“There are no field studies to test whether biases, explicit or implicit, influence how actual judges decide motions to dismiss actual cases. It is not clear that researchers could ever collect such information. All that we have are some preliminary data about dismissal rates before and after Iqbal that are consistent with our analysis. Again, since Iqbal made dismissals easier, we should see an increase in dismissal rates across the board. More relevant to our hypothesis is whether certain types of cases experienced differential changes in dismissal rates. For instance, we would expect Iqbal to generate greater increases in dismissal rates for race discrimination claims than, say, contract claims. There are a number of potential reasons for this: One reason is that judges are likely to have stronger biases that plaintiffs in the former type of case have less valid claims than those in the latter. Another reason is that we might expect some kinds of cases to raise more significant concerns about asymmetric information than do others. In contracts disputes, both parties may have good information about most of the relevant facts even prior to discovery. In employment discrimination cases, plaintiffs may have good hunches about how they have been discriminated against, but prior to discovery they may not have access to the broad array of information in the employer’s possession that may be necessary to turn the hunch into something a judge finds plausible. Moreover, these two reasons potentially interact: the more gap filling and inferential thinking that a judge has to engage in, the more room there may be for explicit and implicit biases to structure the judge’s assessment in the absence of a well-developed evidentiary record.”

Source: Hon. Mark W. Bennett, Devon Carbado, Pam Casey, Jerry Kang,  et al. “Implicit Bias In The Courtroom.” 56 UCLA L. Review 1124, 1162-1163. 2012.


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