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The 9th U.S. Circuit Court of Appeals will increase its en banc panels from 11 to 15 judges. The change is aimed at satisfying critics who worry that the supersized circuit’s 11-judge outcomes aren’t representative of the court as a whole. “We wanted to respond to those criticisms,” said Chief Judge Mary Schroeder. But it’s not clear that critics — or anyone else, for that matter — will be satisfied by the rule change. “I just have not been persuaded that the en banc panel is representative of the court,” said Judge Diarmuid O’Scannlain, one of the few judges who contend the court is too large and should be split. But O’Scannlain said a four-judge increase is no solution, and last week he voted against a two-year trial run of 15-judge panels. “I’m not sure what it’s going to accomplish,” he said, adding that anything short of a full en banc is problematic. The 9th Circuit is the only federal appeals court to use limited en bancs to resolve intracircuit conflicts. Last year, it heard 22 of them. Judge Alex Kozinski was initially opposed to the idea — for the opposite reasons of O’Scannlain — but he eventually voted to approve it. “Eleven of 24 or 25 or 26 almost always got it right,” he said, comparing the 11-judge panel to nationwide public opinion surveys, which sample a small percentage of the populace but manage to accurately reflect its views. The next-largest circuit, the 5th U.S. Circuit Court of Appeals, which currently lists 19 judges, has long sat en banc with more than 15 members. The question of whether an 11-judge en banc panel can adequately represent the opinions of a court with 28 judgeships (it currently has 24 active judges) has frequently come up in the debate over whether to split the 9th Circuit. Arthur Hellman, a professor at the University of Pittsburgh School of Law and an expert on the 9th Circuit who has studied the en banc question, said there was no need to increase the size of the panel “based on what’s called game-theory results, statistical results.” In 2000, Hellman conducted a study of whether the 11-judge panel was adequate. “I concluded that overwhelmingly, the 11 judges decide a case the same way that the full court would have done,” he said. But, he added, “I can see why many others would see it otherwise.” That perception — rather than any concrete problem — was the key reason for the change, said Schroeder and Kozinski, pointing out that perceived unfairness can be a genuine problem for the courts. “To the extent that it will quell some of the criticism, I think it’s an appropriate thing to try,” Kozinski said. And Hellman praised the court’s decision to closely study how well the bigger panels work over the course of the two-year experiment. Dennis Riordan, a partner at Riordan & Horgan in San Francisco who frequently appears before the 9th Circuit, said the change won’t make much of a difference for lawyers appearing before the court, since an 11-judge panel is already a daunting assemblage of skeptics. “On a case-by-case basis, I don’t know that you can say that more questions will be asked,” he said. But, he added, lawyers may begin requesting more time to make their arguments to deal with the prospect of increased questioning. The judges have yet to decide whether they’re going to give lawyers more time. And, Kozinski said, other logistics must still be worked out, including the added problems of getting 15 judges in one room and deciding one case. Until those issues are worked out, Kozinski said, “I think it will make it somewhat more difficult to make people vote for en bancs.”

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