Specializing the Courts [NOOK Book]

Specializing the Courts

The University of Chicago Press

Chapter One

Specialization is a hallmark of modern society. Heralded by Emile Durkheim (1893/1933) and Adam Smith (1776/1963), the division of labor is fundamental to economic production and an array of other activities. For example, not only do specialists in law dominate legal practice in the United States, but most individual lawyers specialize in subsets of legal problems (Ariens 1994; Heinz et al. 2005, chap. 2).

Most of government follows that pattern. Administrative agencies typically have narrow responsibilities, and most people who work in those agencies are even more specialized in their functions. Legislators also specialize a good deal. In the United States, members of Congress vote on a wide range of issues, but they do most of their work as policy makers within specialized committees and subcommittees. Over the past century, state legislatures have moved toward a similar reliance on specialized units. Chief executives diverge from this pattern to a degree: they have broad jurisdiction and typically divide their attention among many issue areas. But specialization is the general rule in the executive and legislative branches.

The phenomenon of specialization in government and society receives relatively little attention, because it is taken for granted. By and large, people assume that specialization is both inevitable and desirable, a source of benefits to the organizations in which it occurs and to the people whom those organizations serve.

The judicial branch is an exception. The dominant image of judges in the United States is one in which they specialize in judging but not in any particular subject matter. In that important sense, we think of judges as generalists. For some people this attribute is essential to courts. "To the extent that they specialize," Martin Shapiro (1968, 53) wrote, courts "lose the one quality that clearly distinguishes them from administrative lawmakers."

Further, courts' lack of specialization is often cited as a virtue, especially by judges themselves (Higginbotham 1980, 268; Posner 1983; Wood 1997; see Cheng 2008, 521n2). Federal judge Deanell Tacha expressed a view that is widely shared among judges and others:

I like the fact that federal judges are generalists. I often say that judges may be the last generalists left in professional life, and I have resisted mightily any suggestion that the federal courts become specialized in any particular area.

As advocates of generalist judges see it, the widely perceived advantages of specialization are accompanied by drawbacks. Specialization leads people to take a narrow perspective that limits and biases their understanding of the matters they address. Further, specialization makes judges more susceptible to external control or "capture." By avoiding those drawbacks, the judiciary benefits the society it serves.

When Judge Tacha referred to judges as "the last generalists," she alluded to another theme that helps to explain the appeal of the generalist model. Diane Wood, another federal judge, referred to "generalist judges in a specialized world" (Wood 1997, 1755). For judges who are generalists, their lack of specialization distinguishes them from most other people with high standing and achievements. The implicit message is that, through their ability to address a wide range of legal issues, judges have avoided the specialization that people in other pursuits adopt as a matter of necessity. In this respect, judges stand apart from—and, arguably, above—members of other professions. For judges and those who identify with them, this is an attractive idea.

This strong belief in the value of a generalist judiciary stands in sharp contrast with the belief in the benefits of specialization that permeates society as a whole. Most of the time, the two beliefs simply coexist. But tension can arise between them when people propose to bring specialization to the courts, so that decision makers have to choose between them.

Questions to Address

In this book, I raise and analyze three questions that relate to this tension: to what extent has the judiciary moved away from the generalist ideal toward specialization, what difference does it make whether judges are generalists or specialists, and what forces bring about judicial specialization? At the outset, I should provide a preview of each question and of the answers that I ultimately offer.

The Extent of Specialization

Judge Tacha and Judge Wood each serve on a federal court of appeals, a generalist court. The other courts in the United States on which most political scientists and legal scholars focus their attention—the Supreme Court, federal district courts, and state supreme courts—are also generalists. These courts feature some elements of specialization, but judges on all these courts spread their attention and effort across a wide range of cases.

When we move beyond the courts on which scholars focus, however, the picture changes. The federal court system includes several courts with narrow jurisdiction, such as the Tax Court and the Court of Appeals for the Armed Forces. In the aggregate, those courts do much of the work of the federal judiciary.

