Due Process and En Banc Decision Making

Abstract:     
Several en banc decisions from the Ninth Circuit, and other circuits, raise issues regarding the institutional processes by which the circuits rehear panel decisions en banc, and whether and to what extent these processes should be more transparent. This article critically examines these issues, on which judges have taken a variety of divergent positions. First is whether the vote tallies of the circuit on motions to rehear panel decisions should be made public. Second is when, if ever, judges should publish opinions concurring in or dissenting from the denial of rehearing en banc, as well as the appropriate content of those opinions. The third issue is whether the likelihood of Supreme Court review of a case should influence a circuit in deciding to rehear a panel decision en banc. Several Ninth Circuit cases will serve as the focal point, though not the exclusive one, of the discussion of these issues.

Keywords: En Banc, Institutional Processes, Circuit Decisions

JEL Classifications: K40, K49

Accepted Paper Series