Opinion Specialization

Abstract

In accord with traditions celebrating the generalist judge, the federal judiciary has consistently resisted proposals for specialized courts. Outward support for specialization, if it exists at all, is confined to narrow exceptions such as bankruptcy and tax. The romantic image of the generalist, however, is not without its costs. It deprives the judiciary of potential expertise, which could be extremely useful in cases involving complex doctrines and specialized knowledge. It also undermines efficiency, a goal that is difficult to ignore in an era of crowded dockets and overworked jurists. Indeed, many state courts have increasingly turned to specialization or a subject-matter rotation system for these reasons, yet the federal judiciary remains unflinching. But is it really? Despite the frequent rhetoric against specialization, an empirical look at opinion assignments in the federal courts of appeals from 1995-2005 reveals “opinion specialization” to be an unmistakable part of everyday judicial practice. In short, the generalist judge is largely a myth. But while some may deplore this subversion of a long cherished judicial value, the development may indeed be a beneficial one. As it turns out, opinion specialization may actually achieve many of the benefits of specialized courts without incurring their costs.