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Ricci v. DeStefano

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DENNIS JACOBS, Chief Judge, dissenting from the denial of rehearing in banc:

Along with almost half of the members of this Court, I join Judge Cabranes’s dissent, which does the heavy lifting on the procedural merits of in banc review. I write separately to answer respectfully the concurring opinions of Judge Calabresi and Judge Katzmann.*fn1

Judge Katzmann and those of my colleagues who signed his opinion “recognize” that this case “presents difficult issues,” but would leave further review and consideration to the Supreme Court, citing a Circuit “tradition” of deference to panel adjudication. In effect, this has become a Circuit tradition of hearing virtually no cases in banc.

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