Would we get “better” appellate judging if cases were assigned to panels of “experts” in a particular area of the law? A draft law review article suggests that expert panels are at least perceived by other federal judges to render more “accurate” appellate decisions. In “An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review,” Professors Nash and Pardo studied decisions from Bankruptcy Appellate Panels and Federal District Court decisions in bankruptcy appeals over a three-year period. The authors discovered that there was only a slight edge to the Bankruptcy Appellate Panels in decisions upheld by the Courts of Appeals. However, the decisions of those appellate panels were cited as authoritative far more frequently by other federal courts than were similar bankruptcy appeal decisions by District Court Judges.
Does this mean that the expert panels produce better decisions? The authors are careful to claim only that the evidence suggests that there is a perception that those decisions are more accurate, or at least more authoritative.
There has long been tension between counsel seen as “subject matter experts” and the “generalist” courts to which they submit their cases for decisions. The “experts” can often be heard to argue that the judge or appellate panel simply did not understand the arcane legal issue in the case. Perhaps that is true in some cases, yet care must be taken before we move toward “expert panels.” No set of legal rules operates in a vacuum. Ultimately, legal policy (and the courts certainly see themselves as policy makers) must be made on the basis of how the rule fits into the universe of legal rules – not just how it works in a narrow niche.