Standing Uncertainty: An Expected-Value Standard for Fear-Based Injury in Clapper v. Amnesty International USA

29 Pages Posted: 24 Jan 2015 Last revised: 13 Mar 2015

See all articles by Andrew Sand

Andrew Sand

University of Michigan Law School

Date Written: March 28, 2014

Abstract

The Supreme Court has held that a plaintiff can have Article III standing based on a fear of future harm, or fear-based injury. The Court’s approach to fear-based injury, however, has been unclear and inconsistent. This Note seeks to clarify the Court’s doctrine using principles from probability theory. It contends that fear-based injury should be governed by a substantial-risk standard that encapsulates the probability concept of expected value. This standard appears in footnote 5 of Clapper v. Amnesty International USA, a recent case in which the Court held that a group of plaintiffs lacked standing to challenge the constitutionality of a section of the Foreign Intelligence Surveillance Act of 1978.

This Note begins by tracing three competing lines of doctrine within the Court’s jurisprudence on fear-based injury and analyzes them using probability theory, arriving at a tripartite framework. After applying this framework to Clapper, this Note concludes that footnote 5’s substantial-risk standard should govern fear-based injury. Finally, this Note argues that the substantial-risk standard should be informed by an expected-value inquiry and justifies this proposal through precedent, probability principles, and practical concerns.

Keywords: standing, fear-based injury, chilling-effect injury, certainly impending, substantial risk, Clapper v. Amnesty International USA, expected value

JEL Classification: K10, K40

Suggested Citation

Sand, Andrew, Standing Uncertainty: An Expected-Value Standard for Fear-Based Injury in Clapper v. Amnesty International USA (March 28, 2014). 113 Mich. L. Rev. 711 (2015)., Available at SSRN: https://ssrn.com/abstract=2553487

Andrew Sand (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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