In banc review was originally intended to resolve conflicts in circuit precedent. Full-scale in banc proceedings, however, are cumbersome, costly and time-consuming. In determining whether to proceed with in banc review, courts appear to weigh the costs of in banc review against its potential benefits. Employing this calculus, courts often forgo in banc review in conflict cases that would otherwise receive such treatment. One solution to this problem is to reduce the cost and delay of in banc proceedings by streamlining the procedure. Recently, several federal circuit courts of appeals have adopted abbreviated forms of in banc review. The purpose of this Article is to survey, describe, and assess the usefulness of mini in banc procedures. Part I presents a brief history of in banc procedures, concluding that the original purpose of these procedures was to resolve conflicts in precedent. Part II explores how often in banc procedures are employed, concluding that there are many conflict cases that could easily be treated in banc that do not currently receive such treatment. Part III considers the disadvantages of traditional in banc procedures, and Part IV describes the mini in banc procedures adopted by some circuits. Part V surveys the potential objections to these new procedures and concludes that mini in banc review is a legitimate tool for resolving conflicts in precedent.
Steven Bennett & Christine Pembroke, Mini in Banc Proceedings: A Survey of Circuit Practices, 34 Clev. St. L. Rev. 531 (1985-1986)