Abstract

The vast majority of decisions of the United States Courts of Appeals are rendered by three-judge panels. Only a few are decided by all of the circuit judges sitting en banc. Since 2000, the courts of appeals have been deciding about 27,000 cases on the merits each year. In the same period, on average only about seventy-five cases have been decided en banc each year. The paucity of en banc cases belies their significance and the time and attention that are devoted to the decision of whether to have the entire circuit review a panel decision in the first place. According to Federal Rule of Appellate Procedure 35, en banc decisions "are not favored" and are supposed to be limited to establishing uniformity in a circuit or to deciding questions "of exceptional importance." En banc decisions typically get more attention in the legal community and are more likely to be reviewed by the U.S. Supreme Court than are rulings by three-judge panels. And while some judges contend that they dislike reviewing litigant petitions for rehearing of panel decisions, many of them nonetheless apparently pay close attention to such petitions, and it is common for judges to issue published opinions concurring in or dissenting from a decision of the full circuit not to review a case en banc.

This Article will explore various facets of the decision to review a case en banc. Specifically, Part I addresses whether the votes of the entire circuit on whether to en banc a case should be kept confidential. Part II addresses the related issue of whether judges should publish opinions concurring in or dissenting from the denial of rehearing en banc and, if so, what the content of such opinions should be. Finally, Part III addresses the criteria circuit judges should consider in deciding whether to rehear a case en banc and whether the likelihood of Supreme Court review thereafter should play a role in the decision to rehear.

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