Standing's expected value.
Skeptics might raise several objections to my proposal. I address them in this Part. I consider arguments that question (1)whether courts are competent to evaluate expected value-based standing, (2) whether expected value-based standing extends standing too far past the limits set by existing jurisprudence, and (3) whether expected value-based standing is normatively desirable.
A. Are Courts Competent to Evaluate Expected Value-based Standing?
An initial question is whether courts are competent to make the calculations (that is, to calculate the product of the probability and magnitude of the relevant harms) and determinations necessary to apply expected value-based standing. If we cannot expect courts to do so competently, then it matters little whether expected value-based standing is consistent with existing jurisprudence or whether it is normatively desirable.
In fact, courts already perform similar calculations in different settings. First, consider the responsibility of a judge in determining whether to grant bail and, if so, at what level. Among the factors the judges must weigh under the standard test are the defendant's risk of flight and the risk of future harm. (193) Both factors ask the court to make determinations based on risk.
Consider next the judicial determination of whether to grant a preliminary injunction. In such circumstances, a court is directed to weigh, among other things, the irreparable harm to the defendant if the injunction issues and the plaintiff's likelihood of success on the merits, against the irreparable harm to the plaintiff if the injunction is not issued. (194) Here, the court must make at least three estimates of probability. While one of the factors--the likelihood of success on the merits--may fall within a court's particular area of expertise, (195) the others--determining whether granting the injunction will result in irreparable harm--calls on the court to make more difficult calls of probability. (196) The court must determine whether any harm is indeed likely to occur (or continue) in the future and, if so, whether there is a sufficient showing that the harm will be irreparable. (197)
In addition, consider the Supreme Court's 2009 decision in Caperton v. A.T. Massey Coal Co., where the Court held that the Due Process Clause required an elected judge's recusal when there was an "intolerable probability of actual bias." (198) The Court concluded as follows:
[T]here is a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. (199)
Finally, an approach that incorporates expected-value calculations is also present in the Court's test for determining whether a criminal defendant is prejudiced--and therefore perhaps entitled to relief--by virtue of ineffective assistance of counsel. The defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (200)
To be sure, there are settings in which courts have been historically reticent to engage in difficult probabilistic assessments. For example, the anticipatory nuisance doctrine generally bars nuisance suits until it can be alleged that a nuisance actually exists. (201) Courts are also often reluctant to award damages for lost profits in contracts cases on the grounds that they are speculative. (202) Still, even if courts sometimes refrain from probabilistic damage calculations, they often do award probabilistic damages. (203) Moreover, the calculation required to determine whether there is standing need not be as precise as it often must be in other contexts--to set damages, for example. In any event, my overarching point is not that courts embrace all opportunities to engage in probabilistic calculations, only that they do so--and are quite capable of doing so--in many circumstances.
For purposes of exploring expected value, I do not suggest any kind of complex arithmetic. In most cases, the central issues will be straightforward. In addition, the calculations will often not have to be precise (204); all that a court must analyze is whether there is a positive expected value, not the exact amount. (205) For these reasons, the issue of judicial competence does not seem to be a serious problem.
B. Does Expected Value-Based Standing Extend Standing Doctrine Too Far Beyond Its Existing Constitutional Moorings?
Is expected value-based standing consistent with existing constitutional doctrine? Some people might be skeptical. (206) My defense of expected value-based standing proceeds in two basic steps. I first respond to the argument that expected value-based standing is inconsistent with the requirements that the Supreme Court has identified for standing--and, in particular, that it calls for recognizing injuries that do not satisfy the existing "injury in fact" requirements. Second, I bolster my argument by demonstrating that my proposal for expected value-based standing would not fundamentally alter most of existing standing doctrine. To do this, I show first that existing law recognizes (if implicitly) various forms of standing based on probabilistic analysis. I also ground the consistency of expected value-based standing with existing law by arguing that injuries in cases of expected value-based standing are often felt, in various ways, in the present. (207)
I begin by observing that the Supreme Court has left open the validity of probabilistic standing. (208) Indeed, although it has never recognized it formally, the Court has from time to time acquiesced in the notion of probabilistic standing. (209) Next, I recall the discussion above in Section II.C to the effect that injury as conceived under expected value-based standing meets the traditional requirements for "injury in fact." Only if the expected value of the probabilistic injury is sufficiently concrete will there be expected value-based standing. Having established that the existing understanding of "injury in fact" is broad enough to encompass injuries in cases of probabilistic harm, I turn to points that bolster that conclusion. First, there are existing standing doctrines that rely, if implicitly, on probabilistic analysis. Second, the injury in many cases of expected value-based standing can be felt in the present.
I identify five types of standing under existing doctrine that rely, if implicitly, on probabilistic analysis. First, standing is in some sense grounded on probabilities almost any time an allegation of future harm is the basis for standing. (210) After all, one can rarely be certain that an alleged future harm will indeed come to pass. Standing rests on the probability that it will in fact come to pass. Consider, for example, Younger abstention doctrine, under which federal courts abstain from enjoining pending criminal prosecutions. (211) This means that standing to proceed in federal court must extend precisely to cases where the there is no prosecution pending yet the threat of prosecution is sufficiently high enough. (212) As another example, consider the Court's 2008 decision in Davis v. FEC. (213) The Court upheld the petitioner's right to challenge a federal election law rule that allowed petitioner's opponent to receive greater contributions than usual based on petitioner's intent to spend more than $350,000 of his personal funds on his campaign. (214) Justice Alito's opinion for the Court explained that the federal election rule in question "would shortly burden his expenditure of personal funds by allowing his opponent to receive contributions on more favorable terms." (215) The Court concluded that "there was no indication that his opponent would forgo that opportunity," (216) apparently on the ground that "the record at summary judgment indicated that most candidates who had the opportunity to receive expanded contributions had done so." (217)
The Court's reliance on what "most candidates" under the relevant circumstances would do indicates tacit endorsement of probabilistic standing. Even beyond that, the Court assumed (without stating) that the additional funding the opponent could or would receive would make it more likely that the opponent would win the race. And, insofar as the petitioner's real harm would seem to be losing the election, that conclusion also rests on probabilities.
Standing under the Declaratory Judgment Act similarly rests on probabilistic calculation. The Act permits federal courts to "declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." (218) Professor Borchard's justification for allowing declaratory judgments rests on the ground that a "prospective victim" ought not to be told "that the only way to determine whether the suspect is a mushroom or a toadstool is to eat it." (219) Put another way, the Declaratory Judgment Act allows a "prospective victim" to determine "whether the suspect is a mushroom or a toadstool" before eating it--while the chance that it is in fact a toadstool is merely probabilistic. The Supreme Court has underscored this probabilistic understanding of the Act, recognizing as a basic proposition that
where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.... The plaintiff's own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction. (220)
It is on this basis, moreover, that facial constitutional challenges are permissible. (221)
A possible response is that these examples are settings in which the probabilistic requirement for standing is very high--perhaps nearing virtual certainty. (222) I turn now to settings where that is not necessarily the case.
Existing law also incorporates a probabilistic approach into standing doctrine where the actual question in a case is moot but standing is found to exist lest the question be permitted to evade judicial review. (223) Here, two probabilistic assessments implicitly undergird standing: there is the probability that the event in question will arise again, and there also is the probability that a justiciable controversy will arise. (224)
Fourth, consider the logic of allowing standing in overbreadth challenges. While the ordinary rule in standing is that one does not have standing to raise the rights of others, a special rule applies in First Amendment cases. (225) Overbreadth doctrine allows parties to raise facial challenges to speech restrictions that are overbroad in that they reach a substantial amount of protected speech in relation to their legitimate scope, even if the challenging party's speech may in fact be unprotected. (226) In effect, overbreadth doctrine allows a plaintiff to pursue a case in which he or she cannot show that he or she has suffered actual harm because the potentially unconstitutional restriction could constitutionally be applied to his or her speech. Rather, in effect, he or she is allowed to pursue the claim of some similarly situated third party whose protected speech is unconstitutionally abridged. (227) The justification for this exception to the rule is that, were it otherwise, "persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression." (228) But this logic only holds if one accepts that it is probable that there are third parties whose behavior will be chilled. In this sense, standing to pursue overbreadth challenges may also be seen as probabilistic.
Fifth, consider standing in administrative law cases. In many conventional administrative law cases, there is no assurance that a plaintiff will ultimately receive what he or she wants, even if he or she succeeds on the issue at hand. Nonetheless, courts routinely recognize standing in such cases. (229) And the Supreme Court, on the rare occasions it has confronted the issue, has endorsed the conclusion that standing exists in such cases of procedural injury. (230)
The best response in administrative law cases is to assume that when Congress creates a procedural right, it does so not because the right will necessarily lead to particular results but because procedural rights create desirable structures, incentives, and probabilities--and also because they increase the legitimacy of any government interference with substantive rights. From this perspective, the injury in these cases satisfies the "injury-in-fact" requirement. In addition, however, the injury in these cases is also probabilistic. (231)
These five instances where existing standing doctrine incorporates probabilistic analysis provide support for the notion that my proposal for expected value-based standing is not significantly inconsistent with existing law. Support for this premise may also be found by considering the various ways in which the injury in cases of probabilistic harm may be felt by the injured party in the present.
There are three ways that illustrate how probabilistic harm may be experienced in the present. (232) First, a risk of harm in the future may generate economic effects in the present. To illustrate, this logic predicts that stocks will not vary in value upon the official announcement of earnings that match the market's preexisting expectations. The stock price would have already incorporated the change in earnings once it became expected. (233) Along these lines, property values tend to decrease in the face of risk of environmental contamination and harm. (234) It thus is not surprising that the courts have upheld standing on such grounds. Consider, for example, the Supreme Court's decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., upholding a plaintiff environmental organization's standing to pursue an industrial facility's alleged Clean Water Act violations in a civil suit. (235) One of the organization's members "attested that her home, which [was] near [the facility in question], had a lower value than similar homes located farther from the facility, and that she believed the pollutant discharges accounted for some of the discrepancy." (236)
Indeed, individuals often act to substitute current economic cost for future risk. Consider the institution of insurance: people who insure against risks pay current dollars as the insurance premium. In return, they will be reimbursed for (at least most of) the costs of the future harm insured against, if such a harm comes to pass. If no such harm ever comes to pass, then the insured will have paid current dollars simply to avoid the risk of a future loss. (237) Indeed, Professor Farber argues that the existence of an insurance market for a loss should be a consideration in determining whether standing should exist to challenge action (or inaction) that might lead to the loss. (238)
Second, even if a risk of future harm does not generate current economic effects, it may impose intangible harms and costs. Consider first the possibility of psychic harms. Dean Revesz argues for the use of a lower discount rate for the future chance of dying of cancer. (239) In such cases, the future harm may not bring about a change in current behavior. Nonetheless, such individuals may experience today the dread of contracting, suffering, and dying from the disease in the future. (240) Indeed, the source of the dread is the sense (whether true or not) that the result is inevitable and that no change in behavior can make any difference at all. One can say that this sense of dread exacts a current harm on those who suffer from it.
