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Thursday, July 30, 2020

What If There Were No En Bancs?

I was rereading Gerald Gunther's biography of Learned Hand. Hand was famous for his disdain of en banc sittings, which lives on in the practice of the Second Circuit to call relatively few en bancs. One basic question this raises is whether en bancs serve any useful purpose. What would the world look like if there were none called or permitted?

One answer, of course, is that the Supreme Court would have to hear more cases. En banc hearings sometimes clean up bad mistakes by panels or resolve circuit splits. The Justices would have to do more of that. Litigation would (in some instances) also proceed faster, as one potential state of review would be eliminated.

Would panels "go rogue" more often without the threat of en banc review? Maybe, but for each panel that goes one way another panel could go a different way. That possibility may deter rogue actions. Panels might also take a narrower view of precedent if they concluded that there was no option of en banc review and no implicit validation of the precedent from the lack of en banc review. 


Posted by Gerard Magliocca on July 30, 2020 at 09:08 PM | Permalink


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Posted by: cottonsampson | Aug 20, 2020 7:31:37 AM

Perhaps the Second Circuit in Judge Learned Hand's time didn't need en bancs because the court's judges would freely overturn prior circuit precedent with three-judge panels. See, e.g., Metallizing Engineering Co. v. Kenyon Bearing & AP Co., 153 F.2d 516 (2d. Cir. 1946) (Learned Hand, J.).

Posted by: Dmitry Karshtedt | Aug 3, 2020 1:49:15 PM

Even with en bancs, the Federal Circuit has long has a rogue panel problem, at least in patent law. So it may be a weak deterrent.

Posted by: Bruce Boyden | Aug 1, 2020 4:07:20 PM

As Orin said, I think en bancs serve at least a deterrence function. Like any good deterrent, it is working when you don't have to use it, so the fact that the 2d Cir rarely has en bancs is not proof that you wouldn't have a rouge panel problem if en bancs were not an option.

I also don't think it is much of an answer to say that a rogue panel going one way could be offset by a rogue panel going the other way. What you end up with would be a lot of volatility where litigants bring cases hoping to draw the most extreme panel in their favor. The possibility of future rogue panels also won't deter a current panel from going rogue because, without en bancs, there is no mechanism to enforce any deal on reciprocity. A conservative panel today will reason that a future liberal panel will go rogue no matter what, so it might as well go rogue today, and vice versa. The one who acts restrained in an inexorable race to the bottom is just a sucker.

Posted by: TJ | Aug 1, 2020 10:30:36 AM

The Second Circuit was smaller during Hand's time -- just 6 judges -- but also a lot looser with precedent, as I think most judges were. And the precedents were typically only a few pages long anyway.

Posted by: Bruce Boyden | Jul 31, 2020 10:07:52 PM

The 1CA is so small that en banc review often didn't matter. It came up in one case that it turned on a change of as I recall one judge.

If some court has over ten judges (just to take a number), and you have various panels of three, en banc to clean up some potential conflicts seems logical. That seems to me the basic reason to have them.

Error correction might matter in a few cases. I would wonder about numbers there. If we are talking some very small number, you can imagine some other mechanism, such as a certain number of the judges flagging it to the circuit justice. That can handle few very egregious cases, perhaps.

Posted by: Joe | Jul 31, 2020 7:26:15 PM

I don't think Congress provided for the process until revisions to the Judicial Code in 1948, although perhaps I'm overlooking something. Prior to that, several courts had internal local rules pertaining to the process, which they deemed not to be foreclosed by any statutory provision. Not sure when courts began considering issues en banc, but the 3d Circuit notes some divergence in opinion on its permissibility in 1940, but based on far earlier statutes. See CIR v. Textile Mills, 117 F.2d 62 (1940), which also notes earlier 9th Circuit cases questioning the legitimacy of en banc review. I think in the absence of any statute forbidding the process, the courts permitted it in appropriately narrow circumstances under local rules.

