The myth of the generalist judge.

Author:Cheng, Edward K.

INTRODUCTION I. EMPIRICAL STUDY OF OPINION ASSIGNMENT A. Previous Work B. Data and Methods 1. Data sources 2. Data reliability 3. Methods C. Results D. Discussion 1. Confidence in results 2. Explanations 3. Specialization trends E. Limitations 1. Data set limitations 2. Measuring "specialization" 3. Chief judges II. ASSESSMENT A. General Assessment B. Concerns About Specialized Courts 1. Politicization 2. Myopia 3. Loss of prestige 4. Other concerns C. Potential Problems 1. Erratic expertise 2. Excessive deference 3. Bias CONCLUSION: OPINION SPECIALIZATION AS REFORM APPENDIX A: SUMMARY TABLES OF SPECIALIZATION APPENDIX B: NATURE OF SUIT CODES APPENDIX C: DEFINING SPECIALIZATION INDEX OF FIGURES AND TABLES Figure 1.1. Subject-Matter Specialization, First Circuit, 1995-2005 Figure 1.2. Subject-Matter Specialization, Second Circuit, 1995-2005 Figure 1.3. Subject-Matter Specialization, Third Circuit, 1995-2005 Figure 1.4. Subject-Matter Specialization, Fourth Circuit, 1995-2005 Figure 1.5. Subject-Matter Specialization, Fifth Circuit, 1995-2005 Figure 1.6. Subject-Matter Specialization, Sixth Circuit, 1995-2005 Figure 1.7. Subject-Matter Specialization, Seventh Circuit, 1995-2005 Figure 1.8. Subject-Matter Specialization, Eighth Circuit, 1995-2005 Figure 1.9. Subject-Matter Specialization, Ninth Circuit, 1995-2005 Figure 1.10. Subject-Matter Specialization, Tenth Circuit, 1995-2005 Figure 1.11. Subject-Matter Specialization, Eleventh Circuit, 1995-2005 Figure 1.12. Subject-Matter Specialization, D.C. Circuit, 1995-2005 Figure 2. Agency Specialization, D.C. Circuit, 1995-2005 Figure 3. Frequency of Specialization (Positive and Negative) by Subject Table 1. Subject-Matter Specialization, Geographic Courts of Appeals, 1995-20 Table 2. Agency Specialization, D.C. Circuit, 1995-2005 Figure 4. False Positive Rates for Simulated Seventh Circuit Case Distributions INTRODUCTION

Legal culture, particularly in the federal courts, celebrates the generalist judge. Indeed, the most enthusiastic celebrants are often the judges themselves. (1) Federal circuit judges, for example, frequently comment on the importance and desirability of being a generalist (2) and acknowledge the generalist's iconic status in the American legal tradition. (3) In short, many federal judges would toast to Judge Diane Wood's assertion that "we need generalist judges more than ever for the United States federal courts." (4)

The corollary to a powerful generalist ideal is a deep-seated aversion to specialization. (5) Outward support for specialization, if it exists at all, is confined to narrowly limited areas. Otherwise, judges resist specialization and distance themselves from its "spectre." (6) The aversion occasionally even crosses over to outright hostility: one outspoken judge describes the Federal Circuit as comprised of "little green men" and "people wearing propeller hats." (7)

The structure of the federal courts reflects this distaste for specialization accordingly. The system is comprised overwhelmingly of courts of general jurisdiction, with the Federal Circuit and a few other courts as the only exceptions. (8) Proposals over the years advocating for additional specialized courts have been consistently ignored, (9) whether in scientific evidence, (10) tax, (11) immigration, (12) administrative agency review, (13) patents, (14) or other areas. On the rare occasions when such proposals are implemented, most specialized courts are denied Article III status and classified as legislative (Article I) courts, such as the bankruptcy courts, the United States Tax Court, (15) and the United States Claims Court. (16)

Consistent with these attitudes, well-established rules and norms within the courts of general jurisdiction require the random assignment of cases to ensure that judges see all case types. (17) One notable former exception to random assignment in the district court context was the 1971 Bar Harbor Resolution, which allowed chief judges to reassign complex trials to specific judges. (18) In 1999, however, the Judicial Conference closed this loophole by rescinding the resolution. The Judicial Conference found that it raised specialization concerns and was "inconsistent with the concept of judicial autonomy." (19)

The romantic view of the generalist federal judge, however, is not without its costs. Obsession with the generalist deprives the federal judiciary of potential expertise, which could be extremely useful in cases involving complex doctrines and specialized knowledge. (20) To be sure, expertise is not the be-all end-all of the ideal jurist, particularly when issues require value choices rather than technical accuracy, (21) but even if expert judges cannot necessarily ensure right answers, their decisions are more likely to fall within the subset of better answers owing to their greater experience and understanding of a field.

