Professor Victor D. Quintanilla Indiana University, Maurer School of Law May 23, 2013 Law & Social Psychology

May 23, 2013Law & Social Psychology Overview Law & Social Psychology A Social Psychological Study of Ashcroft v. Iqbal’s Effect on Claims of Race Discrimination

May 23, 2013Law & 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 The Research Paradigm Law & Social Psychology

May 23, 2013Law & Social Psychology A Social Psychological Study Of Iqbal’s Effect On Claims of Race Discrimination

May 23, 2013Law & Social Psychology Ashcroft v. Iqbal, 129 S. Ct (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

May 23, 2013Law & Social Psychology 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?

May 23, 2013Law & Social Psychology Informed by Social Psychological Theories: Aversive Racism Lay Theories of Racism

May 23, 2013Law & Social Psychology 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.

May 23, 2013Law & Social Psychology Lay Theories of Racism Two lay theories of racism 1.Overt behaviors, not Subtle behaviors 2.Overt behaviors, and Subtle behaviors How observers interpret whether a stereotyped group member was the victim of racism or discrimination.

May 23, 2013Law & Social Psychology 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.

May 23, 2013Law & Social Psychology 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.

May 23, 2013Law & Social Psychology 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

May 23, 2013Law & Social Psychology 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

May 23, 2013Law & Social Psychology 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?

May 23, 2013Law & Social Psychology 15 Figure 1: Has Iqbal increased the dismissal rate for Black plaintiffs’ claims of race discrimination?

May 23, 2013Law & Social Psychology Figure 2: Under Conley Did White and Black Judges Decide Motions to Dismiss Differently?

May 23, 2013Law & Social Psychology Figure 3: Under Iqbal Are White and Black Judges Deciding Motions to Dismiss Differently?

May 23, 2013Law & Social Psychology Results in Context How the increase compares to the increased grant rate in other federal actions. Source: Patricia W. Hatamyar, The Tao Of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553 (2010).

May 23, 2013Law & Social Psychology 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 Summary Shifting from Conley to Iqbal :

May 23, 2013Law & Social Psychology 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)

May 23, 2013Law & Social Psychology 21 Figure 4: Has Iqbal decreased the summary judgment grant rate for Black plaintiffs’ claims of race discrimination?

May 23, 2013Law & Social Psychology 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 Many Thanks…

Professor Victor D. Quintanilla Indiana University, Maurer School of Law May 23, 2013 Thank you! Law & Social Psychology

Professor Victor D. Quintanilla Indiana University, Maurer School of Law May 23, 2013 Thank you! Law & Social Psychology

May 23, 2013Law & Social Psychology Figure 5: Has Iqbal increased the dismissal rate with prejudice for Black plaintiffs’ claims of race discrimination? ConleyIqbal

May 23, 2013Law & Social Psychology 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.

May 23, 2013Law & Social Psychology The Research Paradigm Critical Race Empiricism Critical Race Empiricism

May 23, 2013Law & Social Psychology 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