Is Too Much Specialization a Bad Thing? Specialization in Specialized Courts

Abstract

Although the dominant image of a judge is that of a generalist, the federal judiciary is more specialized than most observers of the courts realize. Though the majority of courts are not formally specialized, recent empirical work suggests that many judges informally specialize by writing a disproportionate number of opinions in certain fields. Opinion specialization provides a unique lens to study judicial attitudes towards specialization as well as an underappreciated vehicle to increase specialization in the judiciary. Despite opinion specialization’s prevalence and promises, the practice is understudied and undertheorized.

This Article makes two primary contributions to the literature. First, drawing on existing specialization literature, this Article begins to sketch a richer theoretical account of opinion specialization. It argues that the practice’s costs and benefits are a function of whether the court itself is specialized. More specifically, this Article contends that while opinion specialization may be normatively desirable for generalist courts, it is likely not for specialized tribunals.

Second, given the concerns associated with opinion specialization in specialized tribunals, this Article empirically tests the extent to which specialization occurs in specialized courts. We approach this question by examining the process of opinion assignment in the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which is best known for its near-exclusive jurisdiction over patent appeals. Utilizing a novel database, we find that opinion specialization is a robust part of the Federal Circuit’s practice. This Article concludes by identifying several doctrinal developments at the Federal Circuit wherein opinion specialization arguably produced a suboptimal evolution of law, exploring mechanisms in which opinion specialization may be diminished, and examining the implications of our findings for the broader judiciary.