You cannot intervene in your own case, duh! Yet the U.S. Supreme Court disagreed, holding that Federal Rule of Civil Procedure 24(a)(2) allows state legislative leaders, seeking to represent the state's sovereign interest, to 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) prohibit 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. I further conclude that such irregular joinder strikes at important state separationof- power principles that assign the representation of state litigation to executive officers. Finally, I show that a Federal Rule of Civil Procedure 25(d) substitution analysis is the stronger approach to suits such as these.
Lumen N. Mulligan,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol94/iss4/3