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Current Issue : Fall 2008

Opinion Specialization - Alive and Well in the Federal Appellate Judiciary

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.

Opinion Assignment

One way of studying judicial attitudes toward specialization is to observe if judges become specialists when given the chance. Random case assignment eliminates most such opportunities, but the process of opinion assignment provides a rare instance in which federal circuit judges can specialize in certain subjects.

To construct the dataset used in this study, I combined the Federal Judicial Center's well-known Federal Courts database and a database extract generously provided by Thomson West. The resulting dataset included all opinions written between 1995 and 2005 in the United States Courts of Appeals for all circuits except the Federal Circuit. To detect instances of specialization, I modeled the number of expected opinions that a judge should write in each subject area given that judge's caseload and the circuit's overall docket patterns. The expected frequencies were then compared against the actual frequencies using Pearson (standardized) residuals.

The figures below graphically summarize the most likely instances of specialization in the First, Seventh, and DC Circuits. Each horizontal line represents a subject matter, or in the case of the DC Circuit, an agency being reviewed. Each dot represents a judge-subject pairing. For purposes of the study, residuals with absolute values above three were defined to indicate instances of specialization, with positive values showing preference and negative values showing aversion.

"Opinion specialization" is an unmistakable part of everyday judicial practice and may actually achieve many of the benefits of specialized courts without incurring their costs.
— by Edward K. Cheng
Subject matter specialization,
First Circuit, 1995-2005
Figure 1