THE COURTS OF INTERNATIONAL TRADE: JUDICIAL SPECIALIZATION, EXPERTISE AND BUREAUCRATIC POLICY-MAKING by Isaac Unah. Ann Arbor, MI: University of Michigan Press, 1998. 216 pp. Cloth $44.50. ISBN 0-472-10922-7.

Reviewed by Christopher Zorn, Department of Political Science, Emory University. E-mail: czorn@emory.edu.

Isaac Unah has written a book that straddles, and offers insights into, three otherwise disparate areas of American politics: bureaucratic behavior, international trade policy, and judicial decision making. In so doing, he offers something for nearly everyone. To the political economist down the hall (to whom I've promised to loan the book once this review is completed), Unah provides an account of how specialized courts -- here, the Court of International Trade and the Court of Appeals for the Federal Circuit -- shape American trade policy. Both bodies, he finds, make decisions that have a real impact on the substance of trade policy; during the 1980's, these decisions tended to drive policy in a more protectionist direction. Moreover, he asserts, this is what Congress intended: the creation of specialized courts removed the politically difficult question of industry- specific protectionism from the legislative table and placed it squarely on that of the judiciary.

For the student of executive politics, there are brief, informative histories of the major agencies responsible for trade policy, as well as empirical findings regarding the ability of those agencies to successfully pursue their agendas in the judiciary. Most important in this vein, Unah shows that, over and above the influence of case facts, economic variables, and judges' personal preferences, independent regulatory agencies fare substantially better than their cabinet-level counterparts when defending their decisions in court. Unah argues that this difference is largely attributable to differences in the structure of the agencies themselves: the collegial atmosphere and adversarial decision making process of the independent International Trade Commission (ITC) yield more circumspect (and, so, more "affirmable") results than the more autocratic/managerial International Trade Administration (ITA).

Of greatest interest to members of this list, however, are the book's contributions to our understanding of judicial politics. These fall under two broad headings: those relating to the relative influence of "legal" versus "extralegal" factors on the decisions made by judges at various levels of the judicial hierarchy, and those pertaining to the operation and importance of specialized courts. The first of these are, in many ways, straightforward. For example, Unah offers consistent and persuasive evidence that "case specific legal or factual attributes constitute the core determinants of specialized trial court decisions" (p. 151). Conversely, he finds little or no effect of judge-specific effects, including political party affiliation, on their decisions in the Court of International Trade, and only moderate such effects in the Federal Circuit. His conclusions thus reinforce those of earlier scholars, who find that the influence of legal factors is more pronounced, and the role of political ideology and other "political" factors more attenuated, among judges on lower courts than among their appellate court brethren.

As suggested by the subtitle, however, the more central theme of the book turns on the interplay of courts, particularly specialized courts, and agencies in shaping bureaucratic practices on subjects of a highly technical nature. In this light, and over and above its intrinsic importance, trade policy serves as a critical case study for the ability of expert courts to influence public policy.

Unah's verdict on this question is an unequivocally positive one, and at many points the book resembles a sustained argument for the creation and use of specialized courts. He contends that such courts, by virtue of their superior subject-matter expertise, are able to make decisions which are more informed, more correct, and with greater efficiency than their generalist analogues. This promotes stability and consistency in the law, reduces workload strains on courts of general jurisdiction, and engenders diffuse support for the institution in question, the last of which, in turn, facilitates implementation of its decisions. Moreover, because their grasp of the subject matter is equal if not superior to that of the agency litigants, judges on specialized courts will (and should) exhibit less deference to agency decisions than generalist judges; this is also normatively to be desired, since bureaucratic discretion requires active judicial review to keep agencies in line. In a nutshell, judicial specialization and expertise are complementary, mutually reinforcing characteristics of specialized courts that enhance their ability to act as a check on potential bureaucratic capriciousness. It is a position that, as Unah notes, has both strong supporters and severe critics.

The evidence which Unah brings to bear on this thesis is, however, significantly less expansive than the claims themselves. He shows that the Court of International Trade, for example, is less likely to exhibit deference (i.e., uphold an agency decision) than either the U.S. Supreme Court or the federal district courts, though he finds no such result for the "semispecialized" Federal Circuit. Beyond these summary results, we are left with little support for the notion that specialized courts are inherently superior to generalist ones in reviewing administrative decisions. We do not know, for example, if decisions by specialized courts are implemented more readily, or appealed less frequently, than those decided by general jurisdiction courts. Nor is it clear that the law is substantially more stable or consistent through its treatment by expert judges.

So, too, the author's treatment of the question of deference is itself troubling. The period under study, 1980-1990, offers both a challenge and an opportunity, neither of which is fully addressed or exploited. The challenge arises from the fact, recognized by the author, that both the agencies under scrutiny and the courts themselves were thoroughly dominated by Reagan-Bush appointees, making separation of deference and simple policy congruence difficult and generalizability of the findings limited. The opportunity takes the form of a natural experiment: the Supreme Court's 1984 decision in CHEVRON U.S.A. INC. V. NRDC, which placed an imprimatur on judicial deference to agency discretion and occurred at roughly the halfway point of the study. If specialization does in fact enter into the issue of deference, we might expect variability between expert and generalist judges in the influence of CHEVRON on their propensity to defer. Yet despite the decision's manifest importance, no differential treatment of pre- and post- CHEVRON cases is offered.

All of this is not to say that I don't find Unah's argument regarding specialization somewhat persuasive in the abstract. Rather, it is the case that individuals looking for conclusive evidence in favor of judicial specialization will have to look elsewhere. Similarly, it is often true that the most useful works provoke more questions than they answer. This first empirical look at the courts of international trade certainly fits that description, and does so across a range of disciplinary subfields.

CHEVRON, U.S.A. INC. V. NATIONAL RESOURCES COUNCIL 467 U.S. 837 (1984).

Posner, Richard A. 1985. THE FEDERAL COURTS: CRISIS AND REFORM. Cambridge: Harvard University Press.

Copyright 1995