The Supreme Court has rarely considered what applicants must show to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) since the Court amended the provision in 1966. This dearth of Supreme Court treatment has meant that primary responsibility for interpreting Rule 24(a)(2) has devolved upon the lower federal courts. Many of these courts and numerous commentators have recognized that it is very difficult to identify precisely what the Rule demands of those that seek to intervene of right. During much of the last quarter century, however, the federal judiciary agreed about one important proposition: Rule 24(a)(2) does not require that intervention applicants possess standing to sue. An increasing number of circuit and district courts, however, recently demanded or suggested that applicants have an "interest" greater than, or equal to, that necessary for standing or comply with certain standing requirements. Indeed, in 1986, the Supreme Court acknowledged that the "Courts of Appeals have reached varying conclusions as to whether a party seeking to intervene as of right must himself possess standing." The Court, nonetheless, expressly declined to decide whether an applicant "must satisfy not only the requirements of Rule 24(a)(2), but also the requirements of Article III."

The Court's reservation of the question for future decision and the increasing disagreement among lower federal courts regarding the relevance of standing to intervention have created confusion in the application of Rule 24(a)(2). The courts' interpretations have complicated, and even precluded, participation in lawsuits by certain applicants; particularly public interest litigants, such as the National Association for the Advancement of Colored People (NAACP) and the Sierra Club. The treatment has prevented affected interests from being heard, while the federal judiciary has lost helpful expertise, information and perspectives needed to make the best substantive decisions. The invocation of standing in the intervention of right context has been inadvisable, and its effects recently have worsened. Until the Supreme Court resolves the question of standing's relevance to intervention of right, litigants increasingly will ask that federal courts find standing applicable to Rule 24(a)(2), and these requests will engender greater uncertainty, cost, and hardship. It is important, therefore, to analyze this issue.

The first section of this Article explores the background and judicial application of standing to sue and the history of intervention of right. The ideas have different origins and serve dissimilar purposes, although both implicate what entities need to participate in litigation. Standing basically entails what a plaintiff must demonstrate to initiate suit and Article Ill's requirement that there be a case or controversy between the parties. In comparison, intervention of right involves what an absentee must show to participate in ongoing litigation, as to which the plaintiff has standing and whose resolution may prejudice the applicant, and Rule 24{a)(2)'s requirements that an applicant have an inadequately represented interest which will be impaired.

The second part assesses the enforcement of Rule 24(a)(2) since its revision in 1966. The federal judiciary has experienced considerable difficulty in delineating exactly what applicants must demonstrate to intervene of right, but few courts have mentioned standing. Over the last decade, a growing number of judges has insisted that applicants possess an interest more substantial than, or identical to, that necessary for standing or satisfy various standing requirements. That enforcement has restricted, and occasionally prevented, the participation of public interest litigants and has deprived courts of valuable input. Until the Supreme Court resolves the issue, plaintiffs and defendants increasingly will request that judges consider standing relevant to intervention of right, and this will create mounting confusion, expense and hardship.

The third section analyzes the opinions of those courts that have stated or suggested that standing implicates Rule 24(a)(2). The federal judiciary has provided little justification for the invocation of standing, and the Rule's history, language and underlying policies lend minimal support to such application. Moreover, the evaluation shows that the standing and intervention inquiries essentially are, and should remain, discrete. The courts; therefore, should sharply circumscribe their reliance on standing. These conclusions do not necessarily mean that standing is wholly irrelevant. Indeed, standing is critical to intervention of right in one sense: the policies that underlie standing help. to define the idea of a case and to identify appropriate parties to participate in litigation. A case is a vehicle for facilitating the federal judiciary's performance of its quintessential responsibilities-explicating public values in the Constitution and statutes and requiring compliance with them by governmental entities. The party structure of a case, accordingly, should include litigants that can facilitate the efficacious discharge of these judicial duties.

The final part of the Article offers suggestions for future application of standing to Rule 24(a}(2). The segment recasts intervention of right jurisprudence, drawing on transformed conceptualizations of the idea of a case and of the federal judiciary's role in public' law litigation. The approach is a pragmatic, fair, and sensitive adjustment of the traditional intervention mechanism to the practicalities of modem litigation. Its implementation should enable courts to improve their substantive decisionmaking and achieve judicial economy.

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