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168 U. Pa. L. Rev. Online 1 (2019-2020)

handle is hein.journals/pennumbra168 and id is 1 raw text is: ESSAY JUDICIAL INDEPENDENCE UNDER ATTACK: A THEORY OF NECESSITY MICHAEL M. BAYLSON, ELIZABETH COYNE, MARTHA GUARNIERI & SAMANTHA WEISS t There is no virtue like necessity. -WILLIAM SHAKESPEARE, KING RICHARD II act 1, sc. 3. INTRODUCTION Did the longest government shutdown in United States history this past winter constitute a severe threat to a functioning and independent federal judiciary? In short, yes. From the vantage point of a district court's chambers, we experienced firsthand the uncertainty that almost weakened the federal judiciary when Congress and the President were at odds over the budget, threatening the judicial branch of the government with shrinkage or closure. This Essay asserts a viable legal theory-we call it a theory of necessity1-to prevent any t Michael M. Baylson, B. Sc. in Economics, University of Pennsylvania, 1961; LL.B., University of Pennsylvania Law School, 1964; United States District Court Judge, Eastern District of Pennsylvania. Elizabeth Coyne, B.A., University of Delaware, 2008; J.D., Temple University Law School, 2016. Martha Guarnieri, B.A., Rutgers University, 2010; J.D., Temple University Law School, 2017. Samantha Weiss, B.A., Georgetown University, 2012; J.D., University of Pennsylvania Law School, 2017. Mses. Coyne, Guarnieri, and Weiss are currently law clerks to Judge Baylson. 1 A theory of necessity is recognized in several areas of the law, including bankruptcy, taxation, and criminal law. See, e.g., Manners v. Cannella, 891 F.3d 959, 972 (11th Cir. 2018) (explaining that a criminal defendant may assert the doctrine of necessity as an affirmative defense under Florida state law to challenge a charge of fleeing the police), cert. denied, No. 18-6908, 2019 WL 1590272 (U.S. Apr. 15, 2019); In re United Am., Inc., 327 B.R. 776, 781 (Bankr. E.D. Va. 2005) (explaining that, in bankruptcy cases, the equitable Doctrine of Necessity aims to balance Chapter 11's goals of paying pre-petition creditors with treating all creditors equally). A previous law review note proposed that state courts should invoke inherent power against a legislature only under a standard of absolute necessity to perform the duties required by federal and state constitutional law. Andrew (1)