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EXPERTISE AND OPINION ASSIGNMENT ON THE COURTS OF APPEALS: A PRELIMINARY INVESTIGATION Jonathan Remy Nash* Abstract This Article examines the role of expertise in judicial opinion assignment and offers four contributions: First, this Article develops a general theory of opinion assignment on multimember courts. Second, this Article uses that theory to predict how expertise might influence opinion assignment. Third, because the theory advanced in this Article suggests that the courts of appeals are far more likely to witness experience-based opinion assignment than is the Supreme Court, this Article contributes to an understanding of opinion assignment practices in this understudied area. Fourth, this Article identifies two settings in which the theory this Article advances should have observable implications, and this Article proceeds to test those implications empirically. It finds that, in the years following the initial adoption of the Sentencing Guidelines, circuit judges who were Sentencing Commissioners were more likely to have assigned to them opinions raising sentencing issues. It also finds that circuit judges who previously served as bankruptcy judges were more likely to have bankruptcy cases assigned to them. The Guidelines setting, moreover, allows for a natural experiment, in that we can test whether judges who served as Commissioners saw disproportionate levels of opinion assignment in criminal cases before the Guidelines took effect; it turns out, consistent with the theory, that they did not. * Professor of Law, Emory University School of Law. For helpful discussions and comments on earlier drafts, I am grateful to Tom Clark, John de Figueiredo, the Honorable Frank Easterbrook, Lee Epstein, Lee Fennell, Victor Fleischer, Abbe Gluck, William Hubbard, Dennis Hutchinson, David Kwok, William Landes, Leandra Lederman, Wayne Logan, Wendy Martinek, William Page, Rafael Pardo, the Honorable Richard Posner, Mark Seidenfeld, Joanna Shepherd, Alexander Volokh, participants in a graduate political science seminar on “Institutions,” and two anonymous reviewers. I also benefited from comments by participants in presentations at the University of Chicago Law School Workshop on Judicial Behavior; at faculty colloquia at Emory University School of Law, the Florida State University College of Law and the University of Florida Levin College of Law; at the annual meeting of the Midwest Political Science Association (especially the comments of Betheny Blackstone, who served as commentator on the paper); at the annual meeting of the International Society for New Institutional Economics at the University of Southern California School of Law; at the annual meeting of the Canadian Law and Economics Association at the University of Toronto Faculty of Law; and at the annual meeting of the Midwestern Law and Economics Association at the Indiana University-Bloomington School of Law. 1599 1600 FLORIDA LAW REVIEW [Vol. 66 INTRODUCTION .................................................................................. 1602 I. A UTILITY-BASED MODEL OF OPINION ASSIGNMENT .......... 1608 A. Opinion Assignment and Case Type ............................. 1611 B. Opinion Assignment and Court Type ........................... 1612 1. Whether the Court Selects the Cases It Hears .................................................................. 1613 2. Whether the Court Hears Most Cases in Panels ................................................................ 1613 3. Whether the Court Regularly Decides Cases Unanimously ............................................... 1614 4. How the Court’s Chief Judge Is Selected ............................................................. 1614 II. THE UTILITY OF EXPERTISE-BASED OPINION ASSIGNMENT ....................................................................... 1615 A. The Benefits of Expertise-Based Opinion Assignment .................................................................... 1616 1. Efficiency Benefits ................................................ 1616 2. Legitimacy Benefits .............................................. 1617 3. Reputation Benefits ............................................... 1618 B. The Likelihood of Expertise-Based Opinion Assignment ..................................................... 1619 1. Supply of Expertise ............................................... 1619 a. Frequency with Which the Area of Law Arises on the Court’s Docket ............................................................ 1619 b. The Position on the Court of the Judge with Expertise ...................................... 1619 2. Demand for Expertise-Based Opinion Assignment ............................................................ 1620 a. Area of Law in Which the Expertise Lies ................................................................. 1620 b. Frequency with Which the Area of Law Arises on the Court’s Docket ................. 1622 c. Status of the Court Within the Broader Judiciary ......................................................... 1623 d. Frequency with Which the Area of Law Arises on Other Courts ................................... 1623 e. Whether the Court has Coequal Sister Courts ............................................................. 1624 C. Likely Settings of Expertise-Based Opinion Assignment .................................................................... 1624 2014] EXPERTISE AND OPINION ASSIGNMENT ON THE COURTS OF APPEALS 1601 III. TWO SETTINGS FOR EMPIRICAL ANALYSIS: SENTENCING GUIDELINES AND BANKRUPTCY ...................... 1628 A. The Sentencing Guidelines and the Comissioners ................................................................ 1628 1. The Guidelines ...................................................... 1629 2. Backgrounds of Judge Wilkins and Judge Breyer .......................................................... 1634 B. Bankruptcy Cases and Former Federal Bankruptcy Judges ....................................................... 1636 IV. EMPIRICAL ANALYSIS ........................................................... 1640 A. Methodology ................................................................. 1640 1. Primary Datasets ................................................... 1640 2. Coding ................................................................... 1643 3. Random Assignment of Opinions ......................... 1645 B. Results and Analysis ..................................................... 1648 1. Hypothesis 1—Disproportionate Assignment of Opinions to Judges With Expertise ................... 1648 2. Hypothesis 2—Effect of Introduction of Guidelines on Assignment of Opinions ................ 1652 3. Hypothesis 3—Effect of Extent of Legal Issues Raising Expertise on Assignment of Opinions ............................................................ 1654 4. Hypothesis 4—Party Affiliation and Assignment of Opinions ............................................................ 1655 5. Hypothesis 5—Assignment of Cases and Judicial Panel Rank ............................................................ 1656 V. DISCUSSION AND IMPLICATIONS ........................................... 1657 CONCLUSION ...................................................................................... 1661 APPENDIX A: A FORMAL UTILITY-BASED MODEL OF OPINION ASSIGNMENT ................................................................ 1663 A. The Basic Model .......................................................... 1663 B. Opinion Assignment and Case Type ............................ 1667 C. Opinion Assignment in Nonideological Cases on Error-Correcting Courts ........................................ 1668 APPENDIX B: EMPIRICAL RESULTS ..................................................... 1670 1602 FLORIDA LAW REVIEW [Vol. 66 INTRODUCTION Commentators generally accept that, notwithstanding the norm of equalizing workload among judges on multimember courts,1 it is at least sometimes the case that some judges will tend to write more opinions in particular subject matter areas than others. Yet the assignment of opinions on the basis of expertise, especially on the federal courts of appeals, is undertheorized and understudied. The existing literature is lacking in several ways. First, the existing literature falls short on offering a clear conceptualization of judicial expertise. In particular, it often fails to distinguish clearly between, and indeed often conflates, “expertise” and “opinion specialization.”2 In fact, the two concepts are quite different:3 Expertise is the product of training and experience. While expertise conceivably might result from the continued writing of judicial opinions in an area, it is much more likely to have arisen by virtue of some experience the judge enjoyed before joining the court (or extrajudicial experience engaged in during judicial service). In short, expertise puts a judge at a comparative advantage to draft an opinion because the other judges on the court are unlikely to have it.4 1. Commentators acknowledge the strength of this norm. See JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 367–68 (2002); FORREST MALTZMAN ET AL., CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME 37 (2000). Sometimes the attempt to equalize workloads goes beyond simple case numbers to other attributes, such as case difficulty. See, e.g., JUDITH A. MCKENNA ET AL., FED. JUDICIAL CTR., CASE MANAGEMENT PROCEDURES IN THE FEDERAL COURTS OF APPEALS 18 (2000) (“Some courts have their staffs try to distribute

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