Is Too Much Specialization a Bad Thing? Specialization in Specialized Courts

91 Pages Posted: 22 Feb 2020 Last revised: 3 Mar 2020

See all articles by Melissa F. Wasserman

Melissa F. Wasserman

The University of Texas at Austin - School of Law

Jonathan D. Slack

Independent

Date Written: February 24, 2020

Abstract

While modern society has embraced specialization, the federal judiciary continues to prize the generalist jurist. This disconnect is at the core of the growing debate on the optimal level of specialization in the judiciary. To date, this discussion has largely revolved around the creation of specialized courts. Opinion specialization, however, provides an alternative, underappreciated method to infuse specialization into the judiciary. In contrast to specialized courts, opinion specialization is understudied and undertheorized.

This Article makes two contributions to the literature. First, this Article theorizes whether opinion specialization is a desirable practice. It argues that the practice’s costs and benefits are a function of whether the court itself is specialized. More specifically, this Article contends that while opinion specialization may be normatively desirable for generalist courts, it is likely not for specialized tribunals. Perhaps most concerning, this Article argues that opinion specialization in specialized courts increases the likelihood that legal doctrine will reflect the idiosyncratic preferences of a few judges.

Second, given the concerns associated with opinion specialization in specialized tribunals, this Article empirically tests the extent to which specialization occurs in specialized courts. We approach this question by examining the process of opinion assignment in the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), which is best known for its near-exclusive jurisdiction over patent appeals. Utilizing a novel database, we find that opinion specialization is a robust part of the Federal Circuit’s practice. This Article concludes by demonstrating that opinion specialization may have led to several highly criticized legal developments at the Federal Circuit, exploring mechanisms in which opinion specialization may be diminished, and examining the implications of our findings for the broader judiciary.

Keywords: specialized courts, Federal Circuit, patents, opinion specialization

Suggested Citation

Wasserman, Melissa F. and Slack, Jonathan, Is Too Much Specialization a Bad Thing? Specialization in Specialized Courts (February 24, 2020). Northwestern University Law Review, Vol. 115, 2021 Forthcoming. Available at SSRN: https://ssrn.com/abstract=3518724

Melissa F. Wasserman (Contact Author)

The University of Texas at Austin - School of Law ( email )

727 East Dean Keeton St
Austin, TX 78705
United States

Jonathan Slack

Independent ( email )

No Address Available
United States

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