Law & Social Psychology

1. Law & Social Psychology

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

3. The Research ParadigmLaw & 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

4. A Social Psychological Study Of Iqbal’s Effect On Claims of Race Discrimination

5. 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

6. 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 increasedfor Black plaintiffs’ claims of race discrimination? Do White and Black judges decide these claims differently?

7. Informed by Social Psychological Theories: Aversive Racism Lay Theories of Racism

8. Aversive Racism Old fashion vs. contemporary prejudice Explicitly endorse egalitarian beliefs But hold negative attitudes that are unintentional, subtle, indirect, “rational” (implicit bias) In ambiguoussituations, with unclearnorms, where rationalizationis possible, biases may appear.

9. Lay Theories of Racism Two lay theories of racism • Overt behaviors, not Subtle behaviors • Overt behaviors, and Subtle behaviors How observers interpret whether a stereotyped group member was the victim of racism or discrimination.

10. HypothesesShifting from Conley to Iqbal: Increasedismissal rate for Black plaintiffs’ claims of race discrimination Under Conley White and Black judges decide claims similarly. After Iqbal, they decide claims differently.

11. 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.

12. 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

13. 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

14. Results

15. Figure 1: Has Iqbal increased the dismissal rate for Black plaintiffs’ claims of race discrimination?

16. Figure 2: Under Conley Did White and Black Judges Decide Motions to Dismiss Differently?

17. Figure 3: Under Iqbal Are White and Black Judges Deciding Motions to Dismiss Differently?

18. 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).

19. Increaseddismissal rate for Black plaintiffs’ claims of race discrimination White and Black judges decided these claims similarly under Conley, yet under IqbalWhite and Black judges are deciding these claims differently SummaryShifting from Conley to Iqbal:

20. 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)

21. Figure 4: Has Iqbal decreased the summary judgment grant rate for Black plaintiffs’ claims of race discrimination?

22. 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

23. Thank you! Law & Social Psychology

24. Thank you! Law & Social Psychology

25. Figure 5: Has Iqbal increased the dismissal rate with prejudice for Black plaintiffs’ claims of race discrimination? Conley Iqbal

26. 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.

27. The Research ParadigmCritical Race Empiricism Law & Social Psychology Critical Race Empiricism

28. 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