The loss of expertise also undermines efficiency, a goal that is difficult to dismiss in an era of crowded dockets and overworked jurists. (22) Most current responses to the caseload crisis, including increasing the number of judgeships and staff positions, dispensing with oral argument, and using unpublished opinions, have now been stretched to the breaking point. (23) Any further expansion of these mechanisms risks serious harm to both uniformity (24) and accountability. (25) Meanwhile, specialization options remain neglected and underutilized because of the generalist ideal. (26)

The ideal of the generalist judge thus holds the federal courts captive. (27) Rhetorically, it discourages judges from developing specialized expertise even on an informal basis. Doctrinally, it spawns rules and structures that prevent specialization, and, at the broadest conceptual level, it prevents federal court reformers from seriously considering specialized courts and other subject-matter-based schemes. Its powerful influence is all the more extraordinary given the extent to which specialization pervades nearly every other aspect of modern society. The medical and legal professions, which for years grappled with specialization, are today remarkably specialized, particularly at the most elite levels of practice. (28) Even state courts have increasingly turned to specialized courts or a subject-matter rotation system. (29) Yet, the federal judiciary, the last bastion, remains steadfast and committed.

Is it really? Despite the rhetoric and the structural obstacles against specialization, do federal judges truly practice the generalist ideal? When presented with a chance to specialize, do they actually remain generalists?

This Article sheds light on these questions by looking empirically at the process of opinion assignment in the federal courts of appeals. Opinion assignment is one of the few instances in which judges can still specialize in certain subject areas, and it thus provides a unique opportunity to observe judicial attitudes toward specialization. Part I analyzes a newly compiled data set on opinion assignments from 1995-2005. It reveals opinion specialization to be an unmistakable part of everyday judicial practice, suggesting that the generalist judge is largely a myth.

Part II examines how one should react to this discovery of specialization in the federal courts. Proponents of the generalist judge should be outraged, as it represents a subversion of long-cherished judicial values. Part II, however, approaches opinion specialization with an open mind and shows that it actually captures many of the benefits of specialized courts without incurring their costs. Opinion specialization is a desirable if not welcome development in federal judicial practice, one that can increase expertise while staving off problems such as politicization and tunnel vision.

Finally, the Conclusion offers opinion specialization as an exciting and more viable alternative to traditional proposals for specialized courts. For those seeking to increase specialization and expertise in the federal courts, opinion specialization is far easier to implement, because it can develop through gradual accretion and requires no formal restructuring of the federal system.

A final introductory note: It may be appropriate at this point to be more precise about the term "specialization," as it has been the matter of some academic controversy. Specifically, Daniel Meador has carefully distinguished subject-matter organization from specialization. (30) For example, as consistently noted by Judge Jay Plager, the Federal Circuit is technically not a specialized patent court, because it has other types of cases on its docket and is not exclusively limited to patent law. (31) This precise distinction is concededly true, but the Federal Circuit is of course not a generalist court either. Ultimately, there are many points on the spectrum ranging from generalist to narrow specialist, but in common parlance, the operative dichotomy is between a true generalist court that hears all cases (or a close approximation) and everything else. (32) With apologies to Professor Meador and Judge Plager, this Article therefore uses the term "specialized" to denote any court or judge that deviates from the generalist ideal. (33)


    One way of measuring judicial attitudes toward specialization is to observe how opinions are distributed among judges in the federal courts of appeals. Given the various structural impediments to specialization, including general dockets and random panel assignments, opinion assignment provides a rare instance in which judges can specialize in certain subjects. Within the confines of judicial norms about equal distribution of workload, (34) the assigning judge may distribute opinions based on the panel members' special expertise or interest. (35) Alternatively, on courts that operate by consensus, panel members may request or express preference for particular topics. Regardless of how it occurs...

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