The Dynamics and Determinants of the Decision to Grant En Banc Review

Abstract

The ability of U.S. Courts of Appeals to control the development of law within their respective circuits has been strained by the practice of divisional sittings, the growing caseload at the circuit court level, the increasing number of judges sitting within each circuit, and the decreasing probability of Supreme Court intervention. The primary method of maintaining coherence and consistency in doctrinal development within a federal circuit is en banc review. Yet, many critics contend that en banc rehearing is a time-consuming, inefficient procedure that fails to serve its intended purpose and too often is abused for political ends. This Article attempts to address these normative arguments over the legitimacy of the en banc process by determining the positive causes of the decision. The article proposes a hybrid model of the decision to grant en banc review, derived from the legal, attitudinal, and hierarchical theories of judicial behavior, and tests it empirically against nearly 1000 cases from three circuits. The model accurately predicts the decision to grant en banc review in nearly ninety percent of the cases. This article concludes that three factors-reversal of a lower court or agency ruling, filing of a dissent, and a liberal panel ruling-largely account for which panel decisions will be reheard en banc.