Caleb Nelson

Did I Get Public Rights Wrong?

In earlier work, I discussed historical understandings of the kinds of disputes that Congress can authorize nonjudicial actors to resolve and the kinds of disputes that can be resolved only by courts. The framework that I described revolved around two distinctions: (1) the difference between “public rights” (which I defined as legal interests that belong to the government or the people collectively) and legal interests that belong to a private person; and (2) within the category of private legal interests, the difference between mere privileges or expectancies and vested rights to life, liberty, or property. In my telling, nineteenth-century lawyers and judges thought that Congress could authorize executive-branch actors to administer and dispose of “public rights” and mere privileges or expectancies without judicial involvement, but that only courts could render judgments conclusively rejecting a private person’s claim to vested rights.

Recently, Professor Gregory Ablavsky has taken issue with my account. In Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277 (2022), he identified an alleged counterexample to the framework that I described: when foreign sovereigns ceded territory to the United States, inhabitants of the ceded territories who claimed “imperfect” titles based on incomplete grants from the previous sovereign were not thought to be entitled to judicial adjudication of their claims, even though the legal interests that they asserted were regarded as property. According to Professor Ablavsky, this history supports a broader understanding of “public rights” than I offered, and it potentially legitimates more nonjudicial adjudication than my framework would suggest.

This Article responds. It explains why imperfect titles to land in the ceded territories were not treated as judicially cognizable vested rights, and it defends my understanding of “public rights.”

Introduction

Article III of the Constitution begins as follows:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.1 1.U.S. Const. art. III, § 1.Show More

The strong implication is that only true federal courts, whose judges enjoy the independence that allegedly comes with a guaranteed compensation and tenure during good behavior, can exercise what Article III calls “[t]he judicial Power of the United States.”2 2.See, e.g., Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1372–73 (2018) (“Congress cannot ‘confer the Government’s “judicial Power” on entities outside Article III.’” (quoting Stern v. Marshall, 564 U.S. 462, 484 (2011))); Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558) (opinion of Marshall, Circuit Justice) (observing that decision-makers who “do not compose a court ordained and established by congress, nor . . . hold offices during good behavior,” are “incapable of exercising any portion of the judicial power” of the United States).Show More

Unfortunately, figuring out what that means is harder than it might seem. Nonlawyers might assume that any governmental body that resolves particularized matters via adjudication—finding facts, applying pre-existing legal principles to those facts, and rendering decisions with legal effect—must be exercising “judicial Power” of the sort that Article III regulates. But history belies this assumption. With statutory authorization, officials in the executive branch have long made various kinds of adjudicative decisions that have legal consequences, but that are thought to entail the exercise of “executive” rather than “judicial” power.3 3.Cf. William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540 (2020) (“[N]ot every application of law to fact requires a court. Indeed, factfinding, and the application of law to fact, is a ubiquitous part of executive action.”).Show More For instance, the First Congress authorized a trio of executive officers to entertain petitions from applicants who were seeking patents for inventions, and to grant patents from the United States to applicants who met the statutory criteria.4 4.See Patent Act of 1790, ch. 7, § 1, 1 Stat. 109, 109–10 (repealed 1793).Show More Likewise, Congress itself routinely entertained petitions from people with legal or moral claims against the United States, and Congress used its “legislative” powers to enact private bills awarding money from the Treasury or other relief to claimants whom Congress deemed deserving.5 5.See generally William C. diGiacomantonio, Petitioners and Their Grievances: A View from the First Federal Congress, in The House and Senate in the 1790s: Petitioning, Lobbying, and Institutional Development 29 (Kenneth R. Bowling & Donald R. Kennon eds., 2002) (canvassing many kinds of petitions acted upon by the First Congress). See also Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538, 1579–1600 (2018) (noting Congress’s eventual creation of alternative mechanisms, including administrative mechanisms, for handling matters that had generated a high volume of petitions). Admittedly, when Congress handled these matters itself, the private bills that Congress enacted did not have to reflect the application of pre-existing legal criteria; by virtue of its “legislative” powers, Congress could change the law in more freewheeling fashion than either executive or judicial actors. In practice, though, Congress could choose to perform the same sorts of adjudicative tasks in these matters that executive or judicial actors might be called upon to perform.Show More

Still, some other kinds of adjudicative decisions cannot be made either by Congress itself or by officials or agencies in the executive branch. For instance, Congress cannot enact a statute authoritatively declaring that you are guilty of a federal crime and sentencing you to prison.6 6.See U.S. Const. art. I, § 9, cl. 3 (prohibiting the passage of bills of attainder).Show More Nor can Congress empower an executive branch agency to make decisions of that sort. Such decisions can be made only by a true court, exercising “judicial” power.

