Step One to Recusal Reform: Find an Alternative to the Rule of Necessity

Abstract

The rule of necessity allows a judge to hear a case despite the judge’s conflict of interest if the judge’s disqualification would deny a forum for the case. For example, if every justice on a state supreme court has a conflict of interest, the court can still hear the case. At the turn of the twentieth century, the rule of necessity rarely appeared in case law. However, in recent decades its use appears to have spiked. Today, forty-two states endorse the rule of necessity either in a rule of their judicial code of conduct or a comment to a rule or in an internal operating procedure. Few scholars, and more importantly few states, have considered alternatives to the rule of necessity.

This Comment argues for an alternative. Specifically, it argues states should have standing panels made up of professors and lawyers who are nominated by a chief justice and confirmed for set terms by a supermajority of a court. For brevity, this Comment focuses on Wisconsin. It proposes an amendment to the Wisconsin Constitution to implement this panel system. However, other states could apply its suggestions.

Keywords: Recusal, Disqualification, judicial ethics, ethics, rule of necessity