Critical Race Empiricism: A New Means to Measure Civil Procedure

Abstract

This article reflects the second phase in a research line examining the effects of highly subjective pleading rules, specifically, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and was an invited contribution to a symposium, which explored the intersection of empirical legal methods and critical race theory. In this phase, I updated the empirical legal analysis in a prior article, Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination, 17 Michigan Journal of Race and Law 1 (2011), in three ways. First, I lengthened the time horizon from 18 months to 24 months, increasing the sample size of cases 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 plaintiff's 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 political ideology. In short, this second phase revealed that, in this new era of plausibility pleading, a troubling trend remains. In shifting from notice pleading to plausibility pleading, the dismissal rate for Black plaintiff’s claims of race discrimination has risen. Moreover, while White and Black judges decided cases similarly under notice pleading, differences have emerged under plausibility pleading. These troubling trends can be explained by a growing body of social psychological research on implicit social cognition.

Keywords: civil procedure, pleading standards, social psychology, implicit social cognition