Professor Randy Kozel's Going En Banc offers a careful and persuasive defense of the principle that, in the federal courts of appeals, three-judge panels speak with the institutional voice of the court. En banc rehearing, he argues, should be a true exception—used sparingly, not reflexively. He is right. A panel's decision is not a tentative draft; it is the law unless and until the en banc court or Supreme Court says otherwise.
LINKS
Read “The Precedential Effect of Dissent: A Response to Going En Banc,” authored by Jeffrey A. Katz, published by the Florida Law Review Forum.