Private Law Theory

ABSTRACT
Racist. Sexist. Nationalist. When those administering the civil legal system envision discrimination, what they often picture is hate. Private civil rights of action for discrimination are often structured accordingly, as assessments of whether the plaintiff’s harm was likely to have been caused by the defendant’s discriminatory animus. Bigotry, however, is odious and bigots are social anathema. As such, it is thought both to be rare and not a conclusion to reach about someone lightly. Moreover, since motives cannot be perceived directly, causation is often uncertain. Accordingly, absent direct evidence to the contrary, judges are often loath to resolve any uncertainty about the cause of harm with a finding that otherwise respectable people – perhaps even their neighbors, friends, and colleagues – harbored such invidious motivations and acted on them.

Discriminatory harm, however, can result from affection and affiliation as well as from hate. Empirical social science, including the results of a vast body of psychological research and associated theory, teach us that bigotry exists and that people do sometimes make harmful decisions about others based on persistent, deep-seated, hatred of the groups with which those others are identified. Far more common, however, perhaps even ubiquitous, is the tendency to hold positive views of and to exhibit favoritism towards ourselves, close others, and members of the groups with which we identify. When it comes to instances of self-interest, self-dealing, personal conflicts of interest, and decisions about family members or personal friends, this seems obvious, as lay intuition matches the social scientific evidence indicating that harm from favoritism is likely. That intuition, in turn, is reflected in legal presumptions and inferences of self-interest and favoritism used to resolve causal uncertainty in a range of domains. Even so, while civil law recognizes, for example, that nepotism is likely when people are presented with a decision to allocate resources between family and non-family members, it does not generally view group-based discrimination as a similarly common type of favoritism. In this article, I adopt the behavioral-realist perspective to argue that, particularly in cases with evidence of discriminatory harm but uncertainty as to intent, anti-discrimination doctrine should recognize the higher risk of discriminatory preferences.

Girvan, Erik James, Probabilistic Injury and Presumptions of Prejudicial Preferences (August 1, 2025).