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Justice Alan Scheinkman Justice Alan Scheinkman

The prospect, announced in March 2019, that the Appellate Division, First Department, would sit in panels of four justices, rather than the customary five, sparked, or perhaps re-kindled, a discussion as to the ideal number of judges to sit collectively to hear individual appeals. I say re-kindled because the Second Department has been sitting mainly in panels of four since 1978. While a 1990 task force report encouraged the Second Department to resume sitting in panels of five as soon as possible, nearly 30 years have elapsed since then and the status quo has gained at least grudging acceptance. That the First Department would join the Second in sitting in fours was not welcomed by some prominent bar leaders and leading appellate practitioners. Some cited the prospect of having an appeal re-argued because of a two-two tie; others thought that a panel of four was inherently unfair to litigants since it is harder, if not impossible, in civil cases to gain the right to appeal a civil case to the Court of Appeals on the basis of a two-justice dissent. So when I was asked to address the topic of panel numerosity, I jumped at the chance.

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