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Current Issue : 2008 Fall

Many Judges Specialize

As the graphs show, specialization appears to be alive and well in the federal appellate judiciary. Opinion assignments are not randomly distributed, and frequently the rate at which certain judges write in a subject area is highly disproportionate to their colleagues.

One important question is whether these results might occur purely as a matter of chance. After all, with so many judge-subject pairings, some statistical outliers are inevitable. A number of reasons, however, suggest that some non-random phenomenon is at work. For one, statistical simulations suggest that under random opinion assignment conditions, residuals greater than 3.0 are exceedingly rare. For example, for the Seventh Circuit under random assignment, we statistically expect to see less than two residuals greater than 3.0. Instead, Figure 2 shows 24 such instances.

In addition, many of the specific instances of specialization make intuitive sense based on the judges' backgrounds. For example, Judge Michael Boudin of the First Circuit, a former deputy assistant U.S. attorney general in the Antitrust Division of the Department of Justice, writes a disproportionate number of antitrust cases. Judge Frank Easterbrook of the Seventh Circuit, known for his academic work in antitrust and corporate law, appears to specialize in antitrust and securities regulation. On the DC Circuit, Judge Harry Edwards, who was a labor law scholar and arbitrator, specializes in labor cases. Judge Douglas Ginsburg, who specializes in Federal Communications Commission (FCC) cases, is a long-time author of a casebook on telecommunications law, and Judge Stephen Williams, who specializes in Federal Energy Regulatory Commission (FERC) cases, is formerly an oil and gas law professor.

The explanation for these specialization patterns is likely an amalgam of factors, including individual preferences (both conscious and unconscious), internal court dynamics, and caseload pressures. Experts may prefer cases in their fields of choice not only because they are more interesting, but also because they can write opinions more efficiently and with less concern about errors. Similarly, non-experts may be willing to defer given that specialized subjects may appear less interesting, more time-consuming, and rife with potential pitfalls.

FIGURE 2
Subject matter specialization,
Seventh Circuit, 1995–2005
Figure 2