Law & Social Psychology
Professor Victor D. Quintanilla
Indiana University, Maurer School of Law
May 23, 2013
Overview
• Law & Social Psychology
• A Social Psychological Study
of Ashcroft v. Iqbal’s Effect
on Claims of Race
Discrimination
Law & Social Psychology
May 23, 2013
The Research Paradigm
Law & Social Psychology
• Draws on theory and
methods from social
psychology to understand
jurisprudence and legal
decision-making
• Evaluates assumptions
about human nature
embedded within law
• Draws on multiple methods:
empirical legal studies &
experiments
Law & Social Psychology
May 23, 2013
A Social Psychological Study Of Iqbal’s Effect
On Claims of Race Discrimination
Law & Social Psychology
May 23, 2013
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
• Pleading standards under Rule 8(a)
• Federal courts now evaluate whether a complaint contains
sufficient factual matter “to state a claim to relief that is plausible on
its face”
• Plausible? Draw on “judicial experience and common sense” before
evidence gathered
• Applies to all claims, including claims of race discrimination
Law & Social Psychology
May 23, 2013
The Research Problem: Claims of Race Discrimination
Can judges draw on “common sense”
to decide whether Black plaintiffs’
claims of race discrimination are
plausible without the subtle effect of
stereotypes and implicit bias?
Has the dismissal rate increased for
Black plaintiffs’ claims of race
discrimination?
Do White and Black judges decide
these claims differently?
Law & Social Psychology
May 23, 2013
Informed by Social Psychological Theories:
Aversive Racism
Lay Theories of Racism
Law & Social Psychology
May 23, 2013
Aversive Racism
• Old fashion vs. contemporary prejudice
• Explicitly endorse egalitarian beliefs
• But hold negative attitudes that are
unintentional, subtle, indirect, “rational”
(implicit bias)
• In ambiguous situations, with unclear norms,
where rationalization is possible, biases may
appear.
Law & Social Psychology
May 23, 2013
Lay Theories of Racism
How observers interpret whether a stereotyped group
member was the victim of racism or discrimination.
Two lay theories of racism
1. Overt behaviors, not Subtle behaviors
2. Overt behaviors, and Subtle behaviors
Law & Social Psychology
May 23, 2013
Hypotheses
Shifting from Conley to Iqbal:
1. Increase dismissal rate for Black plaintiffs’ claims
of race discrimination
2. Under Conley White and Black judges decide
claims similarly. After Iqbal, they decide claims
differently.
Law & Social Psychology
May 23, 2013
The Context of This Study
• A Black employee sues an employer under
Title VII (or Section 1981) claiming race
discrimination or harassment.
• The plaintiff properly exhausts the claim with
the EEOC and timely files suit.
• At the pleadings stage, the issue is whether,
under Rule 8(a), the Black employee
sufficiently pleaded a claim of race
discrimination.
Law & Social Psychology
May 23, 2013
Research Design and Method:
Data Collection
(i) Published and unpublished decisions available on Westlaw
(ii) 24-months before Twombly and 24-months after Iqbal
(iii) Black plaintiffs’ timely filed and properly exhausted claims of
race discrimination under Title VII (or Section 1981)
(iv) Federal district court cases deciding motions to dismiss for
failure to state a claim under Rule 8
Law & Social Psychology
May 23, 2013
Research Design and Method:
Coding and Analysis
Coded Independent Variables
– Pre- vs. Post-Iqbal
– Pro se vs. Represented party
– Race of Judge (Black vs. White vs. Other)
Coded Dependent Variable
– Decision: Grant, Deny, Mixed
Law & Social Psychology
May 23, 2013
Results
Figure 1
Has Iqbal increased the dismissal
rate for Black plaintiffs’ claims of
race discrimination?
Figure 2
Under Conley did White and Black
judges decide motions to dismiss
similarly?
Figure 3
Under Iqbal are White and Black
judges deciding motions to dismiss
differently?
Law & Social Psychology
May 23, 2013
Figure 1: Has Iqbal increased the dismissal rate for Black
plaintiffs’ claims of race discrimination?
