Vanderbilt Law Review

First Page



Courts stand as the final arbiters of many important and controversial issues in the United States. While it is the province of the judicial branch to hear "cases" and "controversies" that impact the immediate parties to a suit, many modern suits impact unrepresented parties and thus have policy implications. To describe this phenomenon, scholars use the terms "private law" and "public law." As public law gained greater prominence, commentators began to realize the need to revise the Federal Rules of Civil Procedure to facilitate this type of litigation. Historically, unrepresented parties who were affected by a suit could use the mechanism of intervention to enter a suit. In 1966, the Federal Rules were modified to allow more liberal intervention than ever before. Many courts cautioned that the expansion of intervention could create complexity and inefficiency in litigation. Although the intervention mechanism is integral to the modern judicial plan for protecting unrepresented parties, over time, some of the courts of appeals have created restrictive standards that significantly frustrate intervention. This Note attempts to offer a solution to balance the competing interests of representation and efficiency by focusing on the different needs of intervention in public- versus private-law litigation. In private-law litigation, intervention is not as necessary since resolution of the suit will likely have little impact on third parties. Furthermore, this is where intervention may create the greatest inefficiency. However, in public-law litigation, third parties have a far greater justification for entering the proceedings. After analyzing exactly how the current circuit split impacts both private- and public-law litigation, this Note proposes new standards which take into account the nature of the suit when determining whether to allow intervention. Therefore, the solution is to use a more relaxed standard for intervention in public-law suits and to use limited intervention to allow the public a voice without adding unnecessary complexity in both types of litigation. Part II explains the background of both intervention and public-law litigation. Part III discusses how the standards for qualifying intervenors may apply differently in public-law litigation and analyzes two areas of disagreement among the courts of appeals. Part IV proposes a solution that protects private plaintiffs while assuring interested parties are able to participate as necessary in public-law cases.