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The Dog that Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals


Amy E. Sloan


University of Baltimore - School of Law

November 10, 2009

Fordham Law Review, Vol. 78, 2009
University of Baltimore School of Law Legal Studies Research Paper No. 2010-01

Abstract:     
Informal en banc review is a procedural expedient that nine of the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to take actions normally reserved for the full court sitting en banc. The circuits that use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal en banc review is significant when compared with formal en banc review. Informal en banc review is more efficient than formal en banc review, but the efficiency benefits come at a price. Informal en banc review is used arbitrarily. Courts often hide informal en banc actions in footnotes, which diminishes the transparency of their actions and makes research difficult. Informal en banc review appears to be used disproportionately in criminal cases, and in all cases in which it is used, it deprives the parties of the opportunity to participate in the decisional process because it is an internal court procedure that panels invoke sua sponte. The procedure can also damage judicial collegiality by depriving minority-view judges of opportunities to present their views. Informal en banc opinions inject uncertainty into the system of precedent because their precedential status is unclear. Further, informal en banc review can result in poor decision making when changes to the law are based on incomplete information. This Article explores informal en banc review in depth, tracing its history and use. It then analyzes the advantages and disadvantages of informal en banc review and proposes procedures to ensure that it is used only on legitimate terms.

Number of Pages in PDF File: 80

Keywords: informal en banc review, appeal, appellate, en banc, criminal appeals, courts of appeal, legal research, judicial opinions, judicial transparency, precedent

JEL Classification: K00, K1, K4, K41

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Date posted: November 14, 2009 ; Last revised: March 2, 2010

Suggested Citation

Sloan, Amy E., The Dog that Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals (November 10, 2009). Fordham Law Review, Vol. 78, 2009; University of Baltimore School of Law Legal Studies Research Paper No. 2010-01. Available at SSRN: http://ssrn.com/abstract=1503585

Contact Information

Amy E. Sloan (Contact Author)
University of Baltimore - School of Law ( email )
1420 N. Charles Street
Baltimore, MD 21201
United States
410-837-6529 (Phone)
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