Probing the effects of judicial specialization

Duke Law Journal

Volumn 58, Issue 7, 2009, Pages 1667-1684

  Baum, Lawrence ^a  

^a OHIO STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 68049115476     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (103)

1. See, e.g., Martin Shapiro, The Supreme Court and Administrative Agencies 53 (1968) ("To the extent that [courts] specialize, they lose the one quality that clearly distinguishes them from administrative lawmakers.").
2. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, The "Hidden Judiciary": An Empirical Examination of Executive Branch Justice, 58 Duke L.J. 1477, 1479 (2009).
3. E.g., Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1, 29-42 (2007) [hereinafter Guthrie et al., Blinking on the Bench] (offering ways that the judicial system can encourage judges to think deliberatively).
4. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777, 780-84 (2001) [hereinafter Guthrie et al., Inside the Judicial Mind] (exploring the impact of cognitive illusions on judicial decisions empirically).
5. Andrew J. Wistrich, Chris Guthrie & Jeffrey J. Rachlinski, Can Judges Ignore Inadmissible Information: The Difficulty of Deliberately Disregarding, 153 U. Pa. L. Rev. 1251, 1258-59 (2005) (discussing judges' inability to ignore inadmissible information).
6. Guthrie et al., Blinking on the Bench, supra note 3, at 19-21.
7. Jeffrey J. Rachlinski, Chris Guthrie & Andrew J. Wistrich, Inside the Bankruptcy Judge's Mind, 86 B.U. L. Rev. 1227, 1230 (2006) (using bankruptcy judges as a case study to examine the impact of specialization on judicial decisions).
8. See id. at 1256-59 ("[T]he bankruptcy judges performed much like the generalist judges we have previously studied.").
9. See Guthrie et al., supra note 2, at 1479.
10. See, e.g., Jaya Ramji-Nogales, Andrew I. Schoenholtz & Phillip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295, 302 (2007).
11. Nina Bernstein, New York's Immigration Courts Lurch Under a Growing Burden, N.Y. Times, Oct. 8, 2006, at A1.
12. Pamela A. MacLean, Immigration Bench Plagued by Flaws, Nat'L L.J., Feb. 6, 2006, at 1.
13. See Guthrie et al., supra note 2, at 1478.
14. See id. at 1483-91.
15. See id. at 1480.
16. See Leonie Huddy, Crossing the Methodological and Disciplinary Divide: Political Stability, Political Change, and Research Method, in Political Psychology 271, 273-74 (Kristen Renwick Monroe ed., 2002).
17. See Rachlinski et al., supra note 5, at 1260-65.
18. See Lee Ross & Richard E. Nisbett, The Person and the Situation: Perspectives of Social Psychology 3-4 (1991).
19. See Guthrie et al., Blinking on the Bench, supra note 3, at 29-43.
20. See sources cited infra note 32.
21. See Herbert A. Simon, Administrative Behavior: A Study of Decisionmaking Processes in Administrative Organizations 28-35 (2d ed. 1961). See sources cited infra note 32.
22. I use the term functional specialization to refer to specialization on the basis of the type of work that people do. See id. at 21.
23. Subject matter specialization can be defined in terms of cases as well as judges. Specialization by judges, the more familiar dimension, concerns the extent to which judges focus on narrow sets of cases. The other dimension, which may be called concentration of cases, concerns the extent to which a particular type of case is decided by a narrow set of judges.
24. See Lawrence Baum, Judicial Specialization, Litigant Influence, and Substantive Policy: The Court of Customs and Patent Appeals, 11 Law & Soc'y Rev. 823, 826-27 (1977).
25. Richard L. Revesz, Specialized Courts and the Administrative Lawmaking System, 138 U. Penn. L. Rev. 1111, 1121-30 (1990). Concentration of cases can be consequential for judicial decisionmaking, but in this Response, I focus on specialization by judges.
26. A partial list of existing and former specialized federal courts is at the website of the Federal Judicial Center. Fed. Judicial Ctr., Courts of the Federal Judiciary, http://www.fjc.gov/public/home.nsf/hisc (last visited Feb. 24, 2009).
27. Organization charts of the state court systems are presented in Court Statistics Project, Nat'l Ctr. for State Courts, State Court Caseload Statistics, 2007, at 16-67 (2008), available at http://www.ncsconline.org/D_Research/csp/2007_files/Introduction%20to%20State%20Court%20Caseload%20Statistics.pdf.
