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Avoiding a “Nine-Headed Hydra”: Intervention as a Matter of Right by Legislators in Federal Lawsuits After Berger

Posted by on Friday, January 26, 2024 in Notes, Volume 77, Volume 77, Number 1.

Taylor Lawing | 77 Vand. L. Rev. 275

Heightened political polarization across the United States has resulted in the increased use of Rule 24(a) intervention as a matter of right by elected legislators in federal litigation concerning state law. Because states differ in their approaches to intervention, with only some states expressly granting intervention in state matters, lower federal courts have been tasked with evaluating motions to intervene by reconciling Rule 24(a)’s requirements with state statutes, which poses challenging questions concerning Rule 24. This Note aims to provide lower courts with a reimagined standard for evaluating motions to intervene from state legislators that considers the administrative, political, and legislative consequences that occur without such a standard. Under this standard, lower courts first determine whether Rule 24(a) trumps state law before utilizing a shareholder test to evaluate whether the existing party adequately represents the interest of the potential legislator intervenor. This standard ultimately seeks to prevent the overburdening of the courts and to protect their independence.

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Taylor Lawing