Policy: Intervention (F.R.C.P. 24(a)) in judicial review of informal rulemaking

New on SSRN: "A Sword or a Noose? Intervention of Right in Judicial Proceedings to Review Informal Federal Rulemakings" by Michael Ray Harris (Denver). Abstract:

Intervention - the procedural device enabling a third person to enter and become a party to an existing court proceeding - is a comparatively recent development in Anglo-American law. The codification of the Federal Rules of Civil Procedure in 1938 sought not only a more transactional approach to litigation, but also to expand, where appropriate, participation by non-parties in federal court litigation. One consequence of a more flexible party structure under the federal rules was the growth of “public law litigation” in the second half of the twentieth century.

In this Article, I do not quarrel over the role of intervention in public law cases generally. Instead, I seek to make a case for limiting intervention in a specific subset of public law proceedings - those brought to review the legality of informal federal rulemakings pursuant to the Administrative Procedure Act. There are important distinctions between the cases I am concerned with here and the public law cases championed by Professor Chayes and others that suggest courts should avoid making the same general assumptions about the necessity for broad, multi-party representation in informal rulemaking cases. First, intervention practice under Rule 24(a), as a practical matter, negatively impacts the efficiency of administrative rulemakings as envisioned by the Administrative Procedure Act. Second, intervention in these cases is not necessary to ensure that one whose rights could be affected by the outcome of a case, and, thus, might be in the position to collaterally attack the court’s judgment, have a means to participate in the first instance - whether by being invited into the action, or demanding to be heard - in order to promote both fairness and judicial efficiency.

EMM