Almost twenty years ago, I wrote an article providing a historical account of these distinctions.7 7.Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 (2007) [hereinafter Nelson, Adjudication].Show More Under longstanding ideas about the operation of American-style separation of powers, I argued, “judicial” power was associated with the protection of certain types of legal interests belonging to private individuals or entities—what I called “core private rights,” and what nineteenth-century lawyers thought of as “vested rights” to life, liberty, or property.8 8.See id. at 566–72; see also Caleb Nelson, Vested Rights, “Franchises,” and the Separation of Powers, 169 U. Pa. L. Rev. 1429, 1438–84 (2021) [hereinafter Nelson, Franchises] (amending what I had said about the place of “franchises” in this framework).Show More

As nineteenth-century lawyers and judges fleshed out their understanding of the constitutional distribution of powers, they tended to regard the political branches as appropriate representatives of the public, and they did not think that the government needed to exercise “judicial” power in order to dispose of so-called “public rights”—legal interests belonging to the government itself or to the people in their collective capacity. For instance, Congress could transfer land from the public domain to a private person simply by enacting a statute to that effect.9 9.See Nelson, Adjudication, supra note 7, at 577 & n.71 (citing cases).Show More Alternatively, if Congress did not want to administer such transfers itself, Congress could establish statutory criteria for land grants and authorize an executive branch agency to determine whether particular applicants satisfied them. Under nineteenth-century understandings of the Constitution, Congress normally did not have to let would-be transferees dispute those determinations in court, because the would-be transferees’ legal interests normally amounted to mere expectancies or privileges that Congress had the power to dash (rather than core private rights that had vested even as against Congress).10 10.See id. at 577–80; Nelson, Franchises, supra note 8, at 1435.Show More But things changed once a transfer occurred. To be sure, even after the government had issued a land patent evidencing the transfer, the patent might still be subject to cancellation on certain grounds (such as fraud on the part of the transferee or certain types of mistakes on the part of the land office).11 11.See, e.g., United States v. Stone, 69 U.S. (2 Wall.) 525, 535 (1865).Show More If the transferee resisted, though, the executive branch could not unilaterally determine that such grounds existed and expect courts to give its determination conclusive effect. By this point, the transferee would be claiming a “vested” right to the land, and the legally conclusive rejection of such a claim required judicial power.12 12.See id. (observing that the cancellation of a land patent “is a judicial act, and requires the judgment of a court”); see also Nelson, Adjudication, supra note 7, at 578 n.74 (citing additional cases); Nelson, Franchises, supra note 8, at 1503–04 & nn.429–32 (same).Show More

Because the current Supreme Court is looking to history to help identify the adjudicative authority that Congress can and cannot give federal administrative agencies, the framework that I described has enjoyed a resurgence.13 13.See Nelson, Franchises, supra note 8, at 1432 & nn.7–10 (citing cases and commentary).Show More Recently, however, Professor Gregory Ablavsky has argued that I missed an important part of the history and that I therefore drew the wrong conclusions. “Throughout the nineteenth century,” he writes, “the administrative adjudication of at least one form of vested rights to private property was constitutionally permissible.”14 14.Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277, 284 (2022).Show More Based on this alleged counterexample, he draws broad lessons—perhaps that “the administrative adjudication of rights, including to property, is on firmer historical footing than current critics argue,”15 15.Id. at 285.Show More or perhaps that history does not supply answers at all because “people then were just as confused as we are.”16 16.Id. at 351.Show More

Professor Ablavsky’s counterexample grows out of the expansion of the United States. When the United States acquired sovereignty over territories previously governed by other countries, the United States also acquired title to the public domain—the lands that had been owned by the previous sovereign. But not all of the land in these territories was in the public domain. Even if Indigenous titles had somehow been “extinguished,”17 17.See id. at 290 (noting this locution).Show More other residents of the territories claimed private ownership rights derived from the previous sovereign. The nature of those claims varied. Some people had “perfect” and “complete” titles; the former sovereign had granted a defined tract to them or their predecessors in interest, and the grant had been completed before sovereignty passed to the United States. Many other people, though, claimed “imperfect” or “inchoate” titles of one sort or another.18 18.See, e.g., 1 Curtis H. Lindley, A Treatise on the American Law Relating to Mines and Mineral Lands § 116 (San Francisco, Bancroft-Whitney Co. 1897) (discussing claims based on Mexican grants within the territory ceded by the Treaty of Guadalupe Hidalgo, and observing that “[m]ost of [the claimed grants] were inchoate—that is to say, something remained to be done to either perfect and establish the title or to fix the boundaries”); see also Tobin v. Walkinshaw, 23 F. Cas. 1338, 1342 (C.C.N.D. Cal. 1856) (No. 14,069) (defining “[t]he distinction between perfect and inchoate titles” in terms of whether “‘further action of the political authority’” is needed (quoting Hancock v. McKinney, 7 Tex. 384, 457 (1851) (opinion of Lipscomb, J.))).Show More Perhaps provincial authorities who lacked final authority to make grants had issued a “concession” in favor of a private person, but the previous sovereign had not approved and completed the grant by the time sovereignty passed to the United States.19 19.See, e.g., West v. Cochran, 58 U.S. (17 How.) 403, 413 (1855) (describing “the condition of claims to land derived from France and Spain, before the United States acquired Louisiana”); see also Snyder v. Sickles, 98 U.S. 203, 203 (1878) (“Titles to lands claimed by individuals in Louisiana at the time the province was ceded to the United States were in most cases incomplete, as the governor of the province never possessed the power to grant a patent. All he could do was to issue to the donee an instrument called a concession or order of survey, which never invested the party with a fee-simple title . . . .”); Menard’s Heirs v. Massey, 49 U.S. (8 How.) 293, 303–06 (1850) (similar).Show More Perhaps a grant from the previous sovereign had been subject to conditions precedent (such as occupation and cultivation of the land) that had not been satisfied by the time sovereignty passed—with the result, again, that legal title to the land had remained in the previous sovereign and was now held by the United States.20 20.See United States v. Wiggins, 39 U.S. (14 Pet.) 334, 350 (1840) (observing that in Florida, “there were at the date of the [Adams-Onís] treaty very many claims, whose validity depended upon the performance of conditions in consideration of which the concessions had been made, and which must have been performed before Spain was bound to perfect the titles”).Show More Perhaps the relevant concession or grant had purported to be unqualified but had not adequately defined the boundaries of the land in question.21 21.See, e.g., Bissell v. Penrose, 49 U.S. (8 How.) 317, 334 (1850) (referring to Spanish concessions in Upper Louisiana that had “designat[ed] some natural object only, such as the head or sources of a river, as the place where the tract should be located”); More v. Steinbach, 127 U.S. 70, 78 (1888) (noting that some Spanish and Mexican grants in California had referred to “lands known only by particular names, without any designated boundaries”).Show More Perhaps the previous sovereign had simply authorized a private person to choose a specified quantity of land from within a larger tract, and the location had not been made while the previous sovereign was in charge.22 22.See Bissell, 49 U.S. (8 How.) at 334 (noting the prevalence of such floating grants in the former Louisiana territory); More, 127 U.S. at 78 (same with respect to California); cf. Scull v. United States, 98 U.S. 410, 419–20 (1879) (referring separately to “an inchoate or imperfect title” and “a perfected grant for an unknown location, or for a given quantity within defined out-boundaries,” but contrasting both with “a title completed under the foreign government”).Show More

