Sur - Dissentig of Denial

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2006 Wis. L. Rev. 1315
(Cite as: 2006 Wis. L. Rev. 1315)
Wisconsin Law Review

2006

Article
*1315 HOW FAR DO VOICES CARRY: DISSENTS FROM DENIAL OF REHEARING EN BANC
Indraneel Sur [FNa1]
Copyright © 2006 By the Board of Regents of the University of Wisconsin
System; Indraneel Sur
Suddenly an unmistakable cat-owl from very near me, with the most harsh and tremendous voice I ever heard from
any inhabitant of the woods, responded at regular intervals to the goose, as if determined to expose and disgrace this
intruder from Hudson's Bay by exhibiting a greater compass and volume of voice in a native, and boo-hoo him out of
Concord horizon. What do you mean by alarming the citadel at this time of night consecrated to me? Do you think I am
ever caught napping at such an hour, and that I have not got lungs and a larynx as well as yourself? Boo-hoo, boo-hoo,
boo-hoo! It was one of the most thrilling discords I ever heard. And yet, if you had a discriminating ear, there were in it
the elements of a concord such as these plains never saw nor heard. [FN1]

I. Introduction ................................................... 1316
II. Rehearing Dissents in the Federal Courts of Appeals ............ 1320
A. Where Rehearing Dissents Come From ......................... 1320
B. Some Criticisms of Rehearing Dissents ...................... 1328
C. Rehearing Dissents and Dissents from Denial of Certiorari .. 1331
III. The Internal and External Functions of Rehearing Dissents ...... 1337
A. Internal Corrective ........................................ 1337
B. Self-Expression ............................................ 1342
C. External Corrective ........................................ 1346
D. "Law Laboratory" ........................................... 1357
IV. Costs of Rehearing Dissents .................................... 1359
A. Workload Costs ............................................. 1360
B. Collegiality and Coherency Costs ........................... 1361
V. Conclusion ..................................................... 1366
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

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*1316 I. Introduction
Federal appellate judges are debating some of today's most intriguing legal questions not merely in opinions that decide
cases before three-judge panels, but also in opinions dissenting from the denial of rehearing en banc of those cases.
[FN2] While some of these dissents from denial of rehearing en banc are but a few paragraphs long, others offer
extensive legal analysis, sometimes drawing responses of equal complexity from other circuit judges. [FN3] The variety
of their subject matter is virtually boundless. [FN4]
*1317 From the early days of federal en banc practice, through which all judges on an appellate court convene to decide
extraordinary cases, some judges have frowned on separate writings regarding the denial of rehearing en banc. [FN5]
Although disapproval persists in some quarters, [FN6] it has evidently evaporated in others, as dissents from denial of
rehearing en banc are now routine; even though these opinions have no formal weight as precedent, some of the most
distinguished circuit judges have written them. [FN7] Indeed, not only did Chief Justice John G. Roberts, Jr. write a
dissent from denial of rehearing en banc when he was a circuit judge, [FN8] but his description of the "hapless toad" in
that dissent became grist for debate during his confirmation hearings. [FN9] Moreover, it has *1318 become common for
the Supreme Court to cite or quote from these opinions. [FN10] For these reasons, among others, dissents from denial of
rehearing en banc deserve more attention than they have received.
A dissent at the panel level is strange in that a judge may put enormous effort into it even though the dissent has no
formal effect on the outcome of a case, because it disagrees with, rather than frames, the reasoning and judgment of the
majority. A dissent from denial of rehearing en banc is stranger still, because it disagrees with the decision of the full
court not to hear a case, and thus has even less hope than a panel dissent of affecting the outcome of that case. Yet, in
another sense, it is unsurprising that disagreement about whether to review a case en banc becomes sharp enough on
occasion to motivate a dissent from denial of rehearing en banc. Cases arguably warranting en banc review are those in
which the stakes are unusually high or the law is especially unclear. [FN11] Judges retain wide discretion in deciding
which cases are important enough for the attention of the full bench. [FN12] Dissents from denial of en banc rehearing
reflect, in part, disagreement among judges about how to exercise that discretion.
Several judges, including Justices of the Supreme Court, have explained the functions and costs of dissents at the panel
level. [FN13] In *1319 particular, these judges have identified at least four functions of the panel dissent: (1) to pressure
the majority opinion to correct perceived errors; [FN14] (2) to express the individual legal reasoning of the author;
[FN15] (3) to telegraph to other courts, litigants, and the legislature that the majority's reasoning is incorrect; [FN16] and
(4) to articulate novel analytical approaches that may stimulate academic commentary. [FN17] With the exception of
scattered insights from scholars and judges interested principally in other problems, [FN18] however, there has been
scant treatment of dissents from denials of en banc rehearing as a category of judicial dissent.
This Article aims to bridge that gap by assessing whether the standard judicial account of the functions and costs of
panel dissents applies to dissents from denial of rehearing en banc. Part II briefly describes how courts decide to rehear
cases en banc, identifies some criticisms of dissents from denial of rehearing en banc, and considers preliminarily the
analogy between such dissents and Supreme Court dissents from denials of certiorari. This Article then turns to the
conventional judicial framework for dissenting opinions. Part III measures the ability of dissents from denial of rehearing
en banc to carry out the four functions of panel dissents. Part IV discusses the *1320 costs of these opinions. Dissenting
opinions impose costs on the judicial system both because they consume judicial time and because they can threaten
collegiality while creating confusion about legal rules. Applying the conventional framework for panel dissents to
dissents from denial of rehearing en banc, Parts III and IV argue that, while these rehearing dissents have little hope of
directly correcting legal errors in challenged panel opinions by persuading panelists to change their minds, these dissents
can serve valuable external corrective, "law laboratory," and self-expression functions, at a tolerable workload and
systemic cost.
These dissents should not be dismissed as the products of isolated judicial voices carrying no further than the court from
which they originate. Dissents from denial of rehearing en banc persist because of their ability to carry out some of the
same tasks that judges usually assign to their more traditional panel dissents.

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II. Rehearing Dissents in the Federal Courts of Appeals

A. Where Rehearing Dissents Come From
Federal appellate judges sit in panels of three to decide cases. [FN19] Ideally, the panel will come to the same resolution
of the legal questions before them that the entire court would. [FN20] Sometimes, however, the panel reaches a
conclusion that the majority of the court's judges consider to be inconsistent with the two constraints that every panel
opinion must follow [FN21]: controlling Supreme Court law and circuit precedent. Such inconsistency breeds
uncertainty, which breeds *1321 litigation. Through en banc review, the entire court then acts to reduce that inconsistency
in extraordinary cases. [FN22]
The losing party may ask the panel to reconsider its ruling because it has made a mistake. [FN23] If the mistake is one
with wide repercussions, *1322 that party may also choose to file a petition for an en banc rehearing. [FN24] Such a
petition typically follows publication of the panel opinion. [FN25] It may lead a judge to call for a poll of the court. A
judge may even call for a poll when no parties have petitioned for rehearing. [FN26] The purpose of these polls is to
determine whether the active judges of the court (namely, those that have not taken senior status or retired) [FN27] will
*1323 convene to examine the case. The calling judge usually disagrees with the panel opinion and wants to see the en
banc court come to an opposite conclusion. [FN28] As Justice Antonin Scalia has explained, "[T]he function of en banc
hearings . . . is not only to eliminate intra-circuit conflicts, but also to correct and deter panel opinions that are pretty
clearly wrong . . . ." [FN29]
Federal Rule of Appellate Procedure 35 deems en banc rehearing appropriate (1) when it would "secure or maintain
uniformity of the court's decisions," or (2) when "the proceeding involves a question of exceptional importance." [FN30]
A case may fall under the "uniformity" column [FN31] if the panel decision conflicts with a Supreme Court decision
*1324 or another decision of the circuit. [FN32] It may fall under the "exceptional importance" column if it raises "an
issue on which the panel decision conflicts" with a binding decision of another circuit. [FN33] Although the drafters of
Rule 35 apparently believed they were adopting "rigid standards," [FN34] the terms "uniformity" and "exceptional
importance" are laden with multiple meanings, thereby vesting judges with wide discretion to decide when the standards
are satisfied [FN35] and creating room for disagreement among them. Practitioners, [FN36] as well as researchers using
empirical techniques, [FN37] have concluded that courts tend to grant en banc review under Rule 35 when the panel
produces a dissent, or when the panel reverses the decision of a district court or administrative agency. If the court agrees
to rehear the case en banc, then the court vacates the panel opinion and sets out to decide the appeal afresh. [FN38]
*1325 The courts of appeals continue to differ in how often they grant en banc rehearing, [FN39] but overall, such grants
are extremely rare. For example, in the year ending September 30, 2004, these courts decided 8,645 cases after oral
argument, of which only fifty-one (or less than 0.6 percent) were by en banc proceeding. [FN40] As the sheer number of
appeals filed each year continues to grow, the fraction of cases reviewed en banc is likely to become even smaller.
[FN41]
Such rarity makes sense, because reviewing a case en banc consumes tremendous resources. [FN42] It requires the full
bench to review litigants' opposing arguments and the work of the panel. Additionally, in most cases, the judges also hear
oral argument. [FN43] After argument, the judges confer and produce one opinion for the court, and some may write
separate concurring or dissenting opinions. Preparation of any published judicial opinion is extremely time-consuming,
[FN44] but this is *1326 especially true for opinions produced by an en banc court. [FN45] Judicial time is a scarce
resource, so a majority of judges polled are likely to activate the en banc machinery only if they perceive that the benefits
exceed the high costs of the process. [FN46] Because there is no neat formula for solving this resource-allocation
problem, however, judges often differ about whether the benefits of activation exceed the costs in a given case.
Recognition that en banc proceedings are enormously costly leads rational judges to be cautious in calling for Rule 35
polls. In most instances, the calling judge at least implicitly signals to colleagues that the panel opinion distresses the
judge so much that the judge is willing to require the entire court to read the briefs and hear a new oral argument in hopes

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of correcting this mistake. [FN47] The calling judge may make this message explicit by writing a letter explaining why
en banc *1327 review is necessary; a judge who disfavors rehearing will often write a response to defend the panel.
[FN48] Because calling for a poll usually suggests serious errors on the part of the panel majority, the calling judge may
risk offending the colleagues in that majority. Frequent requests for en banc convening thus harm collegiality. [FN49] In
short, reputational and collegial concerns will constrain a judge from calling for a poll except when absolutely necessary.
When a poll fails to produce a requisite majority of judges willing to rehear the case, the court enters an order
announcing that result. Sometimes, in opinions accompanying the order, judges who would have heard the case en banc
articulate the reasons why they disagree with the poll's outcome. Frequently, these are judges who voted in favor of
rehearing because they take exception to the panel opinion and object to its becoming the law of the circuit. [FN50] Their
separate opinions *1328 explain why the costs of en banc review of the case are overborne by the benefits. As a practical
matter, these dissents from denial of rehearing en banc (which this Article will refer to when convenient as rehearing
dissents) often highlight the perceived analytical flaws in the panel opinion. The absolute number of such rehearing
dissents each year is by no means daunting, [FN51] but numbers alone do not account for their significance.
B. Some Criticisms of Rehearing Dissents
Some circuit judges looked askance at rehearing dissents from the earliest days of federal appellate en banc procedure.
After the presentation of a 1960 Second Circuit panel opinion in United States v. New York, New Haven & Hartford
R.R., [FN52] Circuit Judge Charles Clark, a nonpanelist, appended a rehearing dissent. Judge Clark wrote that the issue
in the case "is of such importance in our daily practice that it seems desirable now for me to point out the uncertainty of
the ruling both for the present case and for the future." [FN53] Defending the analysis in the panel opinion, Judge Henry
Friendly contended that the publication of Judge Clark's opinion
would mean that any active judge may publish a dissent from any decision, although he did not participate in it and
the [c]ourt has declined to review it en banc thereafter, a practice which seems to us of dubious policy especially since, if
the *1329 issue is of real importance, further opportunities for expression will assuredly occur. [FN54] Some treatises
picked up on Judge Friendly's early concerns, and to this day, they indicate that rehearing dissents are disfavored. [FN55]
More recently, District of Columbia Circuit Judge A. Raymond Randolph has revived the criticism of rehearing dissents
with a breath of doctrinal life. Judge Randolph has characterized such statements as "rub[bing] against the grain of
Article III's ban on advisory opinions." [FN56] That ban has long been a necessary corollary to the rule that federal
courts may not issue abstract pronouncements of law, because they exist to resolve live legal controversies that actually
affect the rights of parties properly before them. [FN57] According to this view, an opinion regarding the denial of en
banc rehearing does not address the rights of any party because it simply responds to a procedural order denying review.
[FN58] Judge Randolph noted that, even though these statements appear to concern only the propriety of convening en
banc to rehear the case at hand, they frequently "declare [the author's] views on the merits of the case," [FN59] instead of
limiting their discussion to arguments about the Rule 35 standards for rehearing.
*1330 Rehearing dissents respond to a specific adversarial motion filed in an actual case, [FN60] and no court has held
them to constitute improper advisory opinions. Scholarly criticism of rehearing dissents has instead amplified Judge
Randolph's call for maintaining a distinction between the Rule 35 standards and the merits of the case. [FN61] Implicit in
such criticism is the assumption that a judge should be able to explain why the rule's standards for rehearing en banc are
satisfied without further articulating a position about any legal errors in the panel decision. This assumption does not
seem very realistic. For example, the "exceptional importance" column of Rule 35 has been understood to encompass
cases creating conflict between the circuits or resolving legal questions that recur frequently in the district courts. [FN62]
Yet, as a practical matter, it would be difficult for a judge to offer a cogent explanation of why a panel opinion creates a
conflict with another circuit, or how it will "bedevil the district courts," [FN63] without also discussing the merits of the
panel opinion itself.
In any event, resistance to the issuance of rehearing dissents has worn down over time. By 1986, Eleventh Circuit Judge
James Hill conceded that these dissents had "proliferated . . . to the point where the practice may be said to have become
institutionalized." [FN64] That is, as some judges began writing more rehearing dissents, such dissents became part of
the normal course of judicial business. This implies that many judges have not found the various arguments against the

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publication of rehearing dissents to be convincing.
In addition to the peer-acceptance phenomenon, Judge Hill hinted at a different explanation for the increasing
publication of rehearing dissents: perhaps the rising number of dissents from the denial of certiorari in the Supreme Court
gradually made rehearing dissents *1331 acceptable in the courts of appeals. [FN65] Although Judge Hill was not the
first to suggest an analogy between en banc and certiorari practices, [FN66] his emphasis raises an intriguing question
about how far that analogy supports comparison between rehearing dissents and dissents from denials of certiorari.
Examining that question requires a shift in focus from the en banc process to Supreme Court certiorari review.
C. Rehearing Dissents and Dissents from Denial of Certiorari
Litigants file thousands of petitions for certiorari in the Supreme Court each year. [FN67] The Court grants very few of
them, permitting full briefing on the merits in usually no more than one hundred cases per Term. [FN68] The Court
denies certiorari whenever fewer than four Justices agree to hear the case, [FN69] by simply noting that "the petition for
a writ of *1332 certiorari is denied." The Court has traditionally emphasized that "a denial [of certiorari] carries with it
no implication whatever regarding the Court's views on the merits of a case which it has declined to review." [FN70]
By the late 1970s, however, enough Justices had published separate opinions accompanying denials of certiorari for the
practice to be considered commonplace. [FN71] These certiorari dissents often set forth reasons why the Court should
have granted the petition and, in many cases, why the question presented should have been answered in favor of the
petitioners. [FN72] Justice John Paul Stevens has argued that such opinions are "totally unnecessary" because they do not
resolve any disputes and are "potentially misleading" because they often go unanswered, thereby presenting only one
view of the matter. [FN73] The heyday of these opinions has apparently passed, [FN74] but certiorari dissents continue to
appear each Term. [FN75] Indeed, in Rapanos v. United States, *1333 the Justices in the plurality quoted directly from
one of these dissents, suggesting that these opinions are entitled to at least some weight. [FN76]
Certiorari and rehearing dissents are similar in some respects. [FN77] First, the two types of dissent formally stand as
objections to the court's decision not to further examine the merits of a case. Second, because merits review is denied,
these dissenting judges do not generally participate in oral argument before writing. [FN78] Third, these opinions
sometimes motivate judges who agreed with the decision not to hear the case to offer a contrary explanation of why the
majority's vote not to take the case is correct. [FN79]
There is, however, a critical difference between the two types of dissents. Typically, when a circuit court denies en banc
review, it leaves undisturbed a panel opinion that constitutes the court's authoritative determination of the issues in the
case. [FN80] Long before there is a Rule 35 poll, the dispute is not only on the appellate court's *1334 agenda, but in
most instances a subset of the court's judges has already resolved the dispute in the form of the panel opinion. In contrast,
when the Supreme Court declines to answer a question presented in a petition for certiorari, the dispute never lands on
the Court's agenda, and the answer provided by the subordinate court is not binding authority on the Supreme Court.
[FN81]
Considering the relationship between these forms of dissent also invites examination of the larger category to which they
both belong--dissenting opinions. Leading judges have already charted the purposes of such opinions.
Into the eighteenth century, Anglo-American judges rendered their own opinions in each case, which were reported
seriatim. [FN82] When John Marshall became Chief Justice of the United States, he strove to persuade the Justices to
agree to a single opinion that represented the view of the entire court. [FN83] As Marshall's approach became the norm,
appellate judges came to reserve separate opinions for cases creating disagreements on outcome or reasoning. Some
believe that the Supreme Court has ventured too far from the Marshall model: many of the Court's decisions in the last
thirty-five years have come with multiple concurrences and dissents, [FN84] although the number of such separate *1335
opinions has not grown in response to the overall decline in the number of cases the Court hears each Term. [FN85]
Whether dockets expand or shrink, the dissenting opinion is itself a permanent fixture in American judicial culture.

