48 Pages Posted: 9 Mar 2011
Date Written: March 8, 2011
Federal courts have long recognized their power under Article III to award prospective relief such as an injunction to prevent a threatened injury. But the Supreme Court has refused to recognize Article III standing to bring all claims of threatened injury. Instead, based on the concern that extending standing so broadly would threaten the separation of powers, the Court has held that a plaintiff has standing to challenge a threatened injury only if the risk of harm is real and the threatened harm is imminent. This Article challenges that doctrine. It argues that Article III does not create a threshold of risk for potential harms. Contrary to the Court’s view, imposing such a threshold actually undermines the powers of both the courts and Congress. It also results in incoherent and unpredictable decisions, because difficulties in applying the doctrine lead to courts basing their decisions not on the actual likelihood of injury, but instead on other considerations such as separation of powers and the fitness of the case for review. Nevertheless, recognizing that there may be reasons not to adjudicate particular claims alleging small risks of harm, the paper recommends that courts develop a prudential doctrine under which they may abstain from hearing such claims. Replacing the blanket prohibition on all low risk claims with this prudential approach would produce a more coherent body of law, and would promote both transparency and better decision-making by requiring courts to articulate the actual reasons for their decisions.
Suggested Citation: Suggested Citation
Hessick, F. Andrew, Probabilistic Standing (March 8, 2011). Northwestern University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1781138