Risky Standing: Deciding on Injury

Abstract

In cases ranging from environmental harms to mere data breach, courts have exhibited increasing disarray over the proper way to analyze standing based on the mere increased risk of further harm. A framework is needed. This Article aims to provide one. I begin by arguing three points about the appropriate way to analyze “probabilistic injury”: First, injury-in-fact is not a factual inquiry, but an irreducibly normative endeavor—that is, there is always a decision about what constitutes injury because what constitutes an “injury” reflects value judgments that cannot be reduced to (nonnormative) facts. Second, probabilistic standing presents particular difficulty because this decision must be made twice, first with respect to the threatened interest and then with respect to an interest in not having that first interest threatened. This explains why, for example, identity theft can be an injury while the increased risk of it may not be. Third, the appropriate way to characterize this interest is as an interest in not having an increased risk of harm to the primary interest from particular sources—such that the cost of needing to mitigate the risk from those sources is itself an injury. Once we recognize that two decisions must be made, we can sensibly ask the question: who decides whether there is a safety interest against risk from a particular source? Part II explains that, as a descriptive matter, courts generally rely on the judgment of the political branches—the executive and the legislature—concerning the second choice, about which increased risks constitute injury. Part III argues the normative claim that they do so for good reason: the political branches are best suited to make judgments about which sources of risk provide objective cause for concern, such that a response on the part of a private individual is reasonable, and that such a response constitutes injury.

Keywords: data breach, standing, injury in fact, Lujan, probabilistic injury, Spokeo, privacy, Pisciotta, Krottner, Reilly, Clapper, Article III, risk, threatened harm