80
73.70
70
60
53.20
50
38.90
40
30
Conley
Iqbal
23.20
20
10
3.00
7.90
0
Grant
Law & Social Psychology
Deny
Mixed
May 23, 2013
15
Figure 2: Under Conley Did White and Black Judges
Decide Motions to Dismiss Differently?
80
74.7
70
69.2
60
50
40
30
20
White
Black
30.8
21.5
10
3.8
0
Grant
Law & Social Psychology
Deny
0
Mixed
May 23, 2013
Figure 3: Under Iqbal Are White and Black Judges
Deciding Motions to Dismiss Differently?
80
70
60
57.1
56.5
50
30
White
Black
36.2
40
26.1
17.4
20
6.7
10
0
Grant
Law & Social Psychology
Deny
Mixed
May 23, 2013
Results in Context How the increase compares to the
increased grant rate in other federal actions.
80
70
56.00
60
50 46.00
Grant Rate
40
53.00
53.20
Conley
Iqbal
42.00
30
23.20
20
10
0
All Federal
Claims
All Title VII
Claims
Black
Plaintiffs'
Claims
Source: Patricia W. Hatamyar, The Tao Of Pleading: Do Twombly
and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553 (2010).
Law & Social Psychology
May 23, 2013
Summary
Shifting from Conley to Iqbal:
1) Increased dismissal rate for Black plaintiffs’ claims
of race discrimination
2) White and Black judges decided these claims
similarly under Conley, yet under Iqbal White and
Black judges are deciding these claims differently
Law & Social Psychology
May 23, 2013
Future Directions
• Examine summary judgment rates
• Experiments--examine causality
• Collaboration with Miguel Unzuetta &
Benjamin Everly (social dominance
orientation, implicit bias, lay theories,
pleading rules and Iqbal)
• Collaboration with Brenda Major & Cheryl
Kaiser (diversity structures and Iqbal)
Law & Social Psychology
May 23, 2013
Figure 4: Has Iqbal decreased the summary judgment grant
rate for Black plaintiffs’ claims of race discrimination?
21
100
90
80
75.86
65.63
70
60
Conley
Iqbal
50
40
30
21.88
20
13.79
17.24
12.5
10
0
Grant
Law & Social Psychology
Deny
Mixed
May 23, 2013
Many Thanks…
• Robin West
Georgetown University
• Vicki Jackson
Harvard Law School
• Mary Murphy
Indiana University
• Jessica Salerno
Arizona State University
• Jennifer LaCosse
Florida State University
• Mind and Identity in
Context Lab
Indiana University
Law & Social Psychology
May 23, 2013
Thank you!
Professor Victor D. Quintanilla
Indiana University, Maurer School of Law
Law & Social Psychology
May 23, 2013
Thank you!
Professor Victor D. Quintanilla
Indiana University, Maurer School of Law
Law & Social Psychology
May 23, 2013
Figure 5: Has Iqbal increased the dismissal rate with prejudice
for Black plaintiffs’ claims of race discrimination?
Conley
Iqbal
Grant &
Deny
Grant with 3%
prejudice
17%
Grant with
leave
6%
Grant &
Deny
8%
Deny
39%
Deny
74%
Law & Social Psychology
Grant with
prejudice
42%
Grant with
leave
11%
May 23, 2013
The Social Psychology of Judging
Whether born from experience or
inherent physiological or cultural
differences . . . our gender and
national origins may and will make
a difference in our judging. Justice
O'Connor has often been cited as
saying that a wise old man and wise
old woman will reach the same
conclusion in deciding cases.
I am not so sure Justice O'Connor is
the author of that line . . . I am also
not so sure that I agree with the
statement.
Law & Social Psychology
May 23, 2013
The Research Paradigm
Critical Race Empiricism
Law & Social Psychology
Law & Social Psychology
Critical Race Empiricism
May 23, 2013
Why Law & Social Psychology?
• Law is more than rules, it’s how
judges, juries, prosecutors,
lawyers, and officials make
decisions
• Interventions to improve legal
decision-making
• Social psychology can be
harnessed to improve law
Law & Social Psychology
May 23, 2013