En Banc Revisited

Abstract

Legal commentators have proposed a variety of solutions to the perceived problems of the U.S. courts of appeals, from splitting large circuits to assuring partisan balance in panel decisions. They have always assumed, however, that judges a particular appellate court should have sole responsibility for creating the law of that circuit, except when caseload pressures make it necessary to borrow visiting judges. In this Essay, Professor Abramowicz proposes using visiting judges in a more important role: en banc decision-making. Under this proposal, en banc decisions for one circuit would be made entirely by courts of appeals judges randomly selected from other circuits. In addition to increasing the likelihood that any given decision is more likely to be that which a majority of all courts of appeals judges would make, visiting en banc panels would allow for optimization of the number of judges participating in en banc and for generalist review of specialized courts. After assessing these benefits and some possible costs of the proposal, Professor Abramowicz advances a more general case for majoritarian judicial decisionmaking.