Rule 24 Notwithstanding: Why Article III Should Not Limit Intervention of Right

By Ferguson, Zachary N. | Duke Law Journal, October 2017 | Go to article overview

Rule 24 Notwithstanding: Why Article III Should Not Limit Intervention of Right


Ferguson, Zachary N., Duke Law Journal


ABSTRACT

The Supreme Court recently decided in Town of Chester v. Laroe Estates, Inc. that intervenors of right under Federal Rule of Civil Procedure 24(a)(2) must demonstrate independent Article III standing when they pursue relief different from that requested by an original plaintiff. This decision resolved, in part, a decades-long controversy among the Courts of Appeals over the proper relationship between Rule 24 intervention and Article III standing that the Court first acknowledged in Diamond v. Charles. But the Court's narrow decision in Town of Chester hardly disposed of the controversy, and Courts of Appeals are still free to require standing of defendant-intervenors and, it stands to reason, plaintiff-intervenors even if they do not pursue different relief.

With this debate yet unresolved, this Note takes a less conventional approach. In addition to arguing that the Supreme Court's precedents implicitly resolved this question before Town of Chester, this Note argues that the nature of judicial decisions raises two concerns that a liberal application of Rule 24(a)(2) would mitigate. First, this Note argues that stare decisis limits the right of litigants to be heard on the merits of their claims and defenses in a way that undermines the principles of due process. Second, this Note argues that the process of judicial decisionmaking is fraught with potential epistemic problems that can produce suboptimal legal rules. After considering these two concerns, this Note argues that Rule 24(a)(2) is a better and more practical way to mitigate these problems than are Rule 24(a)(2)'s alternatives.

INTRODUCTION

In 2007, a challenge to Indiana's voter identification law came before the Seventh Circuit in Crawford v. Marion County Election Board. (1) Writing for the majority, Judge Richard Posner defended the identification laws as imposing merely "ordinary and widespread burdens" (2) and accepted the trial judge's finding that the data on voter suppression presented by the plaintiff-appellants were "totally unreliable." (3) Because no plaintiff had joined the suit alleging that they "intend[ed] not to vote because of the new law," Judge Posner reasoned that "the motivation for the suit is simply that the law may require the Democratic Party and other organizational plaintiffs to work harder to get every last one of their supporters to the polls." (4) The plaintiffs, Judge Posner reckoned, were engaged in a politically motivated assault on a reasonable electoral regulation. On appeal to the Supreme Court, (5) the plaintiffs-turned-petitioners lost in a 6-3 decision. The Court, like Judge Posner, found "[t]he universally applicable requirements of Indiana's voter-identification law [to be] eminently reasonable." (6)

Seven years later, a similar voter identification law came before the Seventh Circuit. (7) Writing for the majority, Judge Frank Easter brook--Judge Posner's intellectual frenemy--concluded that the regulation was "amply justified by the valid interest in protecting the integrity and reliability of the electoral process." (8) But then the unexpected happened: a judge on the Seventh Circuit requested a vote for a rehearing en banc, which failed by an equally divided vote. (9) Unlike many rehearing orders, this one drew a fire-and-brimstone dissent from five of the acting judges. The dissenting judges excoriated the majority for its reliance on "downright goofy" (10) evidence of voter fraud, noting that "[e]ven Fox News, whose passion for conservative causes has never been questioned, acknowledges that 'Voter ID Laws Target Rarely Occurring Voter Fraud.'" (11) "[I]f there is no actual danger of [voter identification] fraud," the dissent argued, "[t]here is only one motivation for imposing burdens on voting ... and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens." (12) Crawford's, presumptively neutral voter identification laws were now, according to the dissent, presumptively political. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Rule 24 Notwithstanding: Why Article III Should Not Limit Intervention of Right
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.