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Lawrence Baum, Specializing the Courts (Univ. of Chicago Press 2011).

As is abundantly clear from the Supreme Court’s June 2011 decision in Stern v. Marshall, the debate over the propriety of non-Article III federal adjudication tends to reduce to the classical divide between separation-of-powers formalists and functionalists. Thus, Chief Justice Roberts’s opinion for the 5-4 majority, in the course of holding that non-Article III bankruptcy courts could not constitutionally exercise jurisdiction over certain kinds of state-law counterclaims, repeatedly trumpeted the need zealously to protect Article III prerogatives from even the smallest encroachment. In contrast, Justice Breyer’s dissent harped on the real-world efficiency that such adjudication promoted, criticizing the majority for failing to appreciate how much its decision would likely slow down (and further complicate) bankruptcy litigation by requiring the intervention of district courts before final judgment in a far greater number of cases. As Breyer explained, “a constitutionally required game of jurisdictional ping-pong between courts would lead to inefficiency, increased cost, delay, and needless additional suffering among those faced with bankruptcy.”

For those, like Justice Breyer, who are taken by the functional case for non-Article III adjudication, Lawrence Baum’s new book, Specializing the Courts, couldn’t come at a better time. Indeed, although Baum’s monograph consciously sidesteps the debate over the constitutionality of non-Article III adjudication, there are obvious—if not compelling—parallels between his comprehensive treatment of the causes and consequences (and pros and cons) of judicial specialization and the functional case for at least most non-Article III federal courts.

As Professor Baum explains, it is inapt to distinguish between “generalist” and “specialist” courts. Instead, Baum suggests that there are two axes of specialization: “Judge concentration” and “case concentration.” (P. 7.) The former occurs when individual judges focus all of their work on a specific set of cases with limited substantive range; the latter occurs when cases in a particular field are assigned to a limited number of judges. So, for example, bankruptcy courts have high judge concentration, but low case concentration, since bankruptcy judges only hear bankruptcy cases, and yet the substantive range of legal questions they confront therein is remarkably broad. On the flip side, the Foreign Intelligence Surveillance Court (FISC) has low judge concentration but high case concentration, since its judges only devote a small chunk of their time to hearing FISA applications, but every FISA application must go before the FISC.

The utility of breaking out the different forms of judicial specialization in this manner comes in Baum’s comprehensive assessment of the causes and consequences of judicial specialization, which embraces a far wider class of cases than we might otherwise have thought existed. As he suggests, different motivations explain why policymakers might opt for higher judge concentration as compared to higher case concentration, and vice-versa. The bulk of his monograph is devoted to a study of the different causes and consequences of specialization in four major fields: foreign policy and internal security; criminal cases; government-involved economic litigation; and private economic litigation. Separate from the normative conclusions Baum draws from these studies, merely putting all these examples together into one condensed volume is an immensely useful contribution to existing literature.

But the real gem of Baum’s volume is chapter seven, when he turns to the lessons learned from the examples that the heart of the book surveyed. For example, with regard to the causes of specialization, Baum concludes that the motive that has had the greatest impact on the creation of specialized courts is “an interest in shaping the substance of judicial policy.” (P. 207.) Yet “[o]fficials in the three branches do not regularly consider whether their goals would be advanced by increasing or decreasing the level of specialization in each field of policy.” (P. 210.)  Moreover, Baum suggests that “[d]iffusion has played a major part in the growth of judicial specialization,” such that the existence of some specialization has often been one of the principle justifications for additional specialization. This all leads to perhaps the most significant—if unsurprising—conclusion concerning the causes of specialization, i.e., that “judicial specialization has been a byproduct of other goals rather than an end in itself.” (P. 213.)

