Standing and Probabilistic Injury
Standing to sue often turns on questions of probability. For example, 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 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.
Introduction
The Supreme Court’s docket continues to be preoccupied with issues of standing to sue. In the 2022–23 Term, for example, some of the Court’s most significant decisions—concerning, for example, affirmative action, student-loan forgiveness, immigration enforcement, and Indian affairs—had to address questions of standing, with varying results.1See Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (finding that a nonprofit organization had standing to challenge affirmative action policies); Dep’t of Educ. v. Brown, 143 S. Ct. 2343 (2023) (disallowing private-party challenge to student-loan forgiveness program due to lack of standing); Biden v. Nebraska, 143 S. Ct. 2355 (2023) (finding that the state of Missouri had standing to challenge student-loan forgiveness program); United States v. Texas, 143 S. Ct. 1964 (2023) (finding that the state of Texas lacked standing to challenge Biden administration policy regarding immigration enforcement); Haaland v. Brackeen, 143 S. Ct. 1609 (2023) (disallowing certain challenges to the Indian Child Welfare Act because of lack of standing to sue).
The 2023–24 Term similarly had a number of important standing cases.2See, e.g., Murthy v. Missouri, 144 S. Ct. 1972 (2024) (holding that states and social media users lacked standing to challenge government efforts to induce social media platforms to censor the plaintiffs’ speech); FDA v. Alliance for Hippocratic Medicine, 144 S. Ct. 1540 (2024) (holding that doctors opposed to abortion lacked standing to challenge the FDA’s approval of mifepristone, an abortion-inducing drug); Acheson Hotels, Inc. v. Laufer, 144 S. Ct. 18 (2023) (holding that case raising the constitutionality of “tester” standing had become moot).
This is unlikely to change any time soon. Just a few years ago, the Supreme Court decided what may be its most important standing decision in a generation—TransUnion LLC v. Ramirez.3TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (holding that some members of a class suing under the Fair Credit Reporting Act had standing but others did not, depending on the likelihood of actual injury as a result of a statutory violation). For commentary, see, for example, Cass R. Sunstein, Injury in Fact, Transformed, 2021 Sup. Ct. Rev. 349, 365 (2022) (stating that the Court’s “radical ruling” in TransUnion “offered [the Court’s] most elaborate and firm account of what kinds of injuries in fact are sufficient” under Article III of the Constitution).
Instead of settling the law of standing, however, TransUnion left in its wake a host of questions that are creating disagreements in the lower courts.
A central issue in the law of standing, directly implicated in TransUnion, is how the law should address situations in which a plaintiff’s injury is uncertain. When someone challenges actions that may injure them in the future, they must establish a likelihood that those injuries will in fact occur.4See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) (concluding that plaintiffs could not establish a sufficient likelihood that they would be injured by government surveillance).
Even when someone complains of present or past injuries, they must still demonstrate to the court’s satisfaction both that the defendant’s action is the likely cause of their injury and that the relief they request is likely to redress it.5See, e.g., Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167 (2000) (considering whether plaintiffs’ injuries were caused by defendant’s discharge of pollution into a waterway); Massachusetts v. EPA, 549 U.S. 497 (2007) (finding that, although future effects of climate change mitigation measures were uncertain, plaintiffs had alleged a sufficient probability that relief would redress their injury to some extent).
Some of these questions have now acquired a distinctive label—“probabilistic standing.”6See, e.g., F. Andrew Hessick, Probabilistic Standing, 106 Nw. U. L. Rev. 55 (2012); Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart and Wechsler’s the Federal Courts and the Federal System 119–23 (7th ed. 2015) [hereinafter Hart & Wechsler] (offering a section on “probabilistic harms”).
As one commentator notes, “[D]etermining when a claim is too remote or speculative to support standing has occupied substantial attention of the Supreme Court, perhaps more attention than any other question of justiciability.”7Hessick, supra note 6, at 57–58 (footnote omitted).
Not entirely surprisingly—given the critical tenor of much academic writing on standing—the doctrinal results have been weighed in the balance and found wanting.8See, e.g., Hart & Wechsler, supra note 6, at 123 (noting that “[t]he Court’s recent cases seem to vary in their willingness to treat probabilistic harms as a basis for granting standing,” and suggesting that nothing is “at play other than the Court’s own rough judgment about how realistic the threat of a contingent harm might be for the plaintiff in question”); Hessick, supra note 6, at 65, 101–02 (noting that “the limits on probabilistic standing have resulted in unpredictability in standing law” and that there is “an appearance that courts make standing decisions based on personal biases or considerations other than merely the size of risk”).
Issues of probability arise throughout public and private law litigation. Plaintiffs may challenge government policies relating to surveillance, environmental protection, or public health well before it is certain whether or how they will be affected by those policies.9See, e.g., Clapper, 568 U.S. at 401; Summers v. Earth Island Inst., 555 U.S. 488 (2009); Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010); E.T. v. Paxton, 41 F.4th 709 (5th Cir. 2022); Shrimpers & Fishermen of the RGV v. Tex. Comm’n on Env’t Quality, 968 F.3d 419 (5th Cir. 2020). See generally Christopher H. Schroeder, Rights Against Risks, 86 Colum. L. Rev. 495, 498 (1986) (observing that “the typical feature[] of risky actions associated with modern technology” is that “[t]he probability of risk to any individual is relatively small while its severity is substantial, perhaps fatal”).
Efforts by beneficiaries of regulation to compel the government to better enforce the law—concerning environmental protection, consumer safety, non-discrimination, and many other topics—often turn on probabilistic assessments of whether such enforcement would make a difference.10See, e.g., Allen v. Wright, 468 U.S. 737 (1984) (denying standing of parents of Black children in public schools to challenge Internal Revenue Service’s allegedly insufficient enforcement of restrictions on charitable giving to discriminatory private schools); Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003) (upholding standing of consumers to challenge the Department of Agriculture’s failure to ban consumption of livestock possibly infected with mad cow disease); Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279 (D.C. Cir. 2007) (denying standing to challenge agency rules on auto tire pressure monitoring).
In private litigation, standing to pursue products liability claims may depend on assessing the degree of risk that an alleged product defect presents.11See, e.g., Kerin v. Titeflex Corp., 770 F.3d 978, 985 (1st Cir. 2014) (denying standing to sue based on uncertainty that future risk of harm would ever materialize); In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 751 (7th Cir. 2011) (upholding standing to sue manufacturer of a toy based on future risk of injury to children).
Standing to sue for data breaches or false credit reporting may require establishing the likelihood that the breach or false reporting will cause harm.12See, e.g., Hammond v. Equifax Info. Servs., LLC, 52 F.4th 669 (6th Cir. 2022); Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017); Hutton v. Nat’l Bd. of Exam’rs, 892 F.3d 613 (4th Cir. 2018); In re Adobe Sys., Inc. Priv. Litig., 66 F. Supp. 3d 1197, 1211–16 (N.D. Cal. 2014); Daniel J. Solove & Danielle Keats Citron, Risk and Anxiety: A Theory of Data-Breach Harms, 96 Tex. L. Rev. 737 (2018).
Suits relating to unfair competitive behavior (including false advertising and trademark infringement) frequently turn on probabilistic claims about the likely effect of such behavior on the decisions of potential customers.13See, e.g., Ford v. Nylcare Health Plans of the Gulf Coast, Inc., 301 F.3d 329 (5th Cir. 2002) (false advertising claim under the Lanham Act); Allbirds, Inc. v. Giesswein Walkwaren AG, No. 19-cv-05638, 2020 WL 6826487 (N.D. Cal. June 4, 2020) (same); Thermolife Int’l LLC v. Am. Fitness Wholesalers LLC, No. CV-18-04189-PHX-JAT, 2019 WL 3840988 (D. Ariz. Aug. 15, 2019) (same). Courts sometimes apply presumptions about likely harm. See, e.g., TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 827 (9th Cir. 2011) (“There are good reasons to presume that a competitor bringing a false advertising claim has suffered a commercial injury.”).
This Article offers a framework for resolving a wide range of probabilistic standing issues—some emerging in TransUnion’s wake, others having frustrated scholars for a generation.14See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (holding that a victim of past police abuse lacked standing to seek an injunction because he could not show sufficient likelihood that he would be subject to such conduct in the future).
Our core claim is that courts and commentators tend to ask too much of standing doctrine in probabilistic cases.
First, courts and commentators sometimes seek a unified theory of probabilistic standing to cover categories of cases that actually ask distinct questions.15A similar problem afflicts thinking about the doctrine of third-party standing. See Curtis A. Bradley & Ernest A. Young, Unpacking Third-Party Standing, 131 Yale L.J. 1 (2021).
These categories include cases asking who is subject to a challenged action, on the one hand, and cases asking whether a person subject to such an action is sufficiently likely to be harmed, on the other. Courts tend to reach different outcomes in these two sorts of cases, although they rarely acknowledge the difference or explain why it matters. A third category of probabilistic cases concerns uncertainties about whether the defendant’s action has caused or will cause the plaintiff’s injury (or whether the requested relief can redress it). These uncertain causation cases tend to turn on considerations involving separation of powers and the role of the jury, rather than assessments of probability alone.
