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Copyright (c) 2013 Yeshiva University. All Rights Reserved 
Cardozo Law Review de novo

ARTICLE: THE SECOND CIRCUIT'S EN BANC CRISIS

2013

Cardozo Law Review de novo

2013 Cardozo L. Rev. De Novo 32

Author

Mario Lucero *

Excerpt

INTRODUCTION

In federal courts, most appeals from the district courts are decided by three-judge panels, which are randomly drawn from the entire membership of the circuit. 1 However, through a procedure called "en banc," a majority of the judges on that circuit may determine that a panel's decision should be reconsidered by the full court. 2 The Federal Rules of Appellate Procedure suggest that the en banc procedure should be reserved for cases of exceptional importance. 3 The United States Court of Appeals for the Second Circuit, deeming very few cases worthy of en banc rehearing, hears the fewest cases en banc of any circuit by a substantial margin. 4 The original justification for this policy, the preservation of judicial resources, has been undermined by the frequent published opinions dissenting from--and concurring with 5 --the denial of rehearing en banc. Chief Judge of the Ninth Circuit Alex Kozinski has coined the terms "dissental" and "concurral" to refer to such opinions. 6 These opinions are often used as a signaling device intended to encourage the Supreme Court to grant certiorari, prompting one commentator to describe Kozinski's own "dissentals" as the "Bat Signal to the Supreme Court." 7

The increasing prevalence--or in the case of the Second Circuit, resurgence--of these opinions is an inefficient use of judicial resources. In every year since 2004, the Second Circuit has produced at least one opinion dissenting from the denial of rehearing en banc, including eight since 2010. 8 As the number ...
 
 
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