December 19, 2019 Articles

Breaking the Banc: Informal En Banc Review in the Seventh Circuit

A pair of recent dissents from denial of rehearing en banc have raised a debate about the scope and purpose of the Seventh Circuit's unique procedure.

By Michael Stewart

A new case always involves elements outside of an appellate advocate’s control. The record comes as it comes. Certain issues may have been forfeited or waived below. And in the federal courts of appeals, the composition of the panel can completely alter the look and outcome of a case, despite being completely beyond the control of either party. A favorably disposed set of judges, a hot or cold bench at argument, and the inclusion of a judge with particular interest in the subject matter can alter the challenge facing the advocate—and the outcome—in myriad ways.

For the small class of cases receiving en banc consideration in the courts of appeals, however, the uncertainty of court composition is largely removed. Except in the Ninth Circuit, where even en banc rehearing involves only a subset of the active judges on the court, en banc review removes the vicissitudes of the random appellate panel draw. And in all circuits, the broader array of voices and viewpoints that come to bear on a case during en banc consideration should lead to deeper engagement of the issues presented by the case and provide additional stability to the outcome within a given circuit. 

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