28. For instance, the organization chart of the Illinois courts portrays a single trial court, the Circuit Court. Court Statistics Project, supra note 20, at 29.
29. But the Circuit Court of Cook County is divided into divisions and departments that hear specific types of cases. State of Illinois, Circuit Court of Cook County: An Informational Guide 3-6 (rev. ed. 2009), available at http://www.cookcountycourt.org/publications/pdf/Informational-Guide.pdf.
30. Both the Circuit Court of Cook County and its predecessors also have created some specialized courtrooms for specific types of criminal offenses or defendants, even prior to the development of problem-solving courts. See Alfred R. Lindesmith, The Addict and the Law 90-93 (1965) (drug court).
31. Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago 119-240 (2003) (domestic relations court, morals court, and boys' Court).
32. Leslie Baldacci, 200 Defendants Come and Go Daily in Gun Court, Chi. Sun-Times, Dec. 21, 1992, at 7 (gun court). There is a degree of unofficial specialization in the federal courts, primarily through case and opinion assignment. On opinion assignment.
33. see Edward K. Cheng, The Myth of the Generalist Judge, 61 Stan. L. Rev. 519, 526 (2008).
34. Problem-solving courts have been defined in different ways. According to one scholar, "the essential ingredients are enhanced judicial oversight, lengthier case management (including post-sentencing supervision), and a general philosophy of restorative rather than retributive justice." Jeffrey A. Butts, Introduction: Problem-Solving Courts, 23 L. & Pol'y 121, 121 (2001).
35. A participant in the movement to establish problem-solving courts says of initiatives to establish problem-solving courts that "they all seek to use the authority of courts to address the underlying problems of individual litigants, the structural problems of the justice system, and the social problems of communities." Greg Berman, "What is a Traditional Judge Anyway?" Problem Solving in the State Courts, 84 Judicature 78, 78 (2000).
36. On types of problem-solving courts, see Greg Berman & John Feinblatt, Good Courts: The Case for Problem-solving Justice 8-9, 190-95 (2005)
37. Pamela M. Casey & David B. Rottman, Problem-Solving Courts: Models and Trends, 26 Just. Sys. J. 35, 36-49 (2005).
38. On assignment practices and rotation of assignments in the Circuit Court of Cook County (Illinois), see Herbert Jacob, The Governance of Trial Judges, 31 Law & Soc'y Rev. 3, 10-15 (1997).
39. The Judicial Appointment Power of the Chief Justice
40. see Reg'l Rail Reorganization Act Cases, 419 U.S. 102, 102-03 (1974).
41. At least for several years, the San Diego Homeless Court met once a month. Charlie LeDuff, Lifting Hurdles as the Homeless Rebound, N.Y. Times, Dec. 29, 2004, at A14.
42. See David W. Craig, The Court for Appeals-and Trials-of Public Issues: The First 25 Years of Pennsylvania's Commonwealth Court, 4 Widener J. Pub. L. 321, 323 (1995).
43. Diane P. Wood, Judge, U.S. Court of Appeals for the Seventh Circuit, Generalist Judges in a Specialized World, Speech at the Eighth Annual Judge Irving L. Goldberg Lecture Series (Feb. 11, 1997), in 50 SMU L. Rev. 1755, 1765 (1997).
44. The Court of Federal Claims may also be considered a specialist by (civil) defendant type because it hears only cases brought against the federal government.
45. The prototype for homeless courts is the San Diego Homeless Court, established in 1989 primarily to serve the needs of homeless military veterans. See Tony Perry, Homeless Court Offers New Hope for the Down and Out, L.A. Times, May 1, 2000, at A3.
46. The first mental health court was established in Broward County (Fort Lauderdale), Florida, in 1997. See Ginger Lerner-Wren, Nat'l Ctr. State Courts, Broward's Mental Health Court: An Innovative Approach to the Mentally Disabled in The Criminal Justice System 2 (2000), available at http://www.ncsconline.org/WC/Publications/KIS_ProSol_Trends99-00_FlaMentalPub.pdf.
47. The first drug court of this type was established in Miami in 1989. See Michael Isikoff & William Booth, Miami "Drug Court" Demonstrates Reno's Unorthodox Approach, Wash. Post, Feb. 20, 1993, at A1
48. Ronald Smothers, Miami Tries Treatment, Not Jail, in Drug Cases, N.Y. Times, Feb. 19, 1993, at A6.
49. See, e.g., Stephen H. Legomsky, Specialized Justice: Courts, Administrative Tribunals, and a Cross-National Theory of Specialization 7-19 (1990).