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Justices William Brennan, [FN86] Antonin Scalia, [FN87] and Ruth Bader Ginsburg (while she served on the District of
Columbia Circuit), [FN88] along with other federal appellate judges, [FN89] have described the purposes of dissents.
Justice Scalia's description productively divides the purposes into those that affect the court internally and those that
reach the external world. [FN90] These purposes are not walled off from one another, but rather share common ground.
[FN91] Taken together, these judicial descriptions provide an effective framework for understanding the functions and
costs of dissents.
There are at least two concerns about using this framework. First, scholarly perspectives on dissenting opinions, which
differ from judicial ones, may offer an equally valid model. In particular, some scholars conclude that there are political
or ideological functions and effects of dissents that can be empirically observed. [FN92] In this spirit, several *1336
researchers have discussed the so-called ideological component of the decision to convene en banc. [FN93] Second, a
model derived from off-the-bench writings or speeches may be of limited value, if the account that judges give in such
materials is not fully in line with their on-the-bench thinking.
These two concerns do not ultimately invalidate an attempt to understand the rehearing dissent using a framework
derived from judges' off-the-bench writings. As to the first concern, while partisan politics may be interesting to scholars
and to the news media, the judicial discourse is about legal reasoning, not partisan politics, [FN94] so if rehearing
dissents are to make sense to judges, they must do so within the terms familiar to that discourse. As to the second
concern, because opinions properly focus upon the facts and legal arguments in individual cases, judges rarely use those
opinions to offer comprehensive theories about the roles of dissents as a genre. Therefore, their off-the-bench comments
are as close as we may be able to get to pronouncements that reveal their official thinking on the subject. With these
considerations in mind, this Article attempts to assess rehearing dissents using the suggested judicial framework.
*1337 III. The Internal and External Functions of Rehearing Dissents

A dissent usually sets forth a legal rationale distinct from the majority's rationale for reaching the opposite conclusion
regarding one or more issues in the case. Two internal functions of a dissent are to challenge the majority's analysis (the
internal corrective function) and to articulate the author's individual perspective (the self-expression function). Two
external functions of a dissent are to influence the weight that the majority carries with other courts, government actors,
and the public (the external corrective function), and to stimulate legal debate (the law-laboratory function).
A. Internal Corrective
The internal corrective function is most fully served when the dissent convinces enough judges to change votes that it
takes control as the new majority. Justice Scalia remarked that such changes occur "much more than rarely," [FN95] but
we are unlikely to know exactly how often, because a dissent's shift into a majority is usually part of an internal
deliberative process of a court ordinarily shielded from public view. [FN96] "Much more than rarely" is still not likely to
be often because of the high cost of vote switching. [FN97]
*1338 No matter how persuasive the dissent, a vote-switching judge initially in the majority who transmutes the dissent
into the new majority risks upsetting colleagues in the old majority who now become the dissenters. If a switch becomes
known outside the court, that switch might create the impression in some quarters that a force other than the requirements
of the law prompted the sudden change in views. [FN98] Even when a separate opinion does not pick up enough votes to
become a majority, however, the internal corrective function is at least partially served when the majority is compelled to
revise its reasoning to take the sting out of the dissent's most effective criticisms. [FN99] Such revisions may compel the
author of the majority opinion to "narrow[] the announced legal rule" [FN100] or make other "clarifications, refinements,
[and] modifications in the court's opinion." [FN101] Appellate courts exist to clarify law [FN102] as well as to fix errors,
[FN103] and the law the majority *1339 articulates is only as good as its reasoning. [FN104] Thus, the dissent's ability to
challenge and refine that reasoning goes a long way towards justifying the dissent's existence. Indeed, judges writing for
the majority formulate responses to dissents as a way to test out and confirm the validity of their arguments. [FN105]
In its own fashion, a rehearing dissent may be able to serve the internal corrective function. Suppose that a circuit judge
believes a case should be reheard en banc. It would be odd for that judge to draft a formal opinion dissenting from denial

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of rehearing and circulate the draft to circuit colleagues. Such formality might seem like a threat to air disagreement in
public. The judge could instead send a letter to colleagues, explaining any reasons for voting to rehear and articulating
the full legal rationale for that vote. Such a letter may well draw responses, and the correspondence (which is hidden
from public view) *1340 can be quite extensive. [FN106] Only if the correspondence is ultimately unpersuasive would
the author have a reason to convert the initial letter into a rehearing dissent. In contrast, if the letter is persuasive, the
court will rehear the case en banc, and there will be no occasion for a rehearing dissent.
This description of the rehearing dissent's ability to carry out some form of the internal corrective function provides
another perspective on the relationship between rehearing and certiorari dissents. [FN107] Although the Supreme Court
issues a few certiorari dissents each year, there are other certiorari dissents that "never see the light of day" because after
the draft dissent circulates, it influences enough Justices to vote to grant certiorari to make actual publication of the
dissent unnecessary. [FN108] Drafts of certiorari dissents can have this effect because the Justices need not decide the
fate of a certiorari petition in a single meeting. Instead, they can ask that the case be "relisted" for consideration at a later
conference. [FN109] This delay creates a window of opportunity for a draft certiorari dissent to pick up votes and thereby
internally correct an agenda-setting "mistake." The reward for the author of the draft is the satisfaction of securing review
of an important case. Because the Justices who agree to grant certiorari may not always agree with the Court's resolution
of the case on the merits, [FN110] however, even the most *1341 successful certiorari dissent (namely, one that never
makes it into print at all) has its limitations.
Similar limitations constrain rehearing dissents in the circuits. At the end of the day, rehearing dissents cannot
accomplish as much as panel dissents in carrying out the internal corrective function. To begin with, while every panel
opinion contains the prospect for a dissent, courts rarely activate the en banc machinery. Petitions for en banc review are
expressly disfavored, [FN111] and, indeed, frivolous petitioning invites sanctions. [FN112] Next, draft rehearing dissents
address their criticisms to an audience of busy circuit judges. Pressed with ordinary panel responsibilities, judges have
few incentives to spend too much time deliberating over whether to take a case en banc when the grounds for doing so
are not so clear as to leap off the page. Although some en banc petitions may generate substantial correspondence,
[FN113] judges who are doubtful that a certain case should be reviewed en banc are likely to resolve those doubts against
the petition and the calling judge, simply because en banc review is so costly. [FN114]
Finally, although the en banc court and the panel majority often reach opposite conclusions on a single legal question
controlling the case, the en banc court is not compelled to disagree with the panel on the disposition or legal reasoning.
[FN115] Although a judge who disagrees with a panel opinion may persuade colleagues that the case should be reviewed
en banc, there is no guarantee that the en banc court will actually confirm the calling judge's view of the merits. When a
panel dissent attracts a second vote, it stops being a dissent and becomes the majority view. When a rehearing dissent
attracts enough votes to secure en banc review of a panel opinion, in contrast, it does not thereby *1342 correct the error
in the panel opinion; at most, it ensures that the full court will look more closely at the case.
B. Self-Expression
Justice William Douglas famously described dissenting opinions as the only thing that made the appellate judge's job
"tolerable." [FN116] Other judges have also recognized the value of dissents as an outlet for the author's frustrations with
the majority's reasoning and for the need to express individual judgment on the issues presented. [FN117] Justice
Benjamin Cardozo's characterization of a dissenting opinion as "the gladiator making a last stand against the lions"
[FN118] likewise emphasizes the individual over the collective. Individual self-expression in this context does not, of
course, mean the communication of nonlegal thought, such as a political or emotional response to the facts and legal
contentions raised in a case. [FN119] On the contrary, at least in theory, a dissent serving the self-expression function
does not express the political or emotional *1343 self of the author. Rather, it expresses the author's reasoned analysis of
the merits of the case and the doctrinal flaws in the majority opinion. [FN120]
Even self-expression in this carefully circumscribed legal sense is not ordinarily a legitimate purpose for the judge
writing a majority opinion. [FN121] This judge must take into account the views of other colleagues, particularly those
voting in the majority. [FN122] Dissents, however, are not so constrained. They are an institutionally accepted avenue for
judges to articulate their "true" evaluation of a case, regardless of whether other judges on the court agree with that

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evaluation. [FN123] The dissenter forms the independent evaluation after reviewing the briefs, hearing oral argument,
and participating in any postargument conference with others on the panel concerning the case.
Some of a judge's best work may be in separate opinions [FN124] in which the judge is free to sing in full voice, sad
though the tone of the song may be. Judges wear black robes for the ostensible purpose of reducing the distinctions
between them; the law is supposed to be the *1344 same regardless of which judge is articulating and applying it.
[FN125] The benefit of such an approach to law is the stability and consistency of a "government of laws, and not of
men." [FN126] The cost of this approach is that it requires judges to sacrifice their individual impulses for the good of
the whole court. [FN127] By one account, permitting individual expression through occasional dissents may relieve the
pressures that such sacrifice might otherwise create. [FN128]
The thorough examination of the cases that precede such dissents is essential. A dissent on the merits can be justified in
part because it reflects the reasoned judgment of the dissenter. It bears emphasis that the judge forms that view after
complete study of the briefs and after oral argument, providing a relatively firm basis for the dissenting view. [FN129]
A rehearing dissent, by contrast, does not necessarily rest on such a firm basis. When the rehearing dissenter is the panel
dissenter, the rehearing dissent enjoys a firm basis. When the rehearing dissenter was not on the panel, however, [FN130]
the judge has not ordinarily read the entire record, participated in oral argument, or discussed the case in *1345
conference with other judges. [FN131] Instead, the rehearing dissenter has formed an impression based entirely upon
static materials--written submissions (such as the petition for rehearing, any response to the petition, the panel opinion
and any separate writings, and possibly the original appellate briefs) and perhaps an audio recording of the panel
argument. This comparatively weak basis for decision making suggests that the rehearing dissent has less legitimacy as a
form of self-expression than a dissent on the merits. After all, if the oral argument [FN132] and the postargument
conference [FN133] have any value, they can be expected to give the panelist an advantage over the nonpanelist in
grasping the nuances of the case. [FN134]
*1346 That suggestion points to a paradox. The court's refusal to convene en banc motivates the rehearing dissent; yet, it
is also that refusal that deprives the dissenter of the oral argument and postargument conference which might make the
dissenter's criticisms rest on more secure ground, thereby lending those criticisms greater legitimacy. Nonpanelists
continue to write rehearing dissents, however, so the lack of argument or conference has not proven to be a practical
obstacle to such dissents. When a nonpanelist has a strong, reasoned objection to a panel opinion that has gone
unanswered upon denial of en banc rehearing, the only way of voicing that objection is through a rehearing dissent. Even
though the self-expression function is better served by panel dissents, in other words, the rehearing dissent may be a
second-best, but necessary, recourse.
C. External Corrective
Dissents serve an external corrective function by altering the way the majority's reasoning is viewed by other courts,
[FN135] legislatures, [FN136] or litigants in future cases. [FN137]
The external space includes horizontally and vertically related courts-- namely, district courts, other circuits, and the
Supreme Court. First, the lower courts in the circuit, though bound by the panel opinion, [FN138] may be cautious in
applying that opinion to new facts based on the dissent's concerns. [FN139] Second, a sister circuit, when facing an
*1347 issue previously the subject of another court's divided ruling, may incline toward adopting the panel's view to
avoid a split in authority, but the presence of a dissent counsels hesitation and may lead instead to rejection of the panel
opinion in favor of the dissent. [FN140] A dissent thus reduces the persuasive weight that a panel opinion from one
circuit carries in another circuit. [FN141] Third, the Supreme Court, unable to monitor every decision churned out by the
circuits, [FN142] may rely on dissents in those courts as red flags, warning it about especially urgent questions that need
authoritative answers. [FN143] Empirical evidence *1348 indicates that the very existence of a dissent raises the odds of
Supreme Court review. [FN144] Indeed, according to one account based on confidential interviews with Supreme Court
Justices and clerks, the Court pays more attention to a dissent than to the petition for certiorari itself. [FN145]

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The external space also includes Congress, at least in cases turning on statutory interpretation. After learning of a court
decision misreading a statute, Congress may decide to revise the statute and thereby vindicate a dissenting position.
[FN146] The legislative branch is, of course, the primary source of law in a democratic society. [FN147] Nevertheless,
given the nearly limitless number of issues that come before Congress and the wide array of interest groups vying for its
attention, Congress does not have the time to respond to very many *1349 cries for statutory reform contained in
dissenting opinions. To begin with, there are simply too many dissents written each year for such attention, especially at
the circuit level. [FN148] Next, an errant panel opinion in a regional circuit formally binds courts in only one part of the
country without creating a national problem. Finally, rather than rewriting the statute, Congress might prefer to give the
Supreme Court a chance to correct the perceived error in statutory interpretation, which the Court could do either in the
case that yielded the dissent, or in a similar case down the road. Thus, the odds that a dissenting opinion will achieve an
external corrective effect by stimulating legislative action are quite slim. One empirical study found that Congress
responded far more often to Supreme Court opinions than to lower-court decisions; individual circuit judges cannot
typically goad Congress into action simply by writing dissents. [FN149]
A more fruitful object for the external corrective effect may be the public at large, starting with the litigants themselves.
A dissent may be an implicit hint to the losing party that the party may have a chance at a different result by petitioning
for rehearing en banc, or a hope of reversal from the Supreme Court. [FN150] The dissent may chastise a lawyer for one
of the parties, such as in a criminal case in which the dissenter *1350 believes the prosecutor did not respect professional
standards. [FN151] The public also contains the vast pool of future litigants who can bring legal challenges to the
majority's rule. Litigants may persuade sister courts to go the way of the dissent, creating an intercircuit conflict
warranting final Supreme Court resolution. [FN152] These potential effects underscore the high degree of overlap
between the future-litigants channel and the other-courts channel through which a dissent carries out the external
corrective function: without future litigants, no cases would come before other courts to make the dissent relevant
elsewhere.
Rehearing dissents are also capable of performing the external corrective function. The rationale for doing so is strongest
when the panel decision is unanimous but wrong; in that situation, absence of a dissent shifts the burden of performing
the dissent functions (especially the external corrective) to the rehearing dissent. [FN153] The most direct path to
correcting the panel mistake is for the Supreme Court to take the case and reverse, and the rehearing dissent can promote
that by influencing the Supreme Court's decision to grant review. [FN154] Indeed, *1351 some rehearing dissents
expressly invite the Court to take the case. [FN155] Judge Randolph criticized rehearing dissents aimed at drawing
Supreme Court review: in writing such a dissent, he argued that "the judge steps out of the robe and into the role of an
advocate." [FN156] This criticism has not, however, stopped judges from writing rehearing dissents.
The evidence suggests that rehearing dissents play a role in the Supreme Court's decision to grant certiorari.
Quantitatively, one study found that the Supreme Court's reversal rate in cases with a rehearing dissent is higher than in
cases arising from ordinary three-judge panels. [FN157] Qualitatively, the Supreme Court appears to be expressly
quoting or citing rehearing dissents in approving tones in its majority [FN158] and dissenting opinions. [FN159]
*1352 There are, in turn, formal and institutional explanations for the ability of rehearing dissents to garner Supreme
Court attention. The formal explanation hinges on the similarity between the highly discretionary standards used to assess
certiorari petitions and petitions for en banc review. Under Supreme Court Rule 10, the Court grants a petition for
certiorari "only for compelling reasons," including whether the decision below is "in conflict with the decision of
another" court "on the same important matter." [FN160] A disagreement between circuit judges about whether a case
warrants en banc review--because it jeopardizes the "uniformity" of federal law or raises a question of "exceptional
importance" [FN161]--tends to show that the case has "compelling" features warranting Supreme Court review. What
some circuit judges consider to be worthy of en banc review thus sometimes overlaps with what the Supreme Court
considers to be compelling. [FN162]
*1353 The institutional explanation hinges on how a rehearing dissent is communicated to the Supreme Court. A crisp
rehearing dissent may help a losing party at the panel level write an analytically powerful petition for certiorari. That may
be why the Solicitor General of the United States [FN163] and private litigants [FN164] quote from rehearing dissents
when petitioning or fending off arguments in opposition to a petition. In most instances, once a petition is filed, it does

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not go straight to the Justices themselves, but to a law clerk for one of the eight Justices who participate in the Supreme
Court "cert pool." [FN165] This pool clerk is responsible for writing a memorandum analyzing the petition, any briefs in
support or opposition, and the decisions of the subordinate courts, before recommending a proposed disposition. [FN166]
Critics have charged that this system vests excessive responsibility in the clerks, who often lack the practical experience
that might better equip them to decide what cases are worthy of Supreme Court *1354 review. [FN167] If this criticism is
valid, then a thorough rehearing dissent might productively assist the pool clerk in assessing the case's potential for
review. Such an opinion offers the arguments of an experienced judge for why the panel opinion is wrong and why there
is a special need for the Supreme Court to overturn it. A rehearing dissent of this sort can aid the inexperienced clerk in
deciding whether to recommend that the Court review the case. This reasoning suggests that a rehearing dissent in a
complex regulatory or commercial case might be even more productive than one in a constitutional case. [FN168] While
the pool clerk might be able to identify whether a constitutional case is worthy of review absent any dissent, the clerk
might need the help of either a dissenter or a rehearing dissenter to assess cases in areas of the law not widely
emphasized in law school. A rehearing dissent, perhaps no less than a panel dissent, may be able to help compensate for
the perceived deficiencies of the cert pool. [FN169] The Supreme Court, in short, has formal and institutional reasons to
pay attention to rehearing dissents.
Moreover, circuit judges elsewhere in the nation also take heed of rehearing dissents in various degrees. [FN170] The
sister-circuit response is *1355 particularly important for the rehearing dissenter who at the very least wants to limit the
influence of the erroneous panel opinion. The presence of a rehearing dissent may cause a sister circuit to approach that
panel opinion with hesitation when the sister circuit confronts a similar case. [FN171] District-court [FN172] and state-
court [FN173] reliance on rehearing *1356 dissents further demonstrates their potential ability to limit the persuasive
power of panel opinions. Beyond the courts, there are also instances of congressional reports citing rehearing dissents,
[FN174] suggesting that Congress sometimes considers them in debating the merits of particular bills.
A caveat, however, is that a rehearing dissent that exposes genuine analytical weaknesses in the panel opinion may
interfere with the rehearing dissent's own ability to serve the external corrective function. A judge who is content with the
panel opinion and perceives the rehearing dissent as making too strong a case for en banc review may write separately,
concurring in the denial of rehearing. [FN175] By defending the panel opinion, this concurrence may remove the sting
from the attacks of the rehearing dissent. It may even point out the doctrinal weaknesses in the rehearing dissent, and it
may suggest that such weaknesses can be traced to the dissenter's lack of intimacy with the record below, the briefs, or
oral argument. [FN176] This concurrence may *1357 also reduce the persuasiveness of the rehearing dissent, crimping
the dissent's ability to signal externally the problems raised by the panel opinion. Concurrences in the denial of rehearing
can retort to rehearing dissents, just as panel opinions can retort to ordinary dissents.
D. "Law Laboratory"
Even if a dissent does not inspire some party to bring a legal challenge in another court or to press for legislative change,
it can still stimulate legal debate. [FN177] The side-by-side placement of the majority and the dissent in published
opinions means that readers can easily access incisive criticism and contrarian thinking; they need not rely on outside
commentators. [FN178] As Former Rhode Island Supreme Court Justice Robert Flanders put it, such debate allows
appellate courts to serve a "law laboratory" function. [FN179] A dissent may fire up the imagination of practicing lawyers
or law professors, sparking new research and analysis of the issue that galvanized the dissent. This research may
eventually persuade the judges on the criticized majority to one day change their minds and endorse the dissenting view.
The odds of any single dissent attracting such attention and contributing demonstrably to the legal debate by inspiring
further writing by judges or scholars may not be significant. Borrowing the terms of Seventh Circuit Judge Richard A.
Posner, it may well be that dissent writing, like legal scholarship, is comparable to "salmon breeding in the wild,"
because it is "a high-risk, low-return activity" [FN180]: while judges may write many dissents, only a precious few will
gain attention outside the court.
In similar fashion, rehearing dissents, though aimed at other judges, litigants, and attorneys, may contribute to general
legal debate. *1358 The First Amendment's free-speech guarantee promotes an "uninhibited marketplace of ideas,"
[FN181] and rehearing dissents can simply be one of many vehicles for introducing new ideas in the marketplace.

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[FN182] The main way rehearing dissents do that is by inspiring academic research. Several rehearing dissents have
promoted the development of the law by stimulating law professors to write articles [FN183] and law students to write
commentaries. [FN184] Rehearing dissents also routinely draw attention from Internet sites about appellate courts.
[FN185]
This law-laboratory function alone is not enough to justify the existence of dissents, particularly rehearing dissents. After
all, judges seeking solely to contribute to the marketplace of legal ideas could publish their arguments as law review
articles or opinion pieces in legal newspapers, rather than as judicial opinions. [FN186] In addition, although *1359
circuit judges who were once full-time law professors have made substantial contributions to legal thought, [FN187]
judicial work and academic work are not the same: cases pose live controversies between parties and are not simply
opportunities for abstract intellectual exchange. [FN188] Rehearing dissents are dissents accompanying procedural
orders denying en banc review; if they are only focused on stimulating academic commentary, they risk creating the
impression that the dissenter's concern is not really the case at hand, but rather a legal abstraction. A panel dissent does
not raise this concern as easily, because such a dissent can become the law of the circuit with the mere shift of one
panelist's vote.
IV. Costs of Rehearing Dissents

The conventional judicial framework for the functions served by dissents also recognizes that dissents impose their own
costs. Judges feel some of the costs in their workload. The court and the public as a whole bear other costs, as opinions
proliferate and risk eroding collegiality while generating confusion about the law. The framework's description of these
costs also applies to dissents from, and accompanying concurrences in, the denial of rehearing en banc.
*1360 A. Workload Costs
The most elementary cost of a dissenting opinion is incurred in valuable judicial time. [FN189] Time spent writing a
dissent is time not spent on other judicial responsibilities, so the more a judge dissents, the more work that judge
undertakes personally. [FN190] The decision to dissent may also affect the workload of judicial colleagues because,
when a panelist indicates an intent to dissent, the assigning judge must assign the opinion to one of the other two
panelists. [FN191] An incisive dissent that identifies flaws in a proposed panel opinion also creates work for the *1361
author of that opinion, who may need to revise it to respond to and blunt the force of the criticisms. [FN192]
In contrast, the author of a rehearing dissent mostly bears the workload cost imposed by such an opinion alone, because
the choice to write such a dissent does not prevent the assignment of other work. The opportunity cost persists, however,
as the time the judge spends writing a rehearing dissent could otherwise be devoted to ordinary responsibilities. Whether
that workload cost is so heavy as to outweigh the value of the rehearing dissent is something only its author can
determine.
B. Collegiality and Coherency Costs
Judges have also expressed concerns about the systemic costs that dissenting opinions impose. The judges of a court
constitute a small community. Dissents sometimes criticize the reasoning of the majority in extremely sharp terms,
[FN193] and the majority may sometimes fire back. [FN194] Judges recognize that even dissents that do not use biting
language can generate tensions within a court. [FN195]
Even a dissent that does not affect its author's relationships with judges in the majority can reduce public confidence in
the court's work *1362 by undermining the authority of the majority. [FN196] According to this traditional view, dissents
"foster resentment on the part of the losing party" and "introduce an element of uncertainty where certainty should if
possible prevail." [FN197] Although political scientists have frequently characterized judicial decisions as the product of
ideological forces, [FN198] judges continue to presume that legal questions have right answers; judges must, after all,
decide which of the parties' competing arguments is analytically superior. [FN199] A case generating a dissent
undermines that presumption by emphasizing uncertainty in the law, [FN200] and revealing that judges can disagree on
important matters. [FN201] Judges have, however, largely concluded that the benefits of dissents outweigh this cost