As for the consequences, Baum argues that “the effect of judicial specialization . . . [is] contingent both on the form that specialization takes and on other attributes of specialized courts and the situations in which they operate.” (P. 218.) Thus, Baum identifies three conditions that “foster the impact of judicial specialization on the substance of policy” (P. 221.): the selection of judges “whose own attitudes give them a commitment to a particular policy orientation”; “the existence of strong incentives for judges to lean in favor of one side in a field rather than its competitor,” which are more prevalent where there has been judicial specialization; and the “bundling of specialization with other provisions that favor the desired policies,” that is, where the creation of the judicial specialization comes part-and-parcel with new substantive policies that appear designed to effectuate a particular outcome. (P. 225.) When various combinations of these three conditions are present, Baum concludes, judicial specialization, whether for better or worse, is more likely to achieve its goals.

Professor Baum is hardly the first to tackle the subject of judicial specialization. But beyond its accessibility and readability, Baum’s volume makes a significant contribution to the literature in at least two distinct respects. First, “no study has considered the sources and growth of specialization as general phenomena.” (P. 27.) Instead, most prior work has focused on particular examples of judicial specialization in the federal and state levels, ranging from studies of the work of the U.S. Court of Appeals for the Federal Circuit and the Tax Court to normative or empirical analyses of “problem-solving” state courts, such as drug courts, homeless courts, and so on. Baum’s monograph is unique as a systematic attempt to gauge comprehensively both the causes and consequences of judicial specialization. As a result, his analysis is not specific to any particular example or even to specialization at the federal vs. state levels.

Second, Baum’s volume is significant to the extent it allows us to aggregate the causes and consequences of judicial specialization. Although there may be separate functional justifications for different kinds of specialized judges and/or courts, Baum’s volume should empower those who would seek categorically to argue for or against the merits of judicial specialization to cover the subject with one brush.

The harder question, which Baum himself assiduously avoids, is how the merits of judicial specialization dovetail with the legal constraints on such adjudication. But given the well-documented difficulties of applying formalist methodology to the question of non-Article III adjudication, Baum’s volume may have a lot to say about the pros and cons of the functional case for non-Article III courts in general, and the bankruptcy courts in particular. In that vein, consider Justice Breyer’s dissent in Stern, which argued that one of the critical factors to consider in deciding when non-Article III adjudication would be appropriate is “the nature and importance of the legislative purpose served by the grant of adjudicatory authority to a tribunal with judges who lack Article III’s tenure and compensation protections.” Allowing bankruptcy courts to adjudicate “core” state-law counterclaims, Breyer wrote, “plays a critical role in Congress’ constitutionally based effort to create an efficient, effective federal bankruptcy system.”

But Breyer’s dissent fails to articulate a key point on which Baum’s volume harps: the efficiency of allowing bankruptcy courts to resolve “core” state-law counterclaims only follows from the efficiency of allowing bankruptcy courts to resolve core federal bankruptcy claims in the first instance. For those who believe that functional considerations should enter into play, Baum’s book should remind us that the real questions to ask in these cases are (1) what the legislature’s goal was in creating the judicial specialization at issue; (2) whether the relevant expansion of adjudicatory power is necessary to vindicate that goal; and (3) whether judicial specialization is ultimately preferable to allowing similar disputes to be resolved by generalists. If those are the relevant inquiries, then Justice Breyer’s analysis seems at least somewhat incomplete.

More generally, Baum’s book may speak to those who have, quite legitimately, critiqued current jurisprudence for failing to articulate coherent principles. Justice Scalia’s Stern concurrence, for example, complained that “something is seriously amiss with our jurisprudence in this area,” noting that “[t]he sheer surfeit of factors that the Court was required to consider . . . seem to have entered our jurisprudence almost randomly.”

Baum’s splendidly concise volume should be useful to all students of the courts, whether political scientists or lawyers, judges or academics. But those who seek a more coherent theory on which to predicate the values (and, perhaps, constitutionality) of non-Article III federal courts may find in particular that Baum’s book could lead the way.

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Cite as: Steve Vladeck, Judicial Specialization and the Functional Case for Non-Article III Courts, JOTWELL (November 4, 2011) (reviewing Lawrence Baum, Specializing the Courts (Univ. of Chicago Press 2011)),