Judging, expertise, and the rule of law.

• Author: Oldfather, Chad M.

Introduction

We live in an era of hyper-specialization. Professionals across a spectrum of fields focus on mastering and practicing in narrow subspecialties. (1) This is hardly a surprise. As the scale of knowledge grows, it becomes increasingly difficult for any one person to stay on top of details and developments across a field, and specialization represents something of a natural division of labor. Law is no exception. (2) Bar associations have large numbers of sections to serve the needs and interests of lawyers who practice within narrow fields, (3) and large law firm websites commonly tout the specialized knowledge of their practice groups and individual lawyers.

Courts, too, have become specialized. (4) The federal judiciary features, for example, the Federal circuit, bankruptcy courts, and tax courts. At the state level, there are the Delaware Chancery Court and the Texas and Oklahoma Courts of Criminal Appeals, as well as family courts, drug courts, and probate courts. Indeed, Judge Posner has suggested that if (or when) the federal caseload becomes too great, "the federal judiciary will perforce switch to the European model of specialized courts. For specialization enables an indefinite increase in caseload to be more or less effortlessly accommodated...." (5) Yet, despite the larger trend toward specialization, the iconic American judge remains a generalist. She sits on a court of general jurisdiction and adjudicates whatever disputes happen to come before her.

In recent years, however, there has been something of a backlash against the increasing division of intellectual labor. Dr. Jerome Groopman, for example, has suggested that "[s]pecialization in medicine confers a false sense of certainty." (6) Specialists, he argues, are just as susceptible to cognitive biases as nonspecialists, yet are overconfident in their diagnoses. (7) Across an array of fields, critics contend that increasing specialization has left us with practitioners who too often fail to appreciate the big picture, and who cannot adequately integrate their narrow perspective concerning a situation into the larger framework necessary to generate optimal solutions. (8) In light of this, it seems appropriate to reconsider the virtues of the generalist judiciary, an institution that, viewed against the backdrop of our increasingly specialized society, might seem to be something of an anachronism.

There already exists a relatively large body of literature outlining proposals for specialized courts and otherwise considering their perceived virtues. (9) I seek in this Article to engage this literature in two ways. First, I hope to demonstrate that the question of specialization is much more complex and contingent than most previous discussions have allowed. (10) The question is never just whether specialists will outperform generalists in some abstract sense--it instead requires consideration of an array of factors, such as the nature of the field of specialization, the institutional context in which specialization is to be implemented, and so on. There are also questions, distinct from any differences in the substantive results achieved via the two types of courts, about whether the two types of regimes are likely to differ in the extent to which they advance rule-of-law values. The goal of this analysis is to work away from, rather than toward, confident conclusions. Many of the questions involved are ultimately empirical in nature, and all will require comprehensive study. I offer intentionally speculative hypotheses about potential differences between specialists and generalists, with the hope that what results can serve as a catalog of factors to be considered in efforts to develop specialized courts and an agenda for future scholarly efforts.

Second, I examine in greater detail one of the primary claims made in favor of specialized courts and judges, namely that they facilitate expert decision-making for the simple reason that judges on specialized courts will be (or will become) experts in the subject matter within the court's jurisdiction. Those making the case for specialization in the past have suggested, without much elaboration, that because of their expertise specialized judges will make better decisions, with "better" left largely undefined. I draw on research into the psychology of expertise to explore whether specialized courts and judges really can be expected to generate better decisions, and conclude that the case for expertise is overstated. Simply put, specialized judges will almost always have a claim to expertise in the weak sense that they will be more efficient in reaching conclusions than non-experts. These efficiency gains can be substantial, and they may sometimes be of dispositive weight in a world of rising caseloads. But, it is unlikely to be the case that the content of specialists' decisions will differ in some qualitative respect from--or be in some general sense "better than"--those of their generalist counterparts. At the same time, there may be process aspects of specialists' decision-making that should give us pause, and that must be balanced against the efficiencies gained through specialization.

The remainder of this Article proceeds as follows. Part I outlines some of the initial definitional difficulties embedded in discussions of judicial specialization, and briefly reviews the primary arguments offered for and against specialization. Part II offers an assessment of the specialization debate that is designed to enlarge both the breadth and depth of the inquiry. Part Ill surveys psychological research on expertise, with an eye toward gleaning its insights relevant to judging. Part IV synthesizes the work of the preceding two parts, drawing on both to further refine the analysis while introducing the suggestion that the choice between specialization and generalism is likely to have rule-of-law consequences.

1. An Overview of the Debate

   1. The Scope (and Slipperiness) of the Inquiry

      An initial difficulty with assessing the merits of judicial specialization is that there is no ideal type of specialized (or, for that matter, generalist (11)) court. (12) It is relatively easy to take a rough cut at defining generalist courts: those with judges who have no designated subject-matter specialization (whether as a product of a jurisdictional limitation or otherwise), and who must accordingly hear and decide cases presenting virtually any legal issue. (13) Specialization, in contrast, involves a host of variables. Courts might be specialized in accordance with traditional boundaries between legal subject matters, such as tax law, or in accordance with features of the cases they hear that are not strictly legal, as might be the case with courts designed to hear cases involving scientific or business matters. (14) Specialization could likewise occur at varying breadths. one could imagine courts designed to hear, for example, only private law, or tort, or personal injury cases. It hardly seems farfetched to imagine that each of these variations would have differing effects on judges, processes, and outcomes. The nature of the bar that appears before the court seems likely to matter as well. The specialized court that hears cases primarily or exclusively through a specialized bar will be different from its counterparts that confront a generalist bar or a significant number of pro se litigants. The advocates play an important role in framing disputes and providing the raw materials of decision, and changes in the manner in which those inputs are provided will almost certainly manifest themselves in a court's output. A final evident variable is whether the court at issue is a trial or appellate court. Because of their different roles and orientations toward the dispute--trial courts will be relatively more focused on facts, appellate courts on law--it is easy to anticipate that specialization raises different concerns and would have different consequences in the two contexts. In all, careful consideration reveals that the question of what is at stake in the choice between generalism and specialization is more complex and contingent than previous analyses tend to recognize.

      The concept of expertise is likewise slippery when applied to the judiciary. Although commentators tend to employ the terms "expert" and "expertise" as though their meanings are self-evident, (15) their casualness masks considerable uncertainty and complexity. Some writers have suggested that the relevant expertise pertains to the process of judging itself, such that what is implicated, by its nature, is some relatively general skill. (16) It may exist in slightly different forms as between trial and appellate judges, but on this view, the expertise is trans-substantive. (17) Another approach regards judicial expertise as subject-matter specific, such that a judge might be viewed as an expert in, say, criminal law but not tax. one might also adopt a hybrid approach that conceives of judicial expertise as multi-dimensional.

      Regardless of how one conceives of expertise, additional questions follow. Does "expertise" denote what is merely a relative status, or is there some qualitative difference that separates experts from all varieties of novice? If expertise is subject specific, how far does a given expert's reach extend? How does one become an expert? Is experience the key, or is it largely a product of innate skills? If the former, and given the lack of any formal judicial training in the United States, is it experience as a lawyer that makes one an expert, or is it necessary to have experience as a judge? In theory, at least, most of these questions could be assessed empirically. Yet, assessing the quality of a judicial decision, and thus measuring many of the dimensions and effects of expertise, involves both practical and theoretical difficulties that counsel in favor of tentative, incremental assessment. (18)

      As all this...