Getting It Right: Panel Error and the En Banc Process in the Ninth Circuit Court of Appeals

Abstract:     
"Why are judges [who are] so good making so many errors?"

That question, posed at a hearing of the Senate Judiciary Committee in July 1999, nicely captures one of the principal arguments made in the Final Report of the Commission on Structural Alternatives for the Federal Courts of Appeals. The Commission, chaired by retired Supreme Court Justice Byron White, recommended that Congress divide the existing Ninth Circuit Court of Appeals into three "adjudicative divisions," each of which would operate almost as an independent appellate court. Restructuring is necessary, the Commission said, because "the law-declaring function of appellate courts requires groups of judges smaller than the present Ninth Circuit Court of Appeals.” That conclusion, in turn, rested on the Commission's view that "a smaller decisional unit can more effectively maintain the coherence and correctness of the law of that unit.

The reference to "coherence" in the Commission's rationale came as no surprise. Critics of the Ninth Circuit have long argued that a large court of appeals inevitably has difficulty maintaining consistency in its decisional law; in embracing that view, the Commission ploughed familiar ground. What is new is the emphasis on "correctness."

If the evidence establishes that the Ninth Circuit Court of Appeals is handicapped in maintaining the "correctness" of its decisional law by reason of its size, that would be a strong argument in favor of restructuring. It is therefore important to test the validity of the proposition. That is the task undertaken by this article. The article is in four parts. Part I provides background on the Commission proposal and identifies two possible standards for testing the "correctness" of a court of appeals panel decision. Part II posits that correctness is measured by the views of the United States Supreme Court. It examines the Ninth Circuit's record of reversals in the Supreme Court to determine whether that record points to systematic failings in the way the Ninth Circuit Court of Appeals carries out its business. Part III considers "correctness" from the perspective of majority rule within the circuit. It focuses on the Ninth Circuit's unique mechanism for rectifying aberrant panel decisions: the "limited en banc court." The article concludes with brief observations on the future of the Ninth Circuit and the three legislative proposals introduced in the 106th Congress.

Number of Pages in PDF File: 45

Keywords: federal court of appeals, ninth circuit court of appeals, structural alternatives, panel errors, erroneous panel decisions, en banc process, adjudicative units, restructuring, correctness, limitations

JEL Classification: K39, K49

Accepted Paper Series