Probabilistic Standing

F. Andrew Hessick

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Under the case or controversy clause, the federal judiciary cannot address legal questions in the abstract; it may do so only in the course of resolving a case — that is, a dispute capable of resolution by a judicial order imposing a specific form of relief through an “an immediate and definitive determination of the legal rights of the parties.”1 According to the Supreme Court, this limitation is fundamental to maintaining the separation of powers by ensuring that federal courts do not usurp the role of the political branches to set policy and define legal obligations and rights.

This separation of powers concern has generated particular difficulties in suits seeking prospective relief, such as an injunction, from threatened harms that have not yet taken place.  History and practice establish that federal courts have power to hear claims for prospective relief to prevent threatened injuries that have not yet occurred.  But the Supreme Court has refused to extend Article III jurisdiction over all claims of threatened future injuries.  Based on the fear that recognizing jurisdiction for all injuries that have some probability of occurring—though that probability may be small—would effectively empower courts to hear all disputes, the Court has held that a plaintiff has standing under Article III to challenge a future injury only when the threatened injury has a “real” chance of occurring. When the threat of injury is too speculative, that threat does not present a justiciable case under Article III.

Los Angeles v. Lyons2 provides an example of this minimum-risk requirement. There, the plaintiff who had previously been choked by police sought an injunction against the Los Angeles police to prevent the use of the chokehold on him in the future.  The Supreme Court dismissed the case for lack of standing. It explained that the injury that Lyons claimed—possibly bring subject to the chokehold again in the future—was “no more than speculation.”

The minimum-risk requirement is an unwarranted limit on federal power under Article III. Article III does not distinguish between low risks of harm and high risks of harm. It states simply that federal courts may hear “Cases” or “Controversies.” Although there has been disagreement on the precise contours of what constitutes a case, there is general agreement that a dispute constitutes a case when two parties have adverse legal interests and a court can resolve the dispute by determining the parties’ rights.

A plaintiff facing a threat of injury from a defendant’s illegal conduct meets this threshold.  That plaintiff has an interest in preventing that injury from occurring, or at least an interest in reducing the risk of its occurrence. Thus, for example, if a factory’s emissions create a 10% chance that Paul, who lives next door to the factory, will develop lung cancer, Paul has a real interest in stopping the factory’s emissions even if there is a 90% chance that the emissions will not cause him to develop cancer. If the law forbids such emissions, a court may vindicate Paul’s interest by ordering the factory to cease from producing those emissions.

The same reasoning applies when the risk of injury is extremely low. If Paul faces only a 0.0001% chance, or even a 0.00001% chance, of developing cancer because of the factory’s emissions, he still has a real interest in stopping the factory’s emissions even though there is little chance that the emissions will harm him.

Of course, the smaller the risk, the greater likelihood the injury will not occur.  But the fact that the injury might not occur does not render the claim nonjusticiable; otherwise, federal courts would lack jurisdiction to hear any claims for prospective relief because all potential future injuries have some chance of not transpiring. Rather, it is the possibility that the injury might occur that creates the plaintiff’s interest rendering the case justiciable. The degree of risk goes to the intensity of the dispute, not whether it exists at all.

Courts have recognized a similar argument in concluding that there is no threshold requirement for the size of an injury (as opposed to the size of the risk of that injury occurring). They have held that both a plaintiff who alleges only 1¢ in harm and a plaintiff who alleges a $100,000 injury have a personal stake warranting invocation of the courts. A rational plaintiff’s will treat a 10% chance of a $500 injury the same as a 50% chance of a $100 injury, because both have an expected value of $50. Thus, if standing does not impose a minimum requirement for the size of the injury, it also should not impose a threshold for the likelihood of injury.

One might argue that the minimum risk requirement is necessary to limit courts to their historical role.  Historically, courts did not have the power to award relief for all threatened injuries. Instead, courts would enter an injunction only when the plaintiff faced a “probable ground of possible injury.”[3. John Mitford & Samuel Tyler, Mitford’s and Tyler’s Pleadings and Practice in Equity: A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill 106 (5th ed. 1890); accord John Mitford, A Treatise on the Pleadings in Suits in the Court of Chancery by English Bill 8 (2d ed. 1787).] But since the 1930s, the Court has held that Article III does not confine the judiciary to the traditional forms of equity. Thus, in Aetna Life Insurance Co. v. Haworth, the Court rejected the argument that federal courts lacked the constitutional power to issue declaratory judgments, explaining that Article III “did not crystallize into changeless form the procedure of 1789 as the only possible means for presenting a case or controversy.”3 Further, the reasons underlying standing are not the same as those underlying the limitations on injunctive relief.  The main reason for standing is to preserve separation of powers.  By contrast, the probable harm requirement at equity was motivated by the more functional desires to preserve judicial resources by refusing to issue injunctions except when necessary and to avoid placing unnecessary burdens on parties.

Another objection is that allowing standing based on any threat of injury will result in advisory opinions.  The argument is that the prohibition on advisory opinions forbids courts from hearing hypothetical cases, and to allow courts to hear claims alleging extremely-low-probability injuries is tantamount to allowing them hear hypothetical cases, since there is so little chance that the threatened harm will occur.

