“Notwithstanding the lack of field studies on these issues, there is some evidentiary support for these differential changes in dismissal rates. For example, Patricia Hatamayr sorted a sample of cases before and after Iqbal into six major categories: contracts, torts, civil rights, labor, intellectual property, and all other statutory cases. She found that in contract cases, the rate of dismissal did not change much from Conley (32 percent) to Iqbal (32 percent). By contrast, for Title VII cases, the rate of dismissal increased from 42 percent to 53 percent. Victor Quintanilla has collected more granular data by counting not Title VII cases generally but federal employment discrimination cases filed specifically by Black plaintiffs both before and after Iqbal. He found an even larger jump. Under the Conley regime, courts granted only 20.5 percent of the motions to dismiss such cases. By contrast, under the Iqbal regime, courts granted 54.6 percent of them. These data lend themselves to multiple interpretations and suffer from various confounds. So at this point, we can make only modest claims. We merely suggest that the dismissal rate data are consistent with our hypothesis that Iqbal’s plausibility standard poses a risk of increasing the impact of implicit biases at the 12(b)(6) stage.”

Source: Hon. Mark W. Bennett, Devon Carbado, Pam Casey, Jerry Kang,  et al. “Implicit Bias In The Courtroom.” 56 UCLA L. Review 1124, 1163. 2012.


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