Toys as Evidence

Publication Date

2026

Document Type

Forthcoming Work

Abstract

This essay asks and answers a single question, which was posed during a recent symposium at the National Museum of Toys & Miniatures. Could the study of revealed preferences, which is the idea that observed behaviors are the best indicator of one's beliefs, improve our collective understanding about what constitutes unlawful discrimination in certain U.S. markets? A possible answer, which is informed by the Brown v. Board of Education, 347 U.S. 483 (1954) decision, is the study of revealed preferences improves our collective understanding for three (3) key reasons.

The first reason is the study of revealed preferences provides a window into how some producers and consumers interact in free markets, perhaps due to their unique ability to capture the preferences of all market participants in real time. Another reason is the study of revealed preferences offers a relatively safe distance from which to draw conclusions about how revealed preferences may impact, or alternately shape, some U.S. public policies. A third reason is the study of revealed preferences validates calls for government intervention, so as to remove hidden barriers to full participation in ostensibly free markets such as the contemporary U.S. restaurant industry.

For these three (3) reasons, this essay encourages legal scholars and practitioners to make greater use of revealed preference data. If successful, these professionals gain access to previously overlooked information about the actual beliefs held by certain U.S. market participants. These revealed preference data may be used to estimate the contemporary level of racial bias in the free market and, potentially, to identify instances in which unlawful discrimination plays a role in decision-making. Illustrative examples could include when restaurants, such as Minsky's Pizza, refuse to provide similarly situated customers with standard service without adequate justification.

Publication Title

Maryland Law Review Online

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