Standing and Probability
58 Pages Posted: 8 Feb 2023
Date Written: February 1, 2023
Standing to sue often turns on questions of probability. Public-law plaintiffs may struggle, for example, to show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, or consumers may sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. These sorts of “probabilistic standing” issues were at the center of the Supreme Court’s most important standing decision in at least a decade, TransUnion LLC v. Ramirez (2021). But they also crop up in a wider variety of cases than is commonly recognized. Since the 1980s, for example, courts have wrestled with suits by the beneficiaries of regulation to require more rigorous enforcement of environmental or civil rights laws, because it is nearly always uncertain whether government inaction caused the plaintiffs’ injuries or whether stepped-up enforcement would redress them. However the probabilistic standing problem is framed, commentators seem to agree that the Court’s current doctrine is a mess.
This article offers a framework for resolving a wide range of 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 to assess the actual probability of occurrences in litigation, and in any event Article III provides no standard for how probable an injury must be to support a lawsuit. Third, courts that attempt to set a probability threshold for standing 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
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