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Abstract

In most of the federal courts of appeals, a three-judge panel must follow decisions of prior panels except when an intervening Supreme Court decision requires a different result. However, under Seventh Circuit Rule 40(e), a panel may directly overrule a prior decision if the panel circulates a draft opinion to all active judges and "a majority of them do not vote to rehear en banc the issue of whether the [new] position should be adopted . . . ."
This paper will discuss the Seventh Circuit's experience under Rule 40(e) and its implications for stare decisis and "the law of the circuit." The paper will also consider objections by a D.C. Circuit judge to her court's analogous practice, the "Irons footnote." The procedure, she said, "has evolved from an expedient device to reconcile inconsistent circuit holdings into a summary method of overruling unambiguous circuit precedent, without any of the safeguards or formalities attending the en banc process. A three judge panel determines that full court consideration is warranted and non panel members concur without benefit of briefing or argument. The resulting decision is then announced by footnote. Reasoned decision making and stare decisis call for a more deliberate process." In re Sealed Case No. 97-3122 (In re Sealed Case II), 181 F.3d 128, 145 (D.C. Cir. 1999) (Henderson, J., concurring).

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