Specialist Judges?

April 5th, 2011

Chad Oldfather has a piece on SSRN about the wisdom of relying on judges with special expertise, titled Judging, Expertise, and the Rule of Law. Here is the abstract:

Though we live in an era of hyper-specialization, the judiciary has for the most part remained the domain of generalists. Specialized courts exist, however, and commentators regularly claim that further judicial specialization is desirable or inevitable. Yet recent years have witnessed the beginning of a backlash against the increasing division of intellectual labor, such that it is appropriate to question the merits of judicial specialization. This article engages the existing literature on judicial specialization in two ways. First, by demonstrating that the question of judicial specialization is considerably more complex and contingent than is typically depicted. We must, for example, focus not merely on the content of decisions under the two regimes, but also on how the choice between them might affect decision-making styles and rule-of-law values. Second, by drawing on research into the psychology of expertise to investigate the claim that specialized courts and judges will, by virtue of their expertise, generate better decisions than generalists. That research suggests that claims for judicial expertise are overstated, and that expertise is likely instead to result in more modest, though still potentially significant, gains in decisional efficiency. In all, the article works away from, rather than toward, confident conclusions about the wisdom of judicial specialization.

From the article:

First, I hope to demonstrate thatthe question of specialization is much more complex and contingent thanprevious discussions have allowed for. The question is never just whetherspecialists will outperform generalists in some abstract sense. We must alsothink about an array of factors, such as the nature of the field ofspecialization, the institutional context in which specialization is to beimplemented, and so on. There are also questions, distinct from anydifferences in the substantive results achieved via the two types of courts,about whether the two types of regimes are likely to differ in the extent towhich they advance rule-of-law values. . . .

Second, I want to examine in greater detail one of the primary claimsmade in favor of specialized courts and judges, namely that they facilitateexpert decisionmaking for the simple reason that judges on specializedcourts will be (or will become) experts in the subject matter within the court’s jurisdiction. Those making the case for specialization in the pasthave suggested, without much elaboration, that because of their expertisespecialized judges will make better decisions, with “better” left largelyundefined. I draw on research into the psychology of expertise to explorewhether specialized courts and judges really can be expected to generatebetter decisions, and conclude that the case for expertise is overstated.Simply put, specialized judges will almost always have a claim to expertisein the weak sense that they will be more efficient in reaching conclusionsthan non-experts. These efficiency gains can be substantial, and they maysometimes be of dispositive weight in a world of rising caseloads. But it isunlikely to be the case that the content of specialists’ decisions will differ insome qualitative respect from or be in some general sense “better than”those of their generalist counterparts. At the same time, there may beprocess aspects of specialists’ decisionmaking that should give us pause,and that must be balanced against the efficiencies gained throughspecialization.

In continuing my thinking about lawyers, and judges, as experts, I will need to address the role of specialized judges. Though, even if the judges are perhaps specialized in a certain doctrinal area, they will still be lawyers, with legal training, first; unless they are a rare breed, with say a PHd and JD. Those candidates, I think, would be hard to recruit to the bench. So more likely than not specialized judges are going to be lawyers who take some advanced classes and training in certain areas.