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. Determining which institution has primary responsibility to make a particular judgment is a more familiar and tractable problem for courts.16See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 158 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (posing the comparative competence of different institutions to decide particular sorts of questions as the central issue for jurisprudence).
Courts that attempt to set a probability threshold for standing encounter a third and related problem, which is that the probability of an injury depends significantly on how that injury is framed. A person whose private information has been wrongly disclosed through a data breach, for instance, may wish to sue before any concrete consequences arise based on a concern about future harm. That harm may seem remote, but if being wrongfully subjected to a risk of harm in the future counts as harm in itself, then the plaintiff’s present injury is certain. Or she may experience other present harms, such as anxiety or the need to undertake costly precautions against identity theft. 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 relatively modest 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. There is no reason, for example, to develop a mini-ripeness doctrine assessing an injury’s “imminence” for standing purposes when existing ripeness jurisprudence is better suited to the task. Asking standing doctrine to do less work, we argue, will make it more coherent and predictable. Our framework is consistent with TransUnion, which we contend some courts and commentators have read too expansively.
Many circumstances conspire to make consistency in standing doctrine elusive. The stakes in standing cases—access to court for the plaintiff, a dismissal at the threshold for defendants—create powerful incentives to raise the issue in a vast number of cases and explore every ambiguity or inconsistency in the doctrine. At the same time, standing always appears in cases that are fundamentally about something else—the merits—and we accept the widespread view that standing principles can never exist wholly apart from the substantive law governing that vast and diverse range of cases. Moreover, the Supreme Court’s recent standing decisions reflect not one consistent voice but an assortment of Justices thinking about standing from a variety of perspectives. No one should expect the cases to neatly fall into line. But some coherence is still possible by focusing on the core principles and underlying goals of the doctrine.
Unlike much valuable writing about standing, we do not aim to rethink the law of standing from the ground up or suggest a radically different approach. Our aim instead is to develop a coherent account of standing doctrine that is derived from, and largely consistent with, the existing case law.17Cf. Thomas W. Merrill, The Landscape of Constitutional Property, 86 Va. L. Rev. 885, 890 (2000) (“The approach is thus normative, but the judgments are constrained by the path dependency of common-law constitutionalism.”); Henry Paul Monaghan, Supremacy Clause Textualism, 110 Colum. L. Rev. 731, 790 (2010) (“Any acceptable theory of constitutional adjudication should . . . have two qualities: (1) It must be normatively acceptable and (2) It must be able to account for most (though not necessarily every last bit) of the current constitutional order.”).
Such an account, we hope, will guide courts and help lawyers predict outcomes in future cases. Consistent with this approach, we accept the requirement of an “injury in fact,” something that has sharply divided commentators but has repeatedly been endorsed by the Supreme Court as a bedrock of modern standing law.18Compare, e.g., Cass R. Sunstein, What’s Standing After Lujan?: Of Citizen Suits, Injuries, and Article III, 91 Mich. L. Rev. 163, 166–67 (1992) (arguing that “the very notion of ‘injury in fact’ is not merely a misinterpretation of . . . Article III but also a large-scale conceptual mistake” (footnote omitted)), with TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (“[A] plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent . . . .”), and Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (“The plaintiff must have (1) suffered an injury in fact . . .”); id. at 350–51 (Ginsburg, J., dissenting) (agreeing with the majority’s statement of the basic rules and dissenting only as to its construction of the plaintiff’s complaint).
We maintain that this requirement restricts standing considerably less than the commentary sometimes suggests.
Any effort to render a field of doctrine coherent, however, is bound to identify mistakes, inconsistencies, and points in need of reform. We contend that several leading Supreme Court decisions have been read to decide far more than they actually did. For example, many courts and commentators have treated Clapper v. Amnesty International U.S.A.19Clapper v. Amnesty Int’l USA, 586 U.S. 398 (2013).
as the leading case on probabilistic standing,20See sources cited infra note 119.
but we see it as relevant only in limited circumstances in which uncertainty over whether the plaintiffs have been subjected to the policy they challenge cannot readily be resolved. We also contend that the “remedial standing” rule, which requires plaintiffs to establish standing separately for each remedy sought, is a misinterpretation of the decision in City of Los Angeles v. Lyons;21City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
that case should instead be understood as recognizing that the sorts of injuries that suffice for standing may vary depending on the remedy sought.22See id. at 109 (holding that the past injury that might suffice to support a claim for damages would not create standing in a suit for an injunction); see also TransUnion, 141 S. Ct. at 2210 (stating that a risk of future injury would create standing for a claim to injunctive relief, but not for a suit seeking only damages).
In other areas, the Supreme Court has expressed uncertainty that we endeavor to clear up. The Court and some commentators have doubted whether a meaningful difference divides standing and ripeness,23See, e.g., Trump v. New York, 141 S. Ct. 530, 535–36 (2020) (per curiam); Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014).
but we explain why that distinction is valuable. Accordingly, our most far-reaching proposal would largely abolish a freestanding “imminence” requirement for standing because the ripeness doctrine better serves the same function by asking questions that are more manageable for courts. Each of these positions is to some extent inconsistent with what the Court has said in certain cases, but we contend that they largely align with—and better explain—what the Court has actually done.
We begin, in Part I, with an overview of the probabilistic injury problem and an outline of our proposed framework. Part II addresses cases in which it is uncertain whether plaintiffs are exposed or subject to the allegedly unlawful practices they challenge. Part III considers plaintiffs who are subject to such practices but cannot establish with certainty that they will be harmed or when such harm will occur. This Part is the heart of our analysis, and it deals with the extent to which Article III permits Congress to render certain aspects of probabilistic harms actionable by statute. Part IV considers the role of both the law of remedies and the timing doctrines, especially ripeness, in relation to standing.
I. Reframing Probabilistic Standing
The term “probabilistic standing” is sometimes used to denote a relatively narrow set of cases that focus on how likely an injury must be to support litigation in federal court.24See, e.g., Hart & Wechsler, supra note 6, at 119–22 (discussing three cases raising the question of “probabilistic harms” as injury in fact); E.T. v. Paxton, 41 F.4th 709, 715 (5th Cir. 2022) (describing probabilistic standing as standing that is premised on “an increased risk that equally affects the general public”); Elec. Priv. Info. Ctr. v. EPA, 892 F.3d 1249, 1255 (D.C. Cir. 2018) (referring to probabilistic standing as “risk-based standing”).
The scope of the issue is, in fact, much broader. Whenever standing to sue under Article III is contested, the dispute typically involves whether the plaintiff’s injury is the sort that counts for Article III purposes, whether that injury is sufficiently likely to occur, or whether the causal link between that injury and the defendant’s conduct suffices to establish traceability and redressability.25Prudential standing arguments raise somewhat different problems. See Bradley & Young, supra note 15, at 20–21.
Issues of likelihood and causation are probabilistic on their face. And because the probability of an injury varies according to how that injury is defined, the question of what injuries count is inextricably linked to probability problems. One cannot talk about probabilistic standing without touching on the most basic issues in Article III standing doctrine.
A. Injury in Fact and the TransUnion Case
Standing’s basic catechism is familiar: To satisfy the “irreducible constitutional” requirements for standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”26Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)); accord Dept. of Educ. v. Brown, 143 S. Ct. 2343, 2351 (2023).
Injury in fact requires “ ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ”27Spokeo, 578 U.S. at 339 (quoting Lujan, 504 U.S. at 560).
The injury need not be large; as one court of appeals recently put it, “[a] concrete injury need be only an ‘identifiable trifle.’ ”28Salcedo v. Hanna, 936 F.3d 1162, 1167 (11th Cir. 2019) (quoting United States v. Students Challenging Regul. Agency Procs. (SCRAP), 412 U.S. 669, 689 n.14 (1973)).
Many scholars have noted that the case law’s references to “a legally protected interest” or a “judicially cognizable injury”29See, e.g., Lujan, 504 U.S. at 563 (stating that “the ‘injury in fact’ test requires . . . an injury to a cognizable interest” (quoting Sierra Club v. Morton, 405 U.S. 727, 734 (1972)); Allen v. Wright, 468 U.S. 737, 754 (1984) (holding that a general claim of stigmatic injury whenever the government discriminates against a member of one’s racial group was not “judicially cognizable”).
establish that what counts as injury in fact is a legal question as well as a factual one.30See, e.g., Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 640 (2006); Sunstein, After Lujan, supra note 18, at 189.
In Spokeo, Inc. v. Robins, the Supreme Court explained that “particularized” and “concrete” are separate concepts. The former means that the injury “must affect the plaintiff in a personal and individual way,” and this can be true even when a large number of people suffer the same injury.31Spokeo, 578 U.S. at 339 & n.7 (quoting Lujan, 504 U.S. at 560 n.1); see also FEC v. Akins, 524 U.S. 11, 23–25 (1998) (elaborating on this distinction).