But low probability injuries are not hypothetical injuries.  Unlike with hypothetical injuries, resolving a claim based on a low probability of injury does have a real-world effect. Even when the threat of injury is extremely low, a judicial decision targeted at that threat is designed to reduce, or even remove, the threat. A person who faces a 0.005% chance of cancer because of a factory’s emissions has only a small chance of developing cancer from the emissions.  But the threat is still there, and an injunction ordering the factory to reduce its emissions will still reduce the plaintiff’s chance of developing cancer from those emissions.

The objection about advisory opinions is just one example of a broader concern that extending standing to low-probability injuries violates separation of powers.  The fear is that so greatly expanding the jurisdiction of the federal court could potentially lead to courts resolving policy matters more properly answered by the other branches.  On this view, courts should intervene only to vindicate the interests of individuals who suffer distinct, personalized injuries.  When society shares an undifferentiated injury, that group should resort to the political process.

But this understanding of the role of the courts does not demand the restriction on low-risk injuries.  Even for an injury that is unlikely to occur, different groups face different risks of suffering that injury. One group may face a low probability of injury, but that probability may still be substantially higher than the probability of injury faced by other individuals. For example, people who live in a town near high-tension power lines face a higher probability―though the probability is still low―of developing cancer from those power lines than those who live further away. Because of this difference in relative risk, the town residents constitute a discrete minority that should have access to the courts.

Moreover, even though everyone faces a risk of all injuries, those risks are not undifferentiated across people.  If the threatened injury is particularized, the risk of that injury is also particularized. Each plaintiff faces a personal interest in preventing the threatened injury. Just as a plaintiff who develops cancer as a result of tortious conduct that also affects thousands of others has suffered a personal injury, so too a plaintiff who faces a risk of cancer from that same tort has a personalized injury—the risk of that person developing cancer.

A separate objection is that expanding standing to all risks of injury would open the floodgates of litigation and overburden the federal dockets, because more people would have standing to bring cases.  Maybe.  But the increase in cases is unlikely to be substantial. Common sense and experience suggest that many people who already have standing to bring suit do not do so. Individuals often privately resolve their disputes, or they simply live with the wrong done to them because a lawsuit is not worth the cost. Moreover, those who are inclined to bring suit may be discouraged from bringing suit because courts are likely to dismiss their cases on the merits. To obtain an injunction, for example, a plaintiff must demonstrate that he faces a likelihood of suffering irreparable harm if relief is not immediately granted.  That showing will be hard to make if the probability of injury is low.

Although the minimum risk requirement should not be part of Article III, it might still have a role to play.  It arguably helps to avoid unnecessary judicial interference with the political branches, preserves judicial resources by limiting the number of potential plaintiffs, and promotes better decisionmaking by ensuring that interested parties—the ones who are in the best position to make strong arguments—are the ones who make it into court.  Courts can address these concerns through prudential rules limiting standing.

Under this prudential approach, a court would determine whether to hear a claim alleging a low risk of injury based on a number of factors, such as the plaintiff’s interest in having the case heard, the risk to separation of powers or federalism, and the amount of information available to the court to render decision. Courts should be more willing to intervene when the plaintiff has a significant interest at stake.   By contrast, courts should hesitate when judicial intervention threatens separation of powers or federalism.  Courts should also hesitate when the reason an alleged injury has a low probability of occurring is that it will not occur for a long time and therefore may be prevented by intervening events that would obviate the need for judicial intervention.  Similarly, courts should consider whether the smallness of the risk of injury will affect the quality of the decision that the court will render.  For example, a claim based on a small threat of a future injury might provide inadequate context for a decision if the reason for the low probability of harm is that there is a possibility of intervening events that will change how the injury will occur or the precise nature of the injury. These types of uncertainty about an injury make it difficult for a court to tailor its decision to remedy the harm in the least intrusive way.

Now, one might question the usefulness of switching to a prudential test if it still allows for courts to dismiss claims of low probability injury.  But there are at least two benefits to using a prudential test.  First, switching to a prudential test allows the legislature to determine when a risk is high enough to warrant judicial intervention.

Second, a prudential test would likely improve the law of justiciability.  The standard — whether the threat is “real” — is vague, and reasonable people can disagree on when it is met.  Courts also often must make their assessment without adequate information about the probabilities of harm. Doctors may agree, for example, that secondhand exposure to cigarette smoke increases the risk of developing cancer, but they do not agree on the precise amount of risk increase.  The vagueness of the standard together with the uncertainty about whether it has been satisfied forces judges to forego precise calculations of probabilities and instead to evaluate probability based on gestalt feelings.  This imprecision inevitably results in the influence of biases and other concerns such as separation of powers, federalism, efficiency, docket size, or some other concern.  Under the current approach, these factors are implicitly at work.  A prudential approach would invite courts to consider these factors explicitly. This explicit discussion would increase transparency in decisionmaking, lead to a more coherent law of standing because it would be based on the actually expressed reasons, and enable parties to offer arguments actually tailored to the court’s concerns.


F. Andrew Hessick, Associate Dean of Research and Faculty Development, Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.

This Editorial is based on the Article, F. Andrew Hessick, Probabilistic Standing, 106 Nw. U. L. Rev. 55 (2012).

  1. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937).
  2. 461 U.S. 95 (1983).
  3. 300 U.S. 227, 240 (1937) (quoting Nashville, Chattanooga & St. Louis Ry. v. Wallace, 288 U.S. 249, 264 (1933)) (internal quotation mark omitted).

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