Intervention in Public Law Litigation : The Environmental Paradigm

Litigation which Abram Chayes labeled “public law litigation” grew especially quickly in the decade immediately before Chayes wrote his landmark article. This growth was due, in no small part, to the 1966 amendments to the Federal Rules of Civil Procedure. These amendments introduced a more transactional approach to litigation and made the rules concerning party structure more flexible. In particular, the amendments modified Rule 19, which governs joinder of nonparties by the parties to the suit; Rule 23, which governs class action lawsuits; and Rule 24, which governs intervention by nonparties into ongoing litigation. Using the jurisprudence that has developed concerning intervention as of right under Rule 24(a), this article questions these two assertions. First, courts have been receptive to amorphous party structure in public law cases, allowing intervention in many instances where it would not have been allowed before the 1966 amendments to the Federal Rules of Civil Procedure. Second, it is far from clear in many instances how allowing intervention assists the litigation, particularly when the outsider has intervened as a defendant. Rather, in many instances the parties and the judge can realize the advantages of involving an outsider to the litigation without formal intervention as of right. Thus, contrary to the arguments of most scholars in this area, I believe that the courts have, for the most part, decided the cases correctly, and have certainly allowed intervention in more cases than they would have prior to the 1966 amendments