Other intangible harms may also result. Consider, for example, the failure by government to adhere to prescribed procedural requirements in taking an administrative action. As I have discussed above, if one understands the harm suffered by a plaintiff challenging the government action as the government action itself, then the harm lies in the future (and, indeed, court action might not redress the harm since the government could adhere to its original action once it corrects any procedural deficiencies). Still, as Justice Breyer noted, there are legitimacy costs to having the government take actions in procedurally invalid ways. (241) These costs likely will make plaintiffs question the fairness of the legal system. (242) Beyond plaintiffs, having the government act in procedurally invalid ways also might decrease significantly the legitimacy of government--through agencies that are seen to have authority to act improperly--and courts--that are seen to be ineffective checks on procedurally invalid agency action--in the eyes of society at large.
Third, a risk of harm in the future may prompt people to change their behavior to their detriment in the present. It is not unreasonable to expect people to alter their current behavior and behavioral patterns in order to minimize their exposure to risky substances or conditions. Once again, the courts have recognized standing on this basis. Consider, again, the Supreme Court's decision in Friends of the Earth. In upholding standing, the Court relied on allegations that members of the organization had changed their behavior based on the fear that the violations had contaminated nearby waters. (243) It catalogued factual findings as to how members had, variously, reduced their activities in and near the allegedly affected waterways. (244) Many courts of appeals have followed Friends of the Earth in finding current changes in behavior sufficient to support standing. (245)
It is important to emphasize that I offer these examples to support the general consistency of expected value-base standing with existing law, not to suggest that these situations should comprise the universe of cases where standing to achieve a reduction in future harm should be recognized. For example, I do not mean to suggest that standing should exist only where an insurance market against the loss in question exists. Even if demand for a particular type of insurance exists, there may be reasons (for example, insufficient data from past episodes to allow for setting prices appropriately) that preclude the development of a market for that insurance. (246) In my view, the question is not whether in fact people pay to avoid future harm but whether they would be willing to do SO. (247)
C. Is Expected Value-Based Standing Desirable?
The question remains whether expected value-based standing is desirable. Ultimately, this is a question for Congress; my focus is on the relationship between the ideas of "injury in fact" and expected value, not on what Congress should do. Nonetheless, it is worth exploring the normative question. I break this question down into two constituent issues: (1) whether expected value-based standing would frustrate the goals of standing doctrine and (2) whether expected value-based standing would open the oft-cited "floodgates of litigation" too wide.
1. Is Expected Value-Based Standing Consistent with the Goals of Standing Doctrine?
As I discuss in greater detail below, the adoption of expected value-based standing will allow more cases to reach the federal courts. Critics may question whether it is in fact desirable for the federal courts to hear many of these cases. (Here my baseline assumption is that the vast majority of these cases will be cases brought against the federal government and thus cases in which, absent expected value-based standing, no judicial forum will be available. (248)) I think that often the answer to this question is "yes." (249)
Perhaps the most commonly cited value that existing standing doctrine is said to further is the restriction of judicial consideration to settings in which there is concrete adversity between the parties. This adversity is said to prevent courts from issuing advisory opinions and to ensure that courts decide cases where the parties are truly motivated to present their most persuasive arguments. This is thought to provide some assurance that a court likely will have before it all relevant concerns before it decides the case. (250)
Standing limitations are also said to further the separation of powers and democratic accountability. The separation of powers argument relies on the notion that the political branches, rather than the courts, should resolve important political debates. Relatedly, democratic accountability emphasizes that the political branches are accountable to the populace; because the courts are not, they ought not lightly interfere with actions taken by the political branches. (251) Standing is said to achieve these goals by restraining the power of the courts. (252)
There are a few reasons to believe that expected value-based standing would not impair the separation of powers and democratic accountability goals of standing law. First, recognizing the power of Congress to authorize causes of action where the harm is grounded in expected value may in many settings be consistent with the constitutional separation-of-powers design. (253) If that is the case, then current jurisprudence inordinately empowers the executive branch at the expense of the legislature by insulating the executive branch from court challenge where the legislature intended that it should be.
Second, cases where probabilistic injury is alleged are precisely those settings where one might reasonably expect the political branches not to function appropriately and for democratic accountability not to spur government into appropriate action. There are some harms that may be so large that, even if the risk of them occurring is comparatively low (or uncertain), it makes sense at least to confront the question of whether to address them today. (254) But such cases may feature political failures that make it likely that the political branches will not confront the issue, (255) thus making involvement of the courts imperative if there is to be even a possibility of government action. This is because individuals, including politicians, are likely to suffer from probability neglect. (256) In particular, people often fail to appreciate low-probability, high-magnitude events. (257) This means that actors in the political branches may not address such issues until the injury is no longer probabilistic--i.e., until it is too late. It also means that democratic accountability is unlikely to impose a significant check on this tendency, since the public at large may be similarly unlikely to recognize the importance of addressing issues of harm when they are "merely" probabilistic. A rational decisionmaker might predict such a government failure in advance and choose to empower private citizens to pursue judicial relief so as to mitigate the problem.
Another reason that expected value-based standing would not undermine the separation of powers is that the existing standing regime does not provide a principled distinction between cases that reach court and cases that do not. As discussed above, harms of positive expected value are economically equivalent to actual harms of the same value. (258) If $60 of expected harm ought to be insufficient for standing purposes, one should also question whether $60 in actual harm ought to be insufficient. If in the end standing is used to impose some arbitrary line between cases that come to federal court and those that do not, at least that arbitrary line ought to treat cases that allege economically equivalent harms in equivalent ways.
A fourth reason to view expected value-based standing as consistent with the separation-of-powers principle is that expected value-based standing would do nothing to displace other doctrines that further separation-of-powers interests. For example, the political question doctrine (259) and the doctrine generally disallowing challenges to government inaction (260) would still be available to litigants and courts. (261)
Finally, note that, to the extent that a "probabilistic harm" may ultimately come to pass, the absence of expected value-based standing will affect not whether there is judicial review but rather the timing of that review. The absence of a judicial forum for probabilistic harms means that aggrieved plaintiffs must wait until a harm in fact comes to pass before seeking judicial relief. And there are good reasons to think that this will quite often be normatively undesirable. Ex post relief may not be as effective as ex ante relief, both because the relief is delayed and because the harm that accrues until ex post relief becomes available may be substantial and even irreversible. (262)
Professor Stearns argues that standing doctrine offers a different benefit: it protects against savvy litigants manipulating the courts' docket in order to develop precedent selectively. (263) Because of the doctrine of stare decisis, the evolution of law is at least somewhat "path dependent." The first case on an issue to reach the courts may determine the rule governing similar cases for years to come, and yet the choice of which case that is may affect the rule that the courts choose. Standing, then, is important because it restricts litigants' ability to bring cases of their choice before the courts. Requiting cases to develop into full-fledged controversies before they can be heard in court precludes litigants from teeing up legal issues of their choosing for judicial resolution.
I agree that, to the extent that my proposal invites more cases into federal court, it will afford litigants some additional leeway in assembling courts' dockets. Still, I do not think that my proposal will result in so large a change that it will frustrate Professor Stearns's normative goal. First, I observe that, even now, litigants sometimes successfully tee up "test cases" for courts to review. (264) Second, the court that has the largest role in establishing precedent that will govern for years to come--the Supreme Court--selects the cases it will hear. (265) While it is conceivable that litigants might team up with a willing Court to tee up particular cases for selection--or that litigants might successfully "read" the current Court composition so as to determine cases that, if teed up, the Court might likely select--it seems that the Court's discretion to choose its own docket effectively limits litigant freedom in this regard.
Third, I do not think that my proposal would admit so many more cases into federal court such that the concerns that Professor Steams voices would become substantially greater. Consider first that many circuit court opinions already recognize some form of probabilistic standing. (266) To the extent they do, my proposal would not admit any more cases or would admit cases only at the margins that feature harms that are slightly more probabilistic than harms that currently are seen to satisfy standing requirements. Second, as I have discussed, many cases in which expected value-based standing might be alleged are cases in which the probabilistic injury is felt in the present; (267) at least some of these cases would be heard in federal court even without resort to expected value-based standing.
Fourth, quite apart from the limited number of additional cases that expected value-based standing would admit to federal court, I am of the view that most of those cases that do reach federal court will not be of the sort that raise the concerns of which Professor Steams speaks. Expanding standing to include cases of probabilistic harm will not empower litigants and wily lawyers freely to bring any and all controversies before the courts. There still will have to be a genuine controversy; the requirement that the risk of future harm have an expected value that is not insubstantial will guarantee this.
Professor Carlson has advanced the benefit of standing doctrine in keeping litigation anthropocentric. (268) Without passing judgment on whether this is always normatively desirable, (269) I observe that my proposal would do nothing to change the status quo in this regard. Litigants would still have to show a positive expected value of harm in order to proceed to court. Thus, litigation anthropocentricity will be preserved. The Supreme Court evidently shares this view: before it upheld standing in Friends of the Earth, the Court emphasized that "[t]he relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff." (270)
Professor Kontorovich argues that standing is useful because, by limiting cases in which litigants may definitively resolve issues for all possible "victims," it preserves the ability of private individuals to bargain to efficient resolutions. (271) As Professor Kontorovich himself recognizes, his arguments are strongest in the context of litigation over constitutional violations and weakest for litigation over statutory and regulatory violations. (272) Acceptance of the proposal here would recognize increased congressional power over standing to challenge statutory and regulatory violations. As such, it would have little effect on the balance Professor Kontorovich endorses in the constitutional context.
Finally, I emphasize that my proposal for expected value-based standing is desirable in that it vests Congress with the freedom not to grant expected value-base standing in particular areas, or even at all. My point is simply that the Constitution does not limit Congress's ability to extend standing to cases where the expected value of the harm is not insubstantial, not that Congress is in any way mandated to do so. Indeed, this approach is consistent with the general canon that advocates construing constitutional grants broadly so as to preserve Congress's freedom to proceed more narrowly if it chooses. (273)
2. Does Expected Value-Based Standing Intolerably Enlarge the Set of Cases as to Which There Is Standing in Federal Court?
One question remains: whether expected value-based standing would intolerably enlarge the set of cases that federal courts must resolve. Indeed, commentators and judges alike often sound cautionary notes about opening the "floodgates of litigation" to the federal courts. Such critics may object to expected value-based standing on this basis.
My initial response is that I am speaking only of cases in which plaintiffs should be able to claim "injury in fact" and hence have standing under existing law. If Congress believes that expected value-based standing creates too many lawsuits, it can respond by banning suits by those with probabilistic injuries.
There is also an empirical question involving the extent to which recognition of expected value-based standing would enlarge the universe of cases federal courts would hear. The number of cases that expected value-based standing would allow into federal court is not as large as one at first might think. First, as I have discussed above, many cases that would meet the expected value-based standing threshold unambiguously meet the traditional requirements for standing (insofar as many aspects of extant standing doctrine implicitly incorporate elements of expected value). (274)
Second, it is conceivable that discounting might keep cases with even substantial future harms from qualifying for expected value-based standing. (275) The notion of discounting future harm is entirely consistent with my proposal. Indeed, the question of whether to discount is in some sense entirely orthogonal to the question with which I grapple here--as is the question of (assuming discounting is appropriate) what discount rate should be used. It is quite possible that, even if a future harm is sizeable, the harm after discounting would not exceed a de minimis level.
