En Bancs in the U.S. Courts of Appeals

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This project constructs and analyzes a data set consisting of selected case characteristics and outcomes for approximately 3600 en banc decisions by the U.S. Courts of Appeals between 1937 and 2008. As the courts of last resort for most litigants in the federal system, the U.S. Courts of Appeals generally conduct their work by sitting in rotating three-judge panels. For a small, but important, set of cases, judges will decide to re-hear the case and potentially sit en banc. For most circuits, en banc consideration involves the full complement of judges appointed to the appeals court. In one court (the Ninth Circuit), en banc cases are heard before fourteen randomly selected judges and the Chief Judge of the circuit. The en banc procedure involves the commitment of considerable time and resources on the part of the Courts of Appeals but little is known about the purposes for which the procedure is employed or the effects of this institutional design on the decision making of the judges of the Courts of Appeals. The analysis of these data will provide a systematic and comprehensive description of the uses of the en banc procedure. While federal rules indicate that the procedure is to be employed for consideration of cases involving significant questions and to resolve intra-circuit conflicts, it is unknown how frequently it has been used for these purposes as opposed to simply auditing the policy outcomes of three-judge panels. By combining the en banc data with extant data sets of decisions by the same judges in three-judge panels, the project also presents a rare opportunity to examine the effect of institutional context on decision making.