The latter element, concreteness, has proven trickier to define. The Court has explained that “ ‘[c]oncrete’ is not . . . necessarily synonymous with ‘tangible,’ ” but a concrete injury “must be ‘de facto’; that is, it must actually exist” and be “ ‘real,’ and not ‘abstract.’ ”32Spokeo, 578 U.S. at 340 (quoting De Facto, Black’s Law Dictionary 506 (10th ed. 2009), Webster’s Third New International Dictionary 472 (1971), Random House Dictionary of the English Language 305 (1967)).
The Justices have divided, however, over exactly how “real” an injury must be, and in particular whether a purely legal injury can suffice.33See, e.g., TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021).
The Justices grappled with these concepts at some length in TransUnion LLC v. Ramirez.34Id.
The case involved the Fair Credit Reporting Act (FCRA), which requires consumer reporting agencies to accurately report information about individuals.3515 U.S.C. § 1681e(b); see also Richard L. Heppner, Jr., Statutory Damages and Standing after Spokeo v. Robins, 9 ConLawNOW 125, 129 (2018) (“[O]n its face, the FCRA allows consumers to recover statutory damages for willful noncompliance with an FCRA requirement relating to them—even if the noncompliance did not materially harm them.”).
A class of 8,185 consumers alleged that a credit reporting agency erroneously included an alert in their files that the consumer’s name matched a watch list for terrorists and other serious criminals maintained by the Treasury Department’s Office of Foreign Assets Control (OFAC). Mr. Ramirez, a named plaintiff, was denied a loan to purchase a car by an auto dealership based on a false OFAC alert. For 1,853 of the class members, the complaint alleged that TransUnion provided misleading credit reports to third-party businesses. For the remaining 6,332 class members, the erroneous information was included in their credit reports but not provided (during the class period) to any third parties.36TransUnion, 141 S. Ct. at 2201–02.
The FCRA conferred a right to sue for statutory damages on all of these persons.3715 U.S.C. § 1681n(a).
The Court, however, distinguished between (a) Mr. Ramirez, who suffered consequential injury from the erroneous report; (b) 1,853 class members, who could claim an intangible injury to their reputation from distribution of the erroneous OFAC alert but not any identifiable consequences; and (c) 6,332 class members, who could show only a violation of their statutory right not to have the erroneous information included in their file. The Court held that Ramirez and the 1,853 class members had “actual” injuries under Article III, but the largest group did not.38TransUnion, 141 S. Ct. at 2208–13.
TransUnion considered both which injuries count and how probable those injuries have to be under Article III. Not all phenomena that people experience as harmful count for standing, and courts must make legal judgments about which injuries suffice.39See Sunstein, After Lujan, supra note 18, at 188–89; William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 231–34 (1988).
All of the TransUnion plaintiffs had incorrect information in their credit files kept by the defendant, violating each plaintiff’s legal rights under the FCRA, but only Ramirez had experienced any consequences on account of this legal violation. The Court said that purely legal violations did not amount to “actual” injury, and it distinguished between plaintiffs whose tainted credit files had been accessed by third parties and plaintiffs whose files had not been accessed. The closest analogous injury recognized at common law was reputational harm under the tort of defamation, the majority reasoned, and this harm is actionable only when damaging information is disseminated to third parties.40TransUnion, 141 S. Ct. at 2208–09, 2213–14.
The probability question arose because the TransUnion plaintiffs argued that simply having wrong information in their files created a risk of reputational harm (and consequential damage) down the line. The Court rejected this argument, holding that, in a suit for damages, “the mere risk of future harm, standing alone, cannot qualify as a concrete harm—at least unless the exposure to the risk of future harm itself causes a separate concrete harm.”41Id. at 2210–11 (emphasis in original).
Only harm that has already materialized, the Court suggested, amounts to concrete injury in fact necessary to support standing to seek damages in federal court.42Id. at 2211.
The injury-in-fact requirement remains quite controversial in the academy.43Compare, e.g., James E. Pfander, Standing, Litigable Interests, and Article III’s Case-or-Controversy Requirement, 65 UCLA L. Rev. 170, 204–12 (2018) (arguing that contemporary standing jurisprudence is inconsistent with the Founding Era history), with Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?,102 Mich. L. Rev. 689, 732 (2004) (“[S]tanding doctrine has a far longer history than its modern critics concede.”); see also Fallon, Justiciability and Remedies, supra note 30, at 638 (arguing that the injury in fact rule “has created needless confusion” and should be abandoned).
Critics have emphasized that injury in fact emerged as a constitutional requirement for standing only in the last half-century, beginning with the Court’s 1970 decision in Data Processing.44Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150 (1970).
Prior to that decision, the Court had applied a legal injury test turning on whether the underlying law invoked by the plaintiff conferred a legal right to sue.45Elizabeth Magill, Standing for the Public: A Lost History, 95 Va. L. Rev. 1131, 1136–39 (2009).
Data Processing evidently meant “to simplify and liberalize the standing inquiry” by making “[l]ayman’s injury . . . rather than legal or ‘lawyer’s’ injury . . . the linchpin.”46Gene R. Nichol, Jr., Justice Scalia, Standing, and Public Law Litigation, 42 Duke L.J. 1141, 1154 (1993); see also Magill, supra note 45, at 1162–63; Kenneth Culp Davis, The Liberalized Law of Standing, 37 U. Chi. L. Rev. 450, 450, 452–53 (1970).
But as Congress enacted environmental, consumer protection, and other federal regulatory statutes with citizen suit provisions expressly authorizing private lawsuits, the factual injury requirement came to be seen as unduly restricting Congress’s power.47E.g., Sunstein, After Lujan, supra note 18, at 190–92; Nichol, supra note 46, at 1160–62.
Critics have typically argued that Article III should be satisfied whenever the plaintiff has a valid cause of action—a version of the old legal injury test.48E.g., Fletcher, supra note 39; Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 Yale L.J. 425 (1974); see also Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1122 (11th Cir. 2021) (Newsom, J., concurring) (adopting this view as “a far more natural and straightforward reading of the word ‘Case’ than one that turns on the existence of an ‘injury in fact’ ”). Some scholars and judges who have argued for abandoning the injury in fact requirement would impose standing limitations based on Article II of the Constitution—that is, limitations that would prevent Congress from delegating to private parties the executive branch’s enforcement authority. Sierra, 996 F.3d at 1132–37; Jonathan H. Adler, Standing Without Injury, Wake Forest L. Rev. (forthcoming 2024). See also, e.g., Tara Leigh Grove, Standing as an Article II Nondelegation Doctrine, 11 U. Pa. J. Const. L. 781 (2009).
Academic frontal assaults on the injury-in-fact requirement have, however, gained little traction at the Supreme Court. In recent years, all the Justices signed on in various opinions to the standing doctrine as articulated in the modern case law, including the injury-in-fact requirement. Moreover, the differences between the Justices over application of the doctrine are often exaggerated. It is noteworthy, for example, that all the Justices agreed in TransUnion that there was standing for class members as to whom false reports had been submitted to third parties. In one of the student loan-forgiveness cases from 2023, the Court was unanimous in applying the modern standing framework, despite being divided in a companion case about the merits of the dispute.49See Dep’t of Educ. v. Brown, 143 S. Ct. 2343 (2023). For the Court’s division over the merits, see Biden v. Nebraska, 143 S. Ct. 2355, 2355–56 (2023).
We thus accept in this Article the basic requirement of injury in fact, as well as the principle from Lujan and TransUnion that the Constitution constrains—to some meaningful degree—Congress’s authority to create standing by conferring statutory rights to sue. Our exploration of the probabilistic injury problem proceeds within that framework. As will be evident, we read the cases to afford Congress considerably more discretion and flexibility than is sometimes appreciated. We contend that the significant challenges that undeniably exist within standing doctrine can best be handled through a more nuanced revision of existing principles rather than a wholesale reinvention of the jurisprudence.
B. The Probability Problem
Originally, the phrase “probabilistic standing” described a particular scenario aggregating large numbers of persons or incidents to establish a statistical likelihood of some injury to at least one plaintiff, even though it might be impossible to be sure which one. In Summers v. Earth Island Institute, for example, a group of environmental organizations challenged new Forest Service regulations exempting certain small fire-rehabilitation and timber-salvage projects from a notice, comment, and appeal process employed by the Service for more significant land management decisions.50Summers v. Earth Island Inst., 555 U.S. 488 (2009).
Plaintiffs had initially challenged a particular decision, the Burnt Ridge Project, and they established standing by showing that one of the plaintiff organizations’ members had repeatedly visited the Burnt Ridge site and had imminent plans to do so again in the future.51See id. at 494 (“The Government concedes this was sufficient to establish Article III standing with respect to Burnt Ridge.”).