Although the United States acknowledged an obligation to recognize imperfect titles of various sorts, and although the United States chose to recognize some additional inchoate claims that it might not have had an obligation to recognize,23 23.In the early nineteenth century, for instance, Spain occupied the territory known as West Florida, but the United States took the position that Spain had ceded this territory to France (via the Treaty of St. Ildefonso in 1800) and that the United States had acquired it from France as part of the Louisiana Purchase. In accord with this position, the Supreme Court refused to recognize land grants purportedly made by Spain during its allegedly wrongful occupation. See, e.g., United States v. Reynes, 50 U.S. (9 How.) 127, 153–54 (1850). In 1860, though, Congress enacted a statute allowing the confirmation of claims based on such grants. See Act of June 22, 1860, ch. 188, 12 Stat. 85; see also United States v. Lynde, 78 U.S. (11 Wall.) 632, 634–47 (1871) (recounting history and observing that “the case of the claimants . . . must stand on the voluntary bounty of our government, exerted through its legislative department”).Show More deciding which claims were factually and legally valid was an enormous challenge. As Professor Ablavsky recounts, Congress took different approaches at different times and with respect to different ceded territories. But a common theme was that people who were claiming less-than-perfect title had to present their claims to a board of commissioners for adjudication.24 24.See Ablavsky, supra note 14, at 287.Show More As time went by, some of the relevant statutory schemes provided for de novo judicial review of the commissioners’ decisions in a regular court,25 25.See id. at 294–95.Show More but Congress evidently did not consider that necessary. Sometimes, Congress made the commissioners’ decision to confirm a claim final and conclusive against the United States.26 26.See id. at 292.Show More Sometimes, the commissioners would simply refer their decision to Congress, which could confirm claims by statute if it so chose.27 27.See id. at 293.Show More Under either of those arrangements, the confirmation of a claim acted upon public rights by releasing whatever title the United States might otherwise have had to the land; on one way of thinking, the United States was stepping into the shoes of the former sovereign and completing the grant. But if a claim of this sort was rejected, or was not presented to the board of commissioners at all, the disappointed claimant could not get a court to recognize his purported rights to the land in question (unless Congress had so provided). In practice, moreover, the (nonjudicial) confirmation of one imperfect title could defeat the interests of others who asserted imperfect titles to the same land.28 28.See, e.g., Dent v. Emmeger, 81 U.S. (14 Wall.) 308, 312–13 (1872); Landes v. Brant, 51 U.S. (10 How.) 348, 370 (1851).Show More According to Professor Ablavsky, these arrangements are inconsistent with the framework that I described, because even imperfect titles to land allegedly were regarded as “vested” private rights to property.

Professor Ablavsky is an expert on land law in the early American West, and his account is rich and informative. It has already received well-deserved praise, including the William Nelson Cromwell Foundation’s inaugural $10,000 prize for the Legal History Article of the Year.29 29.Legal History Article of the Year Prize, William Nelson Cromwell Found., https://crom‌wellfoundation.org/legal-history-article-of-the-year-prize/ [https://perma.cc/QU7H-PPFM] (last visited Jan. 24, 2026).Show More But while I have learned from Professor Ablavsky’s research, I do not think that his evidence does much to undermine the framework that I described. This Article explains why.30 30.There is already something of a debate about whether Professor Ablavsky’s research is contrary to mine. Compare Richard H. Fallon, Jr., Non-Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice, 99 Notre Dame L. Rev. 1691, 1723–24 (2024) (taking there to be real disagreement), with Ann Woolhandler & Michael G. Collins, The Public/Private Rights Critics, 99 Notre Dame L. Rev. 1779, 1781–85 (2024) (arguing that Professor Ablavsky’s account tends to “confirm” rather than undermine the framework that I described), and Ilan Wurman, Nonexclusive Functions and Separation of Powers Law, 107 Minn. L. Rev. 735, 763 n.136 (2022) (asserting that “the distinction Ablavsky draws . . . tracks the [public/private] dichotomy exactly”).Show More

