Part I of this Note is an empirical survey of the history of the en banc practice in the Second Circuit. First is an explanation of the en banc process and an examination of the hearings en banc that did take place and their outcomes in the Supreme Court. Second is a discussion of the mini en banc, which is the practice of circulating opinions that serves as an abbreviated substitute for full en banc hearings. Third is an examination of the myriad opinions that have been inspired by the denials of rehearing en banc, with special attention to the circumstances surrounding the individual opinions and the tendencies of individual judges, past and present.
Part II of this Note analyzes the underlying decision-making processes judges employ when deciding whether to author opinions related to the denial of rehearing en banc. It begins by discussing the various elements of the judicial economy function focusing specifically on court of appeals judges. Next is an explanation of the various audiences for judicial opinions. Third is an examination of the dissent in the context of the judicial economy function. This Part concludes with an analysis of the signaling function and the “case or controversy” constitutionality concern that it raises.
Part III of this Note argues that the opinions related to denial of rehearing en banc are counterproductive because of their limited value and considerable cost in terms of time. Several methods that may preserve the benefits of a limited en banc tradition without needlessly hindering the prerogatives of the dissenting judges are explored. First is a proposal to shift to a system that approximates the Supreme Court’s “Rule of Four,” requiring less than a majority of judges to institute an en banc rehearing. The second proposal is a system where a precedential en banc rehearing could be conducted based on the original briefs, limiting the time and expense required to obtain an opinion of the full court. This Part concludes with a proposal providing that if the en banc vote is unsuccessful, any decision reaching the underlying merits should be barred from publication in the Federal Reporter, with publication of only the vote tally.
Cardozo Law Review de·novo
Lucero, Mario, "The Second Circuit’s En Banc Crisis" (2013). Cardozo Law Review de•novo. 4.