Strategic Anticipation and En Banc Oversight Procedures in the U.S. Courts of Appeals

• Date: 01 May 2020
• Published date: 01 May 2020
• Author: Joshua A. Strayhorn
• DOI: 10.1177/1532673X19844788
• Subject Matter: Articles

https://doi.org/10.1177/1532673X19844788

American Politics Research

2020, Vol. 48(3) 391 –401

© The Author(s) 2019

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/1532673X19844788

journals.sagepub.com/home/apr

Article

How do informal institutions affect judicial behavior?

Traditional analyses of how judges make decisions have often

focused on the implications of broad-based structural fea-

tures, such as the Supreme Court’s power of discretionary

review or the hierarchical organization of the federal court

system. Increasingly, however, scholars have focused atten-

tion on institutions which are, to greater or lesser degrees, less

formalized and more bound up in to day-to-day practicalities.

Such institutions may provide considerable insight into how

judges pursue their goals on an everyday basis. Examples of

less formalized institutions whose examination has generated

interesting insights are the Rule of Four (Lax, 2003) and opin-

ion assignment on the U.S. Supreme Court (e.g., Maltzman,

Spriggs, & Wahlbeck, 2000), as well as the use of visiting

judges in the Courts of Appeals (Collins & Martinek, 2011).

In this article, I analyze the political implications of a

specific informal institution in the U.S. Courts of Appeals

that has largely gone unnoticed by political scientists

(though not by legal scholars; see Bennett & Pembroke,

1986; Sloan, 2009): the informal en banc. The informal en

banc is a procedure used by roughly half the U.S. Courts of

Appeals that allows three-judge panels to alter circuit prec-

edent with the consent of other judges on the circuit.

Ordinarily, the Courts of Appeals are bound by “law of the

circuit” doctrine, which states that panel decisions consti-

tute binding precedent for the circuit unless explicitly over-

turned by the full-circuit sitting en banc (or by the Supreme

Court). Because en banc review is cumbersome, time-

consuming, and increasingly rare, some circuits have

adopted the expedient of allowing three-judge panels to

propose alterations of precedent, which if approved by the

full court in an informal vote take precedence over earlier

case law and can overturn circuit doctrine despite the lack

of a full en banc rehearing.

Previous research on the formal en banc process has

established that it simultaneously serves important political

functions in addition to its more basic legalist functions of

altering unworkable case law and harmonizing doctrine

(George, 1999; Giles, Hettinger, Zorn, & Peppers, 2007;

Giles, Walker, & Zorn, 2006). From a political perspective,

en banc review provides an important check on the ideologi-

cal discretion of three-judge panels, allowing circuit majori-

ties to exert principal-agent control over outlier panels. The

informal en banc provides an alternative and potentially less

costly pathway by which the full circuit might exert princi-

pal-agent control over panels. Do circuits with the informal

en banc exert better ideological control over panel decision

making?

To preview the central results, the evidence presented

below suggests that the informal en banc exerts systematic

effects on the extent of ideological decision making in the

circuits—where this oversight institution is present, the

potential threat of its usage appears to impose substantial

ideological constraints on ex ante panel decision making.

844788APRXXX10.1177/1532673X19844788American Politics ResearchStrayhorn

research-article2019

1University of Colorado Boulder, Boulder, CO, USA

Corresponding Author:

Joshua A. Strayhorn, Assistant Professor, University of Colorado Boulder,

333 UCB, Boulder, CO 80309, USA.

Email: joshua.strayhorn@colorado.edu

Strategic Anticipation and En Banc

Oversight Procedures in the

U.S. Courts of Appeals

Joshua A. Strayhorn1

Abstract

The U.S. Courts of Appeals must ordinarily convene en banc to overturn circuit law. However, roughly half of the circuit

courts have adopted an alternative, less costly procedure, the informal en banc, where three-judge panels may overturn

precedent with approval of the full circuit. This article leverages variation in adoption and implementation of this institution

to analyze the implications of ex post oversight mechanisms for ex ante panel decision making. The evidence suggests that

the informal en banc substantially reduces the impact of ideology on panel decision making, providing new evidence that

lower court judges strategically alter their behavior in anticipation of potential override by circuit colleagues.

Keywords

judicial politics, U.S. Courts of Appeals, en banc, oversight