At the same time, I am careful not to overstate the point. Reliance on discounting is not enough to respond to the possibility of opening the floodgates of litigation. For one thing, part of the reason that expected value-based standing is appropriate is exactly that the risk of future harm may have effects today. (276) In such cases, discounting has no role (or in some sense has already been taken into account). For another, there are those who argue that at least some future harms should, in at least some cases, be discounted at a reduced rate or not be subject to discounting at all. (277) In short, even if discounting may continue to keep many cases out of federal court, the fact remains that expected value-based standing will invite some additional cases into federal court even with discounting.
A third reason that I do not expect the adoption of expected value-based standing to overwhelm the federal courts is that the fact that a case meets the requirements for standing does not mean that it will necessarily proceed to trial. As I have argued above, the persisting judicial rules that restrict cases that raise generalized harms and that preclude review of agency inaction may still serve to keep many cases out of the federal courts. (278)
My principal claim is that the law of standing has ignored the concept of expected value. If people face a 1-in-100,000 risk of mortality, they face a loss of expected value of $60--and a loss of $60 is surely sufficient to count as an "injury in fact" In a number of cases, courts have held that the injury is too "speculative" to satisfy Article III standing requirements. But a risk that is under 50%, or 30%, or 20%, or 10%, or even 1%, should qualify as an "injury in fact" so long as the outcome is bad enough. If a loss of $100 counts as an "injury in fact," then a small risk of a terrible outcome should also count.
While the Supreme Court has failed to recognize explicitly the concepts of expected value and probabilistic harm, some of its decisions show an implicit understanding of these concepts. In key cases, lower courts have been far clearer on the underlying questions. But the courts remain divided, with some decisions suggesting that harms must be "more probable than not" or that there must be a "substantial probability" that they will come to fruition.
These decisions are built on a serious confusion. They fail to see that the underlying statutes are typically designed to reduce risks and to alter probabilities, not necessarily to ensure different outcomes in particular cases. Under the "injury-in-fact" requirement, it is not enough to say that an injury is "speculative" and to deny standing for that reason. A positive non-de minimis expected value should be sufficient to support standing. (279)
(1.) See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973) (endorsing the view that "an identifiable trifle is enough for standing" (quoting Kenneth Culp Davis, Standing: Taxpayers and Others, 35 U. CHL L. REV. 601, 613 (1968))); cf. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (allowing potential government liability for a de minimis physical taking under the Fifth and Fourteenth Amendments).
(2.) See, e.g., Toll Bros. v. Twp. of Readington, 555 F.3d 131 (3d Cir. 2009) (upholding standing of real estate developer that held option to purchase a plot of real estate to challenge regulations that precluded development of the plot). But cf. DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 130 (2d Cir. 1998) (finding that federal due process rights do not arise until a property interest vests such that "a property right will not be recognized as cognizable under the due process doctrine if the person claiming the right has a mere abstract need or desire for, or unilateral expectation of the claimed right").
(3.) See infra text accompanying notes 54-71 (discussing how the Supreme Court has not resolved the question).
(4.) Cass R. Sunstein & Arden Rowell, On Discounting Regulatory Benefits: Risk, Money, and Intergenerational Equity, 74 U. CHI. L. REV. 171, 183 (2007).
(5.) See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). For an overview of current standing jurisprudence, see infra Section II.A.
(6.) See, e.g., Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973) (rejecting plaintiff's standing to challenge prosecutor's failure to file support proceedings against father of plaintiff's illegitimate child on the ground that "[t]he prospect that prosecution will, at least in the future, result in payment of support can, at best, be termed only speculative").
(7.) A person who is risk neutral is indifferent between a certain loss of a set amount and any risk of suffering a larger loss that has an expected value equal to the set amount of the comparable certain loss. In contrast, a risk-avoider might prefer a certain loss to a setting of risk where he or she runs the risk of losing more (but also possibly losing less), even though the expected values of the two scenarios are the same. See Rick Swedloff, Uncompensated Torts, 28 GA. ST. U. L. REV. 721,777 (2012).
(8.) See W. KIP, VISCUSI, FATAL TRADEOFFS 5 (1992).
(9.) See Cass R. Sunstein, The Arithmetic of Arsenic, 90 GEO. L.J. 2255, 2255 (2002).
(10.) See infra text accompanying notes 34-46 (discussing Allen v. Wright, 468 U.S. 737 (1984), Simon v. E. Ky. Welfare Rights Org. (EKWRO), 426 U.S. 26 (1976), and Linda R.S., 410 U.S. 614).
(11.) See infra notes 131-132 and accompanying text.
(12.) See infra text accompanying notes 178-182 (discussing Supreme Court cases and then discussing how the proposal would affect the reasoning in those cases).
(13.) See infra text accompanying notes 183-184.
(14.) See William W. Buzbee, Standing and the Statutory Universe, 11 DUKE ENVTL. L. & POL'Y F. 247, 254-60, 255 n.33 (2001) (comparing and contrasting the two inconsistent approaches and discussing Court opinions endorsing one view or the other); William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 229-34 (1988); Bradford C. Mank, Informational Standing After Summers, 39 B.C. ENVTL. AFF. L. REV. 1, 27-44 (2012) (noting ongoing confusion over standing in cases involving procedural harm); Bruce Myers et al., The Scope of Congressional Authority to Protect the Environment, 40 ENVTL. L. REP. 10,977, 10,982-83 (2010) (statement by Professor Buzbee on how far Congress can go in extending standing); Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation, 42 DUKE L.J. 1141 (1993); Richard J. Pierce, Jr., Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power, 42 DUKE L.J. 1170, 1188-95 (1993); Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432 0988) [hereinafter Sunstein, Privatization of Public Law]; Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992) [hereinafter Sunstein, What's Standing After Lujan?].
(15.) 42 U.S.C. [section] 4332 (2006).
(16.) See, e.g., Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980) (per curiam); Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 558 (1978); infra note 231 (discussing Justice Breyer's take on the implications of this distinction for whether harm in an NEPA case will be irreparable for purposes of deciding whether to grant a permanent injunction).
(17.) See Heather Elliott, The Functions of Standing, 61 STAN. L. REV. 459, 511 (2008).
(18.) See F. Andrew Hessick, Probabilistic Standing, 106 NW. U. L. REV. 55, 101-02 (2012).
(19.) See Bradford Mank, Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 ECOLOGY L.Q. 665, 737-41 (2009).
(20.) Professor Elliott's discussion of organizational standing finds its most natural home in the administrative law setting. See Elliott, supra note 17, at 483-86. Professor Mank explicitly locates his proposal in the administrative law arena. Mank, supra note 19, at 737. Professor Hessick explains that the "requirement of a sufficiently likely threat of injury frequently arises in challenges to administrative actions." Hessick, supra note 18, at 63.
(21.) I have elsewhere advocated for precautionary-based standing in cases where the probability of harm is low but the harm in question would, if it transpired, be catastrophic and irreversible. See Jonathan Remy Nash, Standing and the Precautionary Principle, 108 COLUM. L. REV. 494, 502-04 (2008).
(22.) See infra note 134 (discussing the applicability to the proposal of preferences over lotteries of outcomes).
(23.) See supra notes 14-16 and accompanying text; infra notes 185-192 and accompanying text (explaining how the proposal would remove current confusion over standing in administrative law cases).
(24.) See infra text accompanying notes 178-182 (discussing cases outside the administrative law paradigm where expected value-based standing would apply).
(25.) See Hessick, supra note 18, at 77-80.
(26.) See id. at 91 (calling for federal courts to "develop prudential rules limiting standing in cases alleging small risks of injury"); Mank, supra note 19, at 737-41 (devising novel federal court power to dismiss cases where probabilistic risk of serious injury does not exceed one in one million).
(27.) Elliott, supra note 17, at 511.
(28.) See Hessick, supra note 18, at 61-65.
(29.) See infra text accompanying notes 210-231.
(30.) 410 U.S. 614 (1973).
(31.) 426 U.S. 26 (1976).
(32.) 468 U.S. 737 (1984).
(33.) See, e.g., Allen, 468 U.S. at 758.
(34.) Linda R.S., 410 U.S. 614.
(35.) Id. at 614-18.
(36.) The description of the harm as such assumes that the support would have a positive expected value.
(37.) See, e.g., Heckler v. Charley, 470 U.S. 821, 828 (1985) (holding that the decision of an administrative agency to exercise its discretion not to undertake certain enforcement actions is agency action not generally subject to judicial review under the Administrative Procedure Act).
(38.) Simon v. E. Ky: Welfare Rights Org. (EKWRO), 426 U.S. 26 (1976).
(39.) Id. at 28, 32-33, 42-43.
(40.) See supra text accompanying note 4.
(41.) 468 U.S. 737 (1984).
(42.) Id. at 739-40.
(43.) Id. at 745-46.
(45.) Id. at 752-53.
(46.) Simon v. E. Ky. Welfare Rights Org. (EKWRO), 426 U.S. 26, 46 (1976) (Stewart, J., concurring); Sunstein, Privatization of Public Law, supra note 14, at 1454.
(47.) 461 U.S. 95, 98 (1983).
(48.) Lyons, 461 U.S. at 105-06.
(49.) Id. at 106.
(50.) Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted).
(51.) See infra text accompanying notes 223-231 (discussing instances of courts granting standing to plaintiffs with uncertain or even impossible means of recovery). The oddity of calling for near certainty is confirmed by the Court's inclusion of Younger abstention as a second justification for denying plaintiff access to federal court. See infra text accompanying notes 52-53. This inclusion suggests that the majority was not entirely comfortable with deciding the case solely on grounds of standing--especially since application of Younger abstention "assume[s]" that there is Article III standing. See Lyons, 461 U.S. at 111-12; see also O'Shea v. Littleton, 414 U.S. 488, 504-05 (1974) (Blackmun, J., concurring in part) (noting, in a very similar legal setting, that the conclusion that there was no standing made the majority's further discussion of the availability of injunctive relief and Younger abstention "an advisory opinion that we are powerless to render"). The Court rarely includes alternative grounds for decision, especially where one ground is lack of standing and the other ground presupposes the existence of standing.
(52.) See Younger v. Harris, 401 U.S. 37, 41 (1971) (holding that federal courts shall not grant injunctions against pending state criminal proceedings, except in extenuating circumstances, even where a party questions the constitutionality of state law enforcement activities).
(53.) See Lyons, 461 U.S. at 111-13.
(54.) The plaintiffs in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978), argued that they had standing in part because of the catastrophic damage they would suffer were there a meltdown at the nuclear power plant, the construction of which they were challenging. The Court expressly left open the validity of such an argument: "For purposes of the present inquiry, we need not determine whether all the putative injuries identified by the District Court, particularly those based on the possibility of a nuclear accident and the present apprehension generated by this future uncertainty, are sufficiently concrete to satisfy constitutional requirements." Id. at 73.
