A few months after his inauguration, U.S. President Barack Obama presented an outline for his new policy of handling foreign terrorism suspects held by the United States at the Guantánamo Bay Naval Base in Cuba. One of the provisions of the new policy held that the military commissions system - established by executive order shortly after the attacks of September 11, 2001, subsequently shut down by the Supreme Court in 2006, and shortly thereafter reconstituted by congressional act - would remain in existence and retain the power to try at least some of those suspects. Although originally conceived as an emergency measure for wartime exigency, the tribunals have become an institutional reality that seems bound to persist, at least as long as terrorism as we know it remains a threat to the United States.

A few years earlier, in 2005, a very different, yet not unrelated, episode played out in the Canadian province of Ontario. The politics of recognition, multicultural accommodation, and law led the province to amend its arbitration statute to the effect that family matters would no longer be subject to enforceable arbitration by religious tribunals. The new law was the culmination of a vigorous controversy over the legitimacy of a Muslim institution's call for Muslim Canadians to resolve their family disputes before a Sharia tribunal, whose decrees would be enforceable under local arbitration law. In that case, an existing practice of adjudication, which was recognized by the government as a form of alternative dispute resolution (ADR), was terminated.

What is common to these two episodes - apart from the post-9/11 culture wars that they reflected and reinforced - is the similar kind of challenge they seem to pose for traditional conceptions of adjudication and of the institution of "courts" in a liberal democracy. Both cases seemed to introduce - with different outcomes, to be sure - a threat to the liberal model of judicial power that is focused on the generalist, independent court as the locus of the protection and promotion of constitutional democracy. Military and religious establishments, two social institutions that do not inherently share the liberal premises of the democratic state, were thought to have attempted to defy the institutional guardian of those premises by assuming to run courts of their own.

In this Article, I propose that these two episodes are as not as extraordinary as they initially seem. I suggest viewing them as part of a broad, ongoing, and pervasive institutional trend of proliferation of court forums, which I term "court specialization." This trend is evident in the multiple forums of adjudication currently available for dispensation of judicial power: general-jurisdiction courts, limited-jurisdiction (professionally specialized) courts, administrative tribunals, ADR mechanisms, and international forums. The issue of court specialization has been occupying scholars for years, and an analysis that draws upon this body of work can be useful for recontextualizing the controversies over military commissions and religious tribunals, as well as other moves for jurisdictional individuation.

Most treatments of the issue of court specialization so far have focused either on matters of systemic institutional efficiency or on individual justifications for the creation of limited-jurisdiction courts and tribunals in specific fields; these justifications could emanate, inter alia, from specific market needs, political power of interest groups, or the agency of local or parochial activists. In contrast to these previous bodies of discourse, I attempt here to offer an assessment of the vices and virtues of court specialization from the perspective of the liberal democracy, with an eye to the overall design of the judicial system. In other words, I try to track the effects of specialization as a general institutional trend: What do we see when we examine the entire system from a comprehensive point of view? I argue that the reality of court specialization, while indeed subject to some trenchant criticisms, has a potential for promoting several significant democratic values, namely democratic deliberation, political pluralism, access to courts, transparency in the dispensation of judicial power, and more accurate judicial results in the aggregate. What the analysis reveals are a general wariness of overly concentrated judicial branches, on the one hand, and a striving for optimization of the democratic virtues of court specialization through carefully tailored diffusion of power, on the other.

Once we recognize that court specialization has already become a core characteristic of modern judicial systems, and if we accept that this trend can in fact produce beneficial effects supportive of democratic legitimacy, we can reassess controversies such as those concerning the military commissions in the United States and the religious tribunals in Canada. Such reassessment yields some counterintuitive normative implications regarding those seemingly outlier cases. Instead of constituting singular deviations from an otherwise coherent and homogenous judiciary, these episodes appear as recent instances in an already prevalent institutional reality of court diffusion, multiplicity, and competition. Set against this institutional background, political and distributive tradeoffs can be elucidated, many of which have been largely overlooked in the partisan debates over military commissions and religious tribunals. It turns out that, while these entities do challenge liberal democracy, they may also serve to promote some of its values.

Analytically, the recognition that specialization is both a persistent and a defensible institutional trend entails a shift in the focus of the institutional discourse: Rather than merely questioning (or supporting) the creation and design of one court forum or another, we should devise mechanisms for interaction and mutual influence among the various court forums within our system. In the latter part of the Article, I engage in such an exercise by proposing two mechanisms that would enhance interaction across jurisdictions. These mechanisms are shown to have the potential for enhancing the democratic benefits of court specialization, while also limiting some of the possible downsides of a diffuse judiciary.

Part I briefly tells the stories of military commissions in the U.S. and Sharia tribunals in Canada. Part II brings the two narratives together as comparable episodes that suggest the larger institutional stakes involved in the trend of court specialization. Part III delineates the central critiques leveled against court specialization from the rule-of-law paradigm. Part IV, which is the normative core of the Article, attempts a defense of the systemic trend of court specialization by pointing to its possible benefits for democracy. Part V returns to the cases of military and religious adjudication and reevaluates these stories, looking at them as thought-provoking instances of specialization. Part VI then offers some initial thoughts on the kinds of institutional innovations we ought consider if we are seeking to optimize the democratic virtues of court specialization. A conclusion follows.