Randy Kozel on the Law of En Banc Review

A welcome paper analyzing the practice of en banc review on the federal circuit courts.

When should circuit courts grant en banc review to panel decisions? Is it enough that a majority of judges on the court think that a given three-judge panel was wrong? Or are there some panel decisions that are "wrong, but not en-banc-worthy"? And to what extent should en banc review be used to resolve circuit splits?

Notre Dame law professor Randy Kozel has a new paper examining enbanc review. The paper, "Going En Banc" is forthcoming in the Florida Law Review (and is now available on SSRN). As described in the abstract, the article "examines the law of en banc review in the federal courts of appeals" and "explores key doctrinal questions and advances a theory that maintains the primacy of three-judge panels by focusing the en banc process on a specialized set of institutional tasks."

Like some judges, the Professor Kozel concludes that en banc review should reflect something more than a concern that a panel erred. Here is his conclusion:

En banc courts are vast in power but limited in purview. The argument for en banc review is strongest in the face of a conflict between courts. Absent a conflict, judges should be reluctant to go en banc based on disapproval of a panel's conclusion. Disagreement alone isn't enough to rev up the engine of en banc review, for the en banc tribunal is something other than a "hybrid intermediate court." Off-panel judges should invoke the en banc process sparingly, and only after careful consideration of the economic, relational, and structural consequences. It is the rare case that warrants en banc review, and the rarest of the rare that does so in the absence of a conflict among courts.

For those interested in the work of federal appellate courts, this article is definitely worth a read.