Redefining En Banc Review in the Federal Courts of Appeals

Every circuit has the ability to review cases en banc. Hearing cases en banc allows the full circuit court to overturn a decision reached by a three–judge panel. Due to the decreasing probability of U.S. Supreme Court intervention, the circuit court is often the court of last resort in the ordinary life of a case, thereby amplifying the importance of en banc review. Despite its significance, many critics contend that en banc review is inefficient and rarely granted. Each circuit has enacted its own rules governing en banc procedure. These rules have both slight and significant differences from one another and from Federal Rule of Appellate Procedure 35, which governs all of the circuits’ en banc review procedures. Because of the lack of uniformity across the circuits, the proper application of Rule 35 is unclear. This Note proposes to change the current en banc landscape by altering the method in which a court will make the decision to sit en banc. This Note suggests that petitions for en banc review should only be raised by judges sua sponte, and the decision of whether to sit en banc should be affirmatively voted on by a lower number of active–duty judges than is now required under the simple majority rule