In 2007, the Court denied a petition for certiorari that asked it to resolve the validity of probabilistic standing. Mallinckrodt Inc. v. Me. People's Alliance, 552 U.S. 816 (2007); see Nash, supra note 21, at 521 n.122 (noting the open nature of the question); see also The Supreme Court, 2006 Term--Leading Cases, 121 HARV. L. REV. 185, 269-75 (2007) (criticizing the Court for failing to confront the issue in Gonzales v. Carhart, 550 U.S. 124 (2007)).
(55.) 549 U.S. 497, 526 (2007).
(56.) See, e.g., Massachusetts, 549 U.S. at 541-42 (Roberts, C.J., dissenting).
(57.) Id. at 525 n.23 (majority opinion) (citing Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1234 (D.C. Cir. 1996), and Vill. of Elk Grove Vill. v. Evans, 997 F.2d 328, 329 (7th Cir. 1993)). I discuss Mountain States and Evans below. See infra text accompanying notes 88-89 and 97-100, respectively.
(58.) See, e.g., Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA's New Standing Test for States, 49 WM. & MARY L. REV. 1701, 1752-56 (2008); Nash, supra note 21, at 510 n.79.
(59.) 555 U.S. 488 (2009).
(60.) E.g., Karl S. Coplan, Ideological Plaintiffs, Administrative Lawmaking, Standing, and the Petition Clause, 61 ME. L. REV. 377, 412 (2009) (describing the Court in Summers as having "more emphatically" than before "rejected the possibility of using probabilistic harms to establish standing, at least in the case of alleged procedural injuries and on a record that did not establish a factual basis for the probabilistic analysis").
(61.) Accord Benjamin Ewing & Douglas A. Kysar, Prods and Pleas: Limited Government in an Era of Unlimited Harm, 121 YALE L.J. 350, 390 n.137 (2011) ("In ... Summers v. Earth Island Institute, Justice Scalia rather decisively rejected the idea of probabilistic injury in the organizational standing context.... Whether the skepticism toward probabilistic injury displayed by the Summers majority will be carried over beyond the organizational context is uncertain."); Bradford Mank, Summers v. Earth Island Institute Rejects Probabilistic Standing, but a "Realistic Threat" of Harm Is a Better Standing Test, 40 ENVTL. L. 89, 91 (2010) ("Justice Antonin Scalia's majority opinion rejected the concept of organizational standing based upon the statistical probability that some of an organization's members will likely be harmed in the near future by a defendant's allegedly illegal actions.").
(62.) In particular, the organizations sought to bar enforcement of "regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service." Summers, 555 U.S. at 490.
(63.) Id. at 500.
(64.) 504 U.S. 555, 564 (1992) (indicating that although allegations consisting of "'some day' intentions--without any description of concrete plans"--are insufficient to establish standing, concrete assertions may be sufficient).
(65.) See Summers, 555 U.S. at 495-96 (finding, consistent with Lujan, allegation of a mere "vague desire" to visit an affected forest--as opposed to "firm intentions or concrete plans"--insufficient to support standing).
(66.) Id. at 493-97.
(67.) Id. at 497.
(68.) Id. at 499.
(69.) One way to understand, if not to justify, this distinction is to realize that the government may actually enjoy a benefit from being able to choose regulatory action that comparatively few people are likely to have standing to challenge. Were the Summers lawsuit allowed to proceed on the basis of organizational standing, the government would lose this benefit, and almost all government action could be challenged once a large enough interest group was assembled. Cf. Michelle Fon Anne Lee, Note, Surviving Summers, 37 ECOLOGY L.Q. 381, 407-08 (2010) (noting that Summers "was probabilistic only in the sense that plaintiffs did not know, at this early stage, what the agency was planning to do," and that, "[o]nce the agency implemented its regulations, the identity of the injured persons would be knowable"). On the other hand, if individuals actually submit affidavits supporting standing with respect to all possible applications of a regulation, the case for standing is much clearer. Since the government can anticipate a challenge no matter what it does, there seems less reason not to allow a lawsuit challenging the action to proceed earlier.
(70.) See id. (categorizing Summers as an "uncertain plaintiff" case).
(71.) Cf. id. at 408-09 (acceding that "[t]here is some chance ... that some uncertain plaintiff cases, more 'truly probabilistic' than Summers"--specifically cases where, after agency action, the fact that one plaintiff will be harmed is statistically certain but the identity of that plaintiff remains unknown "might survive Summers," but also observing that "the likelihood that the Court would allow such cases to move forward seems low").
(72.) 130 S. Ct. 2743 (2010).
(73.) Monsanto, 130 S. Ct. at 2754-55.
(74.) 133 S. Ct. 1138 (2013). The challenged provision is now codified as section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. [section] 1881a (Supp. V 2011).
(75.) Clapper, 133 S. Ct. at 1147. The plaintiffs also argued that the likelihood of future surveillance compelled them to change their behavior in the present in costly ways--such as having to conduct interviews abroad in-person rather than by telephone or email--thus imposing an economic harm today. Id. at 1150-51. The Court rejected this argument as well, explaining that plaintiffs "cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending." Id. at 1151. But cf. id. at 1151 n.6 (finding plaintiffs' allegations wanting in that they cited to "only one specific instance of travel"--"domestic travel," for an attorney to meet with other attorneys, that "had but a tenuous connection" to the legal allegations in the case).
(76.) Id. at 1143.
(77.) Id. at 1148-50. The Court colored similar causal chains as speculative in Allen v. Wright, 468 U.S. 737, 758-59 (1984), and Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009).
(78.) Clapper, 133 S. Ct. at 1150 n.5; accord id. at 1160 (Breyer, J., dissenting). The dissent hammered home the point that the Court has routinely found standing based on injuries that are not certain to occur. See id. at 1160-64.
(79.) See id. at 1148-50 (majority opinion) (laying out a chain of speculative links that led to the alleged injury).
(80.) Id. at 1150 n.5 (citing, inter alia, Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010)).
(82.) Id. at 1147.
(83.) Id. at 1150.
(84.) Id. at 1149.
(85.) For detailed surveys of the case law, see Robin Kundis Craig, Removing "the Cloak of a Standing Inquiry": Pollution Regulation, Public Health, and Private Risk in the Injury-in-Fact Analysis, 29 CARDOZO L. REV. 149, 188-205 (2007), and Mank, supra note 19, at 684-715.
(86.) 17 F.3d 1478, 1480-81, 1482-84 (D.C. Cir. 1994).
(87.) See Teamsters, 17 F.3d at 1483. The court also retied on a probabilistic analysis to conclude that union members' injuries exceeded injuries suffered by the driving public at large, in that "the union's members spend far more time on the roads than most other Americans," so that "[r]eductions in highway safety would cause more harm to them than to typical members of the public at large." Id.
(88.) 92 F.3d 1228 (D.C. Cir. 1996).
(89.) Mountain States Legal Found., 92 F.3d at 1234 (internal citation omitted).
(90.) 352 F.3d 625 (2d Cir. 2003).
(91.) "'Downed' is an industry term used to describe animals that collapse for unknown reasons and are too ill to walk or stand prior to slaughter." Id. at 628.
(92.) Baur, 352 F.3d at 632-33.
(93.) Id. at 634.
(94.) Id. at 634 n.8.
(95.) Id. at 637 (internal quotation marks omitted).
(97.) 997 F.2d 328 (7th Cir. 1993).
(98.) Evans, 997 F.2d at 329.
(101.) See 230 F.3d 1141, 1151-52 (9th Cir. 2000).
(102.) Ecological Rights Found., 230 F.3d at 1144. The court proceeded to describe the particular allegations of two members of the plaintiff organizations. See id. at 1144-45, 1152.
(103.) Id. at 1152 n.12.
(104.) 464 F.3d 1 (D.C. Cir. 2006).
(105.) Natural Res. Def. Council, 464 F.3d at 6 (quoting La. Envtl. Action Network v. EPA, 172 F.3d 65, 68 (D.C. Cir. 1999)).
(106.) In an earlier opinion, the court had considered the likely harm--"more than 10 deaths, more than 2,000 nonfatal skin cancer cases, and more than 700 cataract cases"--on an annualized basis and found "the annualized risk posed to NRDC members to be trivial" Id. (quoting Natural Res. Def. Council v. EPA, 440 F.3d 476 (D.C. Cir. 2006). The court observed that, with respect to that earlier holding, "[t]he parties vigorously dispute whether we were correct to hold as a quantitative matter that [plaintiff's] alleged injury was trivial or whether, in [plaintiff's] words, any 'scientifically demonstrable increase in the threat of death or serious illness' ... is sufficient for standing." Id. The court further noted that the "question has given rise to a conflict among the circuits" Id. On rehearing, the court explained that it didn't have to decide the question since EPA's expert, on whose model both sides relied, had informed the court that viewing the risk in annualized terms was not practical. Id. at 7.
(109.) 471 F.3d 277 (1st Cir. 2006).
(110.) Mallinckrodt, 471 F.3d at 284.
(111.) 489 F.3d 1279 (D.C. Cir. 2007).
(112.) Pub. Citizen, 489 F.3d at 1295. The Public Citizen panel expressed some dissatisfaction with this standard, even going so far as to state that it would not have found standing "[w]ere we deciding this case based solely on the Supreme Court's precedents." Id. at 1296. But, the court explained, it was bound by circuit precedent. Id.
The cases the court identified as generating the binding precedent were Mountain States Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996) (discussed supra in text accompanying notes 88-89), and Natural Res. Def. Council v. EPA, 464 F.3d 1 (D.C. Cir. 2006) (discussed supra in text accompanying notes 104-108). This reliance is curious. Neither of these cases established the standard enunciated by the court in Public Citizen.
(113.) Pub. Citizen, 489 F.3d at 1296, 1298.
(114.) Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 513 F.3d 234 (D.C. Cir. 2008) (rejecting Public Citizen's standing application after supplemental briefing).
(115.) Id. at 241.
(116.) Shain v. Veneman, 376 F.3d 815 (8th Cir. 2004).
(117.) Id. at 818 ("Indeed, one wonders whether any of the parties (or the court) in this case will be alive the next time a 100-year flood occurs upon the land.").
(119.) Id. The question of whether the harm alleged is generalizable is a separate one. As I discuss below, under my proposal for expected value-based standing, courts would remain free to reject assertions of generalized harm on prudential grounds. See infra text accompanying notes 141-142.
(120.) Shain, 376 F.3d at 819. The court distinguished the facts before it from those in Mountain States Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996) (which I discuss supra in text accompanying notes 88-89). The court explained this distinction as follows:
There, the defendant's conduct directly and measurably increased the chances a fire would start; the defendant's conduct was not merely an intervening factor that could aggravate an independently occurring natural disaster. For this case to become truly analogous to Glickman, the lagoons would have to increase the probability of a 100-year flood itself.
Shain, 376 F.3d at 819. The court also avoided direct conflict with the Seventh Circuit's endorsement of probabilistic standing in Village of Elk Grove Village v. Evans, 997 F.2d 328 (7th Cir. 1993) (discussed supra in text accompanying notes 97-100), dismissing the court's analysis there as "dicta" Shain, 376 F.3d at 819.
