District Court En Bancs

March 4, 2022

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 Great 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, supplemented by interviews with sitting judges who participated in recent cases. While the Article’s aim is primarily descriptive and doctrinal, it also defends the occasional and disciplined use of such proceedings as enabling deliberation about and increasing the legitimacy of high-stakes district court decisions.

More broadly, the Article celebrates the distinct voice of the district courts and their procedural innovations. The district courts handle the vast majority of the federal judiciary’s business and bear the brunt of new legal and societal challenges; their ingenuity is often the vanguard for procedural and administrative reform. Indeed, the story of district court en bancs is also the story of the federal courts’ constant evolution. The current settlement of the federal courts’ institutional design is the product of shifting pressures and compromises, and it would be foolish to assume that the status quo is either perfect now or will continue to function effectively despite changing conditions. In a moment of renewed attention to the federal judiciary, district court en bancs may helpfully challenge our assumptions about the structure of the federal courts and the power of district judges within them.

March 2022

No. 4