The Court En Banc: 1991-2002
![handle is hein.journals/gwlr70 and id is 271 raw text is: The Court En Banc: 1991-2002
Douglas H. Ginsburg*
Brian M. Boynton**
In 1991 the senior author here contributed to a study for this Law Re-
view of the en banc practice of the United States Court of Appeals for the
D.C. Circuit from 1981 to 1990 (hereinafter the 1980s).' That article began
by examining the history and institutional framework underlying the court's
en banc practice. It then considered the costs in judicial resources and the
benefits of rehearing en banc, the benefits being to preserve consistency in
the law; to give appropriate attention to questions of exceptional importance
to the public, the parties, or the court; and to correct panel errors. The arti-
cle also presented extensive statistical data regarding the D.C. Circuit's en
banc practice, as well as an Appendix profiling every case heard en banc
during the decade in question. In this brief introduction to The George
Washington Law Review's annual review of decisions by the D.C. Circuit, we
have undertaken to update the prior article with data for the years 1991 to
2002 (hereinafter approximated as the 1990s).2
In the 1990s the D.C. Circuit heard 33 cases en banc. Some were of
widespread public interest, notably the Microsoft case,3 the oral argument of
which was broadcast live on radio and made available on the internet; others
were likely of interest only to the parties. All of those cases and two more,
which the court will rehear en banc in the fall of 2003,4 are profiled in reverse
chronological order in the Appendix to this article.5 The entry for each gives
a brief summary of the case; the citations to the en banc and panel decisions;
the vote of the en banc court; and an action code - D (disagreed with the
panel), A (agreed), M (moot), A/D (agreed in part and disagreed in part). In
the body of this Article we refer to each case by its number in the Appendix.
The most striking difference between the court's en banc practice in the
1990s, as compared to the 1980s, is the number of cases the court heard en
banc, which declined to 33 from 63.6 Moreover, only 28 of those 33 cases
* Douglas H. Ginsburg is the Chief Judge of the United States Court of Appeals for the
District of Columbia Circuit.
** Brian M. Boynton served as a law clerk to Chief Judge Ginsburg in 2001-02.
1 Douglas H. Ginsburg and Donald Falk, The Court En Banc: 1981 - 1990, 59 GEO.
WASH. L. REV. 1008 (1991).
2 The data are organized by fiscal year (FY), which runs from July 1 of the preceding year
through June 30 of the nominal year.
3 Appendix Case [36].
4 Appendix Cases [37] and [38].
5 Also included in the Appendix are three non-substantive decisions by the en banc court
in cases that were heard en banc, went to the Supreme Court, were remanded to the court of
appeals, and by it (en banc) were remanded to the district court. Those are Appendix Cases:
[27], [26], and [15]. Finally, a case that was reheard en banc twice, once before it went to the
Supreme Court and once when it came back, is listed twice but counted only once in the total of
33 cases. See Appendix Cases [23] and [17].
6 Compare the Appendix to this article with the Appendix to the previous article, see
April 2002 Vol.. 70 No. 2](ViewImageLocal?handle=hein.journals/gwlr70&div=16&collection=&method=preview&ext=.png&size=3)
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The Court En Banc: 1991-2002
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