and 5 percent. He acknowledges that a salacious story can be found daily but says the data show no uptick in reoffending after release on bail in New York City. He also cautions that an increase in violent offenders committing violent crime while out on bail occurred alongside a general rise in violent crime in New York City and elsewhere, and compares the argument to claims about stop-and-frisk in the 1990s, since crime fell in places that did not adopt it.
Zadek restates the analogy at length: if the premise of Minority Report is offensive, then preventive detention, where a judge holds someone because he is thought likely to commit another crime, is almost identical. He says preventive detention is not prohibited and that judges are allowed, and often encouraged, to consider propensity to commit a future crime in deciding whether an offense is bailable.
Across episodes: the same question, two bodies of law
The excerpts show the pre-crime objection argued in more than one episode, but not a development in a single line of argument. The 2019 antitrust conversation with Ryan Young supplies the term “incipiency” and the observation that the power-versus-act question has never been definitively answered Antitrust 101 with Ryan Young (2019). The 2019 criminal justice conversation with Rachel Barkow supplies the police-powers answer and the civil commitment comparison, along with the New Jersey model Rachel Barkow on Fixing the Fundamentals of Criminal Justice (2019). The 2022 bail conversation with Joe Lancaster supplies the recidivism figures and the account of New York’s successive loosening of its reforms Checking in on Bail Reform (2022). What changes between the earlier and later treatment is the setting — from antitrust to bail — and the guest; the objection Zadek raises is the same in each, and no guest in these excerpts revises or extends another’s position.
What the sources do not cover
The excerpts do not state the holding of any case, the name of any bill, or which constitutional amendment, if any, governs pre-trial detention; Barkow attributes the authority to the police powers as described by the Supreme Court without naming a decision. The antitrust excerpts do not name a case or say what incipiency has been held to permit. The bail excerpts do not give the title or date of the New York legislation, and Lancaster’s account of the Comptroller’s report breaks off before any further detail. The Barkow excerpt ends mid-sentence, so her description of heavily policed neighborhoods is incomplete in the source.