It’s Time for an Intervention!: Resolving the Conflict Between Rule 24(a)(2) and Article III Standing

By Gregory R. Manring

Abstract

Rule 24(a)(2) of the Federal Rules of Civil Procedure provides an important apparatus by which a nonparty to a dispute may enter by her own initiative to protect an unrepresented interest. Despite the utility and function in balancing the interests of private parties and the effects that their disputes have on third parties, especially in the public law realm, intervention’s requirements are unclear. Whether intervenors of right must independently satisfy Article III standing requirements or whether Article III is satisfied by the existence of a case or controversy between the original parties remains unresolved. The courts of appeals are currently split on the issue—seven do not require Rule 24(a)(2) intervenors to show standing and three do. These categorical approaches, however, are both functionally and legally inadequate.

This Note argues that federal courts should employ an approach that is more related to maintaining the benefits of Rule 24 without running afoul of Article III—a task the yes-or-no approach is ill equipped to handle. Ultimately, an approach that is based on employing a standing analysis only where the Case or Controversy Clause is implicated anew allows the greatest access to the intervention device without running the risk of entertaining nonjusticiable disputes.