The public interest litigant is no longer a nascent phenomenon in American jurisprudence. Born of the need of large numbers of people who individually lack the economic wherewithal or the logistical capacity to vindicate important social values or their own specific interests through the courts, these litigants now participate actively in much federal civil litigation: public law litigation. Despite the pervasive presence of public interest litigants, the federal judiciary has accorded them a mixed reception, particularly when applying the Federal Rules of Civil Procedure. Many federal courts have applied numerous Rules in ways that disadvantage public interest litigants, especially in contrast to traditional litigants, such as private individuals, corporations, and the government.
These developments were not inevitable. Most of the Rules, as adopted originally in 1938 and as amended subsequently, did not anticipate, but were compatible with, public law litigation and public interest litigants' involvement in federal civil litigation. Indeed, certain ideas underlying the Rules as a set of litigating principles may have facilitated public law litigation and public interest litigants' expanding participation in civil suits. Nonetheless, a number of judges has enforced numerous Rules in ways that adversely affect these litigants and which now constitute a discernible pattern. The fiftieth anniversary of the Federal Rules affords an auspicious occasion to explore the federal courts' application of the Rules to public law litigation and the consequences of that judicial treatment.
The first section of this Article surveys the history of the Rules and chronicles the rise of public interest litigants and their growing involvement in federal civil litigation. The review shows that nearly all of the Rules, as promulgated in 1938 and as revised thereafter, were consistent with, and even may have promoted, public law litigation and public interest litigants' increasing activity. When the coalescence of numerous developments significantly transformed the character of considerable federal civil litigation, federal courts confronted many unforeseeable issues for whose resolution the Rules afforded little guidance. The second part of the Article, therefore, analyzes how the federal judiciary has addressed a number of these issues. The evaluation reveals that many courts have enforced numerous Rules in ways that have adversely affected public interest litigants. Indeed, application of all these Rules may have had cumulative impacts and even chilling effects on the litigants. Because the assessment also indicates that courts can and should enforce the Rules with greater solicitude for public interest litigants, the final section offers suggestions for so applying them and for future work on the Federal Rules and public law litigation during the next half-century of the Rules' application.
Carl Tobias, Public Law Litigation and the Federal Rules of Civil Procedure, 74 Cornell L. Rev. 270 (1989).