When should circuit courts grant en banc review of committee decisions? Is it enough for a majority of the court’s judges to think that a given panel of three judges was wrong? Or are there committee decisions that are “wrong, but not worthy of a bench”? And to what extent should en banc review be used to resolve circuit divisions?
Randy Kozel, a law professor at Notre Dame, has published a new article examining the enbanc review. The paper, “Go to bench” is coming in the Florida Law Review (and it’s now available on SSRN). As described in the abstract, the article “examines the law of en banc review in federal courts of appeals” and “explores key doctrinal issues and advances a theory that maintains the primacy of three-judge panels by focusing the process en banc on a specialized set of institutional tasks.
Like some judges, Professor Kozel concludes that en banc review should reflect something more than a concern that a panel made a mistake. Here is his conclusion:
En banc courts have considerable power but limited scope. The argument for en banc review is strongest when faced with conflict between courts. Absent a conflict, judges should be reluctant to depart en banc based on disapproval of a panel’s finding. Disagreement alone is not enough to rev the engine of en banc review, because the en banc court is anything 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. This is the rare case that warrants en banc review, and the rarest of the rare cases that does so in the absence of conflict between the courts.
For those interested in the work of federal appeals courts, this article is definitely worth reading.