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because of the internal and external functions they can perform. [FN202] Indeed, in cases in which controlling precedents
point in *1363 multiple directions, divisions of judicial opinion--and thus dissenting opinions--may well be inevitable.
[FN203]
Rehearing dissents impose some of these same coherency and collegiality costs. The en banc process can endanger
collegiality. [FN204] In exposing the analytical flaws in the panel opinion and explaining why those flaws are severe
enough to warrant en banc review, the rehearing dissent has significant potential to upset the judges in the panel majority.
When the rehearing dissenter is a nonpanelist, the panelists might consider the dissent to be especially out of bounds,
since the dissenter did not participate in oral argument and was not privy to any postargument conference. A judge who is
especially troubled by a rehearing dissent's assertions of legal error may write in defense of the panel majority in the form
of a concurrence in the denial of en banc rehearing. Rather than relieving the intellectual and jurisprudential tensions on
the court, such an opinion may simply exacerbate them.
Moreover, concurrences in the denial of rehearing en banc may impose their own systemic costs. Such costs are
especially high if these concurrences are understood as attempts to revise the legal analysis offered in the challenged
panel opinion. Although rehearing dissents have been accused of generating confusion in the law [FN205]--perhaps
because of their potential influence on other judges, litigants, and scholars [FN206]--it nevertheless remains hard to
believe that most litigants and lawyers will mistake such opinions as authoritative or binding expressions of circuit law.
[FN207] By contrast, a concurrence in the denial of rehearing, particularly by a member of the panel majority, may be so
mistaken. Former Fourth Circuit Judge J. Michael Luttig focused special attention on this risk in his dissenting opinion in
Jones v. Buchanan. [FN208] He argued that, in some cases, "the fullness, depth, and *1364 length of the subsequent
writing confirms that it is nothing short of a rewriting of the panel opinion from scratch in response to arguments and
authorities that were not considered or addressed by the panel." [FN209] Further, he stated that such rewriting in
response to criticism of the panel opinion contained in rehearing dissents has the potential to disrupt the coherence of
circuit precedent. [FN210]
When a judge writes a concurrence in the denial of rehearing, the aim, of course, is not to disrupt the law. Frequently, the
asserted purpose of such an opinion is to explain that the rehearing dissent itself has committed analytical errors, and that
the panel opinion did not go astray from Supreme Court or circuit precedent in the way that the dissent asserts. [FN211]
Frequently, the author of the principal concurrence in *1365 the denial of rehearing is the judge who wrote the panel
majority opinion in question. That judge may feel that the rehearing dissent creates the mistaken impression that the
circuit "has been unfaithful to its responsibilities" [FN212] in not convening to rehear the case, and that additional
corrective writing is needed. Such writing to "set the record straight" [FN213] can be seen by the dissenter as altering the
record rather than correcting it. If indeed the rehearing dissenters expose genuine errors in the panel opinion, a panel
could perhaps respond by amending its opinion after panel rehearing. [FN214] Yet courts also have a significant interest
in finality that weighs against such rehearing and amendment, [FN215] leaving the arguments about error to play out in
the opinions regarding the denial of rehearing.
All this suggests that what may be a boon for the rehearing dissent--its ability to alter the degree to which others find the
panel opinion persuasive-- may also be a bane. If the dissent triggers a concurrence in denial of rehearing, and that
concurrence is then misunderstood as the controlling expression of the legal rule, the risk of confusion rises. To recognize
this risk is not to conclude, for example, that when a district court cites a concurrence in the denial of rehearing en banc,
the court necessarily mistakes that opinion for the law. [FN216] It is *1366 only to emphasize that the rehearing dissent
and any responses to it can have consequences for the perceived stability of the law. The risk is an important aspect of the
cost that judges must weigh against the benefits of rehearing dissents.
V. Conclusion
Some scholars and judges have argued that opinions regarding the denial of rehearing en banc should be confined to
discussion of the Rule 35 criteria for rehearing and that they should not focus on the merits of the challenged panel
opinions. Notwithstanding these arguments, robust rehearing dissents (accompanied on occasion by concurrences in
denial of rehearing en banc), discussing not only Rule 35 but substantive legal issues, continue to flow from circuit
judges. One reason for their persistence is that a judge's view of whether the Rule 35 criteria are satisfied in a given case
is difficult to separate from the judge's view on the correctness of the panel opinion.

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This Article has argued that the persistence of rehearing dissents is also based upon their ability to achieve (at least in
part) the same functions that dissenting opinions at the panel level serve, according to the conventional judicial
framework. A rehearing dissent has a limited ability to carry out the internal corrective function. Such a dissent can,
however, serve to express the judge's reasoned distress at the analytical failings in the panel opinion; to alert other courts,
litigants, and lawmakers to the need to correct those failings or at least prevent them from spreading; and to stimulate
scholarly debate. Rehearing dissents serve these functions at a lower workload cost to circuit judges, as a whole, than
panel dissents. Nevertheless, such dissents may also impose genuine costs on the circuit's collegiality and the stability of
its law, especially if they draw revisionist concurrences from the denial of rehearing that offend colleagues or are
mistakenly cited as precedent.
The inability to serve the internal corrective function makes the rehearing dissent less effective in some respects than the
panel dissent. That a nonpanelist rehearing dissenter does not benefit from oral argument or postargument conference
also limits the value of a rehearing dissent as an expression of the judge's individual response to the case. Despite that
deficiency, the rehearing dissent is actually most valuable when the challenged panel opinion is unanimous. In this
circumstance, a nonpanelist who is unsuccessful in persuading the court *1367 to review the case en banc may provide
the only written opinion identifying the flaws in the panel opinion's legal analysis. The rehearing dissent may be enough
to trigger Supreme Court review by flagging the case for special attention in the certiorari process. Indeed, if it is true (as
some critics contend) that the certiorari process is imperfect because it fails to bring all compelling cases to the Supreme
Court's attention, rehearing dissents as a whole may be able to help compensate in some respects for that imperfection by
highlighting cases that cry out for review. The rehearing dissent may also prevent other courts from following the panel
opinion in a particular case as persuasive authority. It may even contribute to legislative change.
These are reasons why rehearing dissents appear to have become entrenched in the federal judicial system. Of course,
such dissents occupy a narrow space within the universe of federal appellate court opinions published each year. Cases in
which judges disagree sharply, such as those that tend to generate rehearing dissents, are relatively rare, [FN217] and
their influence should not be exaggerated; however, neither should such dissents be ignored. After all, circuit judges are
in the business of interpreting federal law in the course of fixing legal mistakes. Rehearing dissents can help fix the
mistakes that circuit judges make along the way, while serving the functions of conventional dissents. That is why critics
have not convincingly hushed rehearing dissents, and why the judicial voices that these dissents embody continue to ring
out far and wide.
[FNa1]. Law Clerk to the Honorable Brett M. Kavanaugh, United States Court of Appeals for the District of Columbia
Circuit, 2006-07; Law Clerk to the Honorable M. Blane Michael, United States Court of Appeals for the Fourth Circuit,
2005-06. B.A., magna cum laude, Yale College, 1999; J.D., summa cum laude, University of Pennsylvania, 2005. For
their thoughtful comments on a previous draft, I thank Ilana Eisenstein, Ellen London, and Robert Palumbos. The views
expressed in this Article are entirely my own, and I am solely responsible for any errors. This Article is dedicated to my
grandmother, Kalyani Sur, and to the memory of my grandparents, Mihir Sur, Ganga Sengupta, and Satyen Sengupta.
[FN1]. Henry David Thoreau, Walden and Other Writings 256 (Brooks Atkinson ed., Random House 2000) (1854).
[FN2]. The federal appellate courts entertain petitions for the rehearing en banc of cases initially decided by three-judge
panels under Federal Rule of Appellate Procedure 35. For an overview, see Alan R. Gilbert, Annotation, In Banc
Proceedings in Federal Courts of Appeals, 37 A.L.R. Fed. 274, 277 (1978 & Supp. 2006). This Article occasionally refers
in footnotes to congruent state court practices. Any state appellate court whose judges sit in panels may have its own en
banc process, and dissenting opinions from denials of en banc rehearing thus can be found in these courts. See, e.g.,
Apolinar v. State, 106 S.W.3d 407, 421 (Tex. App. 2003) (Jennings, J., dissenting from denial of rehearing en banc)
("Because the panel opinion in this case erodes the hearsay rule, I respectfully dissent from the denial of en banc
review."), aff'd, 155 S.W.3d 184 (2005); Brown v. Miami-Dade County, 837 So. 2d 414, 419- 23 (Fla. Dist. Ct. App.
2003) (Cope, J., dissenting from denial of rehearing en banc) (urging en banc review of a panel opinion that the dissenter
deemed inconsistent with precedent); see also Manuel v. Stalder, 04-1920, p. 1 (La. App. 1 Cir. 12/22/05); 928 So. 2d 24,
28 (Carter, C.J., concurring in part and dissenting in part) (urging the court to convene en banc to overrule its precedent).

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[FN3]. Compare, e.g., Anderson v. Westinghouse Savannah River Co., 418 F.3d 393, 394-95 (4th Cir. 2005) (Gregory, J.,
dissenting from denial of rehearing en banc) (single, brief opinion), with Landell v. Sorrell, 406 F.3d 159, 165, 167, 174,
178, 179 (2d Cir. 2005) (three separate concurrences and four separate dissents from denial of rehearing en banc), panel
rev'd and remanded sub nom. Randall v. Sorrell, 126 S. Ct. 2479 (2006).
[FN4]. Recent examples range from a case concerning the proper burden of proof for employment-discrimination claims,
see Underwood v. Perry County Comm'n, 452 F.3d 1258, 1260-64 (11th Cir. 2006) (Wilson, J., dissenting from denial of
rehearing en banc), to one concerning the constitutional fairness of an immigration hearing, see Sene v. Gonzales, 453
F.3d 383, 384-90 (6th Cir. 2006) (Clay, J., dissenting from denial of rehearing en banc).
[FN5]. See United States v. N.Y., New Haven & Hartford R.R. Co., 276 F.2d 525 (2d Cir. 1960). Judge Friendly stated
his "regret[] [at the] inauguration of a practice of writing opinions with respect to an en banc vote." Id. at 557.
[FN6]. See, e.g., Defenders of Wildlife v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of
rehearing en banc) ("[Rehearing dissents] sometimes read more like petitions for writ of certiorari than judicial opinions
of any stripe."); Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J., concurring
in denial of rehearing en banc) ("[D]enials of rehearing en banc are best followed by silence. They should not serve as the
occasion for an exchange of advisory opinions, overtures to the Supreme Court, or press releases."); see also Patricia M.
Wald, The D.C. Circuit: Here and Now, 55 Geo. Wash. L. Rev. 718, 719 (1987) ("One relatively recent phenomenon
deserves note: the elaborate statements by dissenting members when en banc is denied. These statements have been
described, probably accurately, as thinly disguised invitations to certiorari.").
[FN7]. See, e.g., Wallace v. City of Chicago, 440 F.3d 421, 430-34 (7th Cir. 2006) (Posner, J., dissenting from denial of
rehearing en banc); Tchoukhrova v. Gonzales, 430 F.3d 1222, 1223-27 (9th Cir. 2005) (Kozinski, J., dissenting from
denial of rehearing en banc), vacated and remanded, 127 S. Ct. 57 (2006) (mem.); Hatfill v. N.Y. Times Co., 427 F.3d
253, 253-59 (4th Cir. 2005) (Wilkinson, J., dissenting from denial of rehearing en banc); Lee v. DOJ, 428 F.3d 299, 302-
03 (D.C. Cir. 2005) (Garland, J., dissenting from denial of rehearing en banc).
[FN8]. See Rancho Viejo, LLC v. Norton, 334 F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts, J., dissenting from denial of
rehearing en banc) ("The panel's approach in this case leads to the result that regulating the taking of a hapless toad that,
for reasons of its own, lives its entire life in California constitutes regulating 'Commerce ... among the several States."')
(quoting U.S. Const. art. I, § 8, cl. 3).
[FN9]. This dissent from denial of rehearing en banc generated extensive commentary; indeed, this opinion is probably
the most famous such dissent. See, e.g., Confirmation Hearing on the Nomination of John G. Roberts to Be Chief Justice
of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 478 (2005) (statement of Carol M.
Browner, EPA Adm'r, 1993- 2001) ("While [Judge Robert's] opinion ... is not definitive as to his position on the
Commerce Clause power or on the Endangered Species Act, it is certainly worth noting that he rejected the ... panel's
unanimous opinion which specifically rejected a claim that Congress lacked the Commerce Clause authority to protect
the 'hapless toad."'); id. at 515 (statement of Patricia L. Bellia, Professor of Law, Notre Dame Law School) ("[T]he
dissent does not show that Judge Roberts believes the Endangered Species Act to be unconstitutional."); see also Michael
E. Solimine, Due Process and En Banc Decisionmaking, 48 Ariz. L. Rev. 325, 336 & n.64 (2006) (discussing briefly
news reports concerning this rehearing dissent).
[FN10]. See Hamdi v. Rumsfeld, 542 U.S. 507, 526 (2004) (citing 337 F.3d 335, 357 (4th Cir. 2003) (Luttig, J.,
dissenting from denial of rehearing en banc)); id. (citing 337 F.3d at 371-72 (Motz, J., dissenting from denial of rehearing
en banc)); see also infra notes 158-59.
[FN11]. See Fed. R. App. P. 35(a)(1)-(2) (providing that en banc review is warranted when it would "secure or maintain
uniformity of the court's decisions" or "the proceeding involves a question of exceptional importance").

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[FN12]. See Tracey E. George, The Dynamics and Determinants of the Decision to Grant En Banc Review, 74 Wash. L.
Rev. 213, 232 (1999) (explaining that appellate judges have far more discretion over en banc process than they do over
other aspects of their work). Empirical studies of judicial decision making have found it useful to focus on en banc
review because courts enjoy a wide latitude in deciding whether to rehear cases en banc. See id. at 249- 70.
[FN13]. See Kermit V. Lipez, Some Reflections on Dissenting, 57 Me. L. Rev. 313 (2005); Patricia M. Wald, The
Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371 (1995) ; Antonin Scalia,
Assoc. Justice, U.S. Supreme Court, The Dissenting Opinion, Address before the Supreme Court Historical Society (June
13, 1994), in 1994 J. Sup. Ct. Hist. 33 (1994); Ruth Bader Ginsburg, Circuit Judge, D.C. Circuit Court of Appeals,
Remarks on Writing Separately, Address at the Jurisprudential Lecture at the University of Washington Law School,
(May 11, 1989), in 65 Wash. L. Rev. 133 (1990); William J. Brennan, Jr., Assoc. Justice, U.S. Supreme Court, In Defense
of Dissents, Address for the Third Annual Mathew O. Tobriner Memorial Lecture (Nov. 18, 1985), in 37 Hastings L.J.
427 (1986).
[FN14]. See infra Part III.A.
[FN15]. See infra Part III.B.
[FN16]. See infra Part III.C.
[FN17]. See infra Part III.D.
[FN18]. For some judicial remarks, see supra note 6. Three researchers have discussed these dissents as part of inquiries
into other issues. Professor Jennifer Spreng has described the publication of rehearing dissents as an example of improper
legislative, rather than judicial, behavior on the Ninth Circuit, in an article about plans to restructure that circuit. See
Jennifer E. Spreng, The Icebox Cometh: A Former Clerk's View of the Proposed Ninth Circuit Split, 73 Wash. L. Rev.
875, 930-31 (1998) ("[D]issenting opinions [in the en banc process] look alarmingly like the 'minority views' attached to
congressional committee reports.") (citation omitted). Professor David McGowan has criticized rehearing dissents as
"missives" not worthy of being called opinions because they reflect mere disagreement with procedural orders (namely,
orders denying rehearing), and has argued against such writing as part of a wider discussion of judicial writing practices.
David McGowan, Judicial Writing and the Ethics of the Judicial Office, 14 Geo. J. Legal Ethics 509, 576-81 (2001).
Professor Michael Solimine has focused on the frequency of rehearing dissents, their "contributions ... to legal
discourse," and their "appropriate content." Solimine, supra note 9, at 330. He has concluded that "the primary focus of
[rehearing dissents] should be on why the case should be reviewed en banc" based on the criteria of Federal Rule of
Appellate Procedure 35, and that these dissents should not address the merits of panel opinions. Id. at 337. For some
empirical studies of the en banc process, see Tracey E. George & Michael E. Solimine, Supreme Court Monitoring of the
United States Courts of Appeals En Banc, 9 Sup. Ct. Econ. Rev. 171 (2001); Stephen L. Wasby, The Supreme Court and
Courts of Appeals En Bancs, 33 McGeorge L. Rev. 17 (2001).
[FN19]. 28 U.S.C. § 46(c) (2000); see also Jeffrey O. Cooper & Douglas A. Berman, Passive Virtues and Casual Vices in
the Federal Courts of Appeals, 66 Brook. L. Rev. 685, 719-20 (2001).
[FN20]. See George, supra note 12, at 244-46 (describing the principal-agent model under which the panel acts as an
agent for en banc court, exercising delegated responsibility to decide cases with the en banc court's interests in mind).
[FN21]. See Douglas H. Ginsburg & Donald Falk, The Court En Banc: 1981- 1990, 59 Geo. Wash. L. Rev. 1008, 1034
(1991) ("[T]he majority should rule; that is, the decisions of the panels ideally should reflect the views of the court as a
whole, or where that is not possible because the court is divided, come as close as possible to that ideal by reflecting the
views of a majority of the court."). The majority rule or principal-agent view is not the only way to understand appellate
courts. See id. at 1034-45 (describing and debating the contrary view that the panel outcome may be legally correct, even
if it is not supported by the majority rule); George, supra note 12, at 243 n.142 (noting the difference in the opposing
views).

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[FN22]. See Richard A. Posner, The Federal Courts: Challenge and Reform 133 (1996) ("[T]he full court must, in order
to prevent different panels from deciding cases inconsistently and thus greatly reducing the certainty of legal obligation,
maintain a credible threat to rehear a case en banc if the panel deviates from the law of the circuit."); see also United
States v. Am.- Foreign S.S. Corp., 363 U.S. 685, 689-90 (1960) ("The principal utility of determinations by the courts of
appeals in banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its
judges always to control and thereby to secure uniformity and continuity in its decisions, while enabling the court at the
same time to follow the efficient and time-saving procedure of having panels of three judges hear and decide the vast
majority of cases as to which no division exists within the court.") (quoting Albert Branson Maris, Hearing and
Rehearing Cases in Banc, 14 F.R.D. 91, 96 (1954)); Review of the Report by the Comm'n on Structural Alternatives for
the Fed. Courts of Appeals Regarding the Ninth Circuit: Hearing Before the Subcomm. on Administrative Oversight and
the Courts of the S. Comm. on the Judiciary, 106th Cong. 72 (1999) (letter from Antonin Scalia, Assoc. Justice, U.S.
Supreme Court, to Byron R. White, Chairman, Comm'n on Structural Alternatives for the Fed. Courts of Appeals (Aug.
21, 1998)) [hereinafter Scalia Letter] ("[T]he function of en banc hearings ... is not only to eliminate intra-circuit
conflicts, but also to correct and deter panel opinions that are pretty clearly wrong ....").
[FN23]. A litigant brings legal or factual errors to the panel's attention by filing a petition for panel rehearing. See Fed. R.
App. P . 40(a)(2) ( "The petition must state with particularity each point of law or fact that the petitioner believes the
court has overlooked or misapprehended ...."). Such a petition must be filed within fourteen days of entry of judgment,
with additional time given if the federal government is a party. Id. 40(a)(1). The same time limits govern petitions for
rehearing en banc. Id. 35(c). In misapprehending a legal rule, the panel opinion may jeopardize the uniformity of circuit
law, or the case may be exceptionally important, thereby satisfying the requirements for en banc review in Rule 35. When
this happens, the litigant may choose to combine the en banc petition and the panel rehearing petition into one document.
See David G. Knibb, Federal Court of Appeals Manual 636 (4th ed. 2000) (noting that the combination of petitions can
raise questions about whether the panel or the en banc court "should act first," but that some courts require it).
Discussion of panel rehearing practice is beyond this Article's scope, but it is worth noting that such rehearing and the en
banc process may interact in complex ways, as Jordan v. Alternative Resources Corp., an employment discrimination
case, illustrates. After a divided panel of the Fourth Circuit affirmed a dismissal of the plaintiff's case, 447 F.3d 324, 336
(4th Cir. 2006), the panel granted rehearing, vacated its previous opinion, and produced a new one also affirming by a
divided vote, 458 F.3d 332, 349 (4th Cir. 2006). The court of appeals divided evenly on the petition for rehearing en banc
and therefore denied en banc review. See Jordan v. Alternative Res. Corp., No. 05-1485, 2006 WL 2925641 at *3 (4th
Cir. Oct. 13, 2006) (King, J., dissenting from denial of rehearing en banc) ("I write to briefly memorialize my profound
disappointment with our Court's decision to deny Jordan's petition for rehearing en banc--by a tie vote of five to five.").
[FN24]. See generally Fed. R. App. P. 35 (setting forth basic en banc procedures). For more detailed discussions of the
mechanics and history of en banc procedure, see, for example, Wasby, supra note 18, at 19-23; George & Solimine, supra
note 18, at 176-80; Michael Ashley Stein, Uniformity in the Federal Courts: A Proposal for Increasing the Use of En
Banc Appellate Review, 54 U. Pitt. L. Rev. 805, 808-19 (1993); Michael E. Solimine, Ideology and En Banc Review, 67
N.C. L. Rev. 29, 33-38 (1988); Note, En Banc Review in Federal Circuit Courts: A Reassessment, 72 Mich. L. Rev. 1637
(1973). For some judicial views of the evolution of Rule 35 and the en banc process, see Richard S. Arnold, Why Judges
Don't Like Petitions for Rehearing, 3 J. App. Prac. & Process 29, 30-34 (2001); Ginsburg & Falk, supra note 21, at 1008;
Jon O. Newman, In Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brook. L. Rev. 365, 366-71 (1984).
[FN25]. En banc review usually follows completion and circulation of a panel decision, but not invariably so. In the
process of writing a panel opinion, the author may conclude that circuit precedent must be overruled, which can only be
achieved by the en banc court. See Cooper & Berman, supra note 19, at 721 n.91 (collecting cases from every circuit
holding that one panel may not overrule another). The panel may, for example, itself call for en banc rehearing, and such
rehearing may take place, before there is any panel opinion. See, e.g., Laber v. Harvey, 438 F.3d 404, 410 (4th Cir. 2006)
(en banc) ("After oral argument to the panel assigned to hear this case, and at the request of that panel, a majority of the
active circuit judges on this court agreed to rehear this case en banc to consider the continuing viability of [circuit
precedent].").
[FN26]. See Michael E. Tigar & Jane E. Tigar, Federal Appeals: Jurisdiction and Practice 557-58 (3d ed. 1999)

