Dual Standards for Third-Party Intervenors: Distinguishing between Public-Law and Private-Law Intervention

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I. Introduction ....................646

II. Background ....................647

A. The Development of Public Law ....................647

B. The Development of American Intervention Practice ....................650

1. The Development of Modern Intervention ....................651

2. Purposes of the Modern Intervention Mechanism ....................653

C. Elements of Rule 24(a)(2) Intervention of Right ....................654

1. Timeliness Requirement ....................655

2. Sufficient- Interest Requirement ....................657

3. Practical- Effect Requirement ....................659

4. Adequacy-of- Representation Requirement ....................660

III. Analysis of Rule 24(a)(2) Intervention of Right ....................661

A. The Purpose of Intervention in Public-Law Cases ....................661

B. Different Approaches to the Sufficient-Interest Requirement ....................664

1. Explanation of the Approaches to the Sufficient-Interest Requirement ....................664

a. Sufficiency of a Protectable Interest ....................664

b. Sufficiency of a Direct, Substantial, and Legally Protectable Interest ....................665

c. The Public-Policy Approach ....................666

2. Critique of the Approaches.................... 667

C. Different Approaches to the Adequacy -of - Representation Requirement ....................669

1. Explanation of the Approaches to the Adequacy-of- Representation Requirement ....................669

a. Presumption of Adequate Representation from Similar Interest ....................669

6. Presumption of Adequate Representation from Government Participation ....................671

c. Overcoming the Presumption ....................672

d. Eliminating the Presumption ....................674

2. Critique of the Approaches ....................675

a. Critique of the Presumption System ....................676

b. Critique of the Adequacy-ofRepresentation Approaches ....................677

IV. Solution ....................679

A. Minor Changes to Intervention Procedures ....................680

B. Implementing the Dual Standards for Public Law and Private Law ....................681

V. Conclusion ....................683

I. Introduction

Courts stand as the final arbiters of many important and controversial issues in the United States. While it is the province of the judicial branch to hear "cases" and "controversies" that impact the immediate parties to a suit, many modern suits impact unrepresented parties and thus have policy implications. To describe this phenomenon, scholars use the terms "private law" and "public law."

As public law gained greater prominence, commentators began to realize the need to revise the Federal Rules of Civil Procedure to facilitate this type of litigation. Historically, unrepresented parties who were affected by a suit could use the mechanism of intervention to enter a suit. In 1966, the Federal Rules were modified to allow more liberal intervention than ever before. Many courts cautioned that the expansion of intervention could create complexity and inefficiency in litigation. Although the intervention mechanism is integral to the modern judicial plan for protecting unrepresented parties, over time, some of the courts of appeals have created restrictive standards that significantly frustrate intervention.

This Note attempts to offer a solution to balance the competing interests of representation and efficiency by focusing on the different needs of intervention in public- versus private-law litigation. In private-law litigation, intervention is not as necessary since resolution of the suit will likely have little impact on third parties. Furthermore, this is where intervention may create the greatest inefficiency. However, in public-law litigation, third parties have a far greater justification for entering the proceedings. …