  1.  U.S. Const. art. III, § 1. ↑
  2.  See, e.g., Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1372–73 (2018) (“Congress cannot ‘confer the Government’s “judicial Power” on entities outside Article III.’” (quoting Stern v. Marshall, 564 U.S. 462, 484 (2011))); Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (No. 11,558) (opinion of Marshall, Circuit Justice) (observing that decision-makers who “do not compose a court ordained and established by congress, nor . . . hold offices during good behavior,” are “incapable of exercising any portion of the judicial power” of the United States). ↑
  3.  Cf. William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1540 (2020) (“[N]ot every application of law to fact requires a court. Indeed, factfinding, and the application of law to fact, is a ubiquitous part of executive action.”). ↑
  4.  See Patent Act of 1790, ch. 7, § 1, 1 Stat. 109, 109–10 (repealed 1793). ↑
  5.  See generally William C. diGiacomantonio, Petitioners and Their Grievances: A View from the First Federal Congress, in The House and Senate in the 1790s: Petitioning, Lobbying, and Institutional Development 29 (Kenneth R. Bowling & Donald R. Kennon eds., 2002) (canvassing many kinds of petitions acted upon by the First Congress). See also Maggie McKinley, Petitioning and the Making of the Administrative State, 127 Yale L.J. 1538, 1579–1600 (2018) (noting Congress’s eventual creation of alternative mechanisms, including administrative mechanisms, for handling matters that had generated a high volume of petitions). Admittedly, when Congress handled these matters itself, the private bills that Congress enacted did not have to reflect the application of pre-existing legal criteria; by virtue of its “legislative” powers, Congress could change the law in more freewheeling fashion than either executive or judicial actors. In practice, though, Congress could choose to perform the same sorts of adjudicative tasks in these matters that executive or judicial actors might be called upon to perform. ↑
  6.  See U.S. Const. art. I, § 9, cl. 3 (prohibiting the passage of bills of attainder). ↑
  7.  Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559 (2007) [hereinafter Nelson, Adjudication]. ↑
  8.  See id. at 566–72; see also Caleb Nelson, Vested Rights, “Franchises,” and the Separation of Powers, 169 U. Pa. L. Rev. 1429, 1438–84 (2021) [hereinafter Nelson, Franchises] (amending what I had said about the place of “franchises” in this framework). ↑
  9.  See Nelson, Adjudication, supra note 7, at 577 & n.71 (citing cases). ↑
  10.  See id. at 577–80; Nelson, Franchises, supra note 8, at 1435. ↑
  11.  See, e.g., United States v. Stone, 69 U.S. (2 Wall.) 525, 535 (1865). ↑
  12.  See id. (observing that the cancellation of a land patent “is a judicial act, and requires the judgment of a court”); see also Nelson, Adjudication, supra note 7, at 578 n.74 (citing additional cases); Nelson, Franchises, supra note 8, at 1503–04 & nn.429–32 (same). ↑
  13.  See Nelson, Franchises, supra note 8, at 1432 & nn.7–10 (citing cases and commentary). ↑
  14.  Gregory Ablavsky, Getting Public Rights Wrong: The Lost History of the Private Land Claims, 74 Stan. L. Rev. 277, 284 (2022). ↑
  15.  Id. at 285. ↑
  16.  Id. at 351. ↑
  17.  See id. at 290 (noting this locution). ↑
  18.  See, e.g., 1 Curtis H. Lindley, A Treatise on the American Law Relating to Mines and Mineral Lands § 116 (San Francisco, Bancroft-Whitney Co. 1897) (discussing claims based on Mexican grants within the territory ceded by the Treaty of Guadalupe Hidalgo, and observing that “[m]ost of [the claimed grants] were inchoate—that is to say, something remained to be done to either perfect and establish the title or to fix the boundaries”); see also Tobin v. Walkinshaw, 23 F. Cas. 1338, 1342 (C.C.N.D. Cal. 1856) (No. 14,069) (defining “[t]he distinction between perfect and inchoate titles” in terms of whether “‘further action of the political authority’” is needed (quoting Hancock v. McKinney, 7 Tex. 384, 457 (1851) (opinion of Lipscomb, J.))). ↑
  19.  See, e.g., West v. Cochran, 58 U.S. (17 How.) 403, 413 (1855) (describing “the condition of claims to land derived from France and Spain, before the United States acquired Louisiana”); see also Snyder v. Sickles, 98 U.S. 203, 203 (1878) (“Titles to lands claimed by individuals in Louisiana at the time the province was ceded to the United States were in most cases incomplete, as the governor of the province never possessed the power to grant a patent. All he could do was to issue to the donee an instrument called a concession or order of survey, which never invested the party with a fee-simple title . . . .”); Menard’s Heirs v. Massey, 49 U.S. (8 How.) 293, 303–06 (1850) (similar). ↑
  20.  See United States v. Wiggins, 39 U.S. (14 Pet.) 334, 350 (1840) (observing that in Florida, “there were at the date of the [Adams-Onís] treaty very many claims, whose validity depended upon the performance of conditions in consideration of which the concessions had been made, and which must have been performed before Spain was bound to perfect the titles”). ↑
  21.  See, e.g., Bissell v. Penrose, 49 U.S. (8 How.) 317, 334 (1850) (referring to Spanish concessions in Upper Louisiana that had “designat[ed] some natural object only, such as the head or sources of a river, as the place where the tract should be located”); More v. Steinbach, 127 U.S. 70, 78 (1888) (noting that some Spanish and Mexican grants in California had referred to “lands known only by particular names, without any designated boundaries”). ↑
  22.  See Bissell, 49 U.S. (8 How.) at 334 (noting the prevalence of such floating grants in the former Louisiana territory); More, 127 U.S. at 78 (same with respect to California); cf. Scull v. United States, 98 U.S. 410, 419–20 (1879) (referring separately to “an inchoate or imperfect title” and “a perfected grant for an unknown location, or for a given quantity within defined out-boundaries,” but contrasting both with “a title completed under the foreign government”). ↑
  23.  In the early nineteenth century, for instance, Spain occupied the territory known as West Florida, but the United States took the position that Spain had ceded this territory to France (via the Treaty of St. Ildefonso in 1800) and that the United States had acquired it from France as part of the Louisiana Purchase. In accord with this position, the Supreme Court refused to recognize land grants purportedly made by Spain during its allegedly wrongful occupation. See, e.g., United States v. Reynes, 50 U.S. (9 How.) 127, 153–54 (1850). In 1860, though, Congress enacted a statute allowing the confirmation of claims based on such grants. See Act of June 22, 1860, ch. 188, 12 Stat. 85; see also United States v. Lynde, 78 U.S. (11 Wall.) 632, 634–47 (1871) (recounting history and observing that “the case of the claimants . . . must stand on the voluntary bounty of our government, exerted through its legislative department”). ↑
  24.  See Ablavsky, supra note 14, at 287. ↑
  25.  See id. at 294–95. ↑
  26.  See id. at 292. ↑
  27.  See id. at 293. ↑
  28.  See, e.g., Dent v. Emmeger, 81 U.S. (14 Wall.) 308, 312–13 (1872); Landes v. Brant, 51 U.S. (10 How.) 348, 370 (1851). ↑
  29.  Legal History Article of the Year Prize, William Nelson Cromwell Found., https://crom‌wellfoundation.org/legal-history-article-of-the-year-prize/ [https://perma.cc/QU7H-PPFM] (last visited Jan. 24, 2026). ↑

