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

Abstract

Federal judges often confront cases asking them to set precedent with less-than-complete information. Given the function of stare decisis in the federal judiciary, these judgments often have far-reaching and functionally permanent consequences. At the trial level, the Federal Rules of Civil Procedure provide a partial remedy to this problem. Rule 24(a)(2) provides a party the right to intervene in ongoing litigation provided it meet three conditions. Although the text of Rule 24(a) lays out only three requirements, several circuits have engrafted the standing requirements of Article III onto the Rule, creating an additional hurdle to third-party intervention. As a result, federal courts in these circuits are denied potentially relevant information from parties not immediately bound by a given case. Those same parties are denied the ability to represent their interests in precedent-setting litigation. And because lower federal courts adhere rigidly to stare decisis, these parties are effectively prevented from challenging precedents once set. Because the purely legal debate over whether Article III standing applies to Rule 24(a)(2) is at a stalemate, this article considers a different line of argument. With the Article III debate yet unresolved, I argue that the quasi-legislative character of judicial decisions and decision-making militates against imposing Article III standing on Rule 24(a)(2) intervenors. Specifically, I argue that when judicial decision-making creates a quasi-legislative rule, as is the case with most opinions, courts’ use of Article III standing to exclude other parties from this process raises two interrelated concerns. First, excluding additional parties decreases the volume and, potentially, the quality of information entering the process, increasing the probability that the court will generate bad precedent. This is especially true when the original party’s representation is inadequate, a possibility the text of Rule 24(a)(2) openly acknowledges. Second, a court’s ruling effectively binds all future litigants within its jurisdiction. To varying extents, future litigants are thus denied the opportunity to be heard on the merits of their claims and defenses. While this denial does not violate procedural due process, it does undermine the principles underlying the doctrine.