(121.) This is less important to the extent that courts applying this standard do not in practice impose a hurdle different from an "enhanced risk" approach. See infra text accompanying note 122.
(122.) See, e.g., supra text accompanying notes 107-108.
(123.) See supra note 5 and accompanying text.
(124.) Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted) (internal quotation marks omitted).
(126.) Id. at 561 (internal quotation marks omitted).
(127.) 438 U.S. 265 (1978).
(128.) Sunstein, What's Standing After Lujan?, supra note 14, at 203 (citing Bakke, 438 U.S. at 280-81 n.14).
(129.) Cf. Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 636-37 (1999) (noting the problem in the context of suits seeking vindication of legal access to information).
(130.) Sunstein, What's Standing After Lujan?, supra note 14, at 228.
(132.) See, for example, FEC v. Akins, 524 U.S. 11 (1998), which holds that the ban on generalized injuries is prudential rather than constitutional in character. If that is true, then courts will ordinarily assume that widely generalized injuries are not cognizable, but the ban can be overcome by a clear congressional statement. But see Massachusetts v. EPA, 549 U.S. 497, 518-20 (2007) (stressing the special status of Massachusetts as sovereign to uphold standing, thus suggesting that an individual's injury might be too generalized to support standing). The fractured opinions in Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587 (2007), further muddy the waters. Compare id. at 597-603 (Alito, J., plurality opinion) (classifying the particularized injury requirement as constitutional, notwithstanding the continued vitality of the exception recognized in Flast v. Cohen, 392 U.S. 83 (1968)), with id. at 615-18 (Kennedy, J., concurring) (also describing the requirement as constitutional but arguing against extending the Flast exception on the apparently subconstitutional ground that "[t]he courts must be reluctant to expand their authority by requiring intrusive and unremitting judicial management of the way the Executive Branch performs its duties"), with id. at 618 (Scalia, J., concurring in the judgment) (describing the requirement as constitutional and Flast as flatly inconsistent with it), with id. at 637 (Souter, J., dissenting) (arguing that the exception in Flast can and should be extended). For a discussion of how the Court has variously treated the requirement as constitutional and prudential, see Craig A. Stern, Another Sign from Hein: Does the Generalized Grievance Fail a Constitutional or a Prudential Test of Federal Standing to Sue?, 12 LEWIS & CLARK L. REV. 1169, 1204-17 (2008).
(133.) See Sunstein, What's Standing After Lujan?, supra note 14, at 229.
(134.) See Ariel Porat & Alex Stein, Liability for Future Harm, in PERSPECTIVES ON CAUSATION 221, 232-35 (Richard Goldberg ed., 2011) (arguing for the possibility of awards of damages for future harm along these lines). Sometimes, the expected value may be more complicated if there are multiple probabilistic outcomes--i.e., if there is a lottery of outcomes. See MARTIN J. OSBORNE, AN INTRODUCTION TO GAME THEORY 102 (2003). In that instance, relying on the assumption of von Neumann-Morgenstern preferences over the lottery, the expected value would equal the sum of the probability of each outcome multiplied by the magnitude of that outcome. See id.
My proposal does not affect the propriety of discounting, where appropriate, or the appropriate choice of discount rate. Thus, if the harm is to happen at some point in the future and discounting is deemed appropriate, then the monetized value of the harm should be discounted back to present value. It is then that value that should be multiplied by the probability of harm in determining whether there is standing. See infra text accompanying notes 275-277.
(135.) To be sure, when the injury in question is not just probabilistic, but truly purely speculative, expected value-based standing will not apply: Cf. Appellate Body Report, European Communities Measures Concerning Meat and Meat Products, para. 125, WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998) (opinion of the World Trade Organization Appellate Body finding no violation of the General Agreement on Tariffs and Trade or the WTO Agreement on the Application of Sanitary and Phytosanitary Measures where there was no scientific evidence of risk). Other forms of standing might still apply. See Nash, supra note 21, at 511 (advancing a proposal for precautionary-based standing where there is an uncertain risk of catastrophic and irreversible harm).
(136.) See supra text accompanying note 121.
(137.) Compare Elliott, supra note 17, at 504-06 (so interpreting the court's decision in Natural Res. Def. Council v. EPA, 464 F.3d 1 (D.C. Cir. 2006), and endorsing that view), with Mank, supra note 19, at 721-32 (critiquing this possibility).
(138.) See supra text accompanying notes 59-71 (discussing Summers v. Earth Island Inst., 555 U.S. 488 (2009)).
(139.) 549 U.S. 497, 518-21 (2007). For a proposal to restrict a category of standing to sovereign plaintiffs, see Nash, supra note 21, at 513-14.
(140.) The rule has been subject to critique. See, e.g., Massachusetts, 549 U.S. at 536-40 (Roberts, C.J., dissenting). See generally Mank, supra note 58; Calvin Massey, State Standing After Massachusetts v. EPA, 61 FLA. L. REV. 249 (2009).
(141.) See supra text accompanying note 131.
(142.) See supra note 132 and accompanying text.
(143.) See, e.g., Allen v. Wright, 468 U.S. 737, 751 (1984).
(144.) See supra note 37 and accompanying text.
(145.) See Sunstein, What's Standing After Lujan?, supra note 14, at 230-31; see also Cass R. Sunstein, Standing Injuries, 1993 SUP. CT. REV. 37 (arguing that the law in question should provide the relevant measure as to whether there has been a legal injury for standing purposes).
(146.) While I see a de minimis exception as sound policy, I do not see it as necessarily grounded in the Constitution, and also do not see why Congress should not be allowed the freedom to abrogate it in settings it deemed appropriate. On the questionable moral justification for, and difficulty of implementing, de minimis rules, see Matthew D. Adler, Why De Minimis?, SOC. SCI. RES. NETWORK (June 8, 2007), http://ssrn.com/abstract=992878.
(147.) Cf. Doll v. Brown, 75 F.3d 1200, 1206 (7th Cir. 1996) (recognizing in the context of damages that "[t]o avoid flooding the courts with speculative cases, the lost chance to be actionable should no doubt exceed a de minimis threshold"); Porat & Stein, supra note 134, at 237-38 (advocating for the possibility of damage awards for future harm based on expected value while noting that "[s]mall risks of future illness should not be actionable"). I note that this corresponds to a de minimis exception that presumably exists for when actual harm gives rise to standing.
Professor Mank proposes that individuals have standing to challenge government action where the action would impose a risk of death or serious injury in excess of one in a million. See Mank, supra note 19, at 737-46. I note that the de minimis threshold might function somewhat analogously to Mank's proposed lower limit for standing. I prefer to leave the precise determination of what is de minimis to the courts to determine on a case-by-case basis and in a textured way. Unlike Mank's bright-line role, my expected-value analysis would consider the precise nature of the harm and the time until the injury will occur.
(148.) For further discussion of the consistency of the proposal with existing understandings of standing, see infra Section III.C.1.
(149.) See supra note 54.
(150.) See supra text accompanying notes 85-122.
(151.) See supra text accompanying notes 85-115.
(152.) See supra text accompanying note 115.
(153.) Courts may believe, correctly, that purely speculative injuries are not a sufficient ground for standing. See supra note 135. However, they may erroneously believe that injuries are speculative in some cases when in fact they are not and on that basis deny standing in cases where it ought to be found to exist.
It also may be the case that courts believe that it will be very complicated to determine the expected value of harm in cases, see supra note 134 (discussing the possibility of calculating expected values based on lotteries of harms), and that that effort would be better used on other issues and other cases. See Timothy P. Terrell & Jane S. Smith, Publicity, Liberty, and Intellectual Property: A Conceptual and Economic Analysis of the Inheritability Issue, 34 EMORY L.J. 1, 49-51 (1985) (discussing how there may be justification for not correcting errors where measurement difficulties lead to excessive error correction costs); cf. Alan Schwartz & Robert E. Scott, Contract Interpretation Redux, 119 YALE L.J. 926, 941 (2010) (noting the importance of a "court's opportunity cost--the more time the court spends on a particular interpretive issue, the less time it can spend on other issues or other cases"). However, courts may miss the point that expected value in general need not be calculated with precision; the only relevant question is whether the expected value is non-de minimis. See infra text accompanying notes 204-205.
(154.) 461 U.S. 95 (1983).
(155.) Lyons, 461 U.S. at 106.
(156.) See, e.g., supra note 51; infra notes 239-252 and accompanying text (discussing examples).
(157.) One might understand the Court's holdings in the key cases discussed supra in Part I--Linda R.S. v. Richard D., EKWRO, and Allen v. Wright--as resulting from the difficulties in squaring the traditional common law paradigm with cases in which the harms claimed were probabilistic.
(158.) See Sunstein, Privatization of Public Law, supra note 14, at 1438-51. But cf. Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 MICH. L. REV. 689, 691 (2004) (arguing that eighteenth- and nineteenth-century jurisprudence is not inconsistent with modern standing doctrine).
(159.) See Sunstein, Privatization of Public Law, supra note 14, at 1438.
(160.) See J.B. Ruhl & Harold J. Ruhl, Jr., The Arrow of the Law in Modern Administrative States: Using Complexity Theory to Reveal the Diminishing Returns and Increasing Risks the Burgeoning of Law Poses to Society, 30 U.C. DAVIS L. REV. 405, 466 (1997) (positing how administrative structure begets interested parties, who eventually seek additional legal structure); see also J.B. Ruhl & James Salzman, Mozart and the Red Queen: The Problem of Regulatory Accretion in the Administrative State, 91 GEO. L.J. 757, 769-75 (2003) (presenting various metrics confirming the growth of the administrative state); Richard B. Stewart, The Discontents of Realism: Interest Group Relations in Administrative Regulation, 1985 WIS. L. REV. 655, 655 ("Federal regulation ... has generated massive litigation during the past 15 years through agency and judicial review proceedings.").
(161.) See Sunstein, Privatization of Public Law, supra note 14, at 1441-44 (explaining the shift and the reasons for it).
(162.) 5 U.S.C. [section] 702 (2006).
(163.) Sunstein, Privatization of Public law, supra note 14, at 1438-40.
(164.) See 5 U.S.C. [section] 702 ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.").
(165.) See Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970).
(166.) Sunstein, Privatization of Public Law, supra note 14, at 1445 (citing Data Processing, 397 U.S. at 153).
(167.) Id. at 1446. Other authors have also commented on the failings of the private law model in public law cases. See Buzbee, supra note 14, at 271-82 (arguing in favor of judicial deference to legislative definitions of harm and standing); Samuel Issacharoff, Private Claims, Aggregate Rights, 2008 SUP. CT. REV. 183, 184-85 (arguing that the rules of civil procedure in cases other than class actions assume a setting of private litigation rather than litigation of aggregate rights).
(168.) See Sunstein, Privatization of Public Law, supra note 14, at 1451-59.
(169.) Id. at 1463; Hessick, supra note 18 at 65-70; see also Fletcher, supra note 14, at 233.
