20 Pages Posted: 30 Jul 2021
Date Written: February 1, 2016
Generations of commentators have examined (and critiqued) standing doctrine. The fiercest clash has turned on the question of “injury”—specifically, what type of grievance is sufficient to merit court consideration. Defining “injury” is no easy task, and in recent years, substantial inquiry has focused on just what harms should qualify an individual as “injured.” Subjective fear? Lost aesthetic enjoyment? Increased risk of death? Increased risk of genetic crop contamination? Long-term hazards of climate change? And so on.
Surely, these debates are of great importance. Yet up to this point, judges and scholars have almost all assumed an “injury binary”: either an individual has received a hurt sufficient to qualify for standing, or she has not.
This Note rejects this binary, and instead argues for a third path: “fractional injury.” A fractional injury is one that, if manifest in a lone individual, would be insufficient to grant standing. Should multiple individuals experience this injury and band together as a group to demand relief, however, then their collective grievance would be sufficient to merit standing. The upshot of this approach would be a class of injuries for which “fractional standing” – the standing of the united fractions—would be recognized.
This Note offers the first systematic exploration—and defense—of fractional stand-ing. After briefly reviewing existing standing doctrine, the Note proceeds to illuminate the current “standing binary” and identify courts and commentators who have already gestured toward a notion of “fractional standing.” Here, I highlight several real-world cases, such as the D.C. Circuit’s prominent ruling in Natural Resources Defense Council (NRDC) v. E.P.A and the Supreme Court’s decision in Clapper v. Amnesty International.
Ultimately, though, my aim is less descriptive than normative, and so the balance of the Note argues that, irrespective of their current status, fractional injuries should be recognized going forward. Specifically, I argue that fractional standing would vindicate the core purposes of standing doctrine’s injury requirement—ensuring effective legal advocacy, dispensing constitutional justice, marshaling scarce resources, and preserving separate powers. I also assess and respond to several important objections.
Keywords: standing, environmental law, injury, fractional, risk, wiretapping
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