This article explores a common but essentially unexplored feature of appellate decision-making: decisions by irregular panels. Decisions in the federal courts of appeals are usually reached by panels of three statutorily authorized judges. But appellate panels are often irregular in practice, either because an authorized judge becomes unavailable or because an unauthorized judge is assigned as a panel member. The traditional approach, supported by both statute and case law, has been to accept the former while rejecting the latter. When considered functionally, however, decisions by quorum are at least as problematic as those by panels with unauthorized members. The absence of a third judge deprives a panel of important contributions that potentially affect the direction, content, or legitimacy of the final product. These contributions come at a cost, but not one as substantial as might be imagined. Moreover, the actual cost is likely to be smaller than the perceived cost to the other panel members, while the potential benefits are likely to be greater. For these reasons, the current approach of allowing panel members to decide when to proceed by quorum produces undesirable results. In its place, a firm requirement of regularity - that is, decision by three authorized judges - should be implemented.
Jordan, Samuel P., Irregular Panels (September 15, 2008). Alabama Law Review, Vol. 60, No. 3, 2008; Saint Louis U. Legal Studies Research Paper No. 2008-06.