50. Harold H. Bruff, Specialized Courts in Administrative Law, 43 ADMIN. L. REV. 329, 330-31 (1991).
51. David P. Currie & Frank I. Goodman, Judicial Review of Federal Administrative Action: Quest for the Optimum Forum, 75 Colum. L. Rev. 1, 63-68 (1975).
52. Rochelle Cooper Dreyfuss, Specialized Adjudication, 1990 Byu L. Rev. 377, 377-78.
53. Ellen R. Jordan, Specialized Courts: A Choice?, 76 Nw. U. L. Rev. 745, 747-48 (1981).
54. Daniel J. Meador, An Appellate Court Dilemma and a Solution Through Subject Matter Organization, 16 U. Mich. J.L. Reform 471, 481-82 (1983).
55. Sarang Vijay Damle, Note, Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court, 91 Va. L. Rev. 1267, 1275-79 (2005).
56. For a discussion regarding the distinction between these two dimensions of specialization, see supra note 19.
57. For descriptions of these perceived benefits, see, for example, Simon, supra note 17, at 10, 20; Adam Smith, an Inquiry into the Nature and Causes of the Wealth of Nations 1-60 (R.H. Campbell et al. eds., Oxford Univ. Press 1976) (1776).
58. See, e.g., Henry J. Friendly, Federal Jurisdiction: A general View 155-59 (1973).
59. For the biographies of sitting and senior Tax Court judges, see U.S. Tax Court, Judges, http://www.ustaxcourt.gov/judges.htm (last visited Feb. 24, 2009).
60. See Ralph R. Mabey, The Evolving Bankruptcy Bench: How Are the "Units" Faring?, 47 B.C. L. Rev. 105, 107, 123 (2005) (bankruptcy judges).
61. E.g., Currie & Goodman, supra note 32, at 68-74; Jordan, supra note 32, at 748.
62. Richard A. Posner, Will the Federal Courts of Appeals Survive Until 1984? An Essay on Delegation and Specialization of the Judicial Function, 56 S. Cal. L. Rev. 761, 783-88 (1983).
63. Revesz, supra note 19, at 155-65; Damle, supra note 32, at 1281-86.
64. E.g., Isaac Unah, The Courts of International Trade: Judicial Specialization, Expertise, And Bureaucratic Policy Making 131-70 (1998)
65. Bruff, supra note 32, at 332.
66. Currie & Goodman, supra note 32, at 71.
67. Anthony Downs, Inside Bureaucracy 103-07 (1967)
68. E.g., Jordan, supra note 32, at 748.
69. Damle, supra note 32, at 1281-83
70. James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It 91-101 (1989).
71. See Lawrence Baum, Specialization and Authority Acceptance: The Supreme Court and Lower Federal Courts, 47 Pol. Res. Q. 693, 693 (1994).
72. See James E. Meason, The Foreign Intelligence Surveillance Act: Time for Reappraisal, 24 Int'l Law. 1043, 1057 (1990).
73. On the other hand, during the George W. Bush administration the judges on the Foreign Intelligence Surveillance Court demonstrated some independence, and arguably their familiarity with the field helped to foster that independence-or, in the term I have used in this Part, their assertiveness. See Eric Lichtblau, Bush's Law: The Remaking of American Justice 164-66 (2008).
74. Neil K. Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 145 (1994) ("Courts become more attractive targets for special interest groups as their jurisdiction is narrowed.").
75. Revesz, supra note 19, at 1147-53.
76. But see Jeffrey W. Stempel, Two Cheers for Specialization, 61 Brook. L. Rev. 67, 97-105 (1995) ("Prevailing theory on specialized courts posits that they frequently are targeted by interest group activity and are more likely than are generalist courts to be 'captured' by powerful interest groups and become indirectly politicized." (footnote omitted)).
77. Bruff, supra note 32, at 331-32.
78. Currie & Goodman, supra note 32, at 70-71.
79. Dreyfuss, supra note 32, at 379-80
80. Bruff, supra note 32, at 331-32.
81. Dreyfuss, supra note 32, at 380.
82. Lynn M. LoPucki, Courting Failure: How Competition for Big Cases Is Corrupting the Bankruptcy Courts 19-24 (2005).
83. For a different view, see Melissa B. Jacoby, Fast, Cheap, and Creditor-Controlled: Is Corporate Reorganization Failing?, 54 Buff. L. Rev. 401, 403 (2006).
