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Yale Law Journal

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It is widely recognized that litigation can adversely affect the interests of parties not involved in a particular dispute. Concerned with this problem, federal courts long have sought to mitigate the possibly unfair impact of their processes through the doctrine of intervention. The courts cannot allow all affected nonparties to participate, however, because expanding the size of the litigation will often prejudice the parties already before the court and interfere with the efficient conduct of court proceedings. The compromise adopted by the federal courts has been to evolve a set of conditions which, when met, establish a non-party's right to intervene. One of these conditions is that the application for intervention must be timely.

This Note argues that federal trial courts presently enjoy undue discretion in determining whether a nonparty's application for intervention of right is timely. This excessive discretion produces two un-fortunate results. First, the discretion virtually collapses the concept of a right to intervene into the category of permissive intervention, even though the latter is oriented toward different goals, is more vague, and is less reviewable. This collapse undermines any meaningful right to intervene. Second, principled evolution of the criteria defining a right to intervene is frustrated. Together these consequences mark a retreat in judicial concern for fairness to adversely affected nonparties. These consequences may be avoided, this Note argues, if Rule 24(a)(2) of the Federal Rules of Civil Procedure is restructured using the device of serial ordering.



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