“Social judgeability theory connects back to Iqbal in that the Supreme Court has altered the rules structuring the judgeability of plaintiffs and their complaints. Under Conley, judges were told not to judge without the facts and thus were supposed to allow the lawsuit to get to discovery unless no set of facts could state a legal claim. By contrast, under Iqbal, judges have been explicitly green-lighted to judge the plausibility of the plaintiff’s claim based only on the minimal facts that can be alleged before discovery — and this instruction came in the context of a racial discrimination case. In other words, our highest court has entitled district court judges to make this judgment based on a quantum of information that may provide enough facts to render the claim socially judgeable but not enough facts to ground that judgment in much more than the judge’s schemas. Just as Yzerbyt’s illusion of individuating information entitled participants to judge in the laboratory, the express command of the Supreme Court may entitle judges to judge in the courtroom when they lack any well-developed basis to do so.”

Source: Hon. Mark W. Bennett, Devon Carbado, Pam Casey, Jerry Kang,  et al. “Implicit Bias In The Courtroom.” 56 UCLA L. Review 1124, 1162. 2012.

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