Experts Judging Experts: The Role of Expertise in Reviewing Agency Decision Making

Abstract

What role does judicial subject matter expertise play in the review of agency decisions? Using a data set of decisions in which the Board of Patent Appeals and Interferences (BPAI) is reviewed by the Court of Appeals for the Federal Circuit, we investigate this question and find that greater subject matter expertise does make it more likely that a judge will vote to reverse an agency decision.

Judicial Specialization and Ideological Decision Making in the US Courts of Appeals

“…More specifically, although we observed evidence that a judge's possession of prior subject matter expertise in antitrust law accentuated ideological decision making in this technical legal area, specialization in opinion authorship augmented ideological decision making much more extensively. On the other hand, echoing findings from analyses of judging in more specialized contexts (Miller and Curry , ), accumulated judicial experience did not exert any effects on judicial voting, either directly or in combination with ideology.…”

“…A number of scholars have begun to challenge this received wisdom, with one going so far as to term it the “myth of the generalist judge” (Cheng 2008, 519). Even so, while there have been some examinations of the ways in which individual subject matter specialization 1 may affect judicial decision making, those investigations have typically been limited to courts with specialized or semispecialized jurisdictions, such as the Court of Appeals for the Federal Circuit (Miller and Curry 2009, 2013), tax courts (Howard 2005), and courts dealing with trade disputes (Hansen, Johnson, and Unah 1995; Unah 1998). One significant exception has been the rather extensive vein of scholarship that examines opinion specialization on both the Supreme Court (Ulmer 1960, 1970; Brenner and Spaeth 1986; Maltzman and Wahlbeck 1996) and the US Courts of Appeals (Atkins 1974; Cheng 2008; Nash and Pardo 2012).…”

Small‐Group Dynamics, Ideology, and Decision Making on the US Courts of Appeals

“…Bearing in mind scholarship, discussed below, that concludes that judges also utilize these two modes of information processing (Guthrie, Rachlinski, and Wistrich ), this assessment becomes even more sensible if one conceives of specialization's influence on judicial decision making as primarily related to motivation. As has been generally noted elsewhere (e.g., Miller and Curry ; Miller and Curry ; Krosnick ; McGraw and Pinney ), specialists tend to be better able and more highly motivated to process information systematically than nonspecialists. “Increases in level[s] of motivation are associated with a greater likelihood of systematic [System 2] processing” (Chen, Duckworth, and Chaiken , 47), and, as noted above, scholars have found the utilization of such processing to be affiliated with ideologically motivated reasoning.…”

“…Gaining leverage on the consequences of specialization is important, but it is also necessary to probe its causes. Part of this explanation may be due to the possession of certain background characteristics (e.g., Hettinger, Lindquist, and Martinek , 2004; Songer, Sheehan, and Haire ) or the possession of prior substantive expertise or training in a particular area (Miller and Curry ), and we suspect that circuit court cultures may play some part in this explanation as well (Hettinger, Lindquist, and Martinek ; Solimine ).…”

“…In addition to assessing possible ideological effects, prior research on expertise's influence on decision making in the Court of Appeals for the Federal Circuit (Miller and Curry ) has found that specialists were significantly less likely to defer to decisions by the lower authority than were their nonspecialist counterparts—presumably because specialization leads judges to be more confident in their decision making and, thus, more assertive in challenging the conclusions of the lower court (Baum ). It strikes us as important to investigate the possibility that specialization might exert similar effects in a more generalist context as well; a corollary question could be whether the level of expertise possessed by a lower court affects the deference afforded by specialists, as opposed to nonspecialists, reviewing its decisions.…”