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Article Title

Mandatory Judging

Abstract

As a matter of judicial ethics, judges must disqualify themselves in matters in which their impartiality may reasonably be questioned. This key principle implicates two additional aspects of judicial ethics: the duty to sit and the rule of necessity. The duty to sit basically describes a judge’s duty to preside over a case unless disqualified as a matter of judicial ethics. Or, phrased another way, a judge must hear a case if her impartiality cannot reasonably be questioned. Recognition of the duty to sit means that judges may not disqualify themselves based on their unease with cases, personal or professional burdens, or desire to avoid controversial, difficult, or demanding litigation. Nor may they yield their decisional responsibilities to litigants’ attempts to manipulate the judicial system. In contrast, the rule of necessity overrides litigants’ general entitlement to an impartial judge. The rule of necessity is a pragmatic doctrine which essentially holds that a judge’s alleged partiality—normally compelling her disqualification—will be excused and disqualification denied, where necessary. It assumes that denying parties access to the courts is a substantially greater wrong than permitting judges to hear cases in which they are interested.

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