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After a fleeting experiment with increasing 9th U.S. Circuit Court of Appeals en banc panels from 11 to 15 judges, the court has axed the bigger panels by reverting to the 11-judge reviews before the end of the planned two-year test. The 9th Circuit, the largest federal appellate court in the nation with 27 active judges, initiated the experiment in part after Senator Dianne Feinstein, D-Calif., proposed it as a means of appeasing conservatives bent on splitting the circuit. The ‘limited en banc’ The en banc process is used in all circuits to reconsider the work of a three-judge panel. In other circuits, all active judges participate in rehearings. But only the 9th Circuit, due to size, has used what’s known as the limited en banc, drawing at random from among the 27 judges to form rehearing panels of 11 judges. The appeals court decided roughly 30 cases in 2006 and the first half of 2007 by 15-judge panels. The rule change will not affect new panels until the next en banc panel arguments in September. “It was pretty unanimous that we were not gaining anything by going from 11 to 15 judges,” said 9th Circuit Judge Diarmuid O’Scannlain, who is based in Portland, Ore. O’Scannlain, an appointee of President Ronald Reagan, said, “I would have preferred to wait until the two years were up because that is what we notified the bar we would do.” Arthur Hellman, law professor at the University of Pittsburgh, has studied the circuit for years and the effect of en banc panel size in particular. “I have to say there was never any very good reason to go to 15,” he said. “My own research provided strong evidence that 11 judges were doing what the full court would have done,” he said. Hellman speculated that the move to 15 judges was partly a response to concerns that 11-judge panels did not represent sufficiently the view of the full court. But he said statisticians have concluded the court could go down to as few as seven judges and still get results representative of the views of the whole court. He noted that only one of the votes by the larger panels was close. The ruling in Doe v. Kamehameha Schools, 470 F.3d 827 (2006) came on an 8-7 vote. O’Scannlain said 15-judge panels created some problems. It restricted the time for individual judges to ask questions in a 30-minute argument and made post-argument deliberations much longer, he said.

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