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Judging, Expertise, and the Rule of Law

Publication Title

Washington University Law Review

Abstract

We live in an era of hyper specialization. Professionals across a spectrum of fields focus on mastering and practicing in narrow subspecialties. This is hardly a surprise. As the scale of knowledge grows, it becomes increasingly difficult for any one person to stay on top of details and developments across a field, and specialization represents something of a natural division of labor. Law is no exception.

There already exists a relatively large body of literature outlining proposals for specialized courts and otherwise considering their perceived virtues. I seek in this Article to engage this literature in two ways. First, I hope to demonstrate that the question of specialization is much more complex and contingent than most previous discussions have allowed.The question is never just whether specialists will outperform generalists in some abstract sense it instead requires consideration of an array of factors, such as the nature of the field of specialization, the institutional context in which specialization is to be implemented, and so on. There are also questions, distinct from any differences 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 to which they advance rule of law values.The goal of this analysis is to work away from, rather than toward, confident conclusions. Many of the questions involved are ultimately empirical in nature, and all will require comprehensive study. I offer intentionally speculative hypotheses about potential differences between specialists and generalists, with the hope that what results can serve as a catalog of factors to be considered in efforts to develop specialized courts and an agenda for future scholarly efforts.

Second, I examine in greater detail one of the primary claims made in favor of specialized courts and judges, namely that they facilitate expert decision-making for the simple reason that judges on specialized courts will be (or will become) experts in the subject matter within the court’s jurisdiction. Those making the case for specialization in the past have suggested, without much elaboration, that because of their expertise specialized judges will make better decisions, with “better” left largely undefined. I draw on research into the psychology of expertise to explore whether specialized courts and judges really can be expected to generate better decisions, and conclude that the case for expertise is overstated. Simply put, specialized judges will almost always have a claim to expertise in the weak sense that they will be more efficient in reaching conclusions than non-experts. These efficiency gains can be substantial, and they may sometimes be of dispositive weight in a world of rising caseloads. But, it is unlikely to be the case that the content of specialists’ decisions will differ in some qualitative respect from — or be in some general sense “better than” — those of their generalist counterparts. At the same time, there may be process aspects of specialists’ decision-making that should give us pause, and that must be balanced against the efficiencies gained through specialization.

The remainder of this Article proceeds as follows. Part I outlines some of the initial definitional difficulties embedded in discuss ions of judicial specialization, and briefly reviews the primary arguments offered for and against specialization. Part II offers an assessment of the specialization debate that is designed to enlarge both the breadth and depth of the inquiry. Part III surveys psychological research on expertise, with an eye toward gleaning its insights relevant to judging. Part IV synthesizes the work of the preceding two parts, drawing on both to further refine the analysis while introducing the suggestion that the choice between specialization and generalism is likely to have rule-of-law consequences.

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