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Why Sit En Banc?

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Abstract:

When U.S. courts of appeals grant rehearing en banc, they do not provide reasons for doing so. Yet it is clear that the most likely reason is that the judges believe the three-judge panel deciding the case had erred, the converse being not seeking en banc rehearing because of agreement with the panel’s result. As published dissents from denial of en banc rehearing show, disagreements over issues of rights often serve as a trigger for activity directed toward en banc rehearing, although en banc cases cover a wide range of topics, including technical matters of procedure apart from the substance of the law.
Believing the panel has erred is only one reason en banc rehearing is sought, as judges do not seek rehearing each time they disagree with a panel. They may not “have much passion in the matter” or may believe the panel opinion is not of sufficient importance to warrant an en banc rehearing. Institutional concerns may also weigh against en bancs, which require significant judicial resources and disrupt judges’ other on-going work.
The formal bases for taking a case en banc include the three desiderata of FRAP Rule 35 –conflict with circuit precedent (intra-circuit conflict), conflict with Supreme Court rulings, and presence of an issue of “exceptional importance”– and the court’s Rules and General Orders, along with other considerations the judges introduce, such as the possibility that the panel has created an inter-circuit conflict and whether a case should be allowed to proceed directly to the Supreme Court. It is, however, unclear to what extent these open-textured elements, which provide considerable discretion, channel the decision to rehear a case en banc.
The proposed paper will be an examination of the reasons judges offer to each other after a three-judge panel has filed its decision, as they seek to have a case taken en banc or argue against such rehearing. The reasons are found in case files in the papers of Judge Alfred T. Goodwin of the U.S. Court of Appeals for the Ninth Circuit. As the court’s en banc coordinator for almost twenty years –from the early 1970s through 1993– Judge Goodwin was at the communications node for post-panel activity, which he monitored and directed, so almost all communication flowed to and through him.

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Association:
Name: The Law and Society Association
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http://www.lawandsociety.org


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URL: http://citation.allacademic.com/meta/p494834_index.html
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MLA Citation:

Wasby, Stephen. "Why Sit En Banc?" Paper presented at the annual meeting of the The Law and Society Association, Westin St. Francis Hotel, San Francisco, CA, May 30, 2011 <Not Available>. 2014-01-10 <http://citation.allacademic.com/meta/p494834_index.html>

APA Citation:

Wasby, S. L. , 2011-05-30 "Why Sit En Banc?" Paper presented at the annual meeting of the The Law and Society Association, Westin St. Francis Hotel, San Francisco, CA Online <PDF>. 2014-01-10 from http://citation.allacademic.com/meta/p494834_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: When U.S. courts of appeals grant rehearing en banc, they do not provide reasons for doing so. Yet it is clear that the most likely reason is that the judges believe the three-judge panel deciding the case had erred, the converse being not seeking en banc rehearing because of agreement with the panel’s result. As published dissents from denial of en banc rehearing show, disagreements over issues of rights often serve as a trigger for activity directed toward en banc rehearing, although en banc cases cover a wide range of topics, including technical matters of procedure apart from the substance of the law.
Believing the panel has erred is only one reason en banc rehearing is sought, as judges do not seek rehearing each time they disagree with a panel. They may not “have much passion in the matter” or may believe the panel opinion is not of sufficient importance to warrant an en banc rehearing. Institutional concerns may also weigh against en bancs, which require significant judicial resources and disrupt judges’ other on-going work.
The formal bases for taking a case en banc include the three desiderata of FRAP Rule 35 –conflict with circuit precedent (intra-circuit conflict), conflict with Supreme Court rulings, and presence of an issue of “exceptional importance”– and the court’s Rules and General Orders, along with other considerations the judges introduce, such as the possibility that the panel has created an inter-circuit conflict and whether a case should be allowed to proceed directly to the Supreme Court. It is, however, unclear to what extent these open-textured elements, which provide considerable discretion, channel the decision to rehear a case en banc.
The proposed paper will be an examination of the reasons judges offer to each other after a three-judge panel has filed its decision, as they seek to have a case taken en banc or argue against such rehearing. The reasons are found in case files in the papers of Judge Alfred T. Goodwin of the U.S. Court of Appeals for the Ninth Circuit. As the court’s en banc coordinator for almost twenty years –from the early 1970s through 1993– Judge Goodwin was at the communications node for post-panel activity, which he monitored and directed, so almost all communication flowed to and through him.

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