Things got interesting, however, when the plaintiffs settled their dispute with regard to that particular project but wished to continue their challenge to the general regulation exempting such small decisions from the Service’s prior procedural obligations. Writing for the majority, Justice Scalia denied that “when a plaintiff has sued to challenge the lawfulness of certain action . . . but has settled that suit, he retains standing to challenge . . . the regulation in the abstract . . . apart from any concrete application that threatens imminent harm to his interests.” Allowing such an abstract suit, he explained, “would fly in the face of Article III’s injury-in-fact requirement.”52Id.
In so holding, the Court in Summers rejected what it dubbed a “probabilistic standing” argument advanced by Justice Breyer’s dissent. Breyer thought that the plaintiff organizations had shown that they were virtually certain to have some members affected by some wrongful timber sales at some point in the future. After all, he noted, “[t]he Complaint alleges, and no one denies, that the organizations, the Sierra Club for example, have hundreds of thousands of members who use forests regularly across the Nation for recreational, scientific, esthetic, and environmental purposes.”53Id. at 506–07 (Breyer, J., dissenting).
In other words, although the plaintiffs could not establish which members would be affected by the next allegedly unlawful timber sale, some member of at least one of the organizations would have the requisite contact with an allegedly unlawful act by the Service. Because the Forest Service’s rules change applied so broadly, and the plaintiffs had so many members tromping about in virtually all the nation’s national forests, Breyer concluded that standing was certain even without knowing where or when the next timber sale would take place.54The D.C. Circuit accepted a similar argument to Justice Breyer’s in Nat. Res. Def. Council v. EPA, 464 F.3d 1 (D.C. Cir. 2006). In that case, a large membership organization challenged an EPA rule regulating ozone-depleting chemicals. The court of appeals found standing because, even accepting a conservative estimate that “[t]he lifetime risk that an individual will develop nonfatal skin cancer as a result of EPA’s rule is about 1 in 200,000,” one could “infer from the statistical analysis that two to four of NRDC’s nearly half a million members will develop cancer as a result of the rule.” Id. at 7. For a more recent lower court decision finding standing based on similar reasoning, but with a different ideological valence, see Alliance for Hippocratic Med. v. FDA, 78 F.4th 210 (5th Cir. 2023). In that case, groups of physicians opposed to abortion challenged the Food and Drug Administration’s approval of the pregnancy-terminating drug mifepristone. The Fifth Circuit upheld the plaintiffs’ standing in part on the statistical likelihood that they would encounter women needing emergency medical care as a result of complications from using the drug. Id. at 212–13. See also Jonathan H. Adler, The Good and Bad of the Fifth Circuit’s Abortion Pill Ruling, Volokh Conspiracy (Apr. 13, 2023, 11:53 PM), https://reason.com/volokh/2023/04/13/the-good-and-bad-of-the-fifth-circuits-abortion-pill-ruling [perma.cc/V49R-KFF5]. The Supreme Court reversed on the ground that “federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences.” FDA v. Alliance for Hippocratic Medicine, 144 S. Ct. 1540, 1559 (2024). The Court thus had no occasion to consider the probabilistic aspect of the Fifth Circuit’s standing argument.
The Summers dissent presented a particularly explicit instance of standing based on probabilistic assessments, but similar difficulties occur in a wide range of more familiar contexts. Persons wishing to challenge government surveillance may be uncertain whether they have actually been spied upon.55See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).
Individuals who have bought a car with a defective component may not know when or whether that component will fail—or whether and how badly such failure might injure them.56See, e.g., Cole v. Gen. Motors Corp., 484 F.3d 717 (5th Cir. 2007).
Persons exposed to a hazardous chemical or unsafe food products may not know whether such exposure will actually result in injury.57See, e.g., Baur v. Veneman, 352 F.3d 625 (2d Cir. 2003).
Victims of police abuse may have a hard time showing that they are likely to be subjected to abusive policies again.58See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
Commentators argue that probabilistic approaches to these sorts of problems are “necessary to address risks that pose concrete injuries to many people,”59Bradford Mank, Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 Ecology L.Q. 665, 715 (2009). But see Heather Elliott, The Functions of Standing, 61 Stan. L. Rev. 459, 504–06 & n.222 (2008) (criticizing this sort of reasoning and noting that, if enough large membership groups band together, they would effectively be able to challenge any failure to enforce the law).
and the lower courts have sometimes—but not always—accepted them.60See Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1163–64, 1163 n.7 (11th Cir. 2008). In that case, the Eleventh Circuit upheld a state NAACP organization’s standing to challenge a Florida voter registration statute by calculating that the organization likely had 200 members subject to the statute, the statute allegedly rejected 2% of minority registrants, and thus at least one member was 98% certain to be rejected under the law. “Human fallibility being what it is,” the court said, “someone is certain to get injured in the end.” Id.
Probability problems are not limited to the injury prong of standing doctrine. Consider Allen v. Wright,61Allen v. Wright, 468 U.S. 737 (1984).
in which parents of black children enrolled in public schools challenged the Internal Revenue Service’s failure to enforce rules making donations to private schools engaged in race discrimination non-tax deductible. The Court had little problem concluding that the plaintiffs were injured by the slow pace of desegregation in their public schools. However, the Court was unwilling to accept the plaintiffs’ causation theory tracing that injury to inaction by the IRS.62Id. at 756–57.
Lax enforcement by the IRS, the plaintiffs said, undermined public desegregation efforts by effectively encouraging donations to private schools, thereby allowing those schools to charge lower tuition and encourage white flight.63Id. at 745.
That theory depended on a large number of intervening decisions by third parties not before the court—donors, private school administrators, parents of white children—that were to at least some degree speculative.64See id. at 759.
Those independent variables precluded the conclusion that plaintiffs’ injuries were definitively traceable to the IRS’s conduct and created doubt as to whether ordering the IRS to change its enforcement practices would redress the plaintiffs’ injury.65Murthy v. Missouri, 144 S. Ct. 1972 (2024), decided as this Article was going to press, raised a similar question. The plaintiffs sued government entities for allegedly inducing various social media platforms to exclude or downgrade the plaintiffs’ speech. But the Court held that they lacked standing because they had not adequately shown that the government defendants’ actions actually caused any censorship of their speech by the private platforms, or that such an effect was likely to occur in the future. See id. at 1987–96.
Similar problems arise when it is uncertain whether a product defect or chemical exposure caused a tort plaintiff’s injury, or when plaintiffs ask a court to order a regulatory agency to regulate practices that may cause long-term environmental harms. Or one may be confident that enforcement of a particular law or policy would cause injury, but it may be uncertain whether or when that law or policy will be enforced.66See, e.g., Poe v. Ullman, 367 U.S. 497 (1961) (declining to hear a challenge to Connecticut’s contraceptive ban because state law enforcement authorities had for years declined to enforce it).
These problems of probabilistic causation and enforcement are important, and we hope to address them in future work. But because we view them as requiring somewhat different doctrinal solutions, our principal focus here remains on probabilistic harms and the extent to which they can satisfy the core requirement of injury in fact.
Probabilistic injury is not just—or even primarily—an issue in the law of standing. Whether injury will occur in the future, or whether the defendant’s action caused the plaintiff’s past or ongoing injury, is also a question both on the merits (is the defendant liable to the plaintiff?) and at the remedial stage (can the plaintiff show a sufficient likelihood of harm to justify a preventive injunction?). This overlap requires some coordination between standing doctrine and the substantive and remedial law, and sometimes between different institutions. For example, standing is a threshold issue decided by the judge, but a definitive standing ruling that the defendant’s conduct actually did injure the plaintiff could preempt the jury’s prerogative to decide the merits. Conversely, established doctrines limiting the availability of injunctions to prevent harms may adequately deal with many concerns about probabilistic future injuries, without having to reinvent the wheel in the context of standing doctrine.
C. How to Assess Probabilistic Injury (and How Not to)
Article III standing doctrine combines three sets of underlying imperatives and values. The first is historical continuity. The text of Article III gives courts relatively little to work with: it speaks to “cases,” “controversies,” and “judicial power.”67See, e.g., Honig v. Doe, 484 U.S. 305, 340 (1988) (Scalia, J., dissenting) (explaining that Article III’s terms “have virtually no meaning except by reference” to the “traditional, fundamental limitations upon the powers of common-law courts”).
The Justices have long said, however, that “[i]n endowing this Court with ‘judicial Power’ the Constitution presupposed an historic content for that phrase,”68Coleman v. Miller, 307 U.S. 433, 460 (1939) (Frankfurter, J., dissenting); see also Ernest A. Young, Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law, 58 Wm. & Mary L. Rev. 535, 572 (2016).
confining federal jurisdiction to “cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.”69Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998)).
The Court has combined originalist and traditionalist approaches to this history, and it has supplemented historical constraints grounded in common law practice with other concerns.70See, e.g., Flast v. Cohen, 392 U.S. 83, 95–97 (1968) (noting the importance of the common law but also that American traditions are more restrictive of advisory opinions); Ernest A. Young, Standing, Equity, and Injury in Fact, 97 Notre Dame L. Rev. 1885, 1893–96 (2022) (discussing the Court’s approach to history in standing cases).
