The Supreme Court has held that a plaintiff can have Article III standing based on a fear of future harm, or fear-based injury. The Court’s approach to fear-based injury, however, has been unclear and inconsistent. This Note seeks to clarify the Court’s doctrine using principles from probability theory. It contends that fear-based injury should be governed by a substantial-risk standard that encapsulates the probability concept of expected value. This standard appears in footnote 5 of Clapper v. Amnesty International USA, a recent case in which the Court held that a group of plaintiffs lacked standing to challenge the constitutionality of a section of the Foreign Intelligence Surveillance Act of 1978. This Note begins by tracing three competing lines of doctrine within the Court’s jurisprudence on fear-based injury and analyzes them using probability theory, arriving at a tripartite framework. After applying this framework to Clapper, this Note concludes that footnote 5’s substantial-risk standard should govern fear-based injury. Finally, this Note argues that the substantial-risk standard should be informed by an expected-value inquiry and justifies this proposal through precedent, probability principles, and practical concerns.
Andrew C. Sand,
An Expected-Value Standard
for Fear-Based Injury
in Clapper v. Amnesty International USA,
Mich. L. Rev.
Available at: http://repository.law.umich.edu/mlr/vol113/iss5/3