The increasing number of "public interest" lawsuits suggests that federal courts increasingly will confront difficult party joinder questions posed by such litigation. These problems arise because entities not involved in the litigation may have interests that may be adversely affected by the litigation. The joinder issue presented by such cases is whether rule 19 of the Federal Rules of Civil Procedure requires that the suit be dismissed or whether the litigation can continue without joinder of the absent entities. Numerous courts have dealt with the question by creating a 'public rights exception," which permits the litigation to continue even without absentees whose interests may be at risk However, no court has clearly articulated or analyzed this exception. Because of this failure, adoption of the exception has not resolved all of the joinder problems raised by public rights litigation. In this Article Professor Tobias considers whether there is a better solution to these problems.
First, Professor Tobias considers the origins of the public rights exception. He then evaluates the judicial articulation of the exception and reveals that courts have not explained the exception adequately or exhibited concern for interests other than those of the plaintiff. Professor Tobias then examines the procedural and statutory mechanisms currently available for treating this party joinder issue. He concludes that the courts should abandon the public rights exception and resolve the joinder question by applying these other mechanisms.
Carl Tobias, Rule 19 and the Public Rights Exception to Party Joinder, 65 N.C. L. Rev. 745 (1987)