When should circuit courts grant en banc review of panel decisions? Is it enough for a majority of the justices on the court to think that a given three-judge panel was wrong? Or are there some panel decisions that are “wrong, but not bank-worthy”? And to what extent should en banc review be used to resolve circuit splits?
Notre Dame law professor Randy Kozel has a new article examining the auditing of banks. The “Going En Banc” document is forthcoming in Review of Florida law (and is now available on SSRN). As described in the abstract, the article “examines the law of en banc review in federal appellate courts” and “explores key doctrinal issues and advances a theory that maintains the primacy of three-judge panels by focusing the en banc trial on a specialized set of institutional tasks.”
Like some justices, Professor Kozel concludes that en banc review should reflect more than just concern that a committee made a mistake. Here is his conclusion:
En banc courts have vast power but limited reach. The argument for en banc review is strongest when faced with a conflict between courts. In the absence of conflict, judges should be reluctant to bankrupt themselves based on disapproval of a panel’s conclusion. Disagreement alone is not enough to rev the engine of en banc review, because the en banc court is something other than a “hybrid intermediate court.” Judges outside the panel 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 merits en banc review, and the rarest of the rare that does so absent a conflict between the courts.
For those interested in the work of federal appellate courts, this article is definitely worth a read.