The rule of necessity is a judicial doctrine that permits a judge or agency decision maker to decide a case even if he or she would ordinarily be disqualified due to bias or prejudice . The rationale of the doctrine is that if there is no other person who can make the decision, let the biased person decide the case rather than have no decision made at all. The rule of necessity has been used in state administrative proceedings liberally despite the fact that it is widely recognized as unfair. This article analyzes current approaches to the doctrine, and after concluding that they are inadequate, proposes a new approach that would best address the problem.
It is proposed that the best approach is a requirement that any administrative case in which the rule of necessity might be invoked be decided by an administrative law judge who is a member of the state's central administrative panel. The central panel solution should be adopted in state administrative law to restore fairness and remove biased agency decision makers from state administrative proceedings.
Is the Rule of Necessity Really Necessary in State Administrative Law: The Central Panel Solution, 19 J. Nat'l Ass'n Admin. L. Judges 35 (1999)