Document Type

Article

Publication Year

1997

Journal Title

California Western International Law Journal

Abstract

Legal specialization takes several forms: decision-makers and advocates can specialize in particular types of cases, specialized rules can govern particular types of disputes, facts may be found by experts, appeals heard by special courts, or some or all of these combined. The American and New Zealand employment and labor law regimes make different use of specialized decision-makers, in part because of differences in their use of specialized legal rules for labor and employment law. These differences provide an opportunity to assess the appropriateness of specialization in legal decisionmaking.

Specialization in the legal system is simply one form of the more general phenomenon of specialization of goods and services. When we examine products provided in the marketplace, we see a wide range in degree of specialization. Medical services, for example, are provided through networks of generalists and specialists-we visit an internist for a routine physical, but a surgeon for an appendectomy. On a more basic level, in a visit to the grocery store in the United States or New Zealand, I can find many varieties of jam but at most one variety of "Vegemite."

As these examples suggest, the degree of specialization in the market is a response to factors such as consumer demand or a desire to preempt competitors. In law, however, market forces play only a muted role around the edges. Getting the degree of legal specialization "right" is thus more important than getting the degree of specialization in toppings for bread "right"-in the latter case, a manufacturer that produced "crunchy" Vegemite may well go bankrupt; in the former, a government which opts for the wrong degree of specialization causes problems, but is unlikely to disappear.

The appropriateness of specialized legal institutions in a particular case rests on the balance between specialization's benefits and its dangers. Evaluating that balance is trickier than it first appears. Without market measures of success, we must fall back on hypothetical counterfactuals. Nonetheless, a combination of theory and experience with specialist bodies in other areas provides some guidance. Part I of this Article describes the use of specialized legal institutions in New Zealand and the United States, while Part II assesses the appropriateness of both countries' institutions in light of the theoretical literature on legal specialization.

First Page

145

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