  30.  There is already something of a debate about whether Professor Ablavsky’s research is contrary to mine. Compare Richard H. Fallon, Jr., Non-Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice, 99 Notre Dame L. Rev. 1691, 1723–24 (2024) (taking there to be real disagreement), with Ann Woolhandler & Michael G. Collins, The Public/Private Rights Critics, 99 Notre Dame L. Rev. 1779, 1781–85 (2024) (arguing that Professor Ablavsky’s account tends to “confirm” rather than undermine the framework that I described), and Ilan Wurman, Nonexclusive Functions and Separation of Powers Law, 107 Minn. L. Rev. 735, 763 n.136 (2022) (asserting that “the distinction Ablavsky draws . . . tracks the [public/private] dichotomy exactly”). ↑

Intervention

Ever since the late 1960s, many lower federal courts have interpreted the Federal Rules of Civil Procedure to give outsiders broad rights to become parties to pending lawsuits. Intervention of this sort affects the dynamics of a lot of cases, including many of the highest-profile cases that the federal courts hear. Yet it raises fundamental questions about the structure of litigation: Should status as a party be limited to people who have legal claims or defenses, or do the Federal Rules of Civil Procedure invite intervention by everyone who will feel the practical effects of a judgment? For the last half century, many federal judges and law professors have pushed for expansive understandings of the right to intervene. That impulse is consistent with the “interest representation” model of litigation, which analogizes judicial decisionmaking to other types of policymaking and touts the benefits of broad participation. According to this Article, however, the Federal Rules of Civil Procedure instead reflect a more traditional view of litigation, under which the parties to a case need to be proper parties to a claim for relief.

Introduction

The American system of civil litigation draws important differences between the parties to a case and everyone else. For instance, each party to a suit in federal district court normally can use the full panoply of discovery mechanisms to demand information from other people, and the court stands ready to enforce those demands. Nonparties have no similar power to gather information, even in cases that may affect their interests.1 1.See Fed. R. Civ. P. 30(a) (authorizing “[a] party” to take depositions); Fed. R. Civ. P. 33(a) (authorizing “a party” to propound interrogatories to any other party); Fed. R. Civ. P. 34(a) (authorizing “[a] party” to demand documents and electronically stored information from any other party); Fed. R. Civ. P. 45(a)(3) (enabling “a party” to use subpoenas duces tecum to obtain documents and electronically stored information from nonparties).Show More Likewise, when the district court enters judgment, only a party normally can appeal.2 2.See, e.g., Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam); cf.Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375, 384 (4th Cir. 2018) (discussing a “limited exception” to this general rule).Show More The judgment’s preclusive effect is correspondingly limited: although the practical consequences of a judgment can radiate outward, typically only the parties are formally bound.3 3.See Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008) (identifying some categories of nonparty preclusion, but casting them as exceptions to the general rule).Show More

Given the importance of the distinction between parties and other people, one might expect federal courts to have thought hard about who is eligible to become a party. Under the rubric of “standing” to sue, there has indeed been much discussion of who can initiate a suit in federal court against whom. Once a suit is launched, though, outsiders who are interested in the outcome often seek to intervene as additional parties so that they can conduct discovery, participate fully at trial, and pursue an appeal in the event of an adverse judgment. The law governing such motions is a mess.