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("[F]requently rehearings granted result from a request for en banc reconsideration by a judge of the Court initiated
independent of any petition.") (quoting then-current 5th Cir. R. 35). Various courts have adopted procedures for
facilitating or simplifying en banc review. For example, in the Third Circuit, "[d]rafts of precedential opinions ... are
circulated to all active judges of the court .... Non-panel active judges must notify the authoring judge within eight (8)
days if they desire en banc consideration." 3d Cir. I.O.P. 5.5.4 (2002), available at http://
www.ca3.uscourts.gov/Rules/IOP-Final.pdf. Note also that when a Seventh Circuit panel writes an opinion that would
overrule circuit precedent, the opinion cannot be published "unless it is first circulated among the other active members
of the court, and a majority do not vote to hear the case in banc." Robert L. Stern, Appellate Practice in the United States
463 (2d ed. 1989); see also Cooper & Berman, supra note 19, at 745-46 (describing opinion circulation as a method for
full court decision making).
[FN27]. See 28 U.S.C. § 46(c) (2000) ("A court in banc shall consist of all circuit judges in regular active service."). This
general rule is qualified in two ways. First, the statute allows circuits to provide for participation, in an en banc case, of a
senior judge who was on the original panel or who was in active service when the case was reheard en banc. Id.; see Fed.
R. App. P. 35(a), advisory committee's note to 2005 Amendments (surveying differing approaches of the circuits in
determining which judges constitute "a majority of the circuit judges who are in regular active service" in a given case in
which en banc review is sought).
Second, the Omnibus Judgeship Act of 1978 authorized circuits of more than fifteen judges to have a "limited en banc
panel composed of fewer than all the court's judges." Pub. L. No. 95-486, § 6, 92 Stat. 1629, 1633 (1978). The Ninth
Circuit, with twenty-eight active judges, is the only circuit to have taken advantage of this statute. Review of the Report
by the Comm'n on Structural Alternatives for the Fed. Courts of Appeals Regarding the Ninth Circuit: Hearing Before the
Subcomm. on Administrative Oversight and the Courts of the S. Comm. on the Judiciary, 106th Cong. 74 (1999) (letter
from Anthony M. Kennedy, Assoc. Justice, U.S. Supreme Court, to Byron R. White, Chairman, Comm'n on Structural
Alternatives for the Fed. Courts of Appeals (Aug. 17, 1998)) [hereinafter Kennedy Letter]. Justices Kennedy and Scalia,
among others, expressed concern in 1998 about the effectiveness of the Ninth Circuit's limited en banc court as a means
of securing uniformity in circuit law and reducing error. See id. at 75; Scalia Letter, supra note 22, at 72.
[FN28]. See Patricia M. Wald, 19 Tips from 19 Years on the Appellate Bench, 1 J. App. Prac. & Process 7, 15 (1999)
("En bancs most often occur when a majority feels strongly that the panel is wrong about something they care a lot about
or which may be precedential outside the confines of the immediate case.").
[FN29]. Scalia Letter, supra note 22, at 72. There are of course instances in which the en banc court and the panel reach
the same ultimate disposition. See, e.g., Town of Castle Rock v. Gonzales, 125 S. Ct. 2796, 2802 (2005) (recounting that
the court below, sitting en banc, had reached the same conclusion as the panel opinion); Brickwood Contractors, Inc. v.
Datanet Eng'g, Inc., 369 F.3d 385, 399 (4th Cir. 2004) (Widener, J., concurring) (noting that the en banc court came to the
same result as the now-vacated panel opinion that Judge Widener had written).
[FN30]. Fed. R. App. P. 35(a)(1)-(2). Rule 35 flows from Congress's express grant of authority for hearing or rehearing
before an appellate court "in banc." Act of June 25, 1948, ch. 646, § 46, 62 Stat. 869, 871 (codified as amended at 28
U.S.C. § 46(c) (2000)). The federal courts are not the only courts to deploy Rule 35's "exceptional importance" phrase.
See, e.g., Fla. R. App. P. 9.331(a); D.C. R. App. P. 35(a)(2).
While 28 U.S.C. section 46(c) refers to a court sitting "in banc," Rule 35 spells this phrase "en banc," and this Article
follows the latter spelling. For more on this shift, see Newman, supra note 24, at 365 n.1; United States v. Edmonds, 80
F.3d 810, 812 n.1 (3d Cir. 1996).
[FN31]. Some judges interpret Rule 35 to mean that only a case that is simultaneously exceptionally important and
threatening to uniformity should be reheard en banc. See, e.g., Newdow v. U.S. Cong., 328 F.3d 466, 469 (9th Cir. 2003)
(Reinhardt, J., concurring in denial of rehearing en banc) ("I disagree with the notion that the importance of an issue is a
sufficient reason to take a case en banc, either under the Rule or as a matter of judicial policy .... The most reasonable
construction of the Rule is that this court should rehear a case en banc when it is both of exceptional importance and the
decision requires correction.") (emphasis omitted), panel rev'd in part sub nom. Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004).

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[FN32]. Fed. R. App. P. 35(b)(1)(A).
[FN33]. Id. 35(b)(1)(B).
[FN34]. See Fed. R. App. P. 35(b), advisory committee's note to 1998 amendment.
[FN35]. See, e.g., George, supra note 12, at 232 ("Congress and the Supreme Court generally have vested the courts of
appeals with almost unfettered discretion to decide how and when to exercise their en banc power."); George & Solimine,
supra note 18, at 178-79 (referring to Rule 35 standards as "highly discretionary criteria" that have been fleshed out by
cases and scholarship); Pierre H. Bergeron, En Banc Practice in the Sixth Circuit: An Empirical Study, 1990-2000, 68
Tenn. L. Rev. 771, 774 n.11 (2001) (quoting judicial opinions recognizing that Rule 35 standards are malleable).
[FN36]. See Stern, supra note 26, at 460 ("Perhaps the most likely [request for rehearing] to be successful ... [is] when
there has been a dissent, and there is good reason to believe that a majority of the full bench will agree with it."); Tigar &
Tigar, supra note 26, at 427 ("Rehearing en banc will be very difficult to obtain if the panel members included judges
with different judicial philosophies on the issue presented and if the panel opinion was unanimous.").
[FN37]. For some findings from an empirical study covering a sample of cases from the Second, Fourth, and Eighth
Circuits, see George, supra note 12, at 267-69, 272. The study found that panel opinions reversing district courts or
agencies are about 3.5 times more likely to be taken en banc than those that affirm, and that those yielding a dissent are
about thirty-nine times more likely to be taken en banc than those that are unanimous. Id. at 267. D.C. Circuit Chief
Judge Douglas H. Ginsburg's two reviews of en banc decisions of that court also concluded that unanimous panel
decisions are rarely reexamined en banc. Douglas H. Ginsburg & Brian M. Boynton, The Court En Banc: 1991- 2002, 70
Geo. Wash. L. Rev. 259, 265-66 (2002); Ginsburg & Falk, supra note 21, at 1047.
[FN38]. As one court has explained, "[t]he order granting rehearing en banc vacates the panel decision." Practitioner's
Handbook for Appeals to the U.S. Court of Appeals for the Seventh Circuit 104-05 (2003), available at http://
www.ca7.uscourts.gov/Rules/handbook.pdf.
[FN39]. See, e.g., Stein, supra note 24, at 818-19 (listing different rates of en banc rehearing among the circuits between
1982 and 1991); Christopher P. Banks, The Politics of En Banc Review in the "Mini-Supreme Court," 13 J.L. & Pol. 377,
391-94 (1997) (reporting that the highest rates of en banc rehearing from 1970 to 1995 were in the Fourth, Fifth, and
Eighth Circuits).
[FN40]. See Admin. Office of the U.S. Courts, Judicial Business of the United States Courts 37 tbl.S-1 (2004), http://
www.uscourts.gov/judbus2004/tables/s1.pdf. Cases in which the courts do not grant oral argument can typically be
decided under well-established precedents, applicable statutes, or procedural rules; when such cases are included in the
metric, the proportion of the appellate docket that leads to en banc proceedings falls to an even smaller number. See id.
[FN41]. Banks, supra note 39, at 394.
[FN42]. See, e.g., Ginsburg & Falk, supra note 21, at 1018 ("In the D.C. Circuit, when a case that has been heard by a
panel of three is reheard by a bench of twelve, the amount of judicial time consumed probably increases fourfold,
consuming resources equivalent to what it would take for a panel to hear four new cases."); see also Practitioner's Guide
to the U.S. Court of Appeals for the Fifth Circuit 77 (2006) [hereinafter 5th Cir. Prac. Guide] ("Rehearing en banc
petitions take an inordinate amount of the judges' scarce resources."), available at http://
www.ca5.uscourts.gov/clerk/docs/pracguide.pdf.
[FN43]. See, e.g., Handbook of Practice and Internal Procedures for the U.S. Court of Appeals for the District of
Columbia Circuit 65 (2006) ("The Court almost always hears oral argument in considering a case en banc.").

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[FN44]. See, e.g., Letter from Diarmuid F. O'Scannlain, Circuit Judge, Ninth Circuit Court of Appeals, to Peter G.
McCabe, Sec'y of the Comm. on Rules of Practice & Procedure, Admin. Office of the U.S. Courts 2 (Feb. 5, 2004),
available at http://www.secretjustice.org/pdf_files/Comments/03-AP-285.pdf ("It takes weeks, and often months, of
intense drafting and revision to craft an opinion that adequately resolves the appeal ..., clarifies (or expounds) the
appropriate rule of law, and establishes a legal principle competent to guide the resolution of future cases without ...
loose, ambiguous, or misdirected language."); Letter from Kenneth W. Starr, retired U.S. Circuit Judge, D.C. Circuit
Court of Appeals, to Peter G. McCabe, Sec'y of the Comm. on Rules of Practice & Procedure, Admin. Office of the U.S.
Courts 1 (Feb. 16, 2004), available at http://www.secretjustice.org/pdf_files/Comments/03-AP-469.pdf ("Because the
opinion will not only resolve a particular case, but articulate legal principles to bind future panels and future litigants, the
circuit judges must spend considerable time puzzling out nuances and debating alternative ways of phrasing a particular
holding.").
[FN45]. Justice Kennedy described the output of the en banc process this way:
A decision in an en banc case, as a general rule, requires more time, more deliberation, and more writing than go into the
ordinary three-judge panel opinion. The result, however, is beneficial. Products of en banc consideration, majority
opinions and separate writings, reflect extra efforts invested in the process and represent appellate judging in one of its
most instructive forms.
Kennedy Letter, supra note 27, at 75.
[FN46]. See, e.g., Posner, supra note 22, at 134 (connecting the rarity of en banc decisions with "the high perceived cost
in time and irritation of hearing and deciding cases en banc"); Hart v. Massanari, 266 F.3d 1155, 1172 n.29 (9th Cir.
2001) (citing extensive judicial and academic commentary on "the rigors of en banc procedures," and noting that, due to
their "cumbersome" nature, "en banc procedures are seldom used merely to correct the errors of individual panels"); see
also United States v. Moore, 110 F.3d 99, 99 (D.C. Cir. 1997) (Sentelle, J., concurring in denial of rehearing en banc)
("[W]e should not waste the assets of the court on an in banc proceeding unless the panel decision at least (a) is
erroneous and (b) establishes or maintains a precedent of some importance."); Air Line Pilots Ass'n, Int'l v. Eastern Air
Lines, Inc., 863 F.2d 891, 925 (D.C. Cir. 1989) (Ginsburg, R.B., J., concurring in denial of rehearing en banc) ("'Only in
the rarest of circumstances' ... should we countenance the drain on judicial resources, the expense and delay for the
litigants, and the high risk of a multiplicity of opinions offering no authoritative guidance, that full circuit rehearing of a
freshly decided case entails." (citation omitted)).
[FN47]. Reviewing confidential correspondence with regard to the Ninth Circuit's en banc process, Professor Stephen
Wasby found that some judges calling for en banc review emphasized that the panel decision conflicted with Supreme
Court and circuit precedent, including its own. Stephen L. Wasby, Intercircuit Conflicts in the Courts of Appeals, 63
Mont. L. Rev. 119, 135 (2002). Viewing these conflict claims as in part a rhetorical tool, Wasby surmised that "[w]hen a
judge combines all these elements, it may be another way of saying, 'This is a really bad decision."' Id.
[FN48]. See, e.g., Unpublished Judicial Opinions: Hearing Before the Subcomm. on Courts, the Internet & Intellectual
Property of the H. Comm. on the Judiciary, 107th Cong. 13 (2002) (statement of Alex Kozinski, Circuit Judge, Ninth
Circuit Court of Appeals) ("[A]n en banc call consumes substantial court resources. The judge making the call circulates
one or more memos criticizing the opinion .... Frequently, other judges circulate memoranda in support or opposition
before the vote. Many of these memos are as complex and extensive as the opinion itself."); Joseph T. Sneed, The
Judging Cycle: Federal Circuit Court Style, 57 Ohio St. L.J. 939, 942 (1996) ("Often [en banc calls and responsive
memoranda] constitute the most interesting writings of an appellate court.").
[FN49]. See, e.g., Bartlett ex rel. Neuman v. Bowen, 824 F.2d 1240, 1243 (D.C. Cir. 1987) (Edwards, J., concurring in
denials of rehearing en banc) ("Collegiality cannot exist if every dissenting judge feels obliged to lobby his or her
colleagues to rehear the case en banc in order to vindicate that judge's position.").
[FN50]. See, e.g., United States v. McClain, 444 F.3d 537, 538 (6th Cir. 2006) (Martin, J., dissenting from denial of
rehearing en banc) ("[T]he panel's decision is incorrect and it undermines both the purposes of the exclusionary rule and
the good-faith exception ...."); Ohio Valley Envtl. Coal. v. Bulen, 437 F.3d 421, 422 (4th Cir. 2006) (King, J., dissenting
from denial of rehearing en banc) ("En banc consideration is warranted because the decision of my distinguished

2006 Wis. L. Rev. 1315
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colleagues on the court's panel eviscerates the important distinction drawn by Congress between individual and general
permits under section 404 of the Clean Water Act ... and it undermines the [Act's] primary purpose of protecting the
environment."); Guidry v. Dretke, 429 F.3d 154, 162 (5th Cir. 2005) (Jones, J., dissenting from denial of rehearing en
banc) ("The majority opinion sends confusing signals to the district courts and, equally unfortunately, to our brethren in
the state courts as to the acceptable standards and procedures for federal habeas review."); Alexander v. Oklahoma, 391
F.3d 1155, 1165 (10th Cir. 2004) (Lucero, J., dissenting from denial of rehearing en banc) ("Because the panel erred by ...
applying an inappropriate legal standard to decide plaintiffs' fraudulent concealment claims, this matter deserves en banc
consideration."). But see Scariano v. Justices of the Supreme Court of the State of Ind., 47 F.3d 173, 175 (7th Cir. 1995)
(Posner, C.J., dissenting from denial of rehearing en banc) ("The fact that I disagree with the panel's decision is of course
not a sufficient basis for wanting to hear the case argued en banc.").
Concerns beyond the gravity of the panel's error may affect a judge's decision to vote for or against rehearing. When, for
example, a panel opinion and dissent adequately present the contending views on a legal question, it may be that en banc
review cannot add anything new to the debate and that only the Supreme Court can give a definite answer. See, e.g.,
Freedom from Religion Found. v. Chao, 447 F.3d 988, 989-90 (7th Cir. 2006) (Easterbrook, J., concurring in denial of
rehearing en banc) ("My vote to deny the petition for rehearing en banc does not imply that I deem the panel's resolution
beyond dispute or the issue unimportant .... My vote to deny rehearing rests on a conclusion that this is not the right
forum for that further deliberation .... The problem is not of our creation and cannot be resolved locally."), cert. granted
sub nom. Hein v. Freedom from Religion Found., No. 06-157 (Dec. 1, 2006); Landell v. Sorrell, 406 F.3d 159, 167 (2d
Cir. 2005) (Sack & Katzmann, JJ., concurring in denial of rehearing en banc) ("If ... the panel majority opinion fails to
pass constitutional muster, a rehearing en banc of the panel decision would only forestall resolution of issues destined
appropriately for Supreme Court consideration."), panel rev'd and remanded sub nom. Randall v. Sorrell, 126 S. Ct. 2479
(2006).
[FN51]. See Solimine, supra note 9, at 331-33 (arguing that the absolute number of rehearing dissents remains quite low).
[FN52]. 276 F.2d 525 (2d Cir. 1960).
[FN53]. Id. at 549 (Clark, J., dissenting).
[FN54]. Id. at 553 (Friendly, J., concurring). The Second Circuit has historically convened en banc infrequently. See
Patricia M. Wald, Calendars, Collegiality, and Other Intangibles on the Courts of Appeals, in The Federal Appellate
Judiciary in the Twenty-first Century 181 (Cynthia Harrison & Russell R. Wheeler eds., 1989) ("Some courts, like the
Second Circuit, ... have a strong tradition against en bancing; they live with their differences at least until the Supreme
Court steps in."); see also Newman, supra note 24, at 382 ("The Second Circuit's self-discipline in holding to a minimum
the number of appeals reheard in banc is, in my view, a distinct benefit to the court, the bar, and the development of the
law.").
[FN55]. See 5 Am. Jur. 2d Appellate Review § 903 (1995) ("When a request for rehearing en banc is denied, the court
should merely note the denial and the names of any judges who dissented therefrom, and no opinion should be written on
the question."); 2A Federal Procedure, Lawyers Edition: Appeals, Certiorari, and Review § 3:949 (2003).
[FN56]. Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J., concurring in
denial of rehearing en banc).
[FN57]. See, e.g., Charles Alan Wright, Handbook of the Law of Federal Courts 34 (1963) ("[T]he oldest and most
consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions.").
[FN58]. See Clarke, 965 F.2d at 1080 (Randolph, J., concurring in denial of rehearing en banc) ("The manner in which
these en banc 'bulletins' are formulated does not simulate the process of the court when it is actually deciding a case ....
[D]enials of rehearing en banc are best followed by silence. They should not serve as the occasion for an exchange of
advisory opinions, overtures to the Supreme Court, or press releases.").

