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Publication Date

3-14-2021

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 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 these specialized courts. We approach this question by examining the process of opinion assignment in the U.S. Court of Appeals for the Federal Circuit, which is best known for its near-exclusive jurisdiction over patent appeals. Utilizing a novel, author-constructed database of Federal Circuit opinions issued between 2004 and 2018, we find that opinion specialization is a robust part of the Federal Circuit’s practice. This Article demonstrates 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.

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