Due Process and En Banc Decision Making

22 Pages Posted: 24 Sep 2005

See all articles by Michael Solimine

Michael Solimine

University of Cincinnati - College of Law


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 Classification: K40, K49

Suggested Citation

Solimine, Michael, Due Process and En Banc Decision Making. Arizona Law Review, Vol. 48, 2005; U of Cincinnati Public Law Research Paper No. 05-21. Available at SSRN: https://ssrn.com/abstract=809464

Michael Solimine (Contact Author)

University of Cincinnati - College of Law ( email )

P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0102 (Phone)
513-556-1236 (Fax)

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