Informal en banc review is a procedural expedient that nine of the the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to overrule prior panel precdent in contravention of the law of the circuit rule, as well as to take other actions normally reserved for the full court sitting en banc. The circuits taht use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal in banc review is significant when compared with formal en banc review. Informal en banc review is a stealth procedure that is virtually beyond review because the federal appellate courts both authorize and implement it on their own. The procedure is difficult to track because the action triggering informal en banc review is often buried in footnotes. Informal en banc review is more efficient than formal en banc review but the efficiency benefits come at a price. Informal en banc review is used arbitrarily. Courts should not hide changes to the law in footnotes because their actuons should be transparent, and using footnoes to change the law makes legal research difficult. The procedure appears to be used disproportionately in criminal cases, and in all cases in which it is used, it deprives the parties of the opportunity to participate in the decisional process. The procedure can also damage judicial collegiality by depreving minority-view judges of opportunities to present their views. Informal en banc opinions inject unertainty into the sytem of precedent because their precedendtial status is unclear. Further, informal en bacn review can result in poor decision making when changes to the law are based on incomplete information. This Article explores inform en banc review in depth. It traces the history and use of informal en banc review by detailing the circumstances under which the procedure is used. It then analyzes the advantages and disadvantages of informal en banc review and proposes procedures to ensure that informal en banc review is used only on legitimate terms.
Amy E. Sloan,
The Dog that Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeal,
78 Fordham L. Rev. 713
Available at: http://ir.lawnet.fordham.edu/flr/vol78/iss2/10