Standing and Probabilistic Injury

68 Pages Posted: 8 Feb 2023 Last revised: 27 Nov 2023

See all articles by Curtis Bradley

Curtis Bradley

University of Chicago Law School

Ernest Young

Duke University School of Law

Date Written: October 24, 2023

Abstract

Standing to sue often turns on questions of probability. Public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of probabilistic standing to cover categories of cases that ask distinct questions, such as cases involving who is subject to a challenged action, on the one hand, and those involving whether a person subject to such an action is sufficiently likely to be harmed, on the other. Second, courts should not ask how probable elements of a plaintiff’s case must be in order to support standing, but rather who should decide whether a given probability is sufficient. Judges and parties struggle in litigation to assess the actual probability of occurrences, and in any event Article III of the Constitution provides no standard for how probable an injury must be to support a lawsuit. Third, any doctrinal probability threshold for standing would encounter a related problem, which is that the probability of an injury depends significantly on how that injury is framed. Which harms “count” for standing is thus a vital question in assessing the probability of injury, but Article III is an unlikely place to look for answers. Within certain constraints, courts should look instead to the underlying substantive law to define the relevant injuries for standing purposes. Finally, we contend that many of the concerns associated with probabilistic claims are better addressed through the law of remedies and prudential elements of the timing doctrines (mootness and ripeness) than through the constitutional law of standing.

Keywords: standing, probability, probabilistic standing, justiciability, TransUnion

Suggested Citation

Bradley, Curtis and Young, Ernest, Standing and Probabilistic Injury (October 24, 2023). Duke Law School Public Law & Legal Theory Series No. 2023-13, Michigan Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4350160 or http://dx.doi.org/10.2139/ssrn.4350160

Curtis Bradley

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Ernest Young (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8506 (Phone)

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