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

Date01 May 2020
Published date01 May 2020
Subject MatterArticles
American Politics Research
2020, Vol. 48(3) 391 –401
© The Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/1532673X19844788
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
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
1University of Colorado Boulder, Boulder, CO, USA
Corresponding Author:
Joshua A. Strayhorn, Assistant Professor, University of Colorado Boulder,
333 UCB, Boulder, CO 80309, USA.
Strategic Anticipation and En Banc
Oversight Procedures in the
U.S. Courts of Appeals
Joshua A. Strayhorn1
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.
judicial politics, U.S. Courts of Appeals, en banc, oversight

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