Everything about En Banc totally explained
En banc,
in banc,
in banco or
in bank is a
French term used to refer to the hearing of a case by all the
judges of a
court.
Appellate courts in the
United States sometimes grant rehearing
en banc to reconsider a decision of a
panel of the court (a panel generally consisting of only three judges) where the case concerns a matter of exceptional public importance or the panel's decision appears to conflict with a prior decision of the court. In rarer instances, an appellate court will order hearing
en banc as an initial matter, instead of the panel hearing it first.
Some appellate courts, such as the
Supreme Court of the United States and the
highest courts of most
U.S. states, don't sit in panels, but hear substantially all of their cases
en banc (with the exception of cases where a judge is ill or recused).
United States Courts of Appeals
Cases in
United States Courts of Appeals are heard by a three-judge panel. A majority of the active circuit judges may decide to hear or rehear a case
en banc. Parties may suggest an
en banc hearing to the judges, but have no right to it. Federal law states
en banc proceedings are disfavored but may be ordered in order to maintain uniformity of decisions within the circuit or if the issue is exceptionally important. Each court of appeals also has particular rules regarding
en banc proceedings. Only an
en banc court or a Supreme Court decision can overrule a prior decision in that circuit; in other words, one panel can't overrule another panel.
Pub.L. No. 95-486 states that for courts with more than 15 judges, an
en banc hearing may consist of "such number of members of its en banc courts as may be prescribed by rule of the court of appeals." So far, only the
United States Court of Appeals for the Ninth Circuit, with 28 judges, utilizes that procedure, and its "en banc" court consists of 11 judges. (Theoretically, the Ninth Circuit can hear the case with all judges participating. In practice, however, such a hearing has only been asked for three times, and has been denied each time. See
Compassion in Dying v. Washington, 85 F.3d 1440 (9th Cir. 1996);
United States v. Penn, 647 F.2d 876, 889-91 (9th Cir. 1980);
Campbell v. Wood, 20 F.3d 1050, 1051, 1053 (9th Cir. 1994)).
The
United States Court of Appeals for the Fifth Circuit, with 17 judges, is eligible to adopt a similar procedure, but hasn't done so.
California linguistic preferences
California prefers to use
English versions of legal terms whenever possible. Thus, one occasionally sees the inscription "in bank" on
California Supreme Court opinions published before the court began routinely sitting
en banc on all cases. Prior to 1960, most cases were disposed of by three-justice panels.
In
French,
en banc means "in school" (as in a "school of
fish") or "in group", or "in bench" or "on bench", which seems a more appropriate translation than "in bank" given that judges sit, as a group, on the "bench."
Further Information
Get more info on 'En Banc'.
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