In general, the upshot has not been to lock in particular practices existing at the Founding—for example, no one thinks that Article III requires federal courts to retain the common law forms of action or to prevent significant innovations such as the class action. Rather, the Court’s historical analysis has tended to require that modern litigation simply retain certain basic elements that have characterized the core of Anglo-American justice.
Historical considerations coexist in standing jurisprudence with separation of powers and prudential concerns. For many years, the Court has insisted that “[t]he ‘case or controversy’ requirement . . . defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.”71Allen v. Wright, 468 U.S. 727, 750 (1984) (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471–76 (1982)). For a recent emphasis by the Court on this point, citing Allen, see United States v. Texas, 143 S. Ct. 1964 (2023).
The Court in TransUnion reaffirmed this imperative, opining that “the concrete-harm requirement is essential to the Constitution’s separation of powers” because “[a] regime where Congress could freely authorize unharmed plaintiffs to sue defendants who violate federal law not only would violate Article III but also would infringe on the Executive Branch’s Article II authority.”72TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2207 (2021) (emphasis in original).
More broadly, standing requirements protect both of the political branches by limiting the courts’ occasions to exercise the power of judicial review.73See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013); Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996) (noting that standing doctrine’s “separation-of-powers component . . . keeps courts within certain traditional bounds vis-à-vis the other branches”).
Finally, separation of powers considerations shade into institutional prudence in standing doctrine, which expresses “the proper—and properly limited—role of the courts in a democratic society.”74Allen, 468 U.S. at 750 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Prudential rationales are not limited to the so-called prudential doctrines, such as limits on third-party standing. They also underpin constitutional doctrines like injury in fact. See Bradley & Young, supra note 15, at 18–19.
These concerns caution courts to act with restraint in order to preserve their legitimacy.75See Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. Rev. 1, 29 (1984); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 169–70 (1803) (acknowledging that “any legal investigation of the acts of [executive] officers [is] peculiarly irksome,” and that “[t]he province of the court, is, solely, to decide on the rights of individuals”).
They also encourage courts to withhold decisions in circumstances where they may not be in a position to issue a sufficiently informed decision.76See, e.g., Baker v. Carr, 369 U.S. 186, 204 (1962) (stating that standing assures that plaintiff has “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions”).
As Professor Fallon has explained, “A specific and concrete injury helps frame issues in a factual context suitable for judicial resolution,” limits “the scope of a judicial decision,” and promotes the “adverse interests and arguments [that] sharpen ‘the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ ”77Fallon, Lyons, supra note 75, at 13–14 (quoting Baker, 369 U.S. at 204); see also Samuel L. Bray, All is Not Well with the Preliminary Injunction 35 (Jan. 23, 2024) (unpublished manuscript) (on file with authors) (“[T]he entire theory of our judicial system is built on the case—on the value of fact-specific adjudication and party-specific judgments.”).
As we will see, these concerns frequently constrain the timing of litigation as well as its permissibility.
This mix of historical continuity, separation of powers concerns, and institutional prudence complicates any effort to construct a straightforwardly originalist jurisprudence of standing. Orienting the doctrine around history only—or focusing solely on separation of powers or prudential matters—would require rejecting a great deal of precedent, something that the Court has understandably been unwilling to do. Nor would it be consistent with the Founding generation’s decisions to rely on the common law and empower Congress, decisions that allowed for considerable flexibility.78See generally Thomas H. Lee, Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787–92, 89 Fordham L. Rev. 1895 (2021).
Thinking of these three elements in combination helps explain why the Summers majority rejected Justice Breyer’s argument for probabilistic standing. The argument relied on the law of large numbers: Outcomes that may be merely probable in isolation become nearly certain to occur if the experiment is tried a large number of times.79See, e.g., Jeffrey S. Rosenthal, Struck by Lightning: The Curious World of Probabilities 23–25 (2006) (discussing the law of large numbers).
If injury is simply a formal requirement grounded only in history, it is hard to see why Breyer was wrong to find it met in Summers. The large number of members in the plaintiffs’ organizations, the allegation that they visited every national forest, and the large number of timber sales that would be affected by the new Forest Service rules meant that some plaintiff, somewhere, was bound to visit an area affected by the rule sometime in the relatively near future. Similar arguments could be made, however, in many circumstances where procedural aggregation mechanisms—including not only organizational standing but also class actions and (possibly) multi-district litigation—yield large numbers of plaintiffs. That would threaten the separation of powers value of standing doctrine in limiting the opportunities for judicial intervention in public disputes.80See, e.g., Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 513 F.3d 234, 242 (D.C. Cir. 2008) (Sentelle, J., concurring) (“The wide-ranging, near-merits discussion at the standing threshold is the sort of thing that congressional committees and executive agencies exist to explore. . . . If we do not soon abandon this idea of probabilistic harm, we will find ourselves looking more and more like legislatures rather than courts.”).
Standing based on aggregated probabilities of injury might likewise turn private litigation among small numbers of private parties into effectively public disputes with potentially broad regulatory consequences for society.
The prudential problems are even more compelling. From that perspective, the function of standing is to ensure a concrete frame for the litigation around a particular plaintiff affected by a particular government action. That frame permits a court to see how a challenged measure plays out in real circumstances and hear from real people about how they have been affected. Probabilistic standing cannot supply that frame. Justice Breyer’s argument demonstrated that some plaintiff would be affected by some application of the challenged policy, but it could not tell the court who, where, when, or precisely how. The challenge in Summers remained fundamentally abstract, despite the mathematical near certainty of injury.81See Dept. of Educ. v. Brown, 143 S. Ct. 2343, 2351 (2023) (reaffirming Summers’s rejection of standing where the plaintiffs “did not have any ‘concrete plans to observe nature in [a] specific area’ affected by actions the Service took” (quoting Summers v. Earth Island Institute, 555 U.S. 488, 497 (2009))); Schroeder, supra note 9, at 502–03 (criticizing the abstract nature of probabilistic arguments).
It is hardly surprising that the majority chose to await a less conceptual plaintiff.82See also Pub. Citizen, Inc., 489 F.3d at 1294 (Kavanaugh, J.) (“[I]t therefore does Public Citizen no good to string together 130,000 remote and speculative claims rather than one remote and speculative claim. Each claim is still remote and speculative . . . .”).
Against this backdrop, our approach parts company with the predominant thinking about probabilistic standing in three ways. First, we contend that courts should not attempt to set a probability or proximity threshold as a matter of standing doctrine; rather, they should simply rely on the usual pleading standards to ensure that a claim is properly presented. This issue cuts across a wide variety of cases. In Clapper, the Justices sparred over whether a threat of future injury must be “certainly impending” or “reasonably probable.”83Compare Clapper v. Amnesty Int’l USA, 586 U.S. 398, 401 (2013) (requiring threats of future injury to be “certainly impending”), with id. at 431–33 (Breyer, J., dissenting) (arguing for a “reasonable probability” standard). Other cases seem to concede the limited utility of such verbal formulae by treating these two standards as interchangeable. See Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (suggesting risks suffice for standing “if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur”) (emphasis added).
Similarly, a leading circuit decision on data breaches evaluated standing by identifying three factors that would increase the likelihood that purloined information would someday be used to the detriment of plaintiffs.84McMorris v. Carlos Lopez & Assocs., LLC, 995 F.3d 295, 301–02 (2d Cir. 2021); see also James Dempsey, US Courts Mixed on Letting Data Breach Suits Go Forward, IAPP (Mar. 9, 2022), https://iapp.org/news/a/u-s-courts-mixed-on-letting-data-breach-suits-go-forward [perma.cc/W8BU-REPW] (noting that many lower courts have continued to apply the McMorris factors after TransUnion).
Commentary has generally agreed that the relevant question is to assess the likelihood of harm that Article III requires. Jonathan Remy Nash argues that federal courts should consider the “expected value” of an injury—that is, its probability multiplied by its impact—and recognize a plaintiff’s standing as long as that value is positive.85Jonathan Remy Nash, Standing’s Expected Value, 111 Mich. L. Rev. 1283, 1285 (2013); see also Mank, supra note 59, at 671 (“[A]ny individual should have standing to challenge a government action that exposes her to an increased lifetime risk of one in one million or greater of death or serious injury.”).
Under this test, any risk of a genuine harm would suffice, however low the risk or trivial the harm. Andrew Hessick would drop any probability requirement altogether, thereby allowing standing to sue for “all claims involving a risk of future injury.”86Hessick, supra note 6, at 67 (“[A]ll claims based on a risk of injury present an actual case or controversy, no matter how small the risk.”); see also Amanda Leiter, Substance or Illusion? The Dangers of Imposing a Standing Threshold, 97 Geo. L.J. 391, 422 (2009) (rejecting any probability requirement for Article III injury).
