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Current Issue : Fall 2008

A Loophole or a Keeper?

Should we be concerned about opinion specialization? The structure of the federal courts exhibits the longstanding preference for generalist judges, and opinion specialization clearly runs counter to that spirit. However, one perhaps should not be too quick to end the apparent loophole through randomized opinion assignments or other measures. Circuit judges, after all, are experienced and intelligent actors, and their chosen practices thus deserve careful consideration.

The core of the debate is whether the benefits of specialization outweigh the costs. As mentioned previously, specialization increases judicial expertise, improving efficiency and accuracy. On the flip side, specialized courts past and present have often highlighted the considerable drawbacks of specialization, including the danger of special interest capture, a tendency toward complex or arcane doctrines, and a loss of judicial prestige.

In this debate over specialization, however, opinion specialization offers an intriguing compromise. It of course captures many of the benefits of specialization. Whenever a "specialist" writes an opinion, the parties and the circuit's jurisprudence benefit from the specialist's expertise. Besides being more efficient, the specialist is more likely to produce opinions that are more consistent with the existing legal framework, and he may be better positioned to solve problems more creatively. At the same time, the opinion may enjoy greater legitimacy, since parties may give greater deference to a judge who "understands" the stakes and complexities in a field or industry. Even when a specialist is not writing the opinion, other judges can benefit from the specialist's perspective (if on the same panel), or at minimum from a more coherent and well-developed body of precedent.

At the same time, because opinion specialization operates informally and flexibly, it minimizes many of the known drawbacks of more formal specialization schemes. With no formal and exclusive concentration of cases, interest groups have far less incentive to become enmeshed in the appointments process. Judges are less likely to develop tunnel vision, because they continue to handle diversified dockets and are required to both write and vote in areas outside their expertise. Finally, because judges can experiment with greater or less specialization depending on individual preference, opinion specialization mutes concerns about repetitive caseloads and a loss of prestige.

That said, opinion specialization does have potential dangers. If non-expert judges become too deferential to their expert colleagues, the result could be anathema to the right of appeal, which is partly to protect litigants from the potentially arbitrary decisions of a single judge. An even more serious problem is the potential bias that may arise because specialties are self-selected. For example, some of the study results suggest a possible correlation between specializing in criminal law and being a former prosecutor. If judges without a criminal law background avoid writing criminal law opinions, and former defense attorneys seldom become judges because of electoral politics, then in essence only former prosecutors will direct the future of criminal law.

Some of these problems can be (or are already) addressed by the nature of the panel system or by judicial norms and procedures. However, an understanding of the actual ramifications of opinion specialization needs to be fleshed out in further examinations of this subject.

Agency specialization,
D.C. Circuit, 1995–2005
Figure 2