By Randall K. Johnson
This op-ed examines how individuals, groups and institutions could use previously ignored information to inform their decision-making.
It does so by drawing on behavioral law and economics, which is the study of how people respond to incentives within the U.S. legal system.
One of the most pressing issues in behavioral law and economics is the issue of whether and how to nudge folks into making better decisions.
Nudges, which is a term that was popularized by Richard Thaler and Cass Sunstein, are ways to influence decision-making simply by changing the way that information is collected or presented.
Unfortunately, nudges are too rarely applied to governments: although these institutions also could benefit from improved decision-making.
Within this context, the question of whether nudges can improve government decision-making is an issue that calls out for greater examination.
This op-ed provides a partial answer to this question by describing how revealed preference data could be used to nudge U.S. federal courts into making better evidentiary decisions.
Revealed preferences, by definition, are observed behaviors that serve as useful indicators of what someone thinks is the best option.
Specifically, this op-ed builds on a recent article, Toys As Evidence, which will be published in Maryland Law Review Online.
Both today’s op-ed and the article that it draws upon explain how the careful study of revealed preferences could overcome missing information issues that arise from spoliation of evidence, improper withholding of public records or unjustified refusal by courts to admit key evidence.
For purposes of my op-ed, a focus will be placed on using revealed preference data in certain types of U.S. civil rights lawsuits.
Brown v. Board of Education is one of the first civil rights cases to make ample use of revealed preference data, as part of the National Association For The Advancement of Colored People (NAACP)’s 1954 challenge to the separate but equal doctrine in U.S. educational settings.
As you probably know, Brown may be understood in three (3) basic ways: 1) as an example of how U.S. federal courts may correctly overturn one of its existing precedents, 2) as an example of how U.S. federal courts may properly exercise its grant of legislative authority and 3) as an example of how to make innovative use of potential evidence.
Brown did so by using information from a research study on Black and White dolls to determine if the separate but equal doctrine impacted the personal identify formation of African American youth, which was difficult to measure using survey or related types of inquiries.
This so-called doll study, which was conducted by a famed team of Black social scientists, sought to identify the revealed preferences of study participants with respect to which toy was seen as the best.
If successful, this relevant and probative information could yield some insight into the indirect impact of the separate but equal doctrine.
Stated simply, the assumption is that revealed preferences about toys also could be generalized to identify how certain African American youth will respond in other settings such as interactions with people.
Within this context, today’s op-ed views Brown as an illustrative example of how and why U.S. federal courts should permit greater use of revealed preference data to prove racial bias and discrimination in other types of cases such as 42 U.S.C. 2000a lawsuits.
Its goal is to raise the possibility that revealed preference data, especially when they take the form of documented allegations of wrongdoing that pre-date the ones in a current U.S. civil rights lawsuit, could provide a low-cost way of overcoming missing information problems that have long stymied public accommodation cases.
So, at least within the context of public accommodation cases that are brought pursuant to 42 U.S.C. 2000a, how does relevant and probative information go missing in the first place?
It is well-established that relevant and probative data may go missing due to refusals to admit a plaintiff’s testimony into the trial court record, questionable withholding of public records or unlawful attempts to gain an advantage through spoliation of business records.
But regardless of why information goes missing, contemporary litigants should seek to introduce more revealed preference data as substitute performance for missing data in some civil rights cases.
One way to do so is by request U.S. public records that contain relevant and probative information about past complaints, lawsuits and settlements concerning civil rights defendants, especially when public records deal with the exact issues as the plaintiff’s current case.
Another option is for a plaintiff to make better use of online information about how defendants have treated other similarly situated customers, which may be captured by websites such as yelp.com and Glassdoor.com, in keeping with Federal Rule of Evidence 406.
A third way to do so may involve making additional use of a defendant’s own admissions, such this op-ed’s author did with respect to a recent Kansas City, Missouri audit report that contained statements against interest about unlawfully withholding of public records, which can be admitted using Federal Rules of Evidence 201, 701 & 702.
All three options, if successfully invoked as part of a civil rights case such as the recent one this author filed against Minsky’s Pizza, Osteria Il Centro, City of Kansas City and Daniel O’Connor, allow plaintiffs to fill in missing data for 42 U.S.C 2000a cases.
As such, the mere attempt to make greater use of revealed preference data leads to an improved ability to protect a civil rights plaintiff’s legal rights while putting the -world on notice about how some defendants treat customers in a particular instance and over time.
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