Although they allow standing for any assertion of a risk of future injury in principle, these authors would each impose a prudential limit to weed out small risks of injury—thereby reopening the question of where exactly that threshold should be set.87See Hessick, supra note 6, at 91–101; Nash, supra note 85, at 1308–09.
We doubt that this question can be answered in a nonarbitrary way.88Professor Mank, for example, offers a thoughtful critique of the D.C. Circuit’s “substantial risk” standard in probabilistic cases, contending that it should be replaced by a “reasonable probability” test adopted in other circuits. Mank, supra note 59, at 713–15. But how probable, exactly, is “reasonable probability”—and how much more probable is “substantial risk”? We agree that the latter expresses a somewhat stricter mood toward plaintiffs’ claims than the former. But different judges are likely to apply these standards quite differently, and the abstract standards on offer provide little guidance.
Any effort to set a uniform probability threshold in probabilistic cases overlooks important differences between classes of cases. And courts will struggle to evaluate objective likelihoods of future injury or, more importantly, to draw a necessary probability threshold out of Article III. Courts should instead focus on defining injuries with more consistency and precision, which would dissolve some difficult imminence questions and, at least, simplify others. Once the injury is properly defined, courts should ask only that it be pled with the precision and support that any other factual allegation requires.89See, e.g., Schuchardt v. President of the U.S., 839 F.3d 336, 344 (3d Cir. 2016) (stating that “to survive a motion to dismiss for lack of standing, a plaintiff must allege facts that affirmatively and plausibly suggest that [he] has standing to sue” and that “those facts [must be] pleaded with enough detail to render them plausible, ‘well-pleaded’ allegations entitled to a presumption of truth” (citations omitted)) (quoting Finkelman v. NFL, 810 F.3d 187, 194 (3d Cir. 2016)).
The pleading standards after Twombly and Iqbal are hardly toothless,90See generally Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
and the Supreme Court has made clear that allegations going to standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.”91Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
If plaintiffs have pled with sufficient particularity that they were injured in a cognizable way, those allegations should be taken as true rather than subjected to some threshold probability standard drawn from the penumbra of Article III.92Likewise, at summary judgment the plaintiff should prevail if facts concerning standing are disputed, and Lujan acknowledged that a trial might be necessary. See id. To be sure, a standing trial would undermine standing’s role as a threshold limit on the Court’s subject matter jurisdiction. This is virtually unheard of in practice, however, and where the factual question is one of injury it will typically (but not always) merge with the merits. The problem would be considerably worse if plaintiffs were required to establish injury at a particular level of probability. Either this requirement would be a pleading formality in practice, requiring only allegations that the specific probability standard is met, or it would tend to transform a threshold determination into a mini-trial on standing with expert evidence and the like. See Leiter, supra note 86, at 415 (criticizing the D.C. Circuit’s “substantial risk” standard because “plaintiffs bear the burden of establishing the substantiality of the challenged risk in their first substantive filing to the court—a requirement that may necessitate conducting extensive interviews, preparing myriad affidavits, hiring statistical experts, and perhaps even developing new statistical models” (footnotes omitted)). A qualitative standard focused on the plaintiff’s relationship to the challenged action, the type of injury alleged, and the ability of the court to decide the case at the present time—which we advocate in Parts II, III, and IV, respectively—is far more susceptible to evaluation on the pleadings.
The second departure involves carefully defining the plaintiff’s injury but does not look to Article III for a catalog of cognizable harms. What injuries count is crucial: If purely legal injuries count, for example, then legislatures could obviate worries about the probability of factual harm by defining legal wrongs. Alternatively, some lower courts have held that subjecting someone to a risk of future injury can itself be a cognizable harm for standing purposes.93See, e.g., Baur v. Veneman, 352 F.3d 625, 634 (2d Cir. 2003); Courtney M. Cox, Risky Standing: Deciding on Injury, 8 Ne. U. L.J. 75, 80–84 (2016) (collecting cases).
TransUnion sharply limited standing based on legal injury or exposure to risk,94See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205 (2021) (“[U]nder Article III, an injury in law is not an injury in fact.”); id. at 2210–11 (“[I]n a suit for damages, the mere risk of future harm, standing alone, cannot qualify as a concrete harm . . . .”).
but it did not otherwise look to Article III to prescribe which injuries count.
As we explain, Article III rules out some forms of harm as injuries in fact and accepts others—such as physical injury or financial loss—as sufficient without further inquiry. The most interesting category includes those harms that are not universally cognizable but may, depending on the state of the underlying law, suffice for injury in fact in particular circumstances. TransUnion acknowledged that present harms arising from exposure to risk, such as emotional distress, may count as injury in fact.95See id. at 2210–11 & n.7 (stating that risk could qualify as concrete harm if “the exposure to the risk of the future harm itself causes a separate concrete harm” such as “emotional or psychological harm”). See generally Rachel Bayefsky, Psychological Harm and Constitutional Standing, 81 Brook. L. Rev. 1555 (2016) (discussing this question). The Court has also acknowledged that the cost of reasonable precautions undertaken to prevent or mitigate a risk may serve as injury in fact. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 154–55 (2010); see also infra Section III.C.
Standing doctrine should not rule out these sorts of injuries when the underlying law makes them immediately cognizable—for example, where creation of a risk violates a warranty or some other contractual provision.96See infra text accompanying notes 227 and 259. But cf. Dinerstein v. Google, LLC, 73 F.4th 502, 522 (7th Cir. 2023) (“[A] breach of contract alone—without any actual harm—is purely an injury in law, not an injury in fact. And it therefore falls short of the Article III requirements for a suit in federal court.”); F. Andrew Hessick, Standing and Contracts, 89 Geo. Wash. L. Rev. 298, 313 (2021) (“By Spokeo’s reasoning, a plaintiff should not have standing to sue for breach of contract if the breach does not result in some additional factual harm.”).
Our argument thus emphasizes the underappreciated extent to which the substantive law governing a plaintiff’s claim remains crucial in defining the interests that count for standing.
Third, once the plaintiff’s injury has been appropriately defined and plausibly pleaded, courts should deal with uncertainty as to when or if future injuries are likely to occur through the timing and remedial doctrines. Standing asks whether the plaintiff is the right party to make a particular claim, not whether that claim is likely to be successful. It should not require some sort of mini-trial at the threshold. Allegations of uncertain or distant future injuries may, however, impede a court’s ability to decide a case effectively. The court may not have all the necessary information to decide the legal issues presented, for example, if it does not know when or how the asserted injury will manifest.97See, e.g., United Pub. Workers v. Mitchell, 330 U.S. 75, 90 (1947) (refusing to decide a constitutional challenge to the Hatch Act restricting political activity by federal employees when “[w]e can only speculate as to the kinds of political activity the appellants desire to engage in or as to the contents of their proposed public statements or the circumstances of their publication”).
Moreover, in constitutional cases, judicial legitimacy might best be preserved if courts avoid exercising their power of judicial review until such exercise is genuinely needed.98See, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J., concurring) (invoking the “last resort” rule).
These sorts of concerns are largely prudential, and the doctrine of ripeness—and sometimes of mootness—has the requisite flexibility to deal with them.99See infra Section IV.A.
There is little advantage, and considerable confusion, to having a second ripeness doctrine operating within the injury requirement itself.100See Summers v. Earth Island Inst., 555 U.S. 488, 505 (2009) (Breyer, J., dissenting) (urging that temporal imminence is “a requirement more appropriately considered in the context of ripeness or the necessity of injunctive relief”). See generally F. Andrew Hessick, Doctrinal Redundancies, 67 Ala. L. Rev. 635 (2016) (considering the redundancy of ripeness and standing).
And to the extent that timing doctrines are more prudential in nature than standing, they afford legislatures a potential say in determining when risks of future harm are adjudicated. Similarly, the law of remedies both informs the meaning of standing doctrine and provides an independent check on remote or unlikely harms. Remedial doctrines can and should be left to operate of their own force in many cases.
II. Uncertain Exposure
The Supreme Court has frequently suggested that plaintiffs regulated by or subject to allegedly unlawful action will nearly always have standing to challenge it; any difficulties will typically concern the timing of litigation or the appropriate remedy.101See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561–62 (1992) (“When . . . the plaintiff is himself an object of the action (or forgone action) at issue . . . there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.”). In other words, these plaintiffs may have ripeness or mootness problems, but they are unlikely to lack standing.
In public law litigation, the government’s regulation of private actors generally involves coercive action presumptively subject to judicial review.102See Heckler v. Chaney, 470 U.S. 821, 832 (1985); see also Sierra Club v. EPA, 292 F.3d 895, 899–900 (D.C. Cir. 2002) (stating that the standing of parties subject to a regulation to challenge it is “self-evident”).
