Law Commons^™

Private Parties, Legislators, And The Government's Mantle: On Intervention And Article Iii Standing, Suzanne B. Goldberg

Faculty Scholarship

This essay takes up questions regarding whether initiative proponents and legislators can defend a law in federal court when the government declines to defend. Looking first at intervention under the Federal Rules of Civil Procedure, I argue that neither has the cognizable interest needed to enter an ongoing lawsuit as a party. Yet even if they are allowed to intervene, these would-be defenders of state or federal law cannot take on the government’s mantle to satisfy Article III because the government’s standing derives from the risk to its enforcement powers, which is an interest that cannot be delegated to others. …