Parties

• Pages: 73-100
• Author: Samuel Issacharoff

73

Chapter 4

PARTIES

Perhaps no area of procedural law marks the boundary between

the common law of old and the modern era as clearly as the concept

of parties to the litigation. The common law assumed a world of

bipolar di sputes in which all individuals with a legal interest in a

proceeding would themselves be parties to the litigation. A dispute

over a wandering cow, to return to a recurring hypo thetical, would

presumably involve the two neighbors claiming an ownership

interest in the ch erished bovine. The common law presumption was

that the rights and remed ies—and hence the interest—would be

limited to the two parties to the dispute, and that they would control

all facets of the case.

Even in this simple case, however, it is not difficult to see that

others may have a stake in how the dispute is resolved. The rights of

other parties may be affe cted, either directly or indirectly, by the

outcome of this particular case. Other neighbors could come forward

to claim ownership of the cow after the court had resolved the dispute

between the first two parties. In effect, these neighbors would be

seeking to contest the presumed exclusivity of interest of the original

parties in how the rights to the cow were to be assigned.

Alternatively, other effects may be less direct but nonetheless far-

reaching and significant. The court in the dispute over the cow might

develop a rule of law ordering that all livestock found on one’s

property could be immediately consumed, or a court could develop a

presumption of treble damages as a remedy for erroneous holding of

chattels. The precedential effects of each of these decisions could well

extend f ar beyond the two parties involve d in the original dispute,

yet the common law would have excluded all of those additional

interests and left the disagreement in the h ands of the primary

disputants.

The common law conception of parties flowed directly from the

limited, bipolar conception of dispute resolution. Not only were third-

party e ffects not considered in the framing of a legal action, but a

case could only be bro ught by a person with legal title to the right

being asserted. Thus, if the owner of the wandering cow had assigned

an interest in the cow—for example, pledging part of his herd as

collateral for a loan—the assignee could assert no claim of his own

against the party now thought to be in wrongful possession of the

cow. Similarly, had the original owner insured the cow and recovered

in whole or in part from his insurer, the insurance company could

assert no claim of its own for the loss—what we now term the

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PARTIES

Ch. 4

“subrogation rights” of the insurer to assert claims for recovery of

payments made under an insurance policy held by an injure d party.

The interests of assignees or subrogees at common law would have

been considered equitable rather than legal, meaning that they

would not be considered parties for purposes of asserting the common

law claim for loss of property.

It is difficult to ju stify a formal rule that excludes parties, such

as assignees or subrogees, who have suffered tangible harms, from

seeking some form of legal redress. That in itself puts great pressure

on the narrow common law conception of proper parties to a dispute.

But the pressure on the narrow definition of parties emerged not only

from the spreading web of contractually-related parties, but from the

types o f cases that were being presented to the courts. Procedural

systems are under constant strain as the range of substantive law

moves beyond the narrow common law view of dispute resolution. As

courts have become increasingly involved in matters like school

desegregation cases, administrative law proceedings,

reapportionment claims, and environmental tort actions, the narrow

common law definition o f interested parties ha s become strained

beyond its breaking point.

As with many of the evolutionary pressures on the procedural

system, the response to the specific pressures on the definition of

appropriate parties to a lawsuit turns o n the competing

considerations of equi ty a nd efficie ncy. The demands of equity are

realized through the expansion of parties able to overcome barriers

to participation, either by being recognized as “real parties in

interest” or by being offered some kind of access to judicial

proceedings even if not granted full status as a party to the

proceeding, as with the process of intervention. Efficiency concerns

push the concept of proper or necessary parties to a litigation even

further. The result is a broad system of aggregation of similarly

situated parties to maximize the legal resolution possible from any

particular adjudication.

I. Proper Parties

At the heart of the modern treatment of parties in t he pleading

system is Rule 20, providing for the permissive joinder of parties.

This Rule allows modern litigation to be structured to bring in as

many similarly situated parties as are deemed necessary to a fair and

complete adjudication. The Rule allows the plaintiff, as the master of

the complaint, to initially join as plaintiffs as many other persons as

necessary. These additional plaintiffs may be joined as long as (1)

their claims arise out of the same transaction or occurrence, or even

out of the same “series of transactions or occurrences,” and (2) “any

question of law or fact common to all plaintiffs will arise in the