Much has been written about the Second Circuit’s “tradition of hearing virtually no cases in banc.”1 The tradition extends back to Learned Hand, who “strongly disapproved” of en banc rehearings and “never voted to convene a court en banc.”2 As a result, the Second Circuit did not hear its first case en banc until 1956 (eight years after Congress codified a 1941 Supreme Court ruling allowing for the practice, and five years after Judge Hand stepped down as chief judge),3 and its chief judges have repeatedly defended this time-honored tradition.4 Not surprisingly, then, the Second Circuit consistently “hears the fewest cases en banc of any circuit by a substantial margin, both in absolute terms and when considering the relative size of [its] docket.”5
Although we question the justifications for continuing this long-standing tradition—especially in those cases where en banc consideration is important to maintain uniformity of panel decisions or the proceeding involves issues of exceptional importance—this column is limited to (1) examining the “mini-en banc” process that the Second Circuit sometimes uses to avert the need for en banc rehearing, and (2) inquiring whether that process could use improvement (as some commentators have suggested).6
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