Inside the Bankruptcy Judge's Mind

Abstract

Specialization is common in medicine. Doctors become oncologists, radiologists, urologists, or even hernia repair specialists. Specialization is also common among practicing lawyers, who become estate planners or products liability lawyers or securities litigators. Judges, however, have historically been generalists who preside over any and all cases. This requires that judges become acquainted with the rules of civil procedure, the rules of criminal procedure, the evidentiary rules applicable to both civil and criminal cases, and the substantive law in almost every area. From the simplest slip-and-fall to the most complicated antitrust case, and nearly every civil and criminal action in between, the generalist judge must be master of all. This approach to judging might be ill-advised. Every day, the law grows more complex. The "United States Code" and the "Code of Federal Regulations" expand constantly as Congress and federal agencies enact more and more statutes and regulations. The common law evolves, too, as courts are called upon to address problems that are familiar, but unsettled, as well as those that are entirely novel. Generalist judges, who face enormous docket pressure due to ever-expanding caseloads, are therefore expected to resolve an almost implausibly large and diverse array of disputes. In this paper we explore whether specialization leads to superior judicial decision making. To do so, we report the results of a study of federal bankruptcy judges.