Definition
En banke (also rendered en banc, in banc, or in banco) is a French-derived term meaning "in the bench" — referring to a court sitting as a whole, with all or most of its judges present together, rather than in the smaller panels used for routine case disposition. When a court sits en banke, the full complement of judges hears and decides the matter collectively.
In modern American appellate practice, this most commonly describes a federal circuit court or state intermediate appellate court convening all active judges to hear a case, typically after a three-judge panel has already issued a decision. En banc consideration is reserved for cases raising exceptional legal questions, resolving intra-circuit conflicts, or presenting issues of extraordinary public importance.
Common Confusion
EN BANKE / EN BANC / IN BANC / IN BANCO: These are variant spellings and linguistic forms of the same concept — the French "en banke" or "en banc," the Law Latin "in banc," and the fuller Latin "in banco" all express identical meaning. Researchers encountering any of these forms in historical sources are reading the same procedural concept across different periods and traditions of legal writing. The spellings shifted as Law French gave way to Law Latin and eventually to modern anglicized usage. Modern American courts and rules use "en banc." Do not treat these variants as distinct procedures.
Why It Matters in Research
Spelling variants are the primary research trap here. Historical legal sources — particularly pre-twentieth-century treatises, reporters, and procedural materials — use "en banke," "in banco," and "in banc" interchangeably with no standardized preference. A researcher relying on keyword search alone will miss materials indexed under a different variant. Cross-search all forms.
The concept carried different procedural weight in English legal history than it does today. In the English common law tradition, the superior courts of common law — King's Bench, Common Pleas, and Exchequer — regularly sat "in banco" as their ordinary mode of operation, as distinct from judges sitting at nisi prius (circuit sittings for jury trials). The full-court sitting was not extraordinary in that context; it was the standard appellate and argument posture. The modern American usage — in which en banc rehearing is the exception, triggered by petition or the court's own motion — represents a structural inversion from the historical English model. Researchers using older sources should not import the historical assumption that full-court sitting signals routine procedure.
In the federal system, en banc procedure is governed by Federal Rule of Appellate Procedure 35. State courts vary widely in their en banc rules, terminology, and thresholds for convening. This matters for corpus research: a state court opinion describing a full-court sitting may use "in banc," "en banc," or simply describe the composition without using the term at all.
The Law Mind corpus contains historical materials that predate standardized en banc practice. When reading nineteenth-century American case reports or treatises, note that the term may appear in its older English sense — full court sitting as normal appellate business — rather than the modern sense of exceptional rehearing.
Historical Dictionary Support
All three source dictionaries — Black's (1st Ed.), Black's (2nd Ed.), and Burrill's — define the term identically and minimally: "L. Fr. In the bench," with a citation to 1 Anderson 51 (or 61 in the second edition, a likely page-reference correction between editions). The uniformity is telling: by the time these dictionaries were compiled, "en banke" was sufficiently settled that no expanded treatment was needed beyond the translation and a single supporting citation. The dictionaries treat it as definitional bedrock rather than contested territory.
What the historical dictionaries do not supply is procedural context — they do not distinguish between the English historical usage (full court as ordinary practice) and any emergent American usage. That gap reflects the period of compilation more than any oversight; the elaborate modern American en banc petition and rehearing apparatus developed through appellate rule-making well after these dictionaries were written. Researchers should not expect the historical dictionary entries to map cleanly onto Federal Rule of Appellate Procedure 35 or its state equivalents.
Jurisdictional Note
Federal courts use "en banc" and the procedure is governed by FRAP 35 and local circuit rules. The Ninth Circuit, given its size, employs a limited en banc procedure using an eleven-judge panel rather than all active judges. State courts vary in both terminology and procedure; some do not use the term at all, referring instead to "full court" or "all judges" sittings.