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