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Current Issue : 2008 Fall

A Mechanism for Reform

On a final note, it bears mentioning that beyond merely a quirky practice among a subset of judges, opinion specialization offers a new avenue of reform for those who have long argued for specialized courts. For proponents of specialization, the most important attribute of opinion specialization is that it is modest. It does not require a radical restructuring of the federal courts or an act of Congress. Instead, it can develop informally and incrementally through everyday judicial practice, a critical advantage whenever actors are wedded to the status quo. Faced with enormous caseloads and increasingly complex cases in specialized areas, judges will opt for opinion specialization simply because it is a convenient and useful way for the judiciary to help itself.

Whether solution or affliction, opinion specialization reveals an unexplored tension in the federal judiciary. Circuit judges appear to be more conflicted on the issue of specialization than the frequent posturing might initially suggest. Exposing this fault line will hopefully encourage judges and commentators to reexamine their attitudes toward specialization. After all, archetypes like the generalist judge are powerful mental images that constrain the imagination. Dispelling the myth may therefore liberate jurists and reformers alike from their traditional boxes.

This article is a reprint of a forthcoming piece in Judicature, which is an abridged version of "The Myth of the Generalist Judge," a forthcoming article in the Stanford Law Review (2009). A draft of the complete article that includes all footnotes and acknowledgements is available at www.edwardcheng.com.
Professor Edward K. Cheng Professor Edward K. Cheng is an authority on scientific, expert, and statistical evidence. He is co-author of the five-volume treatise Modern Scientific Evidence, and his work regularly appears in law reviews around the country. Cheng holds a J.D. from Harvard Law School, where he was the Articles, Book Reviews & Commentaries Chair of the Harvard Law Review. He also holds a B.S.E. in Electrical Engineering from Princeton and an M.Sc. in Information Systems from the London School of Economics, where he was a Fulbright Scholar. Prior to joining the Brooklyn Law School faculty, he clerked for Judge Stephen F. Williams of the United States Court of Appeals for the D.C. Circuit, and he was the Searle Fellow at Northwestern University School of Law. He currently serves as the secretary and chair-elect of the Section on Evidence of the American Association of Law Schools.