Specialized courts are common in the states as well. Organization charts of state court systems suggest that specialization is substantial but relatively limited. Those charts are misleading, because there is a great deal of specialization within courts at the trial level. At that level, individual judges are often assigned temporarily or permanently to hear certain types of cases, and many specialized units have been created within courts that have broad jurisdiction. In its organization chart, the Illinois court system is a model of simplicity, with a single trial court—the Circuit Court—that hears cases of all types. In reality, however, administrative rules and practices in the Cook County Circuit Court in Chicago have created an array of specialized courtrooms.

The extent of specialization in the American judiciary should not be exaggerated. Compared with the other branches of government and the world outside government, the judiciary remains a bastion of generalists. Yet the degree of specialization in the courts is noteworthy. So is the uneven but marked trend toward greater specialization. Altogether, judicial specialization is more widespread than most students and observers of the courts recognize. And it is sufficient in extent to constitute an important feature of the judiciary, one that merits the attention of people who seek to understand the courts.

The Consequences of Specialization

The people who see specialization as a desirable quality in general and those who favor generalist courts both believe that specialization can make considerable difference. Surely they are right. The extent to which people specialize within organizations is a dimension or attribute of organizational structure, and like other structural attributes it can shape what those organizations do. The outputs of courts whose judges are generalists and those whose members are specialists potentially differ in at least two important ways.

The first involves what I call the "neutral virtues" of specialization, perceived benefits that underlie its dominance elsewhere in government and society. In the judiciary these virtues are quality of decisions, efficiency, and uniformity in the law. It is reasonable to posit that judicial specialization enhances these virtues, but the empirical evidence of this enhancement is remarkably slim. Advocates of specialization assume that the courts they propose will provide benefits such as greater efficiency and that existing specialized courts have indeed produced those benefits. But there is little careful analysis of the performance of specialized courts, so it remains uncertain to what extent specialization actually does enhance the neutral virtues.

The second way that specialization might affect court outputs involves nonneutral effects on the substance of judicial policy: specialization of courts could change the ideological content of their policies (on a liberal-conservative dimension) or their support for competing interests in a field (such as tort plaintiffs and defendants). This second kind of effect is of particular interest. If specialization causes courts to adopt different policies from those they would adopt otherwise, that result implicates important theoretical and normative questions about specialization as an attribute of courts.

It seems unlikely that specialization affects what courts do in a straightforward and uniform way. Rather, those effects—and especially the nonneutral effects—could be expected to vary with the circumstances of a particular court. Indeed, the evidence presented in the book shows that the impact of specialization is highly contingent on those circumstances.

Under certain circumstances, specialization does have considerable effect on the substance of judicial policy. Sometimes it changes the environment in which judges work, creating influences that lead them to favor certain interests. At other times it leads to the selection of judges who lean to one side in the competition between interests in their court. And in some instances specialization is bundled with other provisions that work together to move a court in a particular direction. These effects are not entirely predictable, because they depend largely on the idiosyncratic conditions under which specialization is adopted and carried out.

The Causes of Specialization

If judicial specialization is consequential, then its growth merits explanation. Why has specialization proceeded so far despite the strength of the generalist ideal for judges?

Of the three questions that this book addresses, I give this one the most detailed attention. In part, the reasons are practical. The causes of specialization are not as easily summarized as its extent, and we know considerably more about the causes of specialization than about its consequences.

More important, much can be learned from studying the sources of judicial specialization. This inquiry informs our understanding of the forces that shape the structural attributes of courts. It also speaks to broader issues about government institutions and public policy making, issues on which scholars have offered differing perspectives. Those perspectives are useful in understanding judicial specialization, and the ways that specialization has come about help in assessing the validity of differing perspectives.

The book's key finding about the causes of specialization is that the movement toward greater judicial specialization has been a product of inadvertence rather than design. Although some advocates argue for wholesale specialization of the judiciary, in practice specialized courts are created to serve specific purposes. Some of those purposes are connected with the potential effects of judicial specialization on the neutral virtues and on the substance of policy. Judges' self-interest, broadly defined, has also helped to bring about specialization.