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[FN59]. Id.
[FN60]. See Solimine, supra note 9, at 333 ("[Rehearing dissents] are usually the result of the adversarial process, that is,
motions under Rule 35.").
[FN61]. Id. at 330, 337; McGowan, supra note 18, at 576-81; Spreng, supra note 18, at 930-31.
[FN62]. See, e.g., Tigar & Tigar, supra note 26, at 559.
[FN63]. Id. at 560.
[FN64]. Isaacs v. Kemp, 782 F.2d 896, 897 n.1 (11th Cir. 1986) (Hill, J., dissenting from denial of rehearing en banc).
Two years later, by contrast, Judge Francis Murnaghan of the Fourth Circuit still regarded rehearing dissents as unusual
events. See Cannon v. Kroger Co., 837 F.2d 660, 660 (4th Cir. 1988) (Murnaghan, J., dissenting from denial of rehearing
en banc) ("[I]t is indeed unusual, if not extraordinary, for a member of the Fourth Circuit Court of Appeals who disagrees
with a panel opinion to continue to fight after rehearing en banc has been denied by the majority of the court .... [but] I
perceive the court's failure to grant rehearing as a dangerous error that may entrench a mischievous and unjust
decision."); see also Solimine, supra note 9, at 331 & nn.37-43 (discussing Isaacs and citing Cannon).
[FN65]. See Isaacs, 782 F.2d at 897 n.1 (Hill, J., dissenting from denial of rehearing en banc) ("Its growth appears to
have coincided with the increase in the number of published dissents from orders denying certiorari in the Supreme
Court."). To be sure, correlation is not causation; Judge Hill's observation did not constitute his endorsement of the view
that there was any causal relation between the practices of the Supreme Court Justices and the judges on the courts of
appeals.
[FN66]. Compare Herzog v. United States, 235 F.2d 664, 668 (9th Cir. 1956) (Denman, C.J. concurring) ("It is apparent
that a rehearing in banc of a division's decision is identical in all material respects with the reviewing by the Supreme
Court of a case decided by a court of appeals, by its certiorari order."), with id. at 672 (Stephens, J., dissenting) ("Chief
Judge Denman likens what the en banc court has done to the writ of certiorari, as used by the United States Supreme
Court. I think there is much fundamental difference.").
[FN67]. See, e.g., Richard A. Posner, The Courthouse Mice, New Republic, June 5, 2006, at 32, 33 ("[T]he number of
petitions for certiorari (and other applications for review) has grown substantially since the 1930s (from about 900 a year
to about 7,500), and each one has to be decided. But most of the growth has been in petitions filed by indigents, mainly
prisoners, who do not have lawyers, and most of these petitions are frivolous.").
[FN68]. See Admin. Office of the U.S. Courts, supra note 40, at 75 tbl.A-1,
http://www.uscourts.gov/judbus2004/appendices/a1.pdf (providing Supreme Court caseload statistics in the 1999 through
2003 terms). The governing rules of Supreme Court procedure make the rarity of certiorari grants explicit. See Sup. Ct.
R. 10 ("Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari
will be granted only for compelling reasons."). For the definitive overview of certiorari practice, see Robert L. Stern et
al., Supreme Court Practice 286-337 (8th ed. 2002).
[FN69]. See, e.g., Kenneth W. Starr, The Supreme Court and Its Shrinking Docket: The Ghost of William Howard
Taft, 90 Minn. L. Rev. 1363, 1367 n.18 (2006 ). There are many reasons why a petition may fail to attract the necessary
four votes:
review may be sought too late; the judgment of the lower court may not be final; a case may raise an important question
but the record may be cloudy; the particular controversy--although not the large issue it raised--may have become moot;
the matter may benefit from further opinions, further percolation in the lower courts, for, in Justice Frankfurter's words,
"[w]ise adjudication has its own time for ripening."
Ruth Bader Ginsburg, Assoc. Justice, U.S. Supreme Court, Informing the Public About the U.S. Supreme Court's Work,
Address at the Loyola University School of Law (Aug. 22, 1997), in 29 Loy. U. Chi. L.J. 275, 279 (1998) (citing, among

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others, Singleton v. Comm'r, 439 U.S. 940, 945 (1978) (Stevens, J., concurring in denial of certiorari) and Maryland v.
Balt. Radio Show, 338 U.S. 912, 917-19 (1950) (Frankfurter, J., respecting denial of certiorari)).
[FN70]. Singleton, 439 U.S. at 944 (Stevens, J., concurring in denial of certiorari) (quoting Balt. Radio Show, 338 U.S. at
919 (1950)); see Brown v. Allen, 344 U.S. 443, 456 (1953) ("We have frequently said that the denial of certiorari 'imports
no expression of opinion upon the merits of a case."' (quoting House v. Mayo, 324 U.S. 42, 48 (1945))). Cf. Brown, 344
U.S. at 543 (Jackson, J., concurring in judgment) ("[F]or the case in which certiorari is denied, its minimum meaning is
that this Court allows the judgment below to stand with whatever consequences it may have upon the litigants
involved ....").
[FN71]. See H.W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court 180-91 (1991)
(tabulating the frequency of agenda dissents by Justices during the 1976-80 October Terms); Peter Linzer, The Meaning
of Certiorari Denials, 79 Colum. L. Rev. 1227, 1256-62 (1979) (describing the growth of the practice).
[FN72]. See Linzer, supra note 71, at 1267, 1267-77 (describing three categories of certiorari dissents). All of these
categories "say in effect that the decision below was wrong, and that because the case is important the judgment should
be reversed." Id. at 1267.
[FN73]. Singleton, 439 U.S. at 944-45; see Evans v. Stephens, 544 U.S. 942, 942 (2005) (Stevens, J., concurring in
denial of certiorari) (listing cases in which Justice Stevens has reiterated his view from Singleton).
[FN74]. See David M. O'Brien, A Diminished Plenary Docket, 89 Judicature 134, 136-37 & fig.3 (2005) (describing a
steep decline in the frequency of dissents from denial of certiorari during the Rehnquist years, after a surge during the
Burger years).
[FN75]. See, e.g., Bell v. Quintero, 544 U.S. 936, 936 (2005) (Thomas, J., dissenting from denial of certiorari); Colo.
Gen. Assembly v. Salazar, 541 U.S. 1093, 1093 (2004) (Rehnquist, C.J., dissenting from denial of certiorari); Concrete
Works of Colo., Inc. v. City & County of Denver, 540 U.S. 1027 (2003) (Scalia, J., dissenting from denial of certiorari).
Such separate opinions need not be dissents; some Justices on occasion write stand-alone opinions concurring in denial
of certiorari. See, e.g., Padilla v. Hanft, 126 S. Ct. 1649, 1649 (2006) (Kennedy, J., concurring in denial of certiorari);
Fidelity Fed. Bank & Trust v. Kehoe, 126 S. Ct. 1612, 1612 (2006) (Scalia, J., concurring in denial of certiorari).
[FN76]. See 126 S. Ct. 2208, 2214-15 (2006) (quoting Hanousek v. United States, 528 U.S. 1102, 1103 (2000) (Thomas,
J., dissenting from denial of certiorari)).
[FN77]. See George, supra note 12, at 239; see also Solimine, supra note 9, at 327-29 (discussing the analogy, developed
in Harris v. Vasquez, 949 F.2d 1497, 1539-40 (9th Cir. 1991) (Reinhardt, J., dissenting from denial of rehearing en banc),
between certiorari and rehearing en banc practices).
[FN78]. The Supreme Court orders oral argument in cases in which certiorari has been granted, so a dissent from denial
of certiorari necessarily proceeds without the benefit of oral argument. The courts of appeals do not hear oral argument
before deciding whether to convene en banc, so unless the rehearing dissenter heard argument as a member of the panel,
this judge also proceeds without the benefit of oral argument.
[FN79]. See, e.g., Bunting v. Mellen, 541 U.S. 1019, 1022 (2004) (Stevens, J., respecting denial of certiorari, and Scalia,
J., dissenting from denial of certiorari); City of Elkhart v. Books, 532 U.S. 1058, 1058 (2001) (Stevens, J., respecting
denial of certiorari, and Rehnquist, C.J., dissenting from denial of certiorari); infra note 175 (providing examples of
circuit court cases generating opinions concurring in and dissenting from denial of rehearing en banc). Bunting is an
unusual case: it produced not only opinions respecting and dissenting from denial of certiorari, but also several rehearing
dissents in the Fourth Circuit. See Mellen v. Bunting, 341 F.3d 312, 313 (4th Cir. 2003).
[FN80]. See, e.g., United States v. Chhien, 266 F.3d 1, 11 (1st Cir. 2001) ("[T]he 'law of the circuit' doctrine ... holds a

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prior panel decision inviolate absent either the occurrence of a controlling intervening event (e.g., a Supreme Court
opinion on the point; a ruling of the circuit, sitting en banc; or a statutory overruling) or, in extremely rare circumstances,
where noncontrolling but persuasive case law suggests such a course."); Cooper & Berman, supra note 19, at 721 n.91.
[FN81]. This enables the Court to wait until there is a deep circuit split before it weighs in on an issue. See, e.g., Comm'r
v. Banks, 543 U.S. 426, 429 (2005) (resolving a tax question that the Supreme Court had previously declined to answer
in Benci-Woodward v. Comm'r, 219 F.3d 941 (9th Cir. 2000), cert. denied, 531 U.S. 1112 (2001), and Campbell v.
Comm'r, 274 F.3d 1312 (10th Cir. 2001), cert. denied, 535 U.S. 1056 (2002)). Such lower court disagreement sharpens
and clarifies opposing views on an issue, better preparing that issue for Supreme Court review. See Arizona v. Evans, 514
U.S. 1, 18 (1995) (Ginsburg, J., dissenting) ("[W]hen frontier legal problems are presented, periods of 'percolation' in,
and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final
pronouncement by this Court.").
[FN82]. J. Louis Campbell, III, The Spirit of Dissent, 66 Judicature 305, 305 (1982). For a capsule history of written
judicial opinions since the time of the ancient Romans, see Wald, supra note 13 at 1371 n.1. A short history of dissents in
the Supreme Court is given in Lipez, supra note 13, at 315-16 (2005).
[FN83]. Campbell, supra note 82, at 305; see also Scalia, supra note 13, at 34-35 (recounting Chief Justice Marshall's
influence on the Supreme Court's opinion-writing practice and Thomas Jefferson's contemporary derision of that
practice).
[FN84]. See Paul M. Bator, What is Wrong with the Supreme Court?, 51 U. Pitt. L. Rev. 673, 686 (1990) ("Nobody
seems to take seriously the notion that the Court should try very hard to speak with a single intelligible voice. The
endless proliferation of independent opinions is ... a disgrace."); cf. Confirmation Hearing on the Nomination of John G.
Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 302
(2005) (statement of Sen. Arlen Specter) (inquiring what the nominee could do to address the problem of "proliferation of
opinions").
[FN85]. See Richard A. Posner, The Supreme Court, 2004 Term--Foreword: A Political Court, 119 Harv. L. Rev. 31, 68
fig.4 (2005) (illustrating that the number of separate opinions per Term in the last decade of the Rehnquist Court
remained relatively constant at about 100 and was far lower than periods in the mid-1970s and late 1980s); id. at 72
(remarking that the number of opinions has not fallen with the Supreme Court's shrinking docket). The Court has nearly
halved the number of cases it actually decides each Term, compared to the 1982- 83 period. See David R. Stras, The
Supreme Court's Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. (forthcoming 2007)
(manuscript at 20, available at http://ssrn.com/abstract=938566).
[FN86]. Brennan, supra note 13.
[FN87]. Scalia, supra note 13.
[FN88]. Ginsburg, supra note 13.
[FN89]. See, e.g., Wald, supra note 13; Lipez, supra note 13.
[FN90]. See Scalia, supra note 13, at 35 ("In assessing the advantages and disadvantages of separate opinions, one must
consider their effects both within and without the Court.").
[FN91]. See id. at 35-42.
[FN92]. See, e.g., Virginia A. Hettinger et al., Judging on a Collegial Court 75-88 (2006) (positing that dissents may aim
to obtain en banc or Supreme Court review for ideological or strategic reasons, but finding no empirically verifiable

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support for that hypothesis); Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals: A Preliminary
Investigation, 90 Va. L. Rev. 301, 337-38, 339-40 (2004) (finding empirical evidence that panels with heterogeneous
partisan political affiliation are less likely to reach so-called politically extreme outcomes than are panels of homogenous
affiliation); Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine:
Whistleblowing on the Federal Courts of Appeals, 107 Yale L.J. 2155, 2159, 2173-74 (1998) (focusing on the dissent's
ability to expose so-called partisan decisions that clearly violate doctrinal commands); see also George, supra note 12, at
233-48 (summarizing how legal or formalist, attitudinal or political, and hierarchical or institutional theories apply to en
banc decisionmaking); Posner, supra note 85, at 32-34 (contrasting a social-science inquiry, which is not affected by
"preconceptions drawn from the professional legal culture," with a traditional legal "normative analysis conducted from
within the professional culture"); Theodore W. Ruger et al., The Supreme Court Forecasting Project: Legal and Political
Science Approaches to Predicting Supreme Court Decisionmaking, 104 Colum. L. Rev. 1150, 1152-59 (2004)
(summarizing analytical differences between political-science and traditional legal perspectives on the Court).
[FN93]. Several empirical studies measuring so-called ideology in the en banc process exist. See, e.g., Bergeron, supra
note 35, at 788-91; George, supra note 12, at 256-57, 271-72; Phil Zarone, Agenda Setting in the Courts of Appeals: The
Effect of Ideology on En Banc Rehearings, 2 J. App. Prac. & Process 157, 169-72, 174-76 (2000). For research claiming
that sharp disagreement on the D.C. Circuit during the late 1980s spilled into the en banc process, see, for example,
David C. Vladeck, Keeping Score: The Utility of Empirical Measurements in Judicial Selection, 32 Fla. St. U. L. Rev.
1415, 1422-24 (2006); Banks, supra note 39, at 397-401.
[FN94]. See, e.g., The Judicial Nomination and Confirmation Process: Hearings before the Subcomm. on Administrative
Oversight & the Courts of the S. Comm. on the Judiciary, 107th Cong. 231-33 (2001) (statement of Ronald A. Cass,
Dean, Boston University School of Law) (identifying numerous reasons why empirically measured ideology fails to
explain judicial decisions); Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. Pa. L.
Rev. 1639, 1652-53 (2003) (surveying and criticizing the political-science focus on ideology in judging).
[FN95]. Scalia, supra note 13, at 41.
[FN96]. In some cases, public availability of a judge's papers may provide a glimpse into those occasions when a dissent
becomes the majority and vice versa. See, e.g., Frank B. Cross, The Justices of Strategy, 48 Duke L.J. 511, 524 & nn.64-
65 (1998) (reviewing Lee Epstein & Jack Knight, The Choices Justices Make (1998)) (noting that a study of the Vinson
Court showed vote switching away from five-justice majorities in only 6 percent of cases but adding that these cases may
be especially significant ones); Mark Tushnet, Why the Supreme Court Overruled National League of Cities, 47 Vand. L.
Rev. 1623, 1631-32 (1994) (drawing on a memo from Justice Stevens to Chief Justice Burger, contained in Justice
Brennan's papers, that mentioned two instances in which Chief Justice Burger's changed vote turned a dissent into a
majority opinion).
[FN97]. A switch turning a dissent into a majority is improbable. See, e.g., Sneed, supra note 48, at 942; see also Ronald
Lee Gilman, Rookie Year on the Federal Bench, 60 Ohio St. L.J. 1085, 1093 (1999) ("The tentative decision reached
following oral argument becomes the formal decision of the panel in probably ninety-five percent of the cases heard. Far
more common is for the other two panel members to make written suggestions that are then incorporated into the
majority opinion, even though the ultimate result is not changed.").
Such a switch is not impossible, however, as demonstrated by United States v. Pope. After the district court admitted
evidence from an allegedly unconstitutional search in reliance on the good-faith exception to the exclusionary rule, 452
F.3d 338, 339-40 (5th Cir. 2006) (summarizing the district court's decision), the court of appeals reversed by a divided
vote, see id. at 349-52 (Jolly, J., dissenting). Some months later the panel majority announced that it had changed its
mind, and replaced the previous opinions with a new one unanimously affirming. See Pope, 467 F.3d 912, 914 (5th Cir.
2006) ("The panel majority has sua sponte reconsidered arguments made by the dissenting opinion and has concluded
that they are well taken. As a result, we now withdraw our original panel majority opinion and the dissenting opinion,
replacing them with the following unanimous opinion ....").
[FN98]. See, e.g., Michael C. Blumm, Reversing the Winters Doctrine?: Denying Reserved Water Rights for Idaho
Wilderness and Its Implications, 73 U. Colo. L. Rev. 173, 186-89, 194-95 (2002) (describing the vote switch by Idaho

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Supreme Court's Chief Justice on rehearing in Potlatch Corp. v. United States, 12 P.3d 1260 (Idaho 2000), and suggesting
that political considerations contributed to switch).
[FN99]. See, e.g., Ginsburg, supra note 13, at 139, 143 (describing separate opinions pointing out the majority's
"inaccuracies and inadequacies" as aiding majority testing of the panel opinion); Brennan, supra note 13, at 430 ("In its
most straightforward incarnation, the dissent demonstrates flaws the author perceives in the majority's legal analysis. It is
offered as a corrective ...."); Lipez, supra note 13, at 322 ("Ideally, a dissent will improve the majority's opinion by
forcing a response to the criticisms in the dissenting opinion.").
[FN100]. Scalia, supra note 13, at 41.
[FN101]. Ginsburg, supra note 13, at 143. The majority's responsive modifications may be minor, and a response to a
dissent may be confined to the margins. See Lipez, supra note 13, at 323. Another possibility is that the majority's
response will be segregated from its primary analysis in a subpart. See, e.g., Malay. Int'l Shipping Corp. v. Sinochem Int'l
Co., 436 F.3d 349, 365-67 (3d Cir. 2006) (captioning a subpart "Response to the Dissent"), cert. granted, 127 S. Ct. 36
(2006). From the initial draft to the revised version answering the dissent, the actual disposition of the case is not likely
to change, though its language and reasoning might. See Sneed, supra note 48, at 940 ("The opinion expressed during the
panel conference is seldom substantially altered later, although there is often some jockeying between the majority and a
dissenting judge over the precise language of their respective opinions.").
[FN102]. See Pierce v. Underwood, 487 U.S. 552, 561 (1988) (recognizing "the normal law-clarifying benefits that come
from an appellate decision on a question of law"); see also Cooper & Berman, supra note 19, at 712.
[FN103]. See, e.g., Kentuckians for the Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 449 (4th Cir. 2003) (Luttig, J.,
concurring in part and dissenting in part) ("The role of the appellate court in theory, of course, is to right the legal wrongs
that occur in the district courts and, in the course of so doing, to explain to the parties the error in the arguments they
advance in defense of and challenge to the district court's judgment.").
[FN104]. Former Fourth Circuit Judge J. Michael Luttig remarked:

[A]t the end of the day, other than conscience, it is only analytical rigor, and the accountability that such renders
possible, that can restrain a judiciary that serves for life and at the pleasure of no one. Of course, that the intellectual
scrupulousness of conventional jurisprudence (i.e., the painstaking determination of law from precedent and the
meticulous application of that law to the particular facts of the litigation), and the resulting accountability, does serve as a
bridle upon the courts is, together with the fact that it demands more of the intellect, precisely why this scrupulousness
has been eschewed in many quarters in favor of the intellectually lazier and jurisprudentially misbegotten enterprise of
decision by personal policy preference.
Safety-Kleen, Inc. v. Wyche, 274 F.3d 846, 871 (4th Cir. 2001) (Luttig, J., concurring).
[FN105]. See sources cited supra note 99. A pertinent caveat is that in many cases a potential dissenter may be able to
achieve the internal corrective function merely by writing a letter to the author of the majority opinion. When judges
routinely exchange such views, and when judges invite and actually incorporate changes suggested by panelists and
nonpanelists into the final product, it may be unnecessary for a dissenter ever to circulate a full-formed dissent. Former
D.C. Circuit Chief Judge Harry Edwards has argued that one reason why dissents are not as common on that court as they
were in the past is that panelists who have concerns about proposed majority opinions can resolve them before the panel
produces its opinion. See Edwards, supra note 94, at 1650 (explaining that when correspondence leads to changes aimed
at accommodating views of the entire panel, separate opinions "are rarely required"). When, however, correspondence is
not sufficient to achieve the internal corrective function, a potential dissent may be more effective. The persistence of
dissenting opinions indicates that correspondence between judges before opinions issue has not proven sufficient to
resolve all differences.
[FN106]. See supra note 48.