Similarly, standing is rarely a problem in private litigation when the plaintiff is clearly exposed or subject to the challenged behavior, even when the causal link to actual harm is contested on the merits. As we discuss in Parts III and IV, allegations that such actions will cause future harm may encounter arguments that the suit should await the manifestation of an injury. But what if it is unclear whether the plaintiff has ever been subject to the challenged action, or ever will be in the future? Plaintiffs have struggled to establish standing in this scenario.103The primary exception is regulatory beneficiaries, who can sometimes establish standing to sue government actors to require them to regulate third parties more vigorously. See, e.g., Friends of the Earth, Inc. v. Laidlaw Env. Svcs. (TOC), Inc., 528 U.S. 167, 183-84 (2000). Beneficiary plaintiffs face significant hurdles in establishing that their injuries are traceable to the defendant’s failure to regulate and that an order requiring more regulation will redress those injuries. See Lujan, 504 U.S. at 562 (“When . . . a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else . . . causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction—and perhaps on the response of others as well.”). Other cases may involve action by government directed at third parties that may cause adverse downstream impacts on the plaintiffs. In Murthy v. Missouri, for example, the plaintiffs alleged that the government had induced third parties to censor them on social media. As that case illustrates, this posture may raise fatal traceability or redressability problems. 144 S. Ct. at 1987–96. The Murthy plaintiffs might have avoided this standing problem by suing the social media platforms, to whose actions they were plainly subject. The issue whether the government’s actions had really induced the platform’s censorship would then have arisen as a matter of state action doctrine, not standing. In any event, cases like Allen and Murthy involve probabilistic causation, not injury, and are thus outside the scope of this Article.
Our discussion here distinguishes between two sorts of cases. Clapper v. Amnesty International, USA illustrates a category of undisclosed exposure in which plaintiffs do not and perhaps cannot know whether they have been subjected to the defendant’s allegedly wrongful action.104Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013).
Such cases are unusual; the far more common category involves the uncertain repetition of wrongful conduct to which plaintiffs have been subjected in the past, but which may not recur in the future. The plaintiff in City of Los Angeles v. Lyons, for example, challenged a police chokehold policy to which he had already been subjected, but which he could not be sure he would ever be subjected to again.105City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).
In both scenarios, courts have often denied standing on grounds that plaintiffs’ claims were too speculative. But we contend that the best solutions in situations like these (to provide sufficient accountability, among other benefits) largely lie outside of conventional standing doctrine—in the law of remedies and timing doctrines of ripeness and mootness, for instance, or in particular institutional arrangements designed to accommodate unique government interests.
A. Undisclosed Exposure
Clapper is the leading example of uncertainty concerning whether a general policy has been applied to the plaintiffs challenging it.106See Clapper, 568 U.S. at 406–07.
The Clapper plaintiffs were attorneys as well as human rights, labor, and media organizations whose work sometimes required them to communicate with individuals located abroad with suspected ties to terrorism. Plaintiffs alleged that some of the individuals with whom they wished to communicate were likely targets of surveillance under the Foreign Intelligence Surveillance Act (FISA).107Id. at 401. See generally 50 U.S.C. § 1881(a); Stephen I. Vladeck, Standing and Secret Surveillance, 10 I/S: J.L. & Pol’y for Info. Soc’y 551, 562–63 (2014) (discussing the statutory and factual background of Clapper).
Plaintiffs challenged the FISA on various grounds—primarily on the ground that it allowed authorities to intercept U.S. persons’ communications without a warrant or probable cause.108See Clapper, 568 U.S. at 406–07; see also Vladeck, supra note 107, at 563 (discussing the merits of the Fourth Amendment claim).
The Supreme Court held that the plaintiffs lacked standing.109See Clapper, 568 U.S. at 422. The Court in Clapper relied in part on Laird v. Tatum, 408 U.S. 1 (1972), which held a challenge to alleged Army “surveillance of lawful and peaceful civilian political activity” nonjusticiable because the plaintiffs had not alleged that they, in particular, were subject to the Army’s alleged activity in any way. See Laird, 408 U.S. at 12–14 & n.7.
The Clapper plaintiffs faced so many obstacles that any general lessons must be drawn with care. The plaintiffs challenged surveillance that legally could not target them,110Clapper, 568 U.S. at 411.
although they might be incidentally surveilled if communicating with a person abroad who was targeted. But the plaintiffs did not know which non-U.S. persons were actually targeted.111Id. at 411–12.
Nor could they be sure whether, if they were party to a surveilled conversation, the government would rely upon § 1881(a) to justify it (as opposed to other legal bases they had not challenged).112Id. at 412–13.
And if the government did rely on § 1881(a), no one could be sure whether the FISA court would actually approve the government’s application and permit the surveillance.113Id. at 413–14.
The government even argued that it could not be sure whether, if it did target plaintiffs’ conversations and the FISA court approved that surveillance, the technology would actually work and yield intelligible results.114Id. at 414.
Of course, underlying all this, the national security interests involved surely influenced the Court’s result.115See id. at 408–09; Jacobson v. Fla. Sec’y of State, 974 F.3d 1276, 1277 (11th Cir. 2020) (Pryor, J., dissenting) (“Clapper presented unique circumstances that do not inform our inquiry here.”); Const. Party v. Aichele, 757 F.3d 347, 364 n.21 (3d Cir. 2014) (“Clapper addresses the unique realm of national security in which peculiar balance-of-power concerns, which are not present here, abound.”); Nash, supra note 85, at 1297 (emphasizing “the unique nature of [Clapper’s] circumstances”); see also Richard H. Fallon, Jr., The Fragmentation of Standing, 93 Tex. L. Rev. 1061, 1077 (2015) (contending that Clapper “suggests that the requirements of standing may vary, not just with the provision of the Constitution under which a plaintiff brings suit, but also with the nature of the governmental action or policy that a plaintiff seeks to challenge”).
At a minimum, those interests foreclosed the most obvious response to the case’s pervasive uncertainties—that is, the Court could not simply require the government to divulge whether and under what circumstances it had surveilled persons with whom the plaintiffs had communicated.
It is hard to say exactly where Clapper left the bar for plaintiffs who might be uncertain whether they were subject to a challenged law or policy in other circumstances. In subsequent surveillance cases, plaintiffs’ standing has turned on their ability to plead and support specific allegations indicating they are likely to have been surveilled; most, but not all, plaintiffs have failed to meet this burden.116Compare Wikimedia Found. v. Nat’l Sec. Agency/Cent. Sec. Serv., 14 F.4th 276 (4th Cir. 2021) (holding that plaintiffs established a dispute of material fact concerning whether they were subject to secret surveillance, thus surviving government’s motion for summary judgment for lack of standing, but dismissing the case under the state secrets privilege), with Schuchardt v. President of the U.S., 802 F. App’x 69 (3d Cir. 2020) (affirming grant of summary judgment on standing grounds where plaintiff could not produce evidence to support specific allegations that had gotten him past a motion to dismiss). See generally Vladeck, supra note 107, at 567 (noting “the exceptionally high bar Clapper imposes before plaintiffs will be able to challenge secret government surveillance programs going forward”).
Because national security barriers will often prevent disclosure of critical evidence concerning whether plaintiffs have been subjected to allegedly unlawful government actions,117See Wikimedia, 14 F.4th at 301–04 (holding that the state secrets privilege forbade any further disclosures that could support plaintiffs’ assertion that they had been subject to government surveillance); Kareem v. Haspel, 986 F.3d 859, 861–64, 866 (D.C. Cir. 2021) (holding that journalist claiming to have narrowly escaped five U.S. bombings lacked standing because he could not establish that he had been targeted by the government).
the primary checks on secret government actions will likely come through the political process, expansion of checks internal to the FISA program, or criminal proceedings where the government actually seeks to use evidence acquired by surveillance.118See Vladeck, supra note 107, at 569–75 (discussing possible reforms to the process for challenging surveillance applications before the FISA court).
Clapper has been widely cited as “the leading case on claims of standing based on risk of future injury.”119Attias v. Carefirst, Inc., 865 F.3d 620, 626 (D.C. Cir. 2017); see also James C. Chou, Note, Cybersecurity, Identity Theft, and Standing Law: A Framework for Data Breaches Using Substantial Risk in a Post-Clapper World, 7 Am. U. Nat’l Sec. L. Brief 120, 157 (2017) (“[M]any courts have applied the rigorous ‘certainly impending’ standard to almost all post-Clapper cases of heightened risk, defending this practice as applying the constitutionally minimum threshold.”).
We contend, however, that the specific holding in Clapper should have little impact outside the rather special context of secret government surveillance. Ordinarily, plaintiffs challenging a general government policy know whether they have been subjected to that policy—or at least they ought to be able to find out through discovery requests early in the lawsuit. Secret surveillance is trickier, of course, because revealing that a party is subject to surveillance will generally cause the surveillance to fail or reveal the government’s methods to other targets.120See Vladeck, supra note 107, at 570 (“[I]t would logically defeat the purpose of secret surveillance programs if those programs could be challenged in visible, public litigation in which plaintiffs presumably seek to discover information concerning the existence and scope—and sources and methods—of the government’s surveillance.”).
