Uneven Application of the Rule of Necessity in the Federal Courts

Posted: 29 Jun 2014

Date Written: June 26, 2014


In United States v. Will, the Supreme Court for the first time expressly held that the common law Rule of Necessity was appropriate in United States federal courts and could apply where a judge had been disqualified under 28 U.S.C. § 455. The Court described the Rule of Necessity as “although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may, but must do so if the case cannot be heard otherwise.” Although the basic premise of the rule, that an otherwise disqualified judge must remain on a case if no one else can hear the case, seems fair on its face the application of the rule in the lower courts has been inconsistent and presents one of the quieter splits of authority between the Circuit Courts of Appeals.

The confusion as to exactly when and how the Rule of Necessity should be applied in the federal courts clusters around three uncertainties. First, exactly what courts may invoke the Rule? In other words, does the Rule only apply to a “court of last resort” and if so, what courts count as a “courts of last resort” for purposes of the Rule? Second, at exactly what point is a court entitled to invoke the Rule? For example, must it try other measures of restoring quorum, such as requesting an additional judge be assigned to sit by designation, before invoking the rule? Third, when an appellate court invokes the Rule, are all disqualified judges entitled to hear the case or should a court return only enough judges to enable the court to conduct judicial business?

This article will address each of the areas outlined above and argue that a statutory provision should be added to 28 U.S.C. § 455 codifying the Rule and clarifying its application. The paper will also provide some suggested statutory language that would serve that purpose.

Keywords: Judicial Disqualification; Rule of Necessity

Suggested Citation

Woods, Patrick, Uneven Application of the Rule of Necessity in the Federal Courts (June 26, 2014). Available at SSRN: https://ssrn.com/abstract=2459566

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