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[FN107]. See supra Part II.C.
[FN108]. See Singleton v. Comm'r, 439 U.S. 940, 945-46 (1978) (Stevens, J., respecting denial of certiorari)
("Occasionally a written statement of reasons for granting certiorari is more persuasive than the Justice's oral contribution
to the Conference. For that reason the written document sometimes persuades other Justices to change their votes and a
case is granted that would otherwise have been denied."); see also Perry, supra note 71, at 171 (quoting two unnamed
Justices interviewed about the October 1976-80 Terms, one of whom said that "many dissents [from certiorari denial]
never see the light of day," and the other of whom said, "[m]any times a dissent from denial will pick up a fourth vote").
Justice Byron White drafted many dissents from denials of certiorari that persuaded colleagues to grant cert. See John
Paul Stevens, "Cheers!" A Tribute to Justice Byron R. White, 1994 B.Y.U. L. Rev. 209, 217 (explaining that Justice
White wrote many such dissents that were never published because they convinced the Court to grant certiorari, and
acknowledging that his "successes in this area are a strong argument for the value of such dissents"); see also Linda
Greenhouse, Becoming Justice Blackmun 229 (2005) (attributing the Court's decision to hear DeShaney v. Winnebago
County Dep't of Soc. Servs., 489 U.S. 189 (1989), to Justice White's unpublished dissent from denial of certiorari).
[FN109]. See Perry, supra note 71, at 171 (quoting an unnamed Justice's description of certiorari dissents).
[FN110]. For example, in DeShaney, Justices Brennan and Marshall joined Justice White's incipient dissent from denial
of certiorari, and Justice Blackmun subsequently supplied the fourth vote, allowing the Court to grant certiorari. See
Greenhouse, supra note 108, at 229. On the merits, however, only Justice White voted with the majority. 489 U.S. at 190.
[FN111]. See Fed. R. App. P. 35(a).
[FN112]. See, e.g., 5th Cir. Prac. Guide, supra note 42, at 77 ("Because of the extraordinary nature of en banc rehearings,
the court is fully justified in imposing sanctions on its own initiative for petitions which have little merit.") (citation
omitted).
[FN115]. The majority of the court may well agree with the panel on at least one issue. See, e.g., Peoples v. CCA
Detention Ctrs., 449 F.3d 1097, 1098- 99 (10th Cir. 2006) (en banc) (per curiam) (agreeing with the panel's jurisdictional
holding, and evenly dividing on the question of whether a constitutional cause of action was available against employees
of a privately run prison); In re Burgess, 438 F.3d 493, 495 (5th Cir. 2006) (en banc) ("After hearing argument and
considering supplemental briefing by the parties as well as law professors serving as amici curiae, a majority of the court
agrees with the panel decision."); see also King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 998 (8th Cir. 2005)
(en banc) (agreeing with the panel that summary judgment for an insurer was improper "on a narrower ground than that
articulated by the panel"); supra note 29.
[FN116]. William O. Douglas, America Challenged 4 (1960).
[FN117]. See, e.g., Scalia, supra note 13, at 42 (describing a dissenting opinion written free from the need to
accommodate views of judicial colleagues as an "unparalleled pleasure"); Lipez, supra note 13, at 341 ("[W]riting a
dissent offers the freedom of writing in your own voice."); see also Wald, supra note 13, at 1413 ("The strategy of
personalization in dissent is to separate the dissenter from the cold, impersonal, authoritarian judges of the majority, who
impliedly do not take the human condition into account when they mercilessly impose 'the law."'). Compare Brennan,
supra note 13, at 428-29 (acknowledging but rejecting the view that dissenters write simply to emphasize their
individuality), with id. at 434-35 ("[J]ustices do have an obligation to bring their individual intellects to bear on the issues
that come before the Court.").
[FN118]. Bd. of Educ. v. Grumet, 512 U.S. 687, 708 (1994) (quoting Benjamin N. Cardozo, Law and Literature, in Law

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and Literature and Other Essays and Addresses 3, 34 (1931)).
[FN119]. As Judge Luttig put it:

From time to time, even within the confines of an Article III case or controversy, jurists express their general and
personal views on subjects related (and, to be honest, often unrelated) to the particular legal issues before them. It is best
that we do so infrequently, and ideally we would never do so, because such naturally gives rise to the legitimate question
whether, when we do write opinions only of law, our personal views have influenced or even supplanted the
dispassionate, reasoned analysis that defines the Judiciary in our constitutional scheme.
Urofsky v. Gilmore, 216 F.3d 401, 416 (4th Cir. 2000) (en banc) (Luttig, J., concurring); see also id. at 417 (observing
that a concurring opinion, "even though it be that of only a single judge," must properly "be subjected to the rigors of
conventional legal analysis").
[FN120]. On the other hand, some judicial opinions contain language that can be characterized as intemperate and that is
susceptible to being interpreted as a personal attack on other judges rather than a presentation of a legal argument. See,
e.g., Diana Gribbon Motz, A Federal Judge's Review of Richard A. Posner's The Federal Courts: Challenge and Reform,
73 Notre Dame L. Rev. 1029, 1042-43 (1998) ("The diatribes in some of today's fractured appellate opinions make the
law less certain and seem to serve no purpose except to vent the author's anger. Such diatribes certainly seem a poor way
to craft the country's jurisprudence.").
[FN121]. See Edwards, supra note 94, at 1661 ("[A] judge's job is not 'self-expression' through the law. It is to decide
cases accurately and clearly in concert with colleagues."); Richard L. Nygaard, The Maligned Per Curiam: A Fresh Look
at an Old Colleague, 5 Scribes J. Legal Writing 41, 43 (1994) ( "Opinions are the product of a consensus and should
represent the composite view of a court; they should not be the clone or scion of their authors.").
[FN122]. See Fed. Judicial Ctr., Judicial Writing Manual 28 (1991) ( "Judges circulate draft opinions to other judges on a
panel or en banc court to ensure that the opinion reflects the rationale of the judges in the majority.").
[FN123]. See id. at 27, 29-30, 39-40 (providing general guidance, including examples, on how to write dissents and
concurrences); supra note 117. Of course, the higher the number of federal judges who do agree with the dissent, the
more likely it will become a majority--if not on the author's circuit, then on a sister circuit. See infra notes 140-141 and
accompanying text.
[FN124]. See, e.g., Robert F. Blomquist, Judge Posner's Dissenting Judicial Oeuvre and the Aesthetics of Canonicity, 36
N.M. L. Rev. 161, 207 (2006) (assessing "breathtakingly original" dissents written during Judge Posner's second decade
on the Seventh Circuit); Nomination of David H. Souter to Be Associate Justice of the Supreme Court of the United
States: Hearings Before the S. Comm. on the Judiciary, 101st Cong. 345 (1990) (letter from Ralph I. Lancaster, Jr., Chair,
ABA Standing Comm. on the Fed. Judiciary, to Joe Biden, Chair, S. Judiciary Comm. (Sept. 14, 1990)) ("[T]he best
examples of [now-Justice, then-Judge David] Souter's writings and intellectual abilities were found in his dissents and
concurrences.").
[FN125]. See Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States:
Hearing Before the S. Comm. on the Judiciary, 109th Cong. 178 (2005) (statement of John G. Roberts, Circuit Judge,
D.C. Circuit Court of Appeals) ("[J]udges wear black robes, because it doesn't matter who they are as individuals. That's
not going to shape their decision. It's their understanding of the law that will shape their decision."); accord Appellate
Advocacy Today: What Wins and What Loses, Proceedings of the 52d Jud. Conf. of the D.C. Cir., 140 F.R.D. 481, 579
(June 7, 1991) (statement of Stephen G. Breyer, Chief Circuit Judge, First Circuit Court of Appeals) ("I have always
thought that one of the reasons we wear black robes is that justice should be anonymous. The rule of law should be
independent of the personality of the judge that happens to be hearing the case. Although this does not always happen,
nonetheless it is the ideal.").
[FN126]. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

2006 Wis. L. Rev. 1315
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[FN127]. See Nygaard, supra note 121, at 48 ("A sign of judicial maturity is the ability to subdue one's individual
passions for the sake of the court, or to become, as Sir Walter Scott says, 'sobered by age into patience."').
[FN128]. See Lipez, supra note 13, at 346 ("So why write a dissent? Drawing on pop psychology, I think there are
unacceptable personal costs to a judge who always buries disagreements just to 'go with the flow.' Self-respect suffers
from too much silence.").
[FN129]. See, e.g., Practitioner's Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit 96,
100 (2003) (describing briefs and argument as basic ingredients of judicial decisions), available at http://
www.ca7.uscourts.gov/Rules/handbook.pdf.
[FN130]. For examples of rehearing dissents by nonpanelists, see Davis v. Straub, 445 F.3d 908, 908-13 (6th Cir. 2006)
(Martin, J., dissenting from denial of rehearing en banc); LeClerc v. Webb, 444 F.3d 428, 429-30 (5th Cir. 2006)
(Higginbotham, J., dissenting from denial of rehearing en banc); Wallace v. City of Chicago, 440 F.3d 421, 430-34 (7th
Cir. 2006) (Posner, J., dissenting from denial of rehearing en banc).
[FN131]. See Spreng, supra note 18, at 931 n.267.
[FN132]. The circuits dispose of most of their cases without oral argument. See Admin. Office of the U.S. Courts, supra
note 40, at 37 tbl.S-1. In the year ending September 30, 2004, the circuits decided 31.5 percent of their cases after oral
hearing. Id. The rate of such hearings varies widely, from a high of 58.9 percent of cases in the Second Circuit to a low of
17 percent in the Fourth Circuit. Id. Oral argument does have value in difficult cases, however, since it provides counsel
and the judges with their only opportunity to interact in real time, and not merely to exchange ideas through the static
medium of the appellate briefs. See Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. Rev. 567, 569
(1998-99) ("Inquiries from the bench give counsel a chance to satisfy the court on matters the judges think significant,
issues the judges might puzzle over in chambers, and resolve less satisfactorily without counsel's aid."). Of course, oral
argument cannot substitute for effective briefs; there may be a complexity tipping point beyond which no amount of oral
exposition can help the judge, who must instead rely on written material to explain the case. See Stephen M. Shapiro,
Oral Argument in the Supreme Court: The Felt Necessities of the Time, 1985 Sup. Ct. Hist. Soc'y Y.B. 22, 29 ("Cases
arising in our modern age of bureaucratic regulation and sophisticated technology place a premium on written advocacy
and library research, with a lesser role for oral exposition.").
[FN133]. Conferences following oral argument are not free-ranging symposia. The Supreme Court, unlike the
subordinate courts, focuses on cases that have divided subordinate courts, so it is more likely to confront cases where one
party's arguments are not clearly analytically superior to the others. See William H. Rehnquist, The Supreme Court 255
(2d ed. 2001) ("There simply is no demonstrably 'right' answer to the question involved in many of our difficult cases.").
Yet even the Supreme Court's conference is not a lengthy academic seminar; its "true purpose" instead is, "by hearing
each Justice express his own views, to determine therefrom the view of the majority of the Court." Id. at 258. Moreover,
substantive deliberation on a complex legal question is facilitated when the judges can work together on a written
product. See Edwards, supra note 94, at 1665 ("[C]ollegial deliberation is most effective when there is a text with which
to work."). With that caveat in mind, postargument conferences nevertheless have inherent value because they allow
judges to communicate directly while the elements of the decision are fresh in their minds. See Frank M. Coffin, On
Appeal: Courts, Lawyering, and Judging 152, 153-67 (1994) (describing the values of conferences, even those that are
"very often abbreviated, telescoped conversations hitting only a few issues").
[FN134]. See Hamdi v. Rumsfeld, 337 F.3d 335, 367 (4th Cir. 2003) (Luttig, J., dissenting from denial of rehearing en
banc) (declining to pass "ultimate judgment because of the difficulty of the issue" and acknowledging that the author
wrote "without the benefit of argument"), panel rev'd, 542 U.S. 507 (2004).
[FN135]. See, e.g., Scalia, supra note 13, at 36-38 (explaining that intermediate appellate-court dissents can caution sister
courts or serve as "warning flag[s]" for Supreme Court review).

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[FN136]. See, e.g., Ginsburg, supra note 13, at 145 (noting the possibility of legislative attention to dissents or
concurrences).
[FN137]. See, e.g., Scalia, supra note 13, at 38-39 (arguing that an opinion representing the view of a one-vote majority
indicates that the opinion's legal rule is "at the very margin" and unlikely to be taken further); see also Brennan, supra
note 13, at 430 (describing the dissent's role as providing practical guidance to litigants).
[FN138]. See, e.g., United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997) ("[D]istrict judges ... are obligated to
follow controlling circuit precedent until either we, sitting en banc, or the Supreme Court, overrule it. That a district
judge disagrees with circuit precedent does not relieve him of this obligation whether or not the precedent has been
embraced by our sister circuits.") (citation omitted).
[FN139]. A district court cannot adopt the reasoning of a dissent in a case decided by the circuit that supervises and
establishes mandatory authority for that district court. See id. Nevertheless, district courts in other circuits may find a
panel dissent from another circuit helpful. See, e.g., Jewell v. Gonzales, 420 F. Supp. 2d 406, 425-26 (W.D. Pa. 2006)
(finding support in Kimberlin v. DOJ, 318 F.3d 228, 239-40 (D.C. Cir. 2003) (Tatel, J., concurring in part and dissenting
in part)); Miara v. First Allmerica Fin. Life Ins. Co., 379 F. Supp. 2d 20, 39-40 (D. Mass. 2005) (finding support in
Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1279-80, 1285-86 (6th Cir. 1991) (Jones, J., dissenting));
Steck v. Francis, 365 F. Supp. 2d 951, 969-73 (N.D. Iowa 2005) (finding support in Mendoza v. Borden, Inc., 195 F.3d
1238, 1266 (11th Cir. 1999) (Tjoflat, J., dissenting)).
[FN140]. See, e.g., Lipez, supra note 13, at 323-24) (explaining that a panel dissent can prevent another circuit from
adopting the majority's reasoning without further analysis and reflection (citing Cass R. Sunstein, Why Societies Need
Dissent 59-60, 71 (2003))); see also Walter V. Schaefer, Precedent and Policy, 34 U. Chi. L. Rev. 3, 11 (1966) (noting that
the presence of a separate opinion "detract[s] from the intrinsic value of the precedent").
[FN141]. See, e.g., Barrios v. Att'y Gen. of the U.S., 399 F.3d 272, 277 (3d Cir. 2005) (finding persuasive In re Shaar,
141 F.3d 953, 964 (9th Cir. 1998) (Browning, J., dissenting)); Lopez-Chavez v. Ashcroft, 383 F.3d 650, 653 (7th Cir.
2004) (finding persuasive Ngarurih v. Ashcroft, 371 F.3d 182, 195-99 (4th Cir. 2004) (Gregory, J., dissenting)); United
States v. Harris, 325 F.3d 865, 872-73 (7th Cir. 2003) (finding persuasive United States v. Lopez-Pastrana, 244 F.3d
1025, 1031-37 (9th Cir. 2001) (Graber, J., dissenting)); see also Orekoya v. Mooney, 330 F.3d 1, 8 (1st Cir. 2003)
(finding persuasive Doe v. Chao, 306 F.3d 170, 185-203 (4th Cir. 2002) (Michael, J., concurring in part and dissenting in
part), only to be overruled upon Supreme Court affirmance of the Doe majority, 540 U.S. 614 (2004)). One empirical
study found evidence of the external corrective effect in the courts of appeals. See David E. Klein, Making Law in the
United States Courts of Appeals 83-84, 134 (2002) (finding that a divided panel's new rule of law is statistically less
likely than a unanimous panel's new rule to be adopted by other courts, but cautioning that this effect may be associated
with the complexity or indeterminacy of the legal issue, not with any inherently persuasive power of panel dissents).
State courts also, on occasion, endorse the view of a dissenting judge on another federal or state court. See, e.g., F & H
Constr. v. ITT Hartford Ins. Co., 12 Cal. Rptr. 3d 896, 904 (Ct. App. 2004) (finding persuasive Eljer Mfg., Inc. v. Liberty
Mutual Ins. Co., 972 F.2d 805, 814 (7th Cir. 1992) (Cudahy, J., dissenting)); see also Hall v. Catoe, 601 S.E.2d 335, 340
n.4 (S.C. 2004) (finding persuasive Humphries v. Ozmint, 366 F.3d 266, 278- 91 (4th Cir. 2004) (Hamilton, J.,
dissenting), opposite conclusion reached by 397 F.3d 206 (4th Cir. 2005) (en banc)).
[FN142]. See, e.g., George & Solimine, supra note 18, at 188 (describing the principal-agent relationship between the
Supreme Court and the courts of appeals, and theorizing that Supreme Court reliance on dissents is rational because
circuit judges have an informational advantage over the Supreme Court in assessing when panels of their court have
strayed from precedent).
[FN143]. See Ginsburg, supra note 13, at 143 ("Separate opinions in intermediate appellate courts serve an alert
function."); see also Coffin, supra note 133, at 227-28 (observing that a dissent objecting to seriously erroneous
resolution of recurring legal question "alerts the non-panel members of the court of a likely petition for rehearing en banc
and serves also as a flag to the Supreme Court if further review is sought"); Ginsburg & Falk, supra note 21, at 1047

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("[I]f the panel was divided, the nonpanelist not only knows that the losing argument was capable of persuading at least
one judge; he or she also has the benefit of [the dissenter's] opinion").
[FN144]. See, e.g., Kevin H. Smith, Certiorari and the Supreme Court Agenda: An Empirical Analysis, 54 Okla. L. Rev.
727, 758 (2001); see also id. at 748 (finding that certiorari is statistically more likely to be granted if a panel dissent
alleges that the majority contravened Supreme Court precedent than if there is no such dissent).
[FN145]. See Perry, supra note 71, at 125 ("When there is a dissent, all Justices want to know that; and when there is a
dissent, clerks and Justices are much more likely to focus on the opinions below rather than the cert. petition.").
[FN146]. See Ginsburg, supra note 13, at 145 (explaining that separate opinions can call for legislative or administrative-
agency change); cf. Lipez, supra note 13, at 325-27 (contending that dissenting opinions in state supreme or appellate
courts may be more likely to stimulate state legislative action than federal appellate dissents are to stimulate
congressional action). On occasion, Congress amends legislation to override a divided Supreme Court ruling. See, e.g.,
Finley v. United States, 490 U.S. 545 (1989), superseded by statute, Judicial Improvements Act of 1990, Pub. L. No. 101-
650, § 310, 104 Stat. 5089, 5113 (1990) (codified at 28 U.S.C. § 1367 (2000)) (regarding supplemental jurisdiction); Pa.
Dep't. of Pub. Welfare v. Davenport, 495 U.S. 552 (1990), superseded by statute, Criminal Victims Protection Act of
1990, Pub. L. 101-581, §§ 2-3, 104 Stat. 2865, 2865 (1990) (codified as amended at 11 U.S.C. § 1328(a) (2000));
McCarty v. McCarty, 453 U.S. 210 (1981), superseded by statute, Uniformed Services Former Spouses' Protection Act,
Pub. L. No. 97-252, 96 Stat. 718 (1982) (codified as amended at 10 U.S.C. § 1408 (2000)); see also William N. Eskridge,
Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331 app. I at 424-41 (1991) (listing
congressional overrides of the Supreme Court's interpretations of federal statutes from 1967 to 1990).
[FN147]. That is why, for example, "the Supreme Court has directed that when a court is 'asked to invalidate a statutory
provision that has been approved by both Houses of Congress and signed by the President, particularly an Act of
Congress that confronts a vexing national problem, it should do so only for the most compelling constitutional reasons."'
Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 911 (4th Cir. 1999) (en banc) (Motz, J., dissenting)
(quoting Mistretta v. United States, 488 U.S. 361, 384 (1989)), aff'd sub nom. United States v. Morrison, 529 U.S. 598
(2000).
[FN148]. It is reasonable to suppose that there are dissents in 5 percent of all federal appellate cases terminated on the
merits. See Ginsburg, supra note 13, at 147 (estimating that circuit court decisions are unanimous in 90 percent of cases);
Michael Hasday, Ending the Reign of Slot Machine Justice, 57 N.Y.U. Ann. Surv. Am. L. 291, 294 n.16 (2000) (citing
three estimates of the overall dissent rate ranging from 2.6 to 10 percent). Given this rate of dissent, of the 8,645 cases
decided after oral arguments for the year ending September 30, 2004, see Admin. Office of the U.S. Courts, supra note
40, at 37 tbl.S-1, the number of dissents for the year would be 432. Supposing further that the cases are evenly divided
between statutory and constitutional legal questions, this would result in 216 of each type of case. If in half of the
statutory cases the dissenter identifies an ambiguity in the statute and suggests how it can be resolved in a way that a
congressional majority would endorse, that still leaves an estimated 108 suggestions for statutory change flowing from
the circuits to Congress for the year.
[FN149]. See Eskridge, supra note 146, at 416 ("Even a Supreme Court per curiam opinion, or a memorandum reflecting
an evenly split Court, is more likely to trigger congressional attention than important en banc decisions in the federal
circuits.").
[FN150]. A dissenting judge whose concerns about the analysis in a majority opinion are especially acute may even make
this suggestion explicit. See, e.g., Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 311 (4th Cir.)
(Luttig, J., dissenting) ("Because of the obvious importance of the issue decided, and the evident incorrectness of the
court's holding, I urge the appellant to seek rehearing en banc from this court, and failing rehearing en banc by this court,
to seek review in the Supreme Court of the United States."), reh'g denied, 369 F.3d 797 (4th Cir. 2004).
[FN151]. See Coffin, supra note 133, at 227-28 (describing, as one of five case types where a dissent is appropriate, a

