Abstract
Two features define the ordinary course of adjudication in the federal courts of appeals. First, cases are heard and decided by panels of three judges selected at random from among a larger number of eligible judges. Second, decisions of those panels are binding on later panels unless overruled by the Supreme Court or by the court of appeals sitting en banc. One consequence of these arrangements is that binding circuit law can be established by a panel whose views do not represent the views of a majority of the circuit's active judges.
Two prominent appellate judges have offered competing perspectives on the prospect of minority control of circuit law on an important issue. Former Chief Judge Douglas H. Ginsburg of the District of Columbia circuit has endorsed the premise that "the majority should rule." In contrast, former Chief Judge James R. Browning of the Ninth Circuit has championed an approach that he refers to as "panel autonomy." Taking these competing perspectives as its starting point, this article examines the role of majority rule in the development and application of the law within the federal judicial circuits.
Recommended Citation
Arthur D. Hellman,
“The Law of the Circuit” Revisited: What Role for Majority Rule?,
32
S. Ill. U. L.J.
625
(2008).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol32/iss3/10