Professor Edward Cheng is circulating a new working paper entitled The Myth of the Generalist Judge: An Empircal Study of Opinion Specialization in the Federal Courts of Appeals. Professor Cheng studied all federal appellate decisions (with the exception of opinions from the Federal Circuit) issued between 1995 and 2005. He concludes that “opinion specialization [is an] unmistakable part of every day judicial practice.”
If true, this suggests a more focused approach for the federal appellate lawyer. One of the difficulties for the appellate practitioner is not knowing the audience for the brief. If, however, opinions are assigned based on the specialities of the individual judges, the brief can be written with those individual judges in mind. This population of potential opinion writers is still larger than the ultimate panel that will hear the case. Nonetheless, by studying whether a particular subset of judges in your circuit write most of the opinions in your area of the law, you have the opportunity of focusing your presentation to address the concerns of those particular judges.
I can just see starting the brief, “Dear Judge _________”!
[...] . . or, at least, to a specific group of circuit judges, may now be possible, if Tom Caso at The Opening Brief is correct. He cites a study covering ten years of federal appellate opinions that concludes [...]
There is a grain of truth in what Prof. Cheng is saying, but it’s not quite right on. In the 9th Circuit, a “writing judge” is assigned as soon as the case comes to the panel. The assignment is made by the senior active judge on the panel, but judges can sometimes request a particular case (rare, but it happens). Prior to sending the cases to the panels, the clerk’s office/staff attorneys assingn a point value to each case based on its apparent complexity (these are frequently wrong, by the way). The assigning judge usually tries to distribute equal “points” to each chambers. That chambers then prepares the bench memo to be distributed to the panel.
Within that assignment scheme, however, there is room to pick. Say the senior active judge is an accounting geek and gets a stock valuation case—he’ll probably keep that one for himself. Or say Judge Reinhardt is on a panel with Judge Callahan–he may try to keep criminal or habeas cases for himself.
The ultimate opinion assignment, of course, is generally made at conference after the oral arguments. Assuming there will be an opinion (also rare), the writing judge will write it unless he is in the dissent or wants to give it up. Sometimes a writing judge will press the panel to write an opinion, but most of the time they just want to dump unimportant cases in memo dispos and move on with life.
I would totally reject the idea that an opinion would be reassigned because judge X is a specialist in environmental law or immigration or something. Just doesn’t happen, unless of course the writing judge is in the dissent and the “specialist” judge pushes for the opinion.