The Situational Effects of Iqbal

Victor Quintanilla recently posted his paper, “Beyond Common Sense: A Social-Psychological Study of Iqbal’s Effect on Claims of Race Discrimination”  on SSRN.  Here’s the abstract.

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This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social-psychological perspective, and empirically studies Iqbal’s disparate effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” 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.

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 article draws on this science and performs an empirical study showing that Iqbal has significantly increased the dismissal rate of Black plaintiffs’ claims of race discrimination in the workplace.

A statistical analysis of 212 cases examined judicial decision making at the pleading stage for Black plaintiffs’ claims of race discrimination in the workplace. Three studies demonstrate that the underpinnings of Iqbal are unsound. Study 1 shows that the dismissal rate increased from 20.0% pre-Twombly to 54.6% under Iqbal for these claims. Study 2 shows that the dismissal rate increased from 32.0% to 67.35% under Iqbal for these claims when Black plaintiffs were pro se. And finally, Study 3 shows that White and Black judges are applying Iqbal differently. White judges dismiss these claims at a higher rate (57.4%) than Black judges (28.6%). Study 3 suggests that it is 2.0 times more likely that a White judge, compared to a Black judge, will dismiss these claims.

In short, Iqbal rests on an inaccurate theory of judgment and decision making. As Roscoe Pound once observed there are, “distinctions between law in the books and law in action, . . . between legal theory and judicial administration. . .” It is hoped that by introducing the science behind judgment and decision making, stereotypes, and implicit associations, and by studying human nature in law, we will broaden our knowledge of how Iqbal has affected claims of discrimination by members of stereotyped groups.

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Download the paper for free here.

Related Situationist posts:

• The Rhetorical Situation of Law, and the Situation of Rhetoric
• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,”
• “The Situation of Situation in Employment Discrimination Law – Abstract.”
• “Why Race May Influence Us Even When We “Know” It Doesn’t,”
• “Black History is Now,”
• “Jennifer Eberhardt’s “Policing Racial Bias” – Video,”
• “Perceptions of Racial Divide,” and
• “Banaji & Greenwald on Edge – Part IV.”

The Legal-Policy Situation of Continued Inequality

Judge Michael Wolff posted his article “Stories of Civil Rights Progress and the Persistence of Inequality and Unequal Opportunity 1970-2010” (forthcoming in William Mitchell Law Review) on  SSRN.  Here is the abstract.

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In this article, Missouri Supreme Court Judge Michael A. Wolff, who also is distinguished visiting professor at St. Louis University School of Law, outlines the judicial and legislative victories and failures of civil rights advocates over the last forty years at both the federal and state level. He details the reform efforts through personal anecdotes of many of his own cases that he pursued as a legal services lawyer and has seen as a judge. Judge Wolff’s stories focus on the rights that legal services programs fought for and obtained and the battles that continue to be lost. In particular, he looks at both racial and economic inequality in the education system and the penal system. He explores the results of inadequate state funding such as the absence of affordable educational institutions for its citizens. In looking at the penal system, he examines the increasing criminalization of previously non-criminal conduct and the resulting incarceration and its dramatic effect on minority populations. He also discusses the expanding inequality among the United States population as the rich are given disparate tax breaks. Judge Wolff concludes by advocating for continued support of both public education and public health systems and supportive civic institutions.

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Download the paper for free here.  For a sample of related Situationist posts, see “Racial Prejudice in Real Estate Markets,” “Leaving the Past,” “Why Race May Influence Us Even When We “Know” It Doesn’t,” “Black History is Now,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “Inequality and the Unequal Situation of Mental and Physical Health,”  “The Toll of Discrimination on Black Women,” and “The Racialized Situation of Vandalism and Crime,”

The Situation of the Law School Classroom – Abstract

Robert Chang and Adrienne Davis have posted their interesting article, “Making Up is Hard to Do: Race/Gender/Sexual Orientation in the Law School Classroom” (forthcoming Harvard Journal of Law and Gender (2009)) on SSRN.  Here’s the abstract.

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This exchange of letters picks up where Professors Adrienne Davis and Robert Chang left off in an earlier exchange that examined who speaks, who is allowed to speak, and what is remembered. Here, Professors Davis and Chang explore the dynamics of race, gender, and sexual orientation in the law school classroom. They compare the experiences of African American women and Asian American men in trying to perform as law professors, considering how makeup and other gender tools simultaneously assist and hinder such performances. Their exchange examines the possibility of bias that complicates the use of student evaluations in assessing teaching effectiveness. It hypothesizes that the mechanism by which this bias manifests itself is a variant of stereotype threat, one that they call projected stereotype threat, where stereotypes of incompetence or accent are projected onto the bodies of teachers marked by difference. They examine how institutions respond or, as is more typically the case, fail to respond to these problems. They conclude with some suggestions for change, asserting that if institutions want to pay more than lip service to the goal of diversity, the success and employment conditions of women and minorities will improve only through the hiring of more women and minorities and by addressing directly the issue of bias to educate students about bias and its discriminatory effects on instructors whose bodies are marked by perceived differences and how such bias interferes with their learning.

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To read a sample of related Situationist posts, see “Banning Laptops in the Classroom – Abstract,” “The Situational Benefits of Outsiders,” and “Some Situational Sources and Consequences of Diversity.”

The Artistic Situation of U.S. Civil Rights History

Sometimes an image needs no explanation, and the cover of the new issue of The Nation seems to fit that description:

For a key to the persons in the portrait, click here.  For a diary by the artist behind the image, click here.