Irregulars: The Appellate Rights of Persons Who are Not Full-Fledged Parties

Abstract:     
Irregulars is the second of a pair of articles on standing to appeal and the right to defend a judgment in the federal courts. The first article, Shining a Light in a Dim Corner: Standing to Appeal and the Right to Defend a Judgment in the Federal Courts, identified the conceptual similarities and differences between standing to sue and standing to appeal, and between the "right" to defend in the trial court and the right to defend a judicial order or judgment that has been appealed, considered the purposes of the doctrines governing these matters, and briefly described how Eule 19 parties and intervenors fit into our court system at the trial level. The article distinguished standing to appeal and the right to defend against an appeal from related doctrines such as those addressing capacity to sue and be sued, mootness, appealability and reviewability, other procedural prerequisites to appeal, and acquiescence in a judgment.

Irregulars explores the ways in which our law's limitations on standing to appeal and defend apply to nonparty, would-be appellants and appellees and to the grievances they assert or seek to avert. Looking to both constitutional and common law, this Article revisits the importance of the capacity in which persons sued or were sued to their right to appeal or to defend a judgment on appeal, comments upon the appeal rights (or the lack thereof) of coparties and co-consolidatees (parties in litigation consolidated with that in which an appealable decision was rendered), and considers the appeal rights of various persons other than fullfledged formal parties to the suit in which an appealable decision was rendered. In particular, this Article focuses on would-be and successful intervenors, absent members of classes certified or sought to be certified under Rule 23 of the Federal Rules of Civil Procedure, shareholders in derivative suits, de facto and quasi-parties, and nonpar-ties. The Article considers both the scope of the right of each of those categories of persons to appeal and their right to defend an order or judgment on appeal in the federal judicial system.

Finally, Irregulars examines whether current doctrine governing "irregulars" standing to appeal and to defend judgments makes good policy sense and is internally consistent with the doctrine governing full-fledged parties

Number of Pages in PDF File: 115

Keywords: standing to appeal, nonparties

JEL Classification: K10

Accepted Paper Series