Golden Gate University Law Review

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As judges of the geographically largest and busiest federal circuit court of appeals, the 26 active and 22 senior Ninth Circuit judges rarely have the luxury of looking back at the cases we have decided, rather than working on the opinions yet to be written and preparing for the new cases coming up for argument. That the Golden Gate University Law Review has for so many years (since Volume 6 in 1976) produced this annual volume documenting and analyzing our work product has been essential in filling the gap by providing an objective assessment of what – and how – we are doing as we strive both to do justice in individual cases and to provide guidance to lawyers and litigants for future litigation.

The popular media, in contrast, rarely says much of substance about the dispositions we work so hard to turn out, instead devoting itself to counting the Supreme Court reversal rate and reflexively labeling our court – inaccurately, as the opinions chosen for this survey indicate – uniformly “liberal” and “out of the mainstream.” In fact, the judges of the Ninth Circuit are a wildly diverse lot, and we produce opinions that reflect that diversity. Which brings me to the topic I would like briefly to explore in this Introduction: The Ninth Circuit en banc process, which is our effort to create some uniformity when the diversity has gotten out of hand and resulted in conflicting opinions, intra- or, sometimes, inter-circuit. Through the en banc process, we hear unusually important cases in panels more representative of the court as a whole than the usual three-judge panels.

The trigger for this modest project is that in two of the three Ninth Circuit cases covered in this volume, there was a call for en banc consideration, one directly and one in a predecessor case, each of which generated not one but two dissents from denial of en banc consideration. So it is worth considering why and how cases are called en banc in our court, and why and how the practice of publishing dissents from (and, more recently, concurrences in) denial of en banc rehearing developed and burgeoned.

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