The rules that govern intervention in civil actions in federal district court might seem straightforward. Federal Rule of Civil Procedure 24(a) says:

On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.4 4.Fed. R. Civ. P. 24(a) (emphasis added).Show More

Rule 24(b)(1) adds:

On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.5 5.Fed. R. Civ. P. 24(b)(1) (emphasis added).Show More

Of these two provisions, Rule 24(b)(1) is easier to interpret. The Federal Rules of Civil Procedure consistently use the word “claim” to mean a “claim for relief.”6 6.See, e.g., Fed. R. Civ. P. 8(a) (specifying what must appear in “[a] pleading that states a claim for relief,” and requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”); Fed. R. Civ. P. 18(a) (discussing joinder of claims); Fed. R. Civ. P. 54(b) (discussing judgment “[w]hen an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim”); see also Simona Grossi, The Claim, 55 Hous. L. Rev. 1, 7 (2017) (referring to the claim as “the basic litigation unit” under the Rules).Show More Likewise, a “defense” is a particular type of legal argument that the targets of a claim assert to explain why the court should not grant relief against them.7 7.See, e.g., Fed. R. Civ. P. 8(b)(1)(A) (“In responding to a pleading, a party must . . . state in short and plain terms its defenses to each claim asserted against it . . . .”).Show More If these words mean the same thing in Rule 24(b)(1) that they mean elsewhere in the Federal Rules of Civil Procedure, then (in the absence of special statutory authorization) an outsider cannot use Rule 24(b) to become a party to a case simply because the outsider has a practical stake in the outcome. Instead, the outsider needs to be a proper party to a claim for relief. Many judges, however, now permit intervention “even in ‘situations where the existence of any nominate “claim” or “defense” is difficult to find.’”8 8.EEOC v. Nat’l Children’s Ctr., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (quoting Nuesse v. Camp, 385 F.2d 694, 704 (D.C. Cir. 1967) (citation and internal quotation marks omitted)). But see City of Herriman v. Bell, 590 F.3d 1176, 1184 (10th Cir. 2010) (“[T]o intervene under Rule 24(b) the proposed intervenor must have a claim or defense that shares at least some aspect with a claim or defense presented in the main action. Here, . . . Herriman City has no claim and thus cannot satisfy Rule 24(b)’s requirements.”).Show More

The criteria for intervention of right under Rule 24(a) are even less certain. In the words of a leading treatise, “There is not any clear definition of the nature of the ‘interest relating to the property or transaction that is the subject of [the] action’ that is required for intervention of right [under Rule 24(a)(2)].”9 9.7C Charles Alan Wright et al., Federal Practice and Procedure § 1908.1, at 300 (3d ed. 2007).Show More Commentators agree that the cases on this topic are impossible to reconcile.10 10.See Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227, 250–51, 254 (1990) (noting “the lack of consensus about the type of interest needed for intervention” and citing many different formulations); Carl Tobias, Standing to Intervene, 1991 Wis. L. Rev. 415, 434 n.132 (concluding that, if anything, “Professor Bandes may have underestimated the number of formulations and the degree of inconsistency”); Eunice A. Eichelberger, Annotation, What Is “Interest” Relating to Property or Transaction Which Is Subject of Action Sufficient to Satisfy That Requirement for Intervention as Matter of Right Under Rule 24(a)(2) of Federal Rules of Civil Procedure, 73 A.L.R. Fed. 448, 458 (1985) (“The courts have developed no discernible standards or criteria, other than [a few] general guidelines . . . , which would explain their divergent rulings in cases involving similar types of litigation and proposed intervenors.”).Show More

The confusion stems partly from the language of the rule. Lawyers often use the word “interest” in a specifically legal sense, to mean a right or other advantage that the law gives one person as against another person.11 11.See Restatement of Prop. § 5, Note on the Use of the Word Interest in the Restatement (Am. Law Inst. 1936) (indicating that with the exception of the Restatement of Torts, all the Restatements published by the American Law Institute use “interest” as “a word denoting a legal relation or relations”); see also id. § 5 (“The word ‘interest’ is used in this Restatement both generically to include varying aggregates of rights, privileges, powers and immunities and distributively to mean any one of them.”); Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913) (laying out the taxonomy of legal relations to which this passage refers); cf. Restatement (Second) of Torts § 1 cmt. f (Am. Law Inst. 1965) (confirming that most of the Restatements use the word “interest” to “denot[e] the beneficial side of legal relations”).Show More (Think, for instance, of what lawyers mean when they refer to present or future “interests” in property.) But the word can also be used in a less technical sense to refer to anything that a person wants, whether or not the law protects that desire.12 12.See Restatement (Second) of Torts § 1(Am. Law Inst. 1965) (“The word ‘interest’ is used throughout the Restatement of this Subject to denote the object of any human desire.”); id. cmt. a (specifying that the word “carries no implication that the interest is or is not given legal protection”).Show More Although lower-court opinions have long reflected this ambiguity,13 13.Compare United States v. Perry Cty. Bd. of Educ., 567 F.2d 277, 279 (5th Cir. 1978) (“[W]e have adopted a somewhat narrow reading of the term ‘interest’ . . . .”), with Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (“This circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of right.”). See also Conservation Law Found. of New England v. Mosbacher, 966 F.2d 39, 41–42 (1st Cir. 1992) (contrasting the “liberal approach” of the Second, Sixth, Tenth, and D.C. Circuits with the “more restrictive criteria” applied in the Fifth, Seventh, Eleventh, and Federal Circuits).Show More the Supreme Court has provided little guidance about the nature of the “interest” required for intervention of right.14 14.See Tobias, supra note 10, at 434 (noting the “relative dearth of Supreme Court precedent”).Show More Nor has the Supreme Court ever clarified exactly how the relevant interest must “relat[e] to” a particular transaction or item of property.