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situation where the dissenter seeks to "issue her own warning to the prosecutor, plaintiff's or defense counsel, or trial
court").
[FN152]. See, e.g., Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004). A divided panel of the Sixth Circuit
reversed a district court order dismissing a reverse-age-discrimination claim against an employer. Cline v. Gen.
Dynamics Land Sys., Inc., 296 F.3d 466, 472 (6th Cir. 2002). The dissenter would have affirmed based on a sister
circuit's precedent. Id. at 476 (Williams, J., dissenting) (quoting Hamilton v. Caterpillar, Inc., 966 F.2d 1226, 1227 (7th
Cir. 1992)). The Supreme Court noted the circuit conflict and went on to reverse. 540 U.S. at 586. Cases in which
subordinate courts have come to opposite conclusions are a mainstay of the Supreme Court's docket. See, e.g., Stras,
supra note 85, at 39 & tbl.3 ("[N]early 70% of the cases reviewed by the Supreme Court [in October Terms 2003 through
2005] involved a split among one or more lower courts.").
[FN153]. If three circuit judges, A, B, and C, all agreed on the panel opinion, but nonpanelist D believes that opinion
establishes a bad legal rule, the rehearing dissent becomes D's only way to set forth that view. It is vital that there be
some channel for D to signal to others that the panel opinion suffers from particularly grave analytical defects. That D did
not hear argument and may not even have reviewed the briefs in the case may serve to slightly reduce the persuasiveness
of D's rehearing dissent, see supra notes 130-134 and accompanying text, but the opinion's ability to serve the external
corrective function is not eliminated.
[FN154]. See Alex Kozinski, Circuit Judge, Ninth Circuit Court of Appeals, What I Ate for Breakfast and Other
Mysteries of Judicial Decision Making, Address at the Symposium on the California Judiciary (Mar. 19, 1993), in 26
Loy. L.A. L. Rev. 993, 994-95 (1993) ("If you survive [a vote for en banc rehearing], judges who strongly disagree with
your approach will file a dissent from the denial of en banc rehearing.... [Such dissent may] make your opinion subject to
close scrutiny by the Supreme Court, vastly increasing the chances that certiorari will be granted."); see also Wald, supra
note 6, at 719 ("[E]laborate statements by dissenting members when en banc is denied.... have been described, probably
accurately, as thinly disguised invitations to certiorari.").
[FN155]. See Jordan v. Alternative Res. Corp., No. 05-1485, 2006 WL 2925641 at *4 (4th Cir. Oct. 13, 2006) (King, J.,
dissenting from denial of rehearing en banc) ("I urge the Supreme Court to accord serious consideration to any petition
for certiorari that Jordan may file."); Landell v. Sorrell, 406 F.3d 159, 178-79 (2d Cir. 2005) (Cabranes, J., dissenting
from denial of rehearing en banc) ("I take this opportunity to commend Judge Winter's opinion, [a panel dissent], to
readers, including most especially the Justices of the Supreme Court."), panel rev'd and remanded sub nom. Randall v.
Sorrell, 126 S. Ct. 2479 (2006); Richards v. United States, 180 F.3d 564, 565 (3d Cir. 1999) (Rendell, J., dissenting from
denial of rehearing en banc) ("I urge the Supreme Court to grant certiorari and revisit what we have wrought during the
nearly fifty years since the Court's pronouncement in [Feres v. United States, 340 U.S. 135 (1950)]."); see also United
States v. Martin, 430 F.3d 73, 77 (2d Cir. 2005) (Pooler, J., dissenting from denial of rehearing en banc) ("I urge the
defense attorneys in these cases to seek certiorari, and, in the meantime, I caution the residents of New York,
Connecticut, and Vermont to be careful which websites they visit because a few clicks of a mouse could subject their
homes to search.").
[FN156]. Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992) (Randolph, J., concurring in
denial of rehearing en banc); see also Defenders of Wildlife v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J.,
concurring in denial of rehearing en banc) ("[Rehearing] dissents sometimes read more like petitions for writ of certiorari
than judicial opinions of any stripe.").
[FN157]. See Wasby, supra note 18, at 66, 69 (concluding that, from 1989 to 1998, the Supreme Court affirmed in only
10.5 percent of cases in which the circuits had denied en banc rehearing over a published dissent, compared with an
affirmance rate of 35.4 percent for ordinary panel rulings); cf. Solimine, supra note 9, at 339 & n.80 (providing more
recent estimates showing that parties are more likely to seek, and the Court more likely to grant, certiorari in cases
reheard en banc).
[FN158]. See, e.g., Johnson v. California, 543 U.S. 499, 513-14 (2005) (quoting 336 F.3d 1117, 1120 (9th Cir. 2003)

2006 Wis. L. Rev. 1315
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(Ferguson, J., dissenting from denial of rehearing en banc)); Hamdi v. Rumsfeld, 542 U.S. 507, 526 (2004) (citing 337
F.3d 335, 357 (4th Cir. 2003) (Luttig, J., dissenting from denial of rehearing en banc)); id. (citing 337 F.3d at 371-72
(Motz, J., dissenting from denial of rehearing en banc)); Hibbs v. Winn, 542 U.S. 88, 116 (2004) (quoting Winn v.
Killian, 321 F.3d 911, 912 (9th Cir. 2003) (Kleinfeld, J., dissenting from denial of rehearing en banc)); Missouri v.
Jenkins, 515 U.S. 70, 75-79, 99, 102 (1995) (relying on 19 F.3d 393 (8th Cir. 1994) (Beam, J., dissenting from denial of
rehearing en banc)).
Supreme Court citation of Ninth Circuit rehearing dissents may reflect that circuit's unique "limited" en banc process.
Justices Scalia and Kennedy have expressed concern that a court consisting of less than the entirety of the circuit's judges
cannot effectively carry out the error-correction task that ordinary en banc courts perform. Scalia Letter, supra note 22, at
72; Kennedy Letter, supra note 27, at 75. Thus, when the Supreme Court, in the course of reversing a Ninth Circuit panel
cites or quotes the criticism of the panel opinion reflected in a dissent from denial of rehearing en banc, the Court may be
highlighting the oddity of Ninth Circuit en banc procedure. See Wasby, supra note 18, at 63-64 (giving examples of
references to rehearing dissents in cases on review from the Ninth Circuit).
[FN159]. See, e.g., Tahoe-Sierra Pres. Council v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 349 (2002) (Rehnquist,
C.J., dissenting) (quoting 228 F.3d 998, 999 (9th Cir. 2000) (Kozinski, J., dissenting from denial of rehearing en banc)).
[FN160]. Sup. Ct. R. 10.
[FN161]. Fed. R. App. P. 35(a)(2).
[FN162]. Cf. Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv. L. Rev. 802, 806 (1982) ("[O]ften conflicts
arise because the legal issue is hard and the Court's precedents appear to look in two (or more) directions .... A case thus
is hard for the lower courts and produces a conflict precisely when the Justices will find it hard as well."). When they
served on the courts of appeals, some of the Justices wrote rehearing dissents themselves and may have particular
familiarity with the potential overlap between cases worthy of en banc review and cases worthy of certiorari review. See
Rancho Viejo, LLC v. Norton, 334 F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts, J., dissenting from denial of rehearing en
banc); Fin. Inst. Employees of Am., Local No. 1182 v. NLRB, 750 F.2d 757, 757-58 (9th Cir. 1984) (Kennedy, J.,
dissenting from denial of rehearing en banc); Goldman v. Sec'y of Def., 739 F.2d 657, 660 (D.C. Cir. 1984) (Ginsburg, J.,
dissenting from denial of rehearing en banc); Chaney v. Heckler, 724 F.2d 1030, 1030-31 (D.C. Cir. 1984) (Scalia, J.,
dissenting from denial of rehearing en banc); see also Marincas v. Lewis, 97 F.3d 733, 733-34 (3d Cir. 1996) (Greenberg,
J., dissenting from denial of rehearing en banc) (joined by Judge Samuel Alito).
[FN163]. See, e.g., Petition for Writ of Certiorari at 8, 10, 19, 23, EPA v. Defenders of Wildlife, No. 06-549 (U.S. Oct.
23, 2006), available at http:// www.usdoj.gov/osg/briefs/2006/2pet/7pet/2006-0549.pet.aa.pdf (relying on 450 F.3d 394,
395-401 (9th Cir. 2006) (Kozinski, J., dissenting from denial of rehearing en banc)); Petition for Certiorari at 9, Grace v.
Freedom from Religion Found., Inc., No. 06-157 (U.S. Aug. 1, 2006), available at http://
www.usdoj.gov/osg/briefs/2006/2pet/7pet/2006-0157.pet.aa.pdf (citing opinions concurring in and dissenting from denial
of rehearing en banc, 447 F.3d 988 (7th Cir. 2006)); see also Reply Brief of Petitioner at 2, Gonzales v. Tchoukhrova,
2006 WL 1221941 (No. 05-1401), available at http:// www.usdoj.gov/osg/briefs/2005/2pet/7pet/2005-1401.pet.rep.pdf
(characterizing the panel opinion as erroneously making new law "on a matter of 'exceptional importance with profound
implications for our nation's immigration laws"') (quoting Tchoukhrova v. Gonzales, 430 F.3d 1222, 1223 (9th Cir. 2005)
(Kozinski, J., dissenting from denial of rehearing en banc)); Reply Brief of Petitioner at 2-3, Browner v. Am. Trucking
Ass'ns, 531 U.S. 457 (2000) (No. 99-1257), available at http://www.usdoj.gov/osg/briefs/1999/2pet/7pet/99-
1257.pet.rep.pdf (quoting Am. Trucking Ass'ns v. EPA, 195 F.3d 4, 14 (D.C. Cir. 1999) (Silberman, J., dissenting from
denial of rehearing en banc)).
[FN164]. See, e.g., Petition for Certiorari at 4-5, Wallace v. Calogero, No. 05-1645, (U.S. June 23, 2006), available at
http:// www.scotusblog.com/movabletype/archives/Reasonable/05-1645.pdf.
[FN165]. In the pool, certiorari petitions are "randomly assign[ed] for review to a single clerk for a recommendation
regarding acceptance or denial of a case." Barbara Palmer, The "Bermuda Triangle?" The Cert Pool and Its Influence

2006 Wis. L. Rev. 1315
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Over the Supreme Court's Agenda, 18 Const. Comment. 105, 105 (2001). For other accounts of the cert pool's origin and
mechanics, see Starr, supra note 69, at 1376-77; Stras, supra note 85, at 32-33. Justice Stevens is the only Justice who
does not participate in the pool. Starr, supra note 69, at 1377.
[FN166]. For an example, see Preliminary Memorandum to Harry A. Blackmun, Assoc. Justice, U.S. Supreme Court,
Recommending Cert. in McKennon v. Nashville Banner Publ'g Co. (May 11, 1994), available at http://
epstein.law.northwestern.edu/research/BlackmumCertPool.pdf.
[FN167]. See Starr, supra note 69, at 1364 ("In short, the law clerks that do the work of the cert pool, recent law school
graduates with little legal experience, exercise an unjustifiable influence over which cases the Supreme Court reviews.");
id. at 1376-77 (summarizing the argument that clerks are heavily biased against granting certiorari); see also Stern et al.,
supra note 68, at 291 ("Some commentators have contended that inexperienced clerks in the cert pool give short shrift to
cases of practical importance in favor of cases presenting esoteric legal questions."); Stephen R. McAllister, Practice
Before the Supreme Court of the United States, J. Kan. Bar Ass'n, Apr. 1995, at 24, 27-28 (arguing that clerks and
Justices appear more interested in constitutional cases than in commercial ones); cf. Glenn W. Reimann, Sour Grapes or
Sound Criticism: Is the Supreme Court Really Not Taking Enough Non-Tax Business Cases?, 8 Miami Bus. L. Rev. 161,
190-91 (1999) (arguing that critics have not identified specific harms that result from alleged Supreme Court failure to
review more business cases).
The extent of the cert pool's influence on the Supreme Court's decision to take a case remains unclear. Compare Palmer,
supra note 165, at 119 (estimating an agreement rate of only about 50 percent), with Stras, supra note 85, at 45- 46, 53-55
(estimating an agreement rate of nearly 99 percent in all cases and of about 70 percent in cases that the Court actually
takes).
[FN168]. Cf. Posner, supra note 85, at 39 (identifying the possibility that "the Court is abandoning large swaths of federal
law to the lower courts" in areas other than constitutional law).
[FN169]. See Kozinski, supra note 154, at 994-95 (recognizing that a dissent from a denial of rehearing may inspire
"close scrutiny" by the Supreme Court); see also Lipez, supra note 13, at 322 (identifying Supreme Court "law clerks and
perhaps even ... some of the Justices" as potential readers of a panel dissent in evaluating certiorari petition).
[FN170]. See, e.g., Johnson v. Governor of Fla., 405 F.3d 1214, 1227, 1234 n.40 (11th Cir. 2005) (en banc) (citing
Farrakhan v. Washington, 359 F.3d 1116, 1125-27 (9th Cir. 2004) (Kozinski, J., dissenting from denial of rehearing en
banc)); El-Sheikh v. Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004) (citing Abovian v. INS, 257 F.3d 971, 973-74 (9th Cir.
2001) (Kozinski, J., dissenting from denial of rehearing en banc)); see also Davis v. Straub, 445 F.3d 908, 909 (6th Cir.
2006) (Martin, J., dissenting from denial of rehearing en banc) (quoting Robinson v. Polk, 444 F.3d 225, 232 (4th Cir.
2006) (King, J., dissenting from denial of rehearing en banc)); Myers v. Loudon County Pub. Sch., 418 F.3d 395, 407
(4th Cir. 2005) (Williams, J., concurring) (relying on Newdow v. U.S. Cong., 328 F.3d 466, 476 (9th Cir. 2003)
(O'Scannlain, J., dissenting from denial of rehearing en banc)); United States v. Ameline, 409 F.3d 1073, 1093 (9th Cir.
2005) (Wardlaw, J., concurring in part and dissenting in part) (quoting United States v. Paladino, 401 F.3d 471, 486 (7th
Cir. 2005) (Ripple, J., dissenting from denial of rehearing en banc)); id. at 1095 (quoting Paladino, 401 F.3d at 488
(Kanne, J., dissenting from denial of rehearing en banc)); United States v. Rodriguez, 406 F.3d 1261, 1298 (11th Cir.
2005) (Tjoflat, J., dissenting from denial of rehearing en banc) (quoting Paladino, 401 F.3d at 484).
[FN171]. Three cases illustrate the various effects of rehearing dissents in sister circuits. First, in rejecting a felon
disenfranchisement claim under federal voting rights law, the Eleventh Circuit's en banc opinion in Johnson v. Governor
of Florida found support in a Ninth Circuit rehearing dissent, Farrakhan, 359 F.3d at 1125-27 (Kozinski, J., dissenting
from denial of rehearing en banc), rather than the panel opinion that dissent criticized, Farakhan v. Washington, 338 F.3d
1009 (9th Cir. 2003). See Johnson, 405 F.3d at 1227, 1232 n.36, 1234 n.40. Second, in deciding how to evaluate an
asylum applicant's credibility, the Eighth Circuit's opinion in El-Sheikh v. Ashcroft found support in a Ninth Circuit
rehearing dissent, Abovian, 257 F.3d at 973-74 (Kozinski, J., dissenting from denial of rehearing en banc), rather than the
panel opinion that dissent criticized, 219 F.3d 972 (9th Cir. 2000). See El-Sheikh, 388 F.3d at 647. Third, in evaluating a
state entity's sovereign immunity claim, the Third Circuit's opinion in A.W. v. Jersey City Public Schools, 341 F.3d 234
(3d Cir. 2003), recognized that a Ninth Circuit rehearing dissent, Douglas v. Cal. Dep't of Youth Auth., 285 F.3d 1226,

2006 Wis. L. Rev. 1315
(Cite as: 2006 Wis. L. Rev. 1315)
1226-31 (9th Cir. 2002) (O'Scannlain, J., dissenting from denial of rehearing en banc), agreed with other circuits. Yet, the
Third Circuit ultimately declined to adopt the view reflected in the rehearing dissent. See A.W., 341 F.3d at 251-54.
[FN172]. See, e.g., Miller v. Fleming, No. C04-1289, 2005 U.S. Dist. LEXIS 41433, at *7 n.4 (W.D. Wash. Nov. 7, 2005)
(citing Bockting v. Bayer, 418 F.3d 1055, 1060 (9th Cir. 2005) (O'Scannlain, J., dissenting from denial of rehearing en
banc)); Corey v. United States, Civ. No. 05-22-B-W, 2005 U.S. Dist. LEXIS 19845 at *10-11 (D. Me. Sept. 12, 2005)
(quoting Bockting, 418 F.3d at 1061) (O'Scannlain, J., dissenting from denial of rehearing en banc)); Tinoco v. Ridge,
359 F. Supp. 2d 1042, 1050-51 n.3 (S.D. Cal. 2005) (quoting Nunes v. Ashcroft, 375 F.3d 810, 811 (9th Cir. 2004)
(Tashima, J., dissenting from denial of rehearing en banc)).
[FN173]. See, e.g., Rosa v. Partners in Progress, Inc., 868 A.2d 994, 1001 (N.H. 2005) (quoting Rivera v. NIBCO, Inc.,
384 F.3d 822, 823 (9th Cir. 2004) (Bea, J., dissenting from denial of rehearing en banc)); State v. Homeside Lending,
Inc., 826 A.2d 997, 1008 (Vt. 2003) (quoting Kamilewicz v. Bank of Boston Corp., 100 F.3d 1348, 1350 (7th Cir. 1996)
(Easterbrook, J., dissenting from denial of rehearing en banc)).
[FN174]. See H.R. Rep. No. 102-836, at 8 n.27 (1992), reprinted in 1992 U.S.C.C.A.N. 2553, 2560 n.27 (citing New Era
Publ'ns Int'l, ApS v. Henry Holt & Co., 884 F.2d 659, 662 (2d Cir. 1989) (Newman, J., dissenting from denial of
rehearing en banc)); S. Rep. No. 98-357, at 19 n.55, 36 n.138 (1984), reprinted in 1984 U.S.C.C.A.N. 2348, 2365 n.55,
2382 n.138 (citing Lubbock Civil Liberties Union v. Lubbock Indep. Sch. Dist., 680 F.2d 424, 426 (5th Cir. 1982)
(Reavley, J., dissenting from denial of rehearing en banc)).
[FN175]. See, e.g., Jordan v. Alternative Res. Corp., No. 05-1485, 2006 WL 2925641, *1 (4th Cir. Oct. 13, 2006)
(Niemeyer, J., concurring in denial of rehearing en banc) ("The differences that Judge King has with the majority's view
of this case have puffed up the writings of all to such a level that they are addressing abstract arguments about the policy
ramifications of Title VII's retaliation provisions. The fact remains that this case presents a straightforward and
unremarkable legal question ...."); Boxer X v. Harris, 459 F.3d 1114, 1116 (11th Cir. 2006) (Carnes, C.J., concurring in
denial of rehearing en banc) ("Our role is to determine whether the plaintiff before the court is entitled to relief. We ought
to leave the academic points to the academy, and by denying rehearing en banc today we do that."); see also ACLU of
Ky. v. McCreary County, 361 F.3d 928, 929-32 (6th Cir. 2004) (Clay, J., concurring in denial of rehearing en banc)
(disagreeing with the rehearing dissent's characterizations of the panel opinion), panel aff'd, 545 U.S. 844 (2005).
Some concurrences in the denial of rehearing en banc devote less attention to defending the panel opinion than to
exploring certain doctrinal questions the case presents. See Freedom from Religion Found., Inc. v. Chao, 447 F.3d 988,
989-90 (7th Cir. 2006) (Easterbrook, J., concurring in denial of rehearing en banc) (criticizing arbitrariness in the
taxpayer standing doctrine but stating that only the Supreme Court could solve the problem), cert. granted sub nom. Hein
v. Freedom from Religion Found., No. 06-157 (Dec. 1, 2006); Robinson v. Polk, 444 F.3d 225, 226, 226-230 (4th Cir.
2006) (Wilkinson, J., concurring in denial of rehearing en banc) (articulating a new distinction between jurors' "personal
and deliberative use of the biblical text").
[FN176]. See, e.g., United States v. Moussaoui, 336 F.3d 279, 281-82 (4th Cir. 2003) (Wilkins, C.J., concurring in
denial of rehearing en banc) ("My colleague apparently would have us simply rule in favor of the government .... From
his limited review of the petition for rehearing and suggestion for rehearing en banc, the accuracy of which he assumes,
he believes ... that it is our duty to exercise jurisdiction ...."); see also Hamdi v. Rumsfeld, 337 F.3d 335, 367 (4th Cir.
2003) (Luttig, J., dissenting from denial of rehearing en banc) (declining to pass "ultimate judgment because of the
difficulty of the issue" and noting that the author wrote "without the benefit of argument"), panel rev'd, 542 U.S. 507
(2004).
[FN177]. See Scalia, supra note 13, at 39 ("The Court ... is not just the central organ of legal judgment; it is center stage
for significant legal debate.").
[FN178]. Id.; see Brennan, supra note 13, at 435 ("Dissents contribute to the integrity of the process ... by contributing to
the marketplace of competing ideas."); see also Lipez, supra note 13, at 327-28 (suggesting that the debate-forum concept
is more appropriate for the Supreme Court than for the circuits but that even dissents in the latter are quoted in

