Victor D. Quintanilla
Indiana University, Maurer School of Law
Law & Social Psychology: A Social Psychological Study
Of Iqbal’s Effect On Claims of Race Discrimination
This presentation focuses on U.S. federal civil procedure, procedural law that governs how U.S. federal courts process civil disputes. The problem addressed—how different procedural rules allow social psychological phenomena, such as implicit bias, stereotyping, and prejudice to affect judicial reasoning—implicates international arbitration as well. Because arbitrators and parties often come from different racial and cultural backgrounds, the impact of race, ethnicity, and culture has importance consequences for the manner in which arbitrators approach decision-making and the procedural rules that govern international arbitration.
The research line I present investigates whether subjective procedural rules—in particular, the U.S. Supreme Court’s recent decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) which enacted a highly subjective pleading standard—disparately affect members of stereotyped groups and whether judges who belong to different demographic groups apply these rules differently. The research line examines whether the U.S. Supreme Court, by enacting a highly subjective pleading standard, has allowed for social psychological phenomena, such as, aversive racism, implicit bias, and lay theories of discrimination, to shape judicial decision-making in ways that operate against members of minority groups who assert claims of discrimination. While this research stream investigates how these processes affect U.S. judges, I will also discuss the implications for how subjective procedural rules may affect reasoning by international arbitrators.
In Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the U.S. Supreme Court recast Rule 8(a) of the Federal Rules of Civil Procedure from a notice-pleading rule into a plausibility pleading standard. Under Iqbal, federal judges must evaluate whether federal complaints contain sufficient factual matter “to state a claim to relief that is plausible on its face.” In doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Federal courts apply Iqbal at the pleading stage, before evidence has been presented, when judging the plausibility of all claims, including claims of discrimination by members of stereotyped groups.
Yet decades of social psychological research suggest that, when judges deliberate on the plausibility of discrimination claims without evidence based on “common sense,” intuitions, stereotypes, and implicit associations will likely affect their judgment. This research line focuses on a particular kind of claim affected by Iqbal. Drawing on social psychological research, I examine how Black plaintiffs who assert claims of race discrimination in the workplace have fared under Iqbal and whether White and Black judges are deciding these claims differently. My empirical studies reveal that Iqbal has significantly increased the dismissal rate of Black plaintiffs’ claims of race discrimination in the workplace and that White and Black judges are applying this standard differently.
I recently completed a law review article that will be published in 2013, which updated the empirical legal analysis in my prior piece, Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination, 17 MICH. J. OF RACE AND L. 1 (2011), in three ways. First, I lengthened the time horizon from eighteen months to twenty-four months, increasing the sample size of cases I analyzed, and thereby increasing the power of my study. Second, I compared and contrasted how White and Black judges applied both old and new pleading standards. This comparison offered a baseline to evaluate whether the new pleading standard produces a divergence in how White and Black judges decide motions to dismiss Black plaintiffs claims of race discrimination. Third, to assess whether the race of federal judges predicts how they apply the new pleading standard, I conducted multiple and sequential regressions, which pitted their race against their political ideology. In short, these two pieces revealed a troubling trend. In shifting from notice pleading to plausibility pleading, the dismissal rate for Black plaintiff’s claims of race discrimination has increased. Further, White and Black judges decided cases similarly under notice pleading, but differently under plausibility pleading. The race of the judge predicts, moreover, above and beyond the political party, whether a judge will dismiss such a claim.
I shall also discuss my initial findings for the third phase of this project. I am investigating whether, applying Iqbal, federal courts are screening potentially meritorious claims of race discrimination. For this phase of the research line, I am examining grant rates at summary judgment. If Iqbal has screened largely frivolous cases, as some believe, one would expect that summary judgment rates after Iqbal would fall relative to summary judgment rates pre-Twombly in the notice pleading era. That is, Iqbal would in effect be screening largely chaff from wheat, rather than screening both wheat and chaff. I have, therefore, compared and contrasted the summary judgment rates for claims that survived the pleadings stage under notice pleading with those that survived under plausibility pleading to examine this question. Initial results suggest that, in applying this highly subjective rule, U.S. courts may be screening meritorious claims of discrimination.
In the fourth phase, which I am currently undertaking, I am examining the problem experimentally in collaboration with other social psychologists who study prejudice, stereotyping, and discrimination. We are conducting experiments that empirically manipulate pleading standards and closely examining the mediating and moderating aspects of this phenomenon.
In summary, there is much to gain by drawing on social psychological theory and methods to advance the study of legal institutions and legal decision-making. While this presentation focuses chiefly on judicial decision-making by U.S. federal courts under the U.S. Supreme Court’s highly subjective pleading standard, the same social psychological processes likely affect how international arbitrators apply highly subjective procedural rules, especially in the inter-group context, when arbitrators and parties identify with different nations, races, ethnicities, or cultures.