To give readers a sense of how some lower federal courts have handled these uncertainties, Part I of this Article surveys cases that have applied Rule 24(a) broadly. Especially in suits about issues of public moment, many federal judges have read Rule 24 to invite intervention by an extraordinary array of people who are not proper parties to any relevant claim for relief but who nonetheless have reason to care about the outcome of the case. In the late 1960s, Judge Harold Leventhal stated the animating idea behind this interpretation: “[T]he ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.”15 15.Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967); accord Smuck v. Hobson, 408 F.2d 175, 179–80 (D.C. Cir. 1969) (en banc) (plurality opinion of Bazelon, C.J.) (quoting Nuesse and urging courts to focus less on the “interest” requirement than on “the criteria of practical harm to the applicant and the adequacy of representation by others”); see also Tobias, supranote 10, at 435 (“Insofar as the courts [that take a broad view of Rule 24(a)] rely on any definition of interest, they subscribe to Judge Harold Leventhal’s 1967 enunciation . . . .”).Show More

Part II canvasses the history of Rule 24 and concludes that this broad reading is wrong. To be sure, the 1966 amendment that produced the current version of Rule 24(a) was designed to authorize intervention of right by some outsiders who previously would have qualified only for permissive intervention, and who would have been relegated to separate litigation if their requests for permissive intervention were denied. But the 1966 amendment was not intended to authorize intervention of right by people who previously would not have been proper parties at all (such as the intervenors in the cases described in Part I).

Part III links the technical debate over intervention to fundamental questions about the goals of litigation and the proper role of the courts. In 1976, based partly on then-recent developments in intervention doctrine, Professor Abram Chayes speculated that “[w]e are witnessing the emergence of a new model of civil litigation”—one in which courts decide questions about “the operation of public policy” and “anyone whose interests may be significantly affected by the litigation . . . [is] presumptively entitled to participate in the suit on demand.”16 16.Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1282, 1290, 1302, 1310 (1976).Show More Professor Chayes himself hailed the capacity of courts to hear from “the range of interests that will be affected” and to devise better solutions to policy problems than the “bureaucracies” in other parts of the government.17 17.Id. at 1308–10.Show More But the current Supreme Court may well be less sanguine about that prospect, and less willing to cast each federal district judge in the role of “policy planner and manager.”18 18.Id. at 1302.Show More

Unless one is affirmatively trying to facilitate that role, much modern doctrine about intervention seems mistaken. When given its most natural reading, Rule 24 does not depart from traditional party structures nearly as much as current practice assumes.

  1. * Emerson G. Spies Distinguished Professor of Law & Caddell and Chapman Professor of Law, University of Virginia. Thanks to Michael Collins, Scott Glass, John Harrison, and Ann Woolhandler for helpful comments. ↑

