Judging, Expertise, and the Rule of Law

55 Pages Posted: 4 Apr 2011 Last revised: 1 Sep 2012

Date Written: March 30, 2011


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.

Keywords: courts, judges, specialization, expertise, psychology

Suggested Citation

Oldfather, Chad M., Judging, Expertise, and the Rule of Law (March 30, 2011). Washington University Law Review, Vol. 89, No. 5, 2012, Marquette Law School Legal Studies Paper No. 11-07, Available at SSRN: https://ssrn.com/abstract=1799568

Chad M. Oldfather (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
414.288.8031 (Phone)

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