Friday, April 30, 2021
Maggie Gardner (Cornell Law School) has posted District Court En Bancs (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:
Despite the image of the solitary federal district judge, there is a long but quiet history of federal district courts deciding cases en banc. District court en bancs predate the development of en banc rehearings by the federal courts of appeals and have been used to address some of the most pressing issues before federal courts over the last one hundred years: Prohibition prosecutions, bankruptcies during the Depression, labor unrest in the 1940s, protracted desegregation cases, asbestos litigation, and the constitutionality of the U.S. Sentencing Guidelines, to name a few. This Article gathers more than 140 examples of voluntary collective adjudication by district judges. While its aim is primarily descriptive and analytical, it also offers a preliminary normative defense of the occasional use of such proceedings. Building that defense requires consideration of the district courts’ inherent authority; the advisability of ad hoc procedure; and the limits of available procedural alternatives for promoting such judicial values as economy, uniformity, and decisional legitimacy.
The story that emerges is a reminder of both the constant evolution of the federal courts and the importance of the district court’s institutional voice. The currently fragmented and micromanaged role of the district courts is neither inherent in the hierarchy of the federal courts nor necessarily desirable. The history of district court en bancs thus serves to highlight the ingenuity of the district courts and their unique and vital role in balancing governmental power both within the judiciary and
across our federal system.