Academic journal article Brigham Young University Law Review

Intervening in the Case (or Controversy): Article III Standing, Rule 24 Intervention, and the Conflict in the Federal Courts

Academic journal article Brigham Young University Law Review

Intervening in the Case (or Controversy): Article III Standing, Rule 24 Intervention, and the Conflict in the Federal Courts

Article excerpt

I. INTRODUCTION

Article III of the United States Constitution limits federal court jurisdiction to deciding "cases" and "controversies."1 Federal courts ensure compliance with Article III in part by requiring the plaintiff bringing the lawsuit to possess standing.2 Some federal courts of appeal hold that when an individual or entity seeks to intervene in an existing case under Rule 24 of the Federal Rules of Civil Procedure, the potential intervenor must also possess Article III standing. Other federal courts of appeal hold that potential intervenors need not have standing because the party that initiated the lawsuit already satisfied Article III.

While the courts and the legal scholarship have recognized the split in the circuits,3 few conclusions have been reached as to why the circuits are split on the issue. The lack of a clear explanation for the divergence is not surprising; the standing doctrine is complicated. As the late Harvard Law Professor Paul Freund asserted, standing is "among the most amorphous [issues] in the entire domain of public law."4 The U.S. Supreme Court has declared that "Art[icle] III ... 'standing' . . . is perhaps the most important of [the Article III] doctrines."5 Applying standing in the context of Rule 24 intervention IMAGE FORMULA3

only adds an additional layer of complexity to the analysis. In spite of the fact that standing in the intervention context has left many scholars (and, dare we say, courts) puzzled, it is an issue of extreme importance that must be resolved.

In this Comment, we identify why the circuits reach divergent conclusions-a reason that legal scholarship has not explicitly recognized. We argue that the courts that do not require intervenors to have Article III standing view standing as a requirement imposed on all federal courts, that is, that at least one party must have standing before the court can maintain jurisdiction; conversely, the courts that do require intervenors to have Article III standing view standing as a requirement imposed on all parties that come before a federal court. Thus, it is a subtle distinction in analytical approach that divides the circuits on this issue. We recognize that viewing standing as a requirement on the court still necessarily depends on a party having standing; however, we argue that the court need only ensure that the original party to bring suit has standing-not that every party before the court has standing. Under this approach, by ensuring that at least one of the parties before it has standing, the court satisfies its obligation under Article III and may properly take jurisdiction.

In Part II, we trace the origins and development of both Article III standing and Rule 24 intervention. In Part III, we analyze the case law of the federal circuits to demonstrate that the two groups of circuit courts approach standing in fundamentally different ways and thus reach different conclusions. In Part IV, we posit that federal courts should view standing as a requirement on the court, and we give three principle reasons in support of this assertion. First, while the Supreme Court has not yet answered this question, we suggest that the High Court does, in fact, approach standing as a requirement on the court. Second, viewing standing as a requirement on a federal court is consistent with the language and purpose of Article III. Finally, viewing standing as a requirement on the parties produces results inconsistent with the requirements and policies of intervention. Because standing is properly viewed as a requirement on the court, we conclude that a Rule 24 intervenor need not possess Article III standing to enter an existing case,6 and we encourage courts to hold accordingly. In Part V, we offer a brief conclusion.

II. ARTICLE III STANDING AND RULE 24 INTERVENTION

Article III standing and Rule 24 intervention are complex issues by themselves: standing is a constitutional doctrine but was created by the judiciary; intervention is a rule of court but was created with legislative authority; both doctrines contain multiple sub-- requirements; and both doctrines have changed substantially during their history. …

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