Of these motivations for judicial specialization, an interest in shaping the substance of judicial policy has been the most powerful. Yet advocates and policy makers who act on that motivation do not always engage in careful analysis of the linkages between specialization and policy. Rather, they usually make choices on the basis of what I call folk theories, commonsense notions that do not fully accord with reality. In part for this reason, specialized courts often behave in ways that diverge from the hopes of the people who created them.

There is another side to the question of causes. Arguably, the movement toward greater specialization in the judiciary is no more noteworthy than the considerable degree to which judges remain generalists. In light of the high levels of specialization elsewhere in government and society, why has specialization not proceeded even further in the courts?

More than anything else, the continued existence of so many generalist courts reflects the power of the belief that courts ought to be generalists. That belief is reinforced by the long history of generalist courts in the United States; in a form of path dependence, this history has created an expectation that the dominance of generalist courts will continue. As I emphasize, however, the extent of specialization in the courts and the growth in specialization make it a significant phenomenon.

Legal scholars and social scientists have written a good deal about judicial specialization, scholarship that is summarized in the appendix of this chapter. But research on this subject has been narrow. No study has considered all three of the questions that I have described. Moreover, these questions are usually considered for specific courts or sets of courts. If judicial specialization is a significant phenomenon, it merits a more comprehensive analysis. This book is intended to provide that analysis.

The remainder of this chapter addresses the book's first question, the extent of judicial specialization in the United States. Chapter 2 frames the questions of causes and consequences in theoretical terms. Chapters 3 through 6 discuss four broad areas of judicial policy. These chapters provide a more detailed picture of the extent of specialization, but they are aimed primarily at probing its causes and consequences. Chapter 7 pulls together evidence from the preceding four chapters to reach conclusions about those causes and consequences in light of the frameworks presented in chapter 2.

Extent: The Landscape of Judicial Specialization

I have not yet defined judicial specialization. This omission might suggest that specialization is easy to define or at least that we always know it when we see it. In reality, neither proposition is accurate.

An organization such as a court system can specialize along any of several lines (Simon 1947, 28–35). What I mean by judicial specialization is one form of functional specialization—by fields or areas of legal policy. Fields are usually understood in terms of the attributes of cases, such as bankruptcy or taxes. But fields can also refer to the attributes of litigants, such as people who are homeless or addicted to illegal drugs.

Judicial specialization is best conceived in terms of the relationship between individual judges and fields of legal policy. When people refer to judicial specialization, they usually mean that certain judges hear only a narrow set of cases. Based on this usage, we can define judicial specialization as the extent to which individual judges concentrate on a limited range of cases. But there is also a second dimension of judicial specialization, the extent to which cases in a particular field at one level of the court system are concentrated among a limited number of judges (Baum 1977, 826–27; Revesz 1990, 1121–30; Nard and Duffy 2007, 1642). These two dimensions can be labeled concentration of judges (or judge concentration) and concentration of cases (or case concentration). To help in discussing these dimensions, table 1.1 provides examples of federal courts with different combinations of high and low specialization on these two dimensions.

Concentration of judges is both familiar and straightforward. Judges range from those who hear very broad ranges of cases to those whose work focuses on very specific types of cases. As table 1.1 suggests, most courts that are considered generalists, such as the federal district courts and the U.S. Supreme Court, are low in judge concentration. In contrast, most courts that we think of as specialists, such as the bankruptcy courts and the Court of Appeals for Veterans Claims, are high in judge concentration.

Still, there is considerable variation among specialized courts in concentration of judges. Tax Court judges hear cases in only one specific area of law. In contrast, the Pennsylvania Commonwealth Court hears a broad set of public law cases, and the Court of Appeals for the Federal Circuit has what one federal judge called a "hodge-podge" jurisdiction (Wood 1997, 1765). Further, a specialized court may take up only a small portion of its judges' time. This is true of some specialized units within state trial courts, such as homeless courts, in which a judge might sit only one day a week or even one day a month. It is also true of federal "borrowed-judge" courts in which judges on the district courts or courts of appeals serve part-time. The Foreign Intelligence Surveillance Court is an example.

(Continues...)

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Excerpted from Specializing the Courts by LAWRENCE BAUM Copyright © 2011 by The University of Chicago. Excerpted by permission of The University of Chicago Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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