Publication Date
12-1-2024
Abstract
The Tenth Circuit is known for two things: its collegiality and its downward trend of en banc rehearings. Recognizing this trend, two Tenth Circuit judges recently outlined in the Denver Law Review “best practices” for submitting en banc petitions. In response, some scholars propose that this practitioner’s guide is not worth the read because of the larger problem at hand. Namely, they predict that even with better petitions, the Tenth Circuit will remain unwilling to rehear cases en banc, thereby decreasing intracircuit uniformity. But this prediction overlooks key factors driving the trend. This Response accounts for one contributing factor—collegiality—causing the Tenth Circuit to rehear fewer cases and explains why this is desirable practice. To get there, this Response starts by tracing how en banc review emerged as a last-resort measure to resolve intracircuit conflict. It then discusses how collegiality plays a critical role in appellate review and the rehearing process. This Response concludes by explaining how the Tenth Circuit’s informal procedures, fostered by its collegial spirit, likewise ensure precedential uniformity while minimizing the need to go en banc.
First Page
317
Recommended Citation
Steven M. Foster Jr. & Anthony R. Guttman, The Tenth Circuit's Blueprint for Minimizing En Banc Rehearings, 102 Denv. L. Rev. 317 (Winter 2025).