60 Brook. L. Rev. 491 (1994-1995)
In Banc Practice in the Second Circuit, 1989-93

handle is hein.journals/brklr60 and id is 501 raw text is: BROOKLYN LAW

Volume 60                          1994                       Number 2
Jon 0. Newman*
This is my third (and likely last) five-year report on in
banc practice in the Second Circuit.1 The salient characteristic
of our in banc practice during 1989-93 is the continuation of an
extremely low rate of rehearings in banc. In those five years
the Second Circuit reheard in banc only 6 cases, an average of
1.2 cases per year. This figure is considerably lower than the
average of 7.65 cases per year for all the federal courts of appeals.'
* Chief Judge, United States Court of Appeals for the Second Circuit.
1 See Jon 0. Newman, In Banc Practice in the Second Circuit, 1984-1988, 55
BROOK. L. REv. 355 (1989) [hereinafter 1989 Foreword]; Jon 0. Newman, In Banc
Practice in the Second Circuit: The Virtues of Restraint, 50 BROOK. L. REV. 365
(1984) [hereinafter 1984 Foreword].
Preparation of these five-year reports. on our Court's in banc practice has been
substantially facilitated by the filing system used by my efficient secretary of
twenty-two years, Jeanne Ostapkevich. During my fifteen years on the Court of
Appeals, she has maintained a separate file drawer of all cases that have involved
all members of the Court-those in which rehearing in banc was ordered, those in
which a poll for in banc rehearing was requested (whether or not successful), and
those in which panel opinions were circulated to the full Court prior to filing. The
availability of these files has made it possible to readily survey our in bane
practice. Though in banc opinions and circulations to the full court (where noted
in the opinion) could be identified through computer-assisted legal research, the
requests for in banc polling could otherwise be identified only by laboriously
examining all the unpublished orders denying rehearing in bane to see in which
instances a poll had been requested.
2 During the past five statistical years (ending June 30), the pattern of in

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