The U.S. Court of Appeals is the court of last resort for almost all federal litigants. Within the Courts of Appeal, all litigants are entitled to review by a three-judge panel. Some litigants petition for and receive a review by the entire circuit, which is called en banc review. The Federal Rules provide that en banc review is appropriate when the panel decision created or continued an intracircuit conflict or the case involves a matter of “exceptional importance.”
But the path of en banc review is not always so linear or clear cut. In some instances, appellate panels may circulate opinions before publication to the entire circuit for approval—effectively engaging in an informal en banc proceeding.
Dr. Susan Smelcer and her coauthors Dr. Micheal Giles of Emory University and Dr. Bethany Blackstone of James Madison University, are currently investigating this mode of decision through the quantitative analysis of judicial opinions implementing this procedure. Unlike formal en banc review, this informal procedure is neither explicitly authorized by the Federal Rules nor obvious to the parties involved or the public at large. The authors seek to understand both the conditions under which this relatively unknown mechanism is used and its precedential effect moving forward. They will present a preliminary draft of their paper at the Midwest Political Science Association’s Annual Meeting in April 2023.