The en banc process is complex and perhaps mysterious. Through this process, a majority of judges on a federal court of appeals can vote to rehear a case that its own three-judge panel already decided; thus, rehearing a case en banc allows the court to issue a superseding decision with highly precedential effect. In theory, en banc rehearing allows all of the court’s judges to determine circuit law, rather than just three judges. In the Ninth Circuit, specifically, multiple events must occur before the court will rehear a case en banc. Many of these events are complicated and private, despite the fact that the process is of vital importance to our legal system.
This article discusses three aspects of the en banc process that are worthy of concern. First, internal procedural requirements may overwhelm the underlying rights of the parties. Second, intracircuit politics may cloud a judge’s decision whether to vote to rehear a case en banc. Third, the results of en banc voting are private, leaving it one of the least transparent processes in the legal system. While these concerns are worth noting, they are less problematic than they seem at first glance. As long as circuit judges are responsible with the significant power they hold, some things may be better left mysterious.
- En Banc,
- Court of Appeals,
- Ninth Circuit,
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