(170.) This may overstate matters. As I discuss below, even now, existing jurisprudence recognizes standing in some cases in which the harm is probabilistic. See infra notes 218-231 and accompanying text. In particular, consider that in any case in which future relief--such as injunction--is sought, one can argue that an assumption is being made about the probability of harm continuing into the future. See infra note 210 and accompanying text.
(171.) Cf. Kimberly N. Brown, Justiciable Generalized Grievances, 68 MD. L. REV. 221 (2008) (arguing in favor of constitutionality of standing to challenge harms that are broadly felt by the public).
(172.) Justice Scalia's opinion in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), came close to suggesting that some claims to vindicate an undifferentiated public interest in having the executive branch act in accordance with law should be constitutionally uncognizable: "To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed.'" Id. at 577 (citing U.S. CONST., art. II, [section] 3).
(173.) See infra text accompanying notes 252-257.
(174.) See, e.g., Elliott, supra note 17, at 504-06.
(175.) While it may be possible to show that it is statistically highly likely that one member of the organization may suffer the harm, it might turn out that no one does, or more than one does. Note also that this conception of the harm across the group still does not change the fact that the harm may be generalized.
(176.) See, e.g., Natural Res. Def. Council v. EPA, 464 F.3d 1, 7 (D.C. Cir. 2006) (upholding standing on the ground that "[o]ne may infer from the statistical analysis that two to four of [plaintiff's] nearly half a million members will develop cancer as a result of the rule").
(177.) See supra text accompanying notes 141-142.
(178.) Expected value-based standing might also have altered the result of the standing inquiry in Shain v. Veneman, 376 F.3d 815 (8th Cir. 2004), where the Eighth Circuit ruled against probabilistic standing. See supra text accompanying notes 116-120. Note, however, that the Eighth Circuit does not seem to have understood itself to have announced a blanket prohibition against probabilistic standing insofar as it proclaimed that "the jurisprudence of our sister circuits is consistent with our holding in this case." Shain, 376 F.3d at 819.
(179.) Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973).
(180.) See Sunstein, Privatization of Public Law, supra note 14, at 1467-68.
(181.) See supra text accompanying note 37.
(182.) See supra text accompanying note 46.
(183.) Amanda Leiter, Substance or Illusion? The Dangers of Imposing a Standing Threshold, 97 GEO. L.J. 391, 405-09 (2009).
(184.) Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin., 489 F.3d 1279, 1295 (D.C. Cir. 2007).
(185.) See supra text accompanying notes 127-133.
(186.) See supra text accompanying notes 131-133.
(187.) See, e.g., FEC v. Akins, 524 U.S. 11, 25 (1998). The court reasoned as follows:
If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency's action and remand the case--even though the agency (like a new jury after a mistrial) might later, in the exercise of its lawful discretion, reach the same result for a different reason. Thus respondents' 'injury in fact' is 'fairly traceable' to the FEC's decision not to issue its complaint, even though the FEC might reach the same result exercising its discretionary powers lawfully. For similar reasons, the courts in this case can 'redress' respondents' 'injury in fact.'
Id. (internal citation omitted); see also Sunstein, supra note 129, at 636-37 (noting the Akins Court's dodging of the probabilistic issue).
(188.) 504 U.S. 555 (1992).
(189.) Lujan, 504 U.S. at 572 n.7.
(190.) 524 U.S. 11.
(191.) Akins, 524 U.S. at 25.
(192.) See supra notes 14-16, 23-24 and accompanying text.
(193.) For federal authority, see 18 U.S.C. [section] 3141(a) (2006) (directing that a "judicial officer" determine whether someone who has been arrested should be "released or detained"); id. [section] 3142(f)(2) (directing that a detention hearing should be held, inter alia, where there is "a serious risk that such person will flee" or "a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror"); id. [section] 3142(e) ("If, after a hearing ... the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial."); id. [section] 3142(g)(4) (listing, among the factors to be considered in determining the conditions of release, "the nature and seriousness of the danger to any person or the community that would be posed by the person's release").
(194.) See, e.g., Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 593-94 (7th Cir. 1986).
(195.) But cf. Joshua P. Davis, Taking Uncertainty Seriously: Revising Injunction Doctrine, 34 RUTGERS L.J. 363, 410, 440 (2003) (asserting that open-ended judicial assessments may result in a court's certainty that equitable relief is proper based on the merits even when equities may weigh against such relief).
(196.) See Nash, supra note 21, at 517 (putting the question of whether to grant a preliminary injunction in the language of the precautionary principle); Cass R. Sunstein, Irreversible and Catastrophic, 91 CORNELL L. REV. 841, 866-69 (2006) (discussing preliminary injunctions in environmental cases in the context of the irreversible harm precautionary principle).
(197.) Consider as well the question of whether a defendant has acted negligently in failing to undertake a particular precaution that, had it been taken, might have avoided the negligent injury complained of. Judge Learned Hand's famous formula calls on courts to determine the probability that the injury would occur in the absence of the precautionary step. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (1947) ("[I]f the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B < PL."). Not only do courts routinely make such determinations but the question is often left to juries to decide.
The question of whether the test for an injunction is as reducible to formula as the negligence standard has been the subject of debate. Compare Am. Hosp. Supply Corp., 780 F.2d at 593 (developing formula to describe dispositions of preliminary injunction requests), with Linda J. Silberman, Injunctions by the Numbers: Less Than the Sum of Its Parts, 63 CHI.-KENT L. REV. 279 (1987) (criticizing Judge Posner's formula in American Hospital Supply Corp.).
(198.) 556 U.S. 868, 882, 886-87 (2009).
(199.) Caperton, 556 U.S. at 884. At the same time, the Caperton case also demonstrates some of the difficulties courts encounter when dealing with probabilities. The Court had to explain no fewer than three links in the probabilistic causal chain. First, the Court explained that Blankenship's (the litigant's) "campaign contributions--in comparison to the total amount contributed to the campaign, as well as the total amount spent in the election--had a significant and disproportionate influence on the electoral outcome." Id. at 885. Second, the Court noted the following link:
The temporal relationship between the campaign contributions, the justice's election, and the pendency of the case [was] critical. It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice. The $50 million adverse jury verdict had been entered before the election, and the Supreme Court of Appeals was the next step once the state trial court dealt with post-trial motions. So it became at once apparent that, absent recusal, Justice Benjamin would review a judgment that cost his biggest donor's company $50 million. Although there is no allegation of a quid pro quo agreement, the fact remains that Blankenship's extraordinary contributions were made at a time when he had a vested stake in the outcome.
Id. at 886. Third, the Court acknowledged the contention by the petitioner that, although there was neither a bribe nor criminal influence, "Justice Benjamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected." Id. at 882.
Dissenting, Chief Justice Roberts took issue with the majority's probabilistic findings. Id. at 890-91 (Roberts, C.J., dissenting). He noted that, while Blankenship had made large contributions in furtherance of Justice Benjamin's election, "large independent expenditures were also made in support of Justice Benjamin's opponent." Id. at 900-01. The Chief Justice further questioned the extent to which Blankenship's contributions affected the outcome of the judicial contest:
It is also far from clear that Blankenship's expenditures affected the outcome of this election. Justice Benjamin won by a comfortable 7-point margin.... Many observers believed that Justice Benjamin's opponent doomed his candidacy by giving a well-publicized speech that made several curious allegations; this speech was described in the local media as "deeply disturbing" and worse. Justice Benjamin's opponent also refused to give interviews or participate in debates. All but one of the major West Virginia newspapers endorsed Justice Benjamin. Justice Benjamin just might have won because the voters of West Virginia thought he would be a better judge than his opponent.
Id. at 902 (citation omitted) (internal quotation marks omitted).
(200.) Strickland v. Washington, 466 U.S. 668, 694 (1984).
One also can find an expected value--type approach in an analysis that some states call on judges to conduct in deciding whether to allow the holder of a contingent remainder to raise a claim against a present holder of property. Some courts hinge the cognizability of such a claim on the likelihood that the contingency that must occur for the contingent remainder to vest will in fact come to pass. E.g., Union Cnty. v. Union Cnty. Fair Ass'n, 633 S.W.2d 17, 19 (Ark. 1982) ("The holder of a possibility of reverter can restrain an act of waste by the holder of a determinable fee only when it appears that there is a reasonable certainty that the fee will terminate and the waste would cause serious damage to the property."); Pedro v. January, 494 P.2d 868, 875 (Or. 1972) ("It is clear that if the chances are remote that the contingency vesting the interest will occur, courts will not give relief of any kind to the contingent remainderman. On the other hand, if the contingency is fairly certain, and, therefore, the likelihood of damage to the remainderman is high, courts are more inclined to aid him").
(201.) See, e.g., Green v. Castle Concrete Co., 509 P.2d 588, 591 (Colo. 1973) (en banc). Note that this feature of common law nuisance has been cited as a justification and explanation for the emergence of the modern environmental regulatory state. See JESSE DUKEMINIER ET AL., PROPERTY 759--61 (7th ed. 2010).
(202.) See HOWARD O. HUNTER, MODERN LAW OF CONTRACTS [section] 14:16 (2011).
(203.) E.g., Doll v. Brown, 75 F.3d 1200, 1206 (7th Cir. 1996) (recognizing "the inescapably probabilistic character of many injuries").
(204.) Cf. Allen v. Wright, 468 U.S. 737, 751 (1984) ("[T]he constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition"); ERWIN CHEMERINSKY, FEDERAL JURISDICTION 67 (6th ed. 2012) ("No formula exists for determining what types of injuries are adequate to allow a plaintiff standing to sue in federal court").
The lack of need for precision will mitigate the incentive for plaintiffs to overstate, and defendants to understate, the extent and likelihood of harm. Indeed, precise calculations may often be very difficult in probabilistic settings. Query, for example, with respect to the Evans case (discussed supra in text accompanying notes 97-100), how one might calculate the precise harm resulting from the increased risk of flooding.
(205.) Cf. Saint Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938), superseded in part by 28 U.S.C. [section] 1447 (1988) ("It must appear to a legal certainty that the claim [in a federal diversity case] is really for less than the jurisdictional amount to justify dismissal"); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1269 (11th Cir. 2000) ("[A] plaintiff who bases diversity jurisdiction on the value of injunctive relief must show that the benefit to be obtained from the injunction is 'sufficiently measurable and certain to satisfy the ... amount in controversy requirement....'" (alterations in original) (quoting Ericsson GE Mobile Commc'ns, Inc. v. Motorola Commc'ns & Elecs., Inc., 120 F.3d 216, 221 (11th Cir. 1997))).
The situation where the probability of harm truly cannot be established with certainty thus presents a slightly different problem. For a discussion of the possibility of precautionary-based standing that might apply in certain cases, see Nash, supra note 21. Cf. Dan M. Kahan et al., Risk and Culture: Is Synthetic Biology Different? (Yale Law Sch. Cultural Cognition Project, Working Paper No. 29, 2009), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=1347165 (arguing that cultural background may influence risk perceptions and applying the point empirically to perceptions about risks posed by global warming as opposed to synthetic biology).
