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Publication Title

Washington University Law Quarterly

Abstract

This Article consists of four parts. Part I explores the theoretical development of public law litigation, with a particular focus on the overlooked role that environmental litigation and its peculiarities should play in this thinking. Part II examines the history and development of intervention as a procedural device, and then outlines how it presently functions in public law cases. Part III then examines the interrelated claims that federal courts generally have been too stingy with potential intervenors and that an increased role for intervenors necessarily benefits public law litigation. The best case that supporters of a broader right of intervention have to support their argument that courts are hostile to intervenors is that some courts of appeals require intervenors to show that they have standing to sue under Article III of the Constitution. Although I agree that courts should not incorporate standing as part of the interest requirement, I nevertheless conclude that this requirement does not, in the end, threaten a broad right to intervene. In addition, many of the benefits that promoters of a broad right of intervention argue exist simply do not. Part IV then suggests modest changes to intervention practice in public law litigation. Part IV suggests changing the standard of review that the courts of appeals use in weighing appeals over the denial of intervention, adding more criteria for courts to consider, and explicitly providing a rule for outsiders to participate as amicus curiae in trial courts. These proposals preserve the flexibility that has characterized intervention and public law litigation while making such litigation more manageable.

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