Publication Date
2023
Document Type
Article
Abstract
You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I show that a Federal Rule of Civil Procedure 25(d) substitution analysis is the stronger approach to suits such as these. And I conclude that such irregular joinder strikes at important state separation-of-power principles that assign the representation of state litigation to executive officers.
Publication Title
University of Colorado Law Review
Volume
94
Issue
4
Recommended Citation
Lumen N. Mulligan,
Self-Intervention,
94
University of Colorado Law Review
987
(2023).
Available at:
https://irlaw.umkc.edu/faculty_works/777