Tuesday, January 15, 2008

Federal Appellate Judges Specialize Some

The standard line is that most judges are generalists, handling any legal dispute that comes before them. Prof. Edward K. Cheng has tested that proposition by examining 10 years of decisions from the U.S. Courts of Appeals. Although panels are assigned randomly, it turns out that some judges tend to write more than their share of opinions in given areas. For example, if Judge A is in the majority in 30 unanimous 3-judge employment discrimination cases, you might expect A to write 10 of the opinions, but in practice A might have written 20.

Edward K. Cheng, The Myth of the Generalist Judge: An Empirical Study of Opinion Specialization in the Federal Courts of Appeals (working paper presented at Fordham Law School Jan. 3, 2008).

Is this a bad thing or a good thing? Prof. Cheng discusses possible implications. One obvious positive: greater expertise by the opinion writer might make for better opinions, prepared more efficiently. One possible negative: other judges might defer too much to the judge who seems to be expert and there might be some bias. To take one example, there are a number of judges who get assigned to more than their share of criminal law cases -- often judges who were prosecutors before being appointed to the bench. (Defense attorneys are much less often appointed.) Would former prosecutors have a bias toward the government position?

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