(206.) See Massachusetts v. EPA, 549 U.S. 497, 541-42 (2007) (Roberts, C.J., dissenting) (emphasizing the speculative nature of injury from global warming); supra text accompanying note 115 (describing the suggestion by a D.C. Circuit panel that the viability of probabilistic standing be addressed by the court en banc).
(207.) Because my proposal for expected value-based standing is broadly consistent with existing standing doctrine, it differs from other proposals to revamp standing jurisprudence. For example, Professor Elliott suggests, as an alternative to standing, allowing federal courts to abstain in cases where the requirements for what is now standing are not met. See Elliott, supra note 17, at 510-14. She does not argue that a system of abstention would be consistent with existing jurisprudence. Instead, she recommends jettisoning existing standing jurisprudence as unworkable, Id. at 510 n.254 ("Calling upon the Court to abandon many of its standing decisions does implicate stare decisis, but as the Court has made clear in numerous cases, stare decisis does not require slavish devotion to precedent that falls"); see also David A. Dana, Existence Value and Federal Preservation Regulation, 28 HARV. ENVTL. L. REV. 343, 397-99 (2004) (describing the constitutionality of standing based on the "existence value" of particular natural resources, while also noting that considerable Supreme Court precedent is unfriendly to the concept); Richard Murphy, Abandoning Standing: Trading a Rule of Access for a Rule of Deference, 60 ADMIN. L. REV. 943 (2008) (arguing in favor of jettisoning "injury-in-fact" analysis and instead granting relief against the government only to enforce a clear duty).
(208.) See supra note 54 and accompanying text.
(209.) See supra notes 54-58 and accompanying text; infra text accompanying notes 210-231.
(210.) Cf. Richard A. Epstein, Standing and Spending--The Role of Legal and Equitable Principles, 4 CHAP. L. REV. 1, 29 (2001) (noting important distinction in theory of standing between actions at law for damages and actions in equity for an injunction against future harm); Richard A. Epstein, Standing in Law & Equity: A Defense of Citizen and Taxpayer Suits, GREEN BAG, Autumn 2002, at 17, 19-21 (to same effect).
(211.) Younger v. Harris, 401 U.S. 37, 54 (1971) (holding that federal courts may not enjoin pending criminal state proceedings in which the defendant alleges the criminal statute is unconstitutional, except in extenuating circumstances).
(212.) Compare id. at 41-42 ("[P]ersons having no fears of state prosecution except those that are imaginary or speculative, are not be accepted as appropriate plaintiffs"), with Steffel v. Thompson, 415 U.S. 452, 459 (1974) (finding standing to pursue injunction against prospective state court prosecution where petitioner alleges threats of prosecution that are not "imaginary or speculative" (quoting Younger, 401 U.S. at 42)).
(213.) 554 U.S. 724 (2008).
(214.) Davis, 554 U.S. 724.
(215.) Id. at 734.
(217.) Id. at 735.
(218.) 28 U.S.C. [section] 2201(a) (2006).
(219.) Edwin M. Borchard, The Constitutionality of Declaratory Judgments, 31 COLUM. L. REV. 561, 589 (1931).
(220.) MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007) (emphasis omitted). The Court proceeded to affirm that Article III jurisdiction can also exist in "situations in which the plaintiff's self-avoidance of imminent injury is coerced by threatened enforcement action of a private party rather than the government" Id. at 130.
(221.) Id. at 128-29 (citing Steffel v. Thompson, 415 U.S. 452 (1974); Viii. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Terrace v. Thompson, 263 U.S. 197 (1923); Ex parte Young, 209 U.S. 123 (1908)); see also Doe v. Bolton, 410 U.S. 179, 188 (1973) ("The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.").
(222.) See supra notes 47-53 and accompanying text (discussing the Court's decision in City of Los Angeles v. Lyons, 461 U.S. 95 (1983), which seems to require absolute certainty of some harms).
(223.) See, e.g., Roe v. Wade, 410 U.S. 113, 125 (1973).
(224.) For example, in Roe v. Wade, the justiciable controversy that could arise was that the government would again threaten to prosecute the act in question. Id.
(225.) KEITH WERHAN, FREEDOM OF SPEECH 144-45 (2004) (discussing how overbreadth doctrine allows individuals to challenge statutes as they apply to other parties); see also Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 264-68 (1994) (arguing that overbreadth doctrine should extend beyond the First Amendment). But see Henry Paul Monaghan, Overbreadth, 1981 SUP. CT. REV. 1, 21-30 (arguing that standing rules that apply in First Amendment overbreadth cases are not special).
(226.) See WERHAN, supra note 225, at 144-45.
(227.) See, e.g., Gooding v. Wilson, 405 U.S. 518, 520-21 (1972) (discussing reasons for allowing a party to raise other parties' claims in an overbreadth attack).
(229.) See supra text accompanying notes 185-191.
(230.) See supra text accompanying notes 185-189 (explaining that the Court has reached this conclusion without offering much in the way of reasoning and by applying standing's "redressability" prong less stringently than it does in other contexts).
(231.) Justice Breyer has offered an argument along these lines for treating procedural injuries as concrete. While serving as a circuit judge, he confronted a somewhat related question: whether injury under NEPA should qualify as "irreparable" under the standard for whether to grant a preliminary injunction. NEPA requires the government to make a detailed statement, as a matter of process, of the environmental impacts of major government actions, see 42 U.S.C. [section] 4332 (2006), but it does not apply any substantive requirement that those possible environmental impacts actually affect the final decisions the government takes, Sunstein, supra note 129, at 621. At the end of the day, even if the court orders the agency to comply with the statutory requirements, the agency may yet choose to adhere to the decision it originally reached. Put another way, compliance with the statute affords aggrieved plaintiffs only a probabilistic chance that the agency will change its decision. On the other hand, courts cannot grant a preliminary injunction where the plaintiff cannot establish irreparable harm. But how can the injury in a NEPA case be seen as "irreparable" when it might in the end have no effect at all?
In one opinion addressing the issue, Justice Breyer explained that "when a decision to which NEPA obligations attach is made without the informed environmental consideration that NEPA requires, the harm that NEPA intends to prevent has been suffered." Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir. 1983). He elaborated on this point in a subsequent case:
[T]he harm at stake is a harm to the environment, but the harm consists of the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment. NEPA's object is to minimize that risk, the risk of uninformed choice, a risk that arises in part from the practical fact that bureaucratic decisionmakers (when the law permits) are less likely to tear down a nearly completed project than a barely started project.
Sierra Club v. Marsh, 872 F.2d 497, 500-01 (1st Cir. 1989) (reaffirming the validity of the First Circuit's holding in Watt in the wake of intervening Supreme Court precedent).
(232.) Beyond the three situations discussed in the text, growing scientific evidence suggests that exposure to toxic chemicals in fact may have a physical effect in the present. See Jamie A. Grodsky, Genomics and Toxic Torts: Dismantling the Risk-Injury Divide, 59 STAN. L. REV. 1671, 1704-11 (2007) (describing scientific evidence of present physical changes at the molecular level that could be described as early stages of a disease); Albert C. Lin, The Unifying Role of Harm in Environmental Law, 2006 WIS. L. REV. 897, 955-61 (discussing subcellular harm). Incorporation of this scientific knowledge may one day change the way we think about future harm and risk of harm. Grodsky, supra, at 1725-26. But cf. Porat & Stein, supra note 134, at 234 (critiquing as "artificial" legal arguments that ground liability for future harm on the notion that latent harm is already present or that dread of future harm is already present).
(233.) See, e.g., Brad M. Barber et al., The Fraud-on-the-Market Theory and the Indicators of Common Stocks' Efficiency, 19 J. CORP. L. 285, 294 (1994) (explaining the efficient market hypothesis).
(234.) See Thomas A. Jackson, Environmental Contamination and Industrial Real Estate Prices, 23 J. REAL EST. RES. 179 (2002) (finding environmental contamination leads to reduction in industrial property values before and during remediation); Robert A. Simons & Jesse D. Saginor, A Meta-Analysis of the Effect of Environmental Contamination and Positive Amenities on Residential Real Estate Values, 28 J. REAL EST. RES. 71 (2006) (finding that environmental contamination reduces residential property values); see also Thomas M. Carroll et al., The Economic Impact of a Transient Hazard on Property Values: The 1988 PEPCON Explosion in Henderson, Nevada, 13 J. REAL EST. FIN. & ECON. 143 (1996) (finding that a property's value is sensitive to mean distance of property from hazard); cf. Alexandra B. Klass & Elizabeth J. Wilson, Climate Change and Carbon Sequestration: Assessing a Liability Regime for Long-Term Sequestration of Carbon Dioxide, 58 EMORY L.J. 103, 144 (2008) (noting courts' growing willingness to award "'stigma' damages" for "an adverse impact on the value of a property based on the market's perception that the property poses an environmental risk," and noting that such awards may be made with respect "not only to property that is currently contaminated, but also to property that has a risk of future contamination or property that has been remediated but is still perceived as posing a risk of harm").
(235.) 528 U.S. 167, 181-85 (2000).
(236.) Friends of the Earth, 528 U.S. at 182-83. Along somewhat similar lines is the Court's reliance on the attestation by another member of the organization that "she and her husband would like to purchase a home near the river but did not intend to do so, in part because of [the] discharges." Id. at 182.
But see Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1151 (2013) ("[Plaintiffs] cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.").
(237.) Financial derivatives, like insurance, offer investors the opportunity to hedge risks. See, e.g., Jonathan S. Masur & Jonathan Remy Nash, The Institutional Dynamics of Transition Relief, 85 N.Y.U.L. REV. 391, 429-30 (2010).
Markets also sometimes allow litigants effectively to insure against the uncertain outcome of litigation. See, e.g., Lester Brickman, Contingent Fees Without Contingencies: Hamlet Without the Prince of Denmark?, 37 UCLA L. REV. 29, 43 (1989) (describing contingency fee arrangements "as a hedge" under which "the client's exposure to loss is limited by the attorney's assumption of the fee risk, while the client's potential gain is also limited by the 'sale' of a percentage of the claim to the attorney"); Jonathan T. Molot, Litigation Finance: A Market Solution to a Procedural Problem, 99 GEO. L.J. 65, 96-98 (2010) (describing means by which institutional investors offer companies up-front assets in exchange for assuming risk of litigation).
(238.) Daniel A. Farber, Uncertainty as a Basis for Standing, 33 HOFSTRA L. REV. 1123, 1126-29 (2005).
(239.) Richard L. Revesz, Environmental Regulation, Cost-Benefit Analysis, and the Discounting of Human Lives, 99 COLUM. L. REV. 941 (1999).
(240.) See id. at 972-74; E. Donald Elliott, The Future of Toxic Torts: Of Chemophobia, Risk as a Compensable Injury and Hybrid Compensation Systems, 25 HOUS. L. REV. 781, 785-90 (1988) (discussing the dread of "chemophobia"); Lisa Heinzerling & Cameron Powers Hoffman, Tortious Toxics, 26 WM. & MARY ENVTL. L. & POL'Y REV. 67, 90 (2001); Lin, supra note 232, at 945-54.