84. Baum, supra note 19, at 835.
85. In this respect, judicial specialization is hardly unique among issues concerning the quality of judging and of court performance. In large part, the fragmentary understanding of such issues that scholarship provides reflects formidable methodological challenges, of which measuring quality is perhaps the most serious. On the task of measurement, see David F. Levi & Mitu Gulati, Judging Measures, 77 Umkc L. Rev. 1, 2 (2008) ("In order to achieve a more reliable and useful measurement, judges must be involved in the process of arriving at the right characteristics to measure and the right ways to measure them.").
86. See, e.g., John R. Allison & Mark A. Lemley, How Federal Circuit Judges Vote in Patent Validity Cases, 27 Fla. St. U. L. Rev. 745, 765-66 (2000).
87. Timothy J. O'Hearn, Patent Law Reform via the Federal Courts Improvement Act of 1982: The Transformation of Patentability Jurisprudence, 17 Akron L. Rev. 453, 471-72 (1984).
88. See, e.g., Barry C. Feld, Bad Kids: Race and the Transformation of the Juvenile Court 109-65 (1999).
89. Ellen Ryerson, The Best-Laid Plans: America's Juvenile Court Experiment 78-98 (1978).
90. Sanford J. Fox, Juvenile Justice Reform: An Historical Perspective, 22 Stan. L. Rev. 1187, 1187-88 (1970).
91. See Jonathan Lurie, Pursuing Military Justice: The History of the United States Court of Appeals for the Armed Forces, 1951-1980, at 71-106 (1998).
92. See David Laro, The Evolution of the Tax Court as an Independent Tribunal, 1995 U. Ill. L. Rev. 17, 24-29. The most important difference is that the Tax Court hears cases brought by people before they have paid their taxes, while the district courts hear lawsuits to recover money that people have already paid. This difference in itself ensures that the samples of cases heard by the Tax Court and the district courts are not entirely comparable.
93. See, e.g., Robert M. Howard, Comparing the Decision Making of Specialized Courts and General Courts: An Exploration of Tax Decisions, 26 Just. Sys. J. 135, 136-41 (2005).
94. Daniel M. Schneider, Assessing and Predicting Who Wins Federal Tax Trial Decisions, 37 Wake Forest L. Rev. 473, 474-75 (2002).
95. Scott Hendrickson, Examining Judicial Independence: Article I v. Article III Courts 94-145 (Aug. 2006) (unpublished Ph.D. dissertation, Washington University) (on file with the Duke Law Journal). For another comparative study of review of administrative decisions by generalist and specialized federal courts, see UNAH, supra note 39, at 131-70.
96. see Unah, supra note 39, at 131-70
97. See William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 337-38 (2003) (discussing the shift to the Court of Appeals for the Federal Circuit and the resulting policy changes).
98. Henry & John L. Turner, The Court of Appeals for the Federal Circuit's Impact on Patent Litigation, 35 J. Legal Stud. 85, 85-91 (2006) (same)
99. Glynn S. Lunney, Jr., Patent Law, the Federal Circuit, and the Supreme Court: A Quiet Revolution, 11 Supreme Ct. Econ. Rev. 1, 1-7 (2003) (same).
100. Gerald Sobel, The Court of Appeals for the Federal Circuit: A Fifth Anniversary Look at Its Impact on Patent Law and Litigation, 37 Am. U. L. Rev. 1087, 1092-105 (1988) (same).
101. Michele Sviridoff et al., Dispensing Justice Locally: The Implementation and Effects of the Midtown Community Court 109-38 (2000). The court was established to hear cases involving criminal offenses such as prostitution and disorderly conduct that advocates of the court perceived as damaging to the community and inadequately handled by the courts. Id. at 1-2.
102. See, e.g., Friendly, supra note 35, at 154.
103. In the opinion of one judge, "Perhaps the most startling thing about the drug court phenomenon is that drug courts have so quickly become fixtures of our jurisprudence in the absence of satisfying empirical evidence that they actually work." Morris B. Hoffman, The Drug Court Scandal, 78 N.C. L. Rev. 1437, 1479-80 (2000).