But yes, smaller courts should make resort to the process less necessary (the Textile Mills was a 3-2 decision). The 9th is very active for obvious reasons, but I don't know that size is a good proxy now for activity.

The 9th's procedures also demonstrate the continued discretion courts have in this area. There, the Court has a limited en banc panel of 11 judges, with the ability to petition for absolutely full court review following the limited en banc panel's decision.

Posted by: PJG | Jul 31, 2020 1:32:05 PM

Without en banc, though, how free will panels feel/be to reverse/abrogate circuit precedent they feel is "outdated" but hasn't been clearly overruled/statutorily abrogated? And I'm not talking about "no longer fashionable jurisprudence," but resistance to changed facts and doctrine (e.g., the continued resistance on "suitability" of class-action plaintiffs post-Surowitz, because it wasn't sufficiently clear to district-court judges that skeptical — often racist and antiimmigrant — circuit precedent had been overruled... as late as 2002).

Posted by: C.E. Petit | Jul 31, 2020 12:51:17 PM

In Hand's day, there were far fewer circuit judges per circuit than there are now. That made en bancs less necessary. Also, it's fair to say that circuit courts were less polarized and (probably) more alike in their thinking than they are now. Congress did not create the en banc process until around 1940, so before that circuits could not all get together formally to overrule a panel.

Posted by: Gerard | Jul 31, 2020 10:22:39 AM

I've handled a number of en banc cases, and they have almost all been circuit-focused--either premised on the need to clean up circuit law, or an issue of "exceptional importance" where you're banking on a majority of active judges disagreeing with how the panel has resolved the issue. Far fewer have been based on inter-circuit conflict (or based exclusively on such conflict).

So in my experience, it's important as a clean-up type function--precedent in a complicated area (jurisdiction in at least two of my cases) develops in an odd way based on changing fact patterns that ultimately evince tension that needs to be resolved. But I wanted to point out at least one Circuit's mechanism for easing the admitted burden of full-on en banc proceedings. The Seventh Circuit has a rule (and I believe a few others do, as well), that allows a panel to overrule prior precedent by simply circulating the draft opinion to the full court and then proceeding so long as the en banc vote fails (i.e., no judge requests a vote / insufficient votes). This can be done in any case (and so isn't limited in the way many courts' jurisprudence is by intervening changes in law that undercut the prior panel decision, i.e., the Miller v. Gammie test in the 9th). See 7th Cir. R. 40(e). This approach allows the court to clean-up its prior case law, if need be, without the hassle and cost in time that en banc proceedings would normally necessitate.

Posted by: PJG | Jul 31, 2020 10:12:04 AM

Definitely good issues or questions raised here. One should notice, that en banc rehearing, does contribute to the perfection of jurisprudence. Making it more nuanced. It has huge benefit in this regard. As good illustration, one may read Abebe v. Holder in the Ninth Circuit (The petition for en banc panel rehearing and the petition for full court rehearing en banc were denied, in a case, dealing with immigration, deportation, and equal protection right) here:


On the other hand, generating endless disputes, disagreements and splits between courts and judges, may erode, the trust in the system. For many times, theoretically and practically, complete agreement between judges, can't be achieved. But, the system, must rely finally, on finality of judgments, otherwise, simple case, may be prolonged until the end of time of course.


Posted by: El roam | Jul 31, 2020 6:31:10 AM

As you suggest, I think the primary role of en banc review is its ex ante incentive to follow circuit precedent. Without en banc review, if you don't like the circuit's precedent, you could just ignore it, and the next panel that came around could just ignore you. It would destabilize the law, making it hard to predict or rely on. Thus FRAP 35(a)(1) makes the first reason to go en banc if "en banc consideration is necessary to secure or maintain uniformity of the court's decisions." Thanks to the possibility of en banc review, if a panel makes a mess of the law, that's a reason for the whole court to review it. That's in contrast to the Supreme Court's Rule 10, which is focused on disagreement between and among courts, not within them.

Posted by: Orin Kerr | Jul 31, 2020 2:12:48 AM

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