(241.) See supra note 231.
(242.) See generally TOM R. TYLER, WHY PEOPLE OBEY THE LAW (1990).
(243.) Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000).
(244.) Id. at 181-83 (detailing how individuals variously no longer engaged in waking, hiking, driving, fishing, camping, swimming, and picnicking in and near the waters).
(245.) See, e.g., supra notes 97-102 and accompanying text.
(246.) See, e.g., Masur & Nash, supra note 237, at 408-26 (describing and evaluating possible obstacles to markets for insurance against regulatory changes); Jonathan R. Nash, Note, Environmental Law: An Economic Approach to the Availability of Hazardous Waste Insurance, 1991 ANN. SURV. AM. L. 455, 464-66, 482-93 (discussing the ideal conditions of insurability and explaining why a market for hazardous waste insurance lagged behind demand in the 1980s); see also Sean B. Hecht, Climate Change and the Transformation of Risk: Insurance Matters, 55 UCLA L. REV. 1559 (2008) (describing the obstacles to the development of insurance markets to address risks associated with climate change).
(247.) Compare Craig, supra note 85, at 189 (citing dissent in Ayers v. Township of Jackson, 525 A.2d 287, 321 (N.J. 1987) (Handler, J., concurring in part and dissenting in part)), which argued that the fact that one would have to pay another individual substantial amounts of money for him or her to be willing to tolerate the injuries suffered by toxic tort plaintiffs in future harm cases provides grounds for the plaintiffs to be able to collect damages.
(248.) There will undoubtedly be some cases that will qualify for expected value-based standing in federal court that could also be brought in state court because the relevant state recognizes probabilistic standing or otherwise has less restrictive standing requirements than the federal courts. Cf. James W. Doggett, Note, "Trickle Down" Constitutional Interpretation: Should Federal Limits on Legislative Conferral of Standing Be Imported into State Constitutional Law?, 108 COLUM. L. REV. 839, 851 (2008) (observing that state standing rules can diverge from federal norms). In such cases, the addition of the federal forum is presumably less meaningful and less normatively desirable. Indeed, to the extent that such cases include issues of federal law, review may be had in the Supreme Court notwithstanding the lack of standing sufficient to support initiating the lawsuit in federal court. See ASARCO Inc. v. Kadish, 490 U.S. 605, 618-24 (1989).
I note that, to the extent that a state does not now recognize standing for probabilistic harms, my proposal for expected value-based standing could apply there too.
(249.) In evaluating the normative desirability of expected value-based standing, I rely on and accept the normative benefits standing is generally said to provide. In doing so, I do not address the merits of these normative assumptions; indeed, many commentators have questioned all of them over the years. Rather, I mean only to evaluate expected value-based standing according to the same metrics by which traditional standing is judged.
(250.) Elliott, supra note 17, at 468-74. For criticism, see id. at 474-75 and David M. Driesen, Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication, 89 CORNELL L. REV. 808, 840 (2004).
(251.) See, e.g., Elliott, supra note 17, at 468-74 (collecting authorities).
(252.) See Elliott, supra note 17, at 475-83 (pro-democratic function); see also id. at 492-96 (anti-conscription function). Professor Elliott proceeds to argue that existing standing doctrine does a poor job of vindicating these goals. See id. at 483-92 (pro-democratic function); id. at 497-500 (anti-conscription function). She suggests that standing be largely supplanted by a system of abstention under which a federal court would have the discretion to abstain in cases where the court determines that one or more of these goals would in fact be frustrated by litigation. See id. at 510-16. Without passing on the merits of this proposal, I note that--if standing were to one day morph into a system of abstention, my proposal could readily morph as well---courts should be no more inclined to abstain in a case of probabilistic injury than in a case of ordinary injury where the expected value of the injury in the first case equals the actual injury in the second.
(253.) See Fletcher, supra note 14, at 283-90 (arguing that judicial determination of whether there is standing to pursue a new federal cause of action ought to turn on the constitutional provision pursuant to which the statute was enacted and the language of the enacting statute).
(254.) See Nash, supra note 21, at 520 (discussing the failure of current standing doctrine to address such problems).
(255.) See id.
(256.) See generally Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 YALE L.J. 61 (2002) (describing how individuals tend to overvalue some risks and undervalue others).
(257.) Nash, supra note 21, at 520; see also Sunstein, supra note 256 at 74-76.
(258.) See supra notes 134-135 and accompanying text.
(259.) See Allen v. Wright, 468 U.S. 737, 750 (1984) (describing the political question doctrine as a "constitutional and prudential limit to the powers of an unelected, unrepresentative judiciary" (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1078-79 (D.C. Cir. 1983) (Bork, J., concurring))).
(260.) See supra note 37 and accompanying text.
(261.) See supra text accompanying notes 141-144.
(262.) Indeed, the common law's focus on ex post liability is seen as one of the reasons for the development of the modern administrative state. See, e.g., N. William Hines, Nor Any Drop to Drink: Public Regulation of Water Quality--Part 1: State Pollution Control Programs, 52 IOWA L. REV. 186, 200 (1966).
(263.) Maxwell L. Steams, Standing Back from the Forest: Justiciability and Social Choice, 83 CALIF. L. REV. 1309, 1323 n.48 (1995) ("[C]ommentators have failed to identify the reason [b]ehind the general presumption against [ideological] litigation [that standing represents], namely that a contrary rule would enable ideological litigants to manipulate the critically important path of case presentation."); see also Robert J. Pushaw, Jr., Limiting Article III Standing to "Accidental" Plaintiffs: Lessons from Environmental and Animal Law Cases, 45 GA. L. REV. 1 (2010) (arguing that standing is best understood to limit court access to plaintiffs who have been injured because of chance events beyond their control); Maxwell L. Steams, Standing and Social Choice: Historical Evidence, 144 U. PA. L. REV. 309, 348-404 (1995) (marshalling historical evidence and case law to support point that standing doctrines prevent manipulation).
(264.) Cf. United States v. Baker, 45 F.3d 837, 840 n.1 (4th Cir. 1995) (noting that, where challenge was brought under one statutory provision but analogous challenge could arise under another, "the parties have announced to this Court that they have agreed by stipulation that the Court's decision in this matter will govern hearings under both statutes" but holding that, "[w]hile our holding herein with respect to hearings conducted under [the first statute] may, because of similarities between that section and [the other provision], bear on, or perhaps even control, analogous claims with respect to hearings under [the second provision], the parties cannot, by virtue of their 'stipulation,' confer jurisdiction on this Court to issue an advisory opinion"); id. at 848 (Widener, J., dissenting) ("[T]his is a test case set up by the Judicial Conference of the United States.... In my opinion, this case is singularly inappropriate as a test case to determine the validity of the use of television as a means of providing to ... a prisoner ... the amount of process which he is due.").
(265.) For an analysis of the politics underlying the Court's ability to persuade Congress to grant this discretion, see Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 COLUM. L. REV. 1643 (2000).
(266.) See supra text accompanying notes 85-115 (summarizing cases from the First, Second, Seventh, Ninth, and D.C. Circuits that have accepted some form of probabilistic standing).
(267.) See supra text accompanying notes 232-245.
(268.) See Ann E. Carlson, Standing for the Environment, 45 UCLA L. REV. 931, 995-97 (1998) (arguing that standing rules may force environmental advocates to rethink environmental problems and to express them in terms of how they may affect human beings and that the resulting refocusing of environmental advocacy would benefit courts, the public, and ultimately the environment).
(269.) But cf. Lin, supra note 232, at 935-36 (summarizing authorities who argue that restricting standing to injuries to people will preclude protection of the environment for its own sake); id. at 977-83 (arguing that the problem of harm to the environment requires rethinking the anthropocentricity of standing analysis); Cass R. Sunstein, The Rights of Animals, 70 U. CHI. L. REV. 387 passim (2003) (arguing in favor of at least limited legal rights for animals).
(270.) Friends of the Earth, Inc., v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
(271.) See Eugene Kontorovich, What Standing Is Good for, 93 VA. L. REV. 1663, 1675 (2007) (showing that "broad standing to challenge certain types of government action could result in inefficient outcomes because of high transaction costs and the possibility of strategic behavior").
(272.) See id. at 1720-23.
(273.) Thus, by way of analogy, the Court has construed the constitutional grant of diversity jurisdiction more broadly than it has its statutory analog. Compare Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806) (interpreting the statutory diversity grant to require complete diversity), with State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523 (1967) (interpreting the constitutional diversity grant to authorize Congress to confer jurisdiction where the parties are minimally diverse).
(274.) See supra text accompanying notes 209-230.
(275.) Cf. Revesz, supra note 239, at 998 ("Placing a value of life of $5 million, in constant dollars, [and using a 5% discount rate] the maximum current amount that we could justify spending now to avert the destruction of the human race in 500 years would be $30 million. (At the OMB rate of 7%, this amount would be only about $10!)").
(276.) See supra text accompanying notes 244-245.
(277.) See, e.g., Douglas A. Kysar, Discounting ... on Stilts, 74 U. CHI. L. REV. 119 (2007) (arguing against discounting across generations); Revesz, supra note 239, at 974-81 (arguing that a lower than usual discount rate should be used to discount certain future risks of death over the course of an individual's life); id. at 996-1016 (arguing that logic does mandate the use of discounting in the intergenerational context and suggesting instead an appeal to a moral theory of intergenerational obligation). But see Sunstein & Rowell, supra note 4 (arguing that elimination of discounting is not the proper tool with which to vindicate concerns of intergenerational equity); W. Kip Viscusi, Rational Discounting for Regulatory Analysis, 74 U. CHI. L. REV. 209 (2007) (arguing in favor of intergenerational discounting).
(278.) See supra text accompanying notes 174-177.
(279.) This Article has argued that the asymmetry in treatment between cases of probabilistic harms and nonprobabilistic harms be eliminated. There are two ways that this can be accomplished. One possibility, highlighted in the text, is that a positive non-de minimis expected value should be sufficient to support standing. A second possibility is that low-value (but greater than de minimis) expected values should not be enough to support standing but that existing doctrine should be amended to conform to the treatment of nonprobabilistic harms; that is, low-value injuries should similarly be seen to fall below the standing threshold.
Jonathan Remy Nash, Professor of Law, Emory University School of Law. This Article grew out of preliminary discussions I had with Cass Sunstein, to whom I am very grateful. Thanks are due as well to Karen Bradshaw, William Buzbee, Dan Cole, Michael Collins, Michael Kang, Kay Levine, Clarisa Long, Bradford Mank, Gillian Metzger, Lori Greendorfer Nash, Rafael Prado, David Partlett, Julie Seaman, Jeffrey Staton, Alex Stein, Timothy Terrell, Liza Vertinsky, and Alexander Volokh for helpful suggestions. I benefited from comments I received at a faculty workshop at Emory University School of Law.
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|Title Annotation:||III. Objections and Criticisms through Conclusion, with footnotes, p. 1316-1335|
|Author:||Nash, Jonathan Remy|
|Publication:||Michigan Law Review|
|Date:||May 1, 2013|
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