The en banc court's analysis then considered how to proceed in adopting the former Fifth Circuit precedent. It was unwilling to adopt precedent by an informal and unrevealed consensus among the individual judges because of the lack of notice and the inherent instability in such an approach. The rule-making power was deemed an inappropriate method for adopting a body of precedent because the task was substantive and judicial, not procedural and administrative. Having implicitly rejected the panel mechanism by its grant of en bane review in Bonner v. City of Prichard, the only remaining mechanism for the wholesale adoption of former Fifth Circuit precedent was the en banc decision in the case sub judice.
Professor Baker analyzes the three courts that resulted from the split of the United States Court of Appeals for the Fifth Circuit in 1981 and how each court treats precedent.
Thomas E. Baker,
A Postscript on Precedent in the Divided Fifth Circuit
, 36 Sw. L.J. 725
Available at: http://ecollections.law.fiu.edu/faculty_publications/159