  2. See Fed. R. Civ. P. 30(a) (authorizing “[a] party” to take depositions); Fed. R. Civ. P. 33(a) (authorizing “a party” to propound interrogatories to any other party); Fed. R. Civ. P. 34(a) (authorizing “[a] party” to demand documents and electronically stored information from any other party); Fed. R. Civ. P. 45(a)(3) (enabling “a party” to use subpoenas duces tecum to obtain documents and electronically stored information from nonparties). ↑
  3. See, e.g., Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam); cf. Sky Cable, LLC v. DIRECTV, Inc., 886 F.3d 375, 384 (4th Cir. 2018) (discussing a “limited exception” to this general rule). ↑
  4. See Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008) (identifying some categories of nonparty preclusion, but casting them as exceptions to the general rule). ↑
  5. Fed. R. Civ. P. 24(a) (emphasis added). ↑
  6. Fed. R. Civ. P. 24(b)(1) (emphasis added). ↑
  7. See, e.g., Fed. R. Civ. P. 8(a) (specifying what must appear in “[a] pleading that states a claim for relief,” and requiring “a short and plain statement of the claim showing that the pleader is entitled to relief”); Fed. R. Civ. P. 18(a) (discussing joinder of claims); Fed. R. Civ. P. 54(b) (discussing judgment “[w]hen an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim”); see also Simona Grossi, The Claim, 55 Hous. L. Rev. 1, 7 (2017) (referring to the claim as “the basic litigation unit” under the Rules). ↑
  8. See, e.g., Fed. R. Civ. P. 8(b)(1)(A) (“In responding to a pleading, a party must . . . state in short and plain terms its defenses to each claim asserted against it . . . .”). ↑
  9. EEOC v. Nat’l Children’s Ctr., 146 F.3d 1042, 1046 (D.C. Cir. 1998) (quoting Nuesse v. Camp, 385 F.2d 694, 704 (D.C. Cir. 1967) (citation and internal quotation marks omitted)). But see City of Herriman v. Bell, 590 F.3d 1176, 1184 (10th Cir. 2010) (“[T]o intervene under Rule 24(b) the proposed intervenor must have a claim or defense that shares at least some aspect with a claim or defense presented in the main action. Here, . . . Herriman City has no claim and thus cannot satisfy Rule 24(b)’s requirements.”). ↑
  10. 7C Charles Alan Wright et al., Federal Practice and Procedure § 1908.1, at 300 (3d ed. 2007). ↑
  11. See Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227, 250–51, 254 (1990) (noting “the lack of consensus about the type of interest needed for intervention” and citing many different formulations); Carl Tobias, Standing to Intervene, 1991 Wis. L. Rev. 415, 434 n.132 (concluding that, if anything, “Professor Bandes may have underestimated the number of formulations and the degree of inconsistency”); Eunice A. Eichelberger, Annotation, What Is “Interest” Relating to Property or Transaction Which Is Subject of Action Sufficient to Satisfy That Requirement for Intervention as Matter of Right Under Rule 24(a)(2) of Federal Rules of Civil Procedure, 73 A.L.R. Fed. 448, 458 (1985) (“The courts have developed no discernible standards or criteria, other than [a few] general guidelines . . . , which would explain their divergent rulings in cases involving similar types of litigation and proposed intervenors.”). ↑
  12. See Restatement of Prop. § 5, Note on the Use of the Word Interest in the Restatement (Am. Law Inst. 1936) (indicating that with the exception of the Restatement of Torts, all the Restatements published by the American Law Institute use “interest” as “a word denoting a legal relation or relations”); see also id. § 5 (“The word ‘interest’ is used in this Restatement both generically to include varying aggregates of rights, privileges, powers and immunities and distributively to mean any one of them.”); Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30 (1913) (laying out the taxonomy of legal relations to which this passage refers); cf. Restatement (Second) of Torts § 1 cmt. f (Am. Law Inst. 1965) (confirming that most of the Restatements use the word “interest” to “denot[e] the beneficial side of legal relations”). ↑
  13. See Restatement (Second) of Torts § 1 (Am. Law Inst. 1965) (“The word ‘interest’ is used throughout the Restatement of this Subject to denote the object of any human desire.”); id. cmt. a (specifying that the word “carries no implication that the interest is or is not given legal protection”). ↑
  14. Compare United States v. Perry Cty. Bd. of Educ., 567 F.2d 277, 279 (5th Cir. 1978) (“[W]e have adopted a somewhat narrow reading of the term ‘interest’ . . . .”), with Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (“This circuit has opted for a rather expansive notion of the interest sufficient to invoke intervention of right.”). See also Conservation Law Found. of New England v. Mosbacher, 966 F.2d 39, 41–42 (1st Cir. 1992) (contrasting the “liberal approach” of the Second, Sixth, Tenth, and D.C. Circuits with the “more restrictive criteria” applied in the Fifth, Seventh, Eleventh, and Federal Circuits). ↑
  15. See Tobias, supra note 10, at 434 (noting the “relative dearth of Supreme Court precedent”). ↑
  16. Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967); accord Smuck v. Hobson, 408 F.2d 175, 179–80 (D.C. Cir. 1969) (en banc) (plurality opinion of Bazelon, C.J.) (quoting Nuesse and urging courts to focus less on the “interest” requirement than on “the criteria of practical harm to the applicant and the adequacy of representation by others”); see also Tobias, supra note 10, at 435 (“Insofar as the courts [that take a broad view of Rule 24(a)] rely on any definition of interest, they subscribe to Judge Harold Leventhal’s 1967 enunciation . . . .”). ↑
  17. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1282, 1290, 1302, 1310 (1976). ↑
  18. Id. at 1308–10. ↑
  19. Id. at 1302. ↑

“Standing” and Remedial Rights in Administrative Law

Modern doctrine about judicial review of administrative action traces back to Association of Data Processing Service Organizations v. Camp (1970). There, the Supreme Court announced a new test for deciding whether a plaintiff has “standing” to challenge the legality of an action taken by a federal agency. Judges were simply supposed to ask (1) “whether the plaintiff alleges that the challenged action has caused him injury in fact” and (2) “whether the interest sought to be protected by the [plaintiff] is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee” that the challenged action allegedly violated.

Partly because of intervening scholarship, modern courts and commentators have translated Data Processing’s discussion of “standing” into the language of remedial rights (or “rights of action”). At least since the 1980s, Data Processing has been understood to hold that when a federal agency oversteps its authority, the Administrative Procedure Act normally confers remedial rights upon everyone who satisfies Data Processing’s test for “standing.” That is an exceptionally important aspect of modern administrative law. But it is mistaken—not just about the Administrative Procedure Act, but also about what Data Processing itself held. This Article shows that Data Processing’s concept of “standing” was only a preliminary screen, not the last word about whether plaintiffs have a claim for relief. The Supreme Court has never made a considered decision that when an agency is behaving unlawfully, the Administrative Procedure Act confers the same remedial rights upon plaintiffs whose interests are only “arguably” within a protected zone as upon plaintiffs whose interests are actually protected.

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