2006 Wis. L. Rev. 1315
(Cite as: 2006 Wis. L. Rev. 1315)
casebooks).
[FN179]. Robert G. Flanders, Jr., The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why
Dissents Are Valuable, 4 Roger Williams U. L. Rev. 401, 407 (1999).
[FN180]. Richard A. Posner, Overcoming Law 99-100 (1995).
[FN181]. Virginia v. Hicks, 539 U.S. 113, 119 (2003). Perhaps Justice Brennan had the First Amendment's values in mind
when he praised dissenting opinions for enriching the "marketplace of competing ideas." Brennan, supra note 13, at 435.
[FN182]. See Solimine, supra note 9, at 334-36 (describing various modes by which rehearing dissents "add to the
development of the law").
[FN183]. See, e.g., Edward L. Carter & Brad Clark, Death of Procedural Safeguards: Prior Restraint, Due Process and
the Elusive First Amendment Value of Content Neutrality, 11 Comm. L. & Pol'y 225, 245-47 (2006) (discussing S. Or.
Barter Fair v. Jackson County, 401 F.3d 1124, 1124-28 (9th Cir. 2005) (Berzon, J., dissenting from denial of rehearing en
banc)); Bradford C. Mank, Can Congress Regulate Intrastate Endangered Species Under the Commerce Clause? The
Split in the Circuits Over Whether the Regulated Activity Is Private Commercial Development or the Taking of Protected
Species, 69 Brook. L. Rev. 923, 979-80 (2004) (discussing Rancho Viejo, LLC v. Norton, 334 F.3d 1158, 1158-60 (D.C.
Cir. 2003) (Sentelle, J., dissenting from denial of rehearing en banc), and id. at 1160 (Roberts, J., dissenting from denial
of rehearing en banc)); Steven Alan Childress, Constitutional Fact and Process: A First Amendment Model of Censorial
Discretion, 70 Tulane L. Rev. 1229, 1337 (1996) (discussing Levine v. CMP Publ'ns, Inc., 753 F.2d 1341, 1341 (5th Cir.
1985) (Rubin, J., dissenting from denial of rehearing en banc)).
[FN184]. See, e.g., David Zetlin-Jones, Note, Right to Remain Silent?: What the Voting Rights Act Can and Should Say
About Felony Disenfranchisement, 47 B.C. L. Rev. 411, 438-41 (2006) (discussing Farrakhan v. Washington, 359 F.3d
1116, 1121 (9th Cir. 2004) (Kozinski, J., dissenting from denial of rehearing en banc)); William R. Kirschner, Note,
Fusion and the Assocational Rights of Minor Political Parties, 95 Colum. L. Rev. 683, 693-95 (1995) (discussing Swamp
v. Kennedy, 950 F.2d 383, 388-89 (7th Cir. 1991) (Ripple, J., dissenting from denial of rehearing en banc)); Mary Jo
Shaney, Note, Perceptions of Harm: The Consent Defense in Sexual Harassment Cases, 71 Iowa L. Rev. 1109, 1115-16
(1986) (discussing Vinson v. Taylor, 760 F.2d 1330, 1330-32 (D.C. Cir. 1985) (Bork, J., dissenting from denial of
rehearing en banc)).
[FN185]. See, e.g., How Appealing, http://howappealing.law.com (last visited Dec. 5, 2006); Decision of the Day,
http://www.appellatedecisions.blogspot.com (last visited Dec. 5, 2006).
[FN186]. See McGowan, supra note 18, at 576 (characterizing opinions regarding denials of en banc rehearing as
"missives" that are "the judicial equivalent of a press release, or an open letter to the readers of the Federal Reporter").
[FN187]. See, e.g., Tracey E. George, Court Fixing, 43 Ariz. L. Rev. 9, 54 ("Former law professors appointed to the
circuit bench have frequently used cases as a means of moving the law in new directions.").
[FN188]. The distinction between academic debate and judicial product appears to animate some criticism of rehearing
dissents. See Boxer X v. Harris, 459 F.3d 1114, 1116 (11th Cir. 2006) (Carnes, C.J., concurring in denial of rehearing en
banc) ("Judges, acting like law professors, sometimes get caught up in the twists and whirls of a legal issue .... [W]e
should keep in mind that the role of our court system in civil cases is not to decide how many analytical angels can dance
on the head of a particular injury."); Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir. 1992)
(Randolph, J., concurring in denial of rehearing en banc) ("The manner in which these en banc 'bulletins' are formulated
does not simulate the process of the court when it is actually deciding a case."); see also McGowan, supra note 18, at
578-79 (criticizing judicial writing on en banc rehearing denials as illegitimate because it is frequently unmoored from
the specific arguments presented by the parties).
Article III of the Constitution requires that a plaintiff have standing to sue in federal court, see, e.g., DaimlerChrysler

2006 Wis. L. Rev. 1315
(Cite as: 2006 Wis. L. Rev. 1315)
Corp. v. Cuno, 126 S. Ct. 1854, 1860-61 (2006), and the Supreme Court has taught that this requirement gives life to the
distinction between academic and judicial work: "It tends to assure that the legal questions presented to the court will be
resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic
appreciation of the consequences of judicial action." Valley Forge Christian Coll. v. Ams. United for Separation of
Church and State, Inc., 454 U.S. 464, 472 (1982).
[FN189]. Of course, judges may delegate some of their work to law clerks or staff attorneys. See, e.g., Charles R. Wilson,
How Opinions Are Developed in the United States Court of Appeals for the Eleventh Circuit, 32 Stetson L. Rev. 247, 265
(2003) (discussing the law clerk's role in opinion drafting). Such delegation does nothing to reduce the opportunity or
workload cost of dissent; indeed, a judge may become even more personally involved with a dissent than with a majority
opinion because a dissent serves the self-expression function. See discussion supra Part III.B.
[FN190]. See Ginsburg, supra note 13, at 142 (explaining that, because separate opinions do not reduce the number of
majority opinions assigned per judge, "[d]issents or concurrences are written on one's own time"); see also Coffin, supra
note 133, at 226 (cautioning that intermediate appellate-court judges should "weigh the time involved" and assess "the
sacrifice to [their] regular opinion load" before writing separately); Flanders, supra note 179, at 403 ("[T]here is a built-in
disincentive for [appellate] judges to take on the extra burden of preparing a dissent."); Wald, supra note 13, at 1412
(remarking that dissents amount to "extra, self-assigned work").
[FN191]. See Gilman, supra note 97, at 1089 ("There is also a work load price to pay in terms of disagreeing with the
[assigning] judge, because at one extreme it means writing a dissenting opinion and at the other extreme it means a fifty-
fifty chance of being assigned to write the majority opinion if the third judge also adopts your contrary position.").
The workload-creating effect might be illustrated most usefully with a hypothetical. Imagine that a panel of three circuit
judges (A, B, and C) hears four cases and A, the presiding judge, assigns opinions as evenly as possible. In the first
scenario, the panel is in complete agreement. Here, C can expect at least one and no more than two opinions to write; A
and B can expect the same. In the second scenario, the panel is divided, with C intending to dissent in three of the four
cases. Because C cannot be assigned the court's opinion in any of those cases, C will be assigned the fourth, and A and B
will divide the remaining three. Now C can expect to write four opinions (one for the court and three dissents), or twice
the maximum expected in the first scenario. Moreover, A and B have an increase in expected workload too, because they
are dividing among themselves one case more than in the first scenario. Put another way, in the second scenario, both A
and B's odds of having to write two opinions have increased over the first scenario. In practice, however, this workload
effect is mitigated by the fact that the courts usually hear cases in batches over several days at designated weeks during
the year; assignments later in the year can be adjusted to reflect previous workload. In addition, most cases are decided
unanimously. See sources cited supra note 148.
[FN192]. See Sneed, supra note 48, at 942 ("[I]nteractions between the two camps will lead to various modifications of
both majority and minority opinions."); see also supra note 99 and accompanying text (suggesting that the dissent's
internal corrective function creates work for the majority).
[FN193]. See, e.g., Wald, supra note 13, at 1412-13 (noting that dissents often "uses the first person to speculate, make
dire predictions, or chastise colleagues who have gone wrong," and that dissents containing only moderately critical
language might cause readers to speculate whether the disagreement was strong enough to warrant dissent at all);
Harrison L. Winter, Goodwill and Dedication, in The Federal Appellate Judiciary in the Twenty-First Century, supra note
54, at 169 ("[E]xcessive [rhetoric in dissent] can easily be construed as a personal attack on a fellow judge .... When the
public sees that we're hurtling words that verge on insult ... we destroy [public confidence,] the very basis on which we
must ultimately depend.").
[FN194]. See, e.g., Gilman, supra note 97, at 1094 ("In response to one of my dissents arising from a criminal case heard
during my first year on the bench, the majority opinion at various points referred to my views as erroneous, contradictory,
a slight of Supreme Court precedent, simplistic, ill-conceived, a mischaracterization, and without basis in fact or logic!").
[FN195]. See Lipez, supra note 13, at 343 ("[E]ven with the use of language that gives no offense, the very fact of a

2006 Wis. L. Rev. 1315
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dissent will give some."); see also Coffin, supra note 133, at 224 (characterizing separate opinions as "ruptures in the
cloak of consensus ordinarily worn by collegiality"); Brennan, supra note 13, at 429 ("Very real tensions sometimes
emerge when one confronts a colleague with a dissent.").
[FN196]. See Ginsburg, supra note 13, at 142 ("Concern for the well-being of the court on which one serves, for the
authority and respect its pronouncements command, may be the most powerful deterrent to writing separately."); id. at
143 ("Dissents and concurrences need to be saved for major matters ... [for] the appearance of indecision and
quarrelsomeness are drains on the energy of the institution ....") (quoting Jerome Frank, Book Review, 10 J. Legal Educ.
401, 404 (1958) (reviewing Alexander M. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (1957)).
[FN197]. Bernard E. Witkin, Appellate Court Opinions: A Syllabus for a Panel Discussion at the Appellate Judges'
Conference, reprinted in 63 F.R.D. 453, 584 (1974).
[FN198]. See supra note 92 and accompanying text.
[FN199]. See, e.g., Edwards, supra note 94, at 1644 ("The majority of the cases in the circuit courts admit of a right or a
best answer and do not require the exercise of discretion."). The presumption of a right answer may have less force at the
Supreme Court than it does in subordinate courts dealing with far many more routine cases. As Chief Justice Rehnquist
observed, "There simply is no demonstrably 'right' answer to the question involved in many of our difficult cases."
Rehnquist, supra note 133, at 255; see also Insights into Supreme Court History, Proceedings of the 52d Jud. Conf. of the
D.C. Cir., 140 F.R.D. 481, 625 (June 7, 1991) (statement of William H. Rehnquist, Chief Justice, U.S. Supreme Court)
("The kind of cases we get in our court are cases on which there are very good argument on both sides .... They are
amenable to decision either way by competent, capable judges, and the result is that one's judicial philosophy is,
obviously, going to play a part.").
[FN201]. See Ginsburg, supra note 13, at 143.
[FN202]. See Scalia, supra note 13, at 35-36 (explaining why dissents may "augment rather than diminish the prestige of
the Court"); see also Francis P. O'Connor, The Art of Collegiality: Creating Consensus and Coping with Dissent, 83
Mass. L. Rev. 93, 93 (1998) ("[A] well-written dissent should enhance [collegiality]."); cf. Lipez, supra note 13, at 315-
18 (contending that early twentieth century judicial opposition to dissenting opinions has since given way to acceptance
of dissents "when the stakes are high and the values are keenly felt").
[FN203]. Cf. Easterbrook, supra note 162, at 811 ("[C]ritics who treat division as undesirable per se ... are out of line.
Divided decisions stem in large measure from circumstances beyond the Court's control, and they go hand in hand with
the attempts at reasoned explanation that most of the Court's critics endorse.").
[FN204]. See Wald, supra note 54, at 181 ("En bancs generate the highest personal tensions on a court.").
[FN205]. See Spreng, supra note 18, at 930 (arguing that rehearing dissents create confusion by suggesting there is "some
legal significance" to views of a circuit minority that wanted to rehear case en banc).
[FN206]. See supra Parts III.C-D.
[FN207]. But see United States v. Pritchett, 135 Fed. Appx. 216, 217 (11th Cir. 2005). The appellant there largely rested
his argument on a rehearing dissent, United States v. Rodriguez, 406 F.3d 1261, 1298 (11th Cir. 2005) (Tjoflat, J.,
dissenting from denial of rehearing en banc). In rejecting the argument, the court reiterated that "[t]hat dissent was a
dissent, and the law of the circuit is established by the Rodriguez panel opinion, which ... we are required to follow."
Pritchett, 135 Fed. Appx. at 217.

2006 Wis. L. Rev. 1315
(Cite as: 2006 Wis. L. Rev. 1315)
[FN208]. 325 F.3d 520 (4th Cir. 2003).
[FN209]. Id. at 538 (Luttig, J., dissenting); cf. Solimine, supra note 9, at 337 n.70 (noting Judge Luttig's description of
the problem of revisionist concurrences at the en banc denial stage, but adding that the extent of the problem "can be in
the eye of the beholder") (citation omitted).
[FN210]. See Jones, 325 F.3d at 538 (Luttig, J., dissenting) ("[B]ecause these kinds of revisionist writings cannot be and
are not the binding authority of the circuit, they ultimately disserve the court and the public, in addition to justifiably
confusing the bar and the bench as to the law of the circuit."); see also id. at 539 ("[I]t is not uncommon for the district
courts of our circuit, as well as counsel, to cite to and to analyze our separate writings respecting the denial of rehearing
en banc as if these writings, rather than the panel opinions that these writings seek to rehabilitate, might be the binding
law of the circuit.").
Judge Luttig's concern in his dissent in Jones was that opinions concurring in the denial of rehearing en banc sometimes
mischaracterize the factual predicates or legal reasoning of panel opinions, and that these mischaracterizations are in turn
mistaken for the controlling legal rule. See id. (comparing Robles v. Prince George's County, 302 F.3d 262 (4th Cir.
2002) (panel opinion), with Robles v. Prince George's County, 308 F.3d 437 (4th Cir. 2002) (opinions on denial of
rehearing en banc)). Writing for the court in a later case, Judge Luttig criticized the dissent for mistaking the concurrence
in the denial of rehearing en banc in Robles, rather than the panel decision, as constituting the law of the circuit. See
Altman v. City of High Point, 330 F.3d 194, 209 (4th Cir. 2003) ("[T]he dissent's reliance on the concurrence in the
denial of rehearing [in Robles] is merely another example of the tendency of such opinions to sow confusion as to the
law.").
[FN211]. See Defenders of Wildlife v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of
rehearing en banc) ("The result [of a rehearing dissent], absent some response, is a distorted presentation of the issues in
the case, creating the impression of rampant error in the original panel opinion although a majority ... of the active
members of the court either perceived no error or thought the case not one of much consequence."); Hamdi v. Rumsfeld,
337 F.3d 335, 345 (4th Cir. 2003) (Traxler, J., concurring in denial of rehearing en banc) ("[B]ecause I believe that [the
rehearing dissenters'] opinions at times have unfairly and inaccurately characterized the panel opinion, I regrettably find
myself drawn to offer a few comments in response."), panel rev'd, 542 U.S. 507 (2004); id. at 350 (Traxler, J., concurring
in denial of rehearing en banc) ("Obviously, any response by a panel, unanimous at the time the decision was rendered, to
a dissent from a denial of rehearing en banc might be construed as an act of bolstering or 'shoring up' the published
opinion in some sense. Otherwise, there would be nothing to say. Yet, I find no reason to remain silent when our opinion
is being misinterpreted.").
[FN212]. Cf. Singleton v. Comm'r, 439 U.S. 940, 945 (1978) (Stevens, J., concurring in denial of certiorari) ("[S]ince
[certiorari dissents] often omit any reference to valid reasons for denying certiorari, they tend to imply that the Court has
been unfaithful to its responsibilities ... when, in fact, there is no basis for such an inference.").
[FN213]. See Defenders of Wildlife, 450 F.3d at 402 (Berzon, J., concurring in denial of rehearing en banc).
[FN214]. See Jones, 325 F.3d at 539 (Luttig, J., dissenting) ("[I]f a convincing argument is made by a colleague in
opposition to the denial of rehearing en banc ... that the panel has erred in the material facts predicate for its disposition
or in its analysis of the law, rehearing by the panel ... is available to address the argument squarely in a revised, but
binding, opinion for the court."). For a brief discussion of panel rehearing pursuant to Federal Rule of Appellate
Procedure 40, see supra note 23.
[FN215]. See Defenders of Wildlife, 450 F.3d at 402 (Berzon, J., concurring in denial of rehearing en banc)
("[A]nswering the newly raised contentions by amending the panel opinion is usually not feasible. The court has [denied
rehearing] and ought not to have to accept a new version without a second opportunity to determine whether the opinion
deserves en banc consideration. The result ... could be a form of infinite regression ....").

2006 Wis. L. Rev. 1315
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[FN216]. There are instances (in addition to those cited by Judge Luttig in his Jones dissent, 325 F.3d at 539-40) in which
district courts refer to opinions concurring in the denial of rehearing. See, e.g., Bragg v. Swanson, 371 F. Supp. 2d 814,
816 (S.D. W. Va. 2005) (quoting Sons of Confederate Veterans, Inc. v. Comm'r of Va. DMV, 305 F.3d 241, 242 (4th Cir.
2002) (Wilkinson, C.J., concurring in denial of rehearing en banc)); United States v. Ortiz, 10 F. Supp. 2d 1058, 1066
(N.D. Iowa 1998) (quoting United States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in
denial of rehearing en banc)); Carney v. Am. Univ., 960 F. Supp. 436, 447 (D.D.C. 1997) (quoting Barbour v. Merrill, 48
F.3d 1270, 1281 (D.C. Cir. 1995) (Williams, J., concurring in denial of rehearing en banc)). This is not to say, however,
that such references mistake the concurrences for the panel opinions they concern.
[FN217]. Cf. The Judicial Nomination and Confirmation Process: Hearings before the Subcomm. on Administrative
Oversight & the Courts of the S. Comm. on the Judiciary, 107th Cong. 233 (2001) (statement of Ronald A. Cass, Dean,
Boston University School of Law) (arguing that the existence of "[u]npredictable cases," such as those that may be
decided on so-called ideological grounds, "should not be taken as evidence that this is a common phenomenon or a
significant problem").
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KEYCITE
HOW FAR DO VOICES CARRY: DISSENTS FROM DENIAL OF REHEARING EN BANC, 2006
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Wisconsin Law Review

Copyright © 2006 By the Board of Regents of the University of Wisconsin

System; Indraneel Sur

II. Rehearing Dissents in the Federal Courts of Appeals ............ 1320

A. Where Rehearing Dissents Come From ......................... 1320

B. Some Criticisms of Rehearing Dissents ...................... 1328

C. Rehearing Dissents and Dissents from Denial of Certiorari .. 1331

A. Internal Corrective ........................................ 1337

B. Self-Expression ............................................ 1342

C. External Corrective ........................................ 1346

D. "Law Laboratory" ........................................... 1357

IV. Costs of Rehearing Dissents .................................... 1359

A. Workload Costs ............................................. 1360

B. Collegiality and Coherency Costs ........................... 1361

V. Conclusion ..................................................... 1366

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

II. Rehearing Dissents in the Federal Courts of Appeals

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

B. Some Criticisms of Rehearing Dissents

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

publication of rehearing dissents to be convincing.

C. Rehearing Dissents and Dissents from Denial of Certiorari

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

*1337 III. The Internal and External Functions of Rehearing Dissents

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

IV. Costs of Rehearing Dissents

*1360 A. Workload Costs

B. Collegiality and Coherency Costs

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

[FN14]. See infra Part III.A.

[FN15]. See infra Part III.B.

[FN16]. See infra Part III.C.

[FN17]. See infra Part III.D.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

[FN32]. Fed. R. App. P. 35(b)(1)(A).

[FN33]. Id. 35(b)(1)(B).

[FN41]. Banks, supra note 39, at 394.

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© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

[FN52]. 276 F.2d 525 (2d Cir. 1960).

[FN53]. Id. at 549 (Clark, J., dissenting).

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[FN63]. Id. at 560.

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© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

[FN86]. Brennan, supra note 13.

[FN87]. Scalia, supra note 13.

[FN88]. Ginsburg, supra note 13.

[FN91]. See id. at 35-42.

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[FN95]. Scalia, supra note 13, at 41.