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'The Law Of The Circuit' Revisited: What Role For Majority Rule?, Arthur D. Hellman

Articles

In April 2017, the Fourth Circuit Court of Appeals announced that the full 15-judge court would convene to hear the challenge to President Trump’s executive order “to protect the Nation from terrorist activities by foreign nationals admitted to the United States.” This was a significant departure from the usual practice in the federal courts of appeals. Initial en banc hearing is extremely unusual, and rehearing en banc after a panel decision is almost as rare.

Ordinarily, two features define the ordinary course of adjudication in the federal courts of appeals. First, cases are heard and decided by panels of three …