There may be other situations in which government interests in secrecy or confidentiality foreclose certainty about whether plaintiffs are subject to a challenged law or policy,121The Securities Exchange Act, for example, requires the Securities and Exchange Commission to maintain the confidentiality of whistleblowers, subject to certain exceptions. 15 U.S.C. § 78u-6(h)(2)(A). It is thus possible that a party wishing to challenge the whistleblower provision could not find out whether it had, in fact, been subject to an SEC action based on information provided by a whistleblower.
but we are not aware of many.122In FBI v. Fikre, 144 S. Ct. 771 (2024), which concerned mootness, there was uncertainty about the considerations that the government might use in deciding whether to put the plaintiff back on the “no fly” list. This uncertainty, the Court reasoned, meant that it was not clear that the removal of the plaintiff from the list rendered the case moot. See id. at 778 (“[T]he government’s sparse declaration falls short of demonstrating that it cannot reasonably be expected to do again in the future what it is alleged to have done in the past.”).
Whether or not a plaintiff is subject to the law they challenge is foundational to standing. A plaintiff ordinarily “has standing to seek redress for injuries done to him but may not seek redress for injuries done to others.”123Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166 (1972). In Moose Lodge, the plaintiff had been denied service at a private club that he had attended as a guest, but he had never applied for membership. The Court said that he had standing to challenge the club’s guest policies but not its membership policies. Id. at 164–68. Exceptions to this principle are generally narrow. See generally Bradley & Young, supra note 15, at 63–67.
This principle is “a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome.”124Sierra Club v. Morton, 405 U.S. 727, 740 (1972); see also Allen v. Wright, 468 U.S. 737, 756 (1984) (arguing that a contrary rule “would transform the federal courts into ‘no more than a vehicle for the vindication of the value interests of concerned bystanders’ ” (quoting United States v. SCRAP, 412 U.S. 669, 687 (1973))).
The Court in Clapper enforced this basic requirement with considerable rigor. It is much harder, however, to justify applying Clapper’s rule to situations in which the plaintiff has already been subject to the challenged action in the past or is quite likely to be subject to it in the future and the question involves the probability of harm.
B. Uncertain Repetition of Prior Exposure
A more common scenario involves challenges to executive action based on past incidents that may or may not recur in the future. Plaintiffs in this scenario typically seek to enjoin officers’ future behavior but struggle to show that recurrences are likely to affect them in particular. As Professor Fallon notes, these cases often involve broad allegations of racially tinged police misconduct, thus implicating “questions of enormous practical and political significance” that concern “[t]he scope of judicial oversight of institutional behavior.”125Fallon, Lyons, supra note 75, at 7–8.
The leading case is City of Los Angeles v. Lyons.126City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
Adolph Lyons alleged that police officers stopped him for a traffic infraction and, without provocation, placed him in a chokehold that rendered him unconscious and damaged his larynx.127Id. at 97–98.
Lyons claimed damages based on that encounter, but he also sought injunctive and declaratory relief against an alleged city policy of “regularly and routinely apply[ing] these choke holds.”128Id. at 98.
Alleging that “numerous persons” had been injured as a result of this policy, Lyons claimed that he “justifiably fear[ed] that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse.”129Id.
Lyons thus sought a declaration that the chokeholds were unconstitutional and an injunction against their use. The Supreme Court, however, held that he lacked standing to seek the injunction. “Absent a sufficient likelihood that he will again be wronged in a similar way,” the Court said, “Lyons is no more entitled to an injunction than any other citizen of Los Angeles.”130Id. at 111.
Lyons resonates with current controversies about police tactics and misconduct, and its holding parallels other significant decisions rejecting standing to challenge allegedly racist administration of a local judicial system.131See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); O’Shea v. Littleton, 414 U.S. 488 (1974). Mr. Lyons did allege a race discrimination claim, noting that “in a city where Negro males constitute 9% of the population, they have accounted for 75% of the deaths resulting from the use of chokeholds.” Lyons, 461 U.S. at 116 n.3; see also Brandon Garrett, Note, Standing While Black: Distinguishing Lyons in Racial Profiling Cases, 100 Colum. L. Rev. 1815 (2000).
It is an uncertain exposure case, even though Mr. Lyons alleged that his mistreatment occurred pursuant to a general policy of the LAPD,132Lyons, 461 U.S. at 106 & n.7; see also id. at 113–14 (Marshall, J., dissenting).
because it remained hard to know which persons would actually become subject to the policy in the future.133See Hart & Wechsler, supra note 6, at 232–33.
Courts have found standing particularly problematic when, as in Lyons, future exposure to the unlawful government policy may turn on conduct by the plaintiff that is itself unlawful.134See, e.g., United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1541 (2018) (stating the Court’s “assum[ption] that [litigants] will conduct their activities within the law” and thus “avoid . . . exposure” to allegedly unlawful practices that occur within the criminal justice process (second alteration in original) (quoting O’Shea, 414 U.S. at 497)). It is not immediately obvious why this should be so. After all, we allow litigants to allege their intent to violate a particular criminal law in order to challenge it. See, e.g., United Pub. Workers v. Mitchell, 330 U.S. 75, 83–84, 90–91 (1947) (holding that ripeness barred a challenge to a law where the plaintiffs had not specifically alleged how they intended to violate it in the future without questioning the plaintiffs’ standing to bring the challenge simply because it depended on future actions that would violate the law).
The most straightforward way to challenge policies like the LAPD’s is to seek damages based on a past encounter with the police. Mr. Lyons had already been exposed to the chokehold policy; he had a live damages claim and unquestioned standing to bring it.135Lyons, 461 U.S. at 105.
Success on such a claim would yield not only compensation but an adjudication that the chokehold was illegal.136See id. at 111 (“The legality of the violence to which Lyons claims he was once subjected is at issue in his suit for damages and can be determined there.”).
That adjudication would be res judicata in any future litigation with the City; depending on the scope of the decision, it might encourage a change in policy. Commentary has likely discounted the value of a damages judgment on the assumption that qualified immunity would prevent success.137For critiques of qualified immunity, see, for example, Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018), and William Baude, Is Qualified Immunity Unlawful? 106 Calif. L. Rev. 45 (2018). Qualified immunity is not insuperable. See, e.g., Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021); Taylor v. Riojas, 141 S. Ct. 52 (2020) (per curiam). And courts retain discretion to resolve the legality of the defendant officer’s conduct prior to considering the immunity question. Pearson v. Callahan, 555 U.S. 223, 242 (2009).
But if Lyons could prove a systemic policy of chokeholds, qualified immunity would not bar relief against the City.138See Owen v. City of Independence, 445 U.S. 622, 638 (1980) (holding that local governments lack qualified immunity in suits under 42 U.S.C. § 1983); Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978) (holding local governments liable under § 1983 for injuries inflicted by “execution of a government’s policy or custom”).
To the extent that civil rights actions are often brought by victims of past abuse, damages claims may provide a valuable means of adjudicating the legality of police practices.139To the extent that damages actions are not likely to succeed, moreover, the general problem stems less from standing doctrine than from doctrines of qualified immunity and the difficulty of proving municipal policy or custom. Those rules, unlike Article III, are subject to statutory alteration. See Baude, supra note 137, at 82–88 (describing the Supreme Court’s recent expansion of qualified immunity defenses to suits seeking damages for officials’ misconduct); Schwartz, supra note 137, at 1798 (same); Monell, 436 U.S. at 691 (stating that a municipal liability claim requires showing the unconstitutional practice is “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law”).
The central question in Lyons and similar cases, however, is whether plaintiffs have standing to seek prospective relief establishing that the defendant’s actions are illegal and enjoining similar acts in the future. The circuits have generally required plaintiffs to show that they are more likely than the general public to be subjected to the challenged government action in the future.140See, e.g., Brown v. Edwards, 721 F.2d 1442, 1446 (5th Cir. 1984) (finding no standing when “nothing in the record suggests, that Brown is . . . more likely than any other Mississippian, to be again subjected to arrest or charging”); Garrett, supra note 131 (discussing post-Lyons litigation).
This pragmatic standard serves the intuition to seek out the best available plaintiff, but the Court has also made clear that that the lack of a better plaintiff will not always guarantee standing.141Compare Richard M. Re, Relative Standing, 102 Geo. L.J. 1191 (2014) (arguing that courts should apply a “most interested plaintiff” rule), with Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621 (2020) (stating that “this Court has long rejected” arguments that standing should be allowed on the ground that if the plaintiff lacked standing, no other party would likely be able to challenge the action in question).
More fundamentally, the circuits’ rule leaves difficult questions not only as to how likely a future encounter must be but also as to how a court can assess that likelihood accurately. Article III standing doctrine, we contend, is too categorical an instrument to accommodate the nuances that pervade such cases.
We suggest that when plaintiffs have already been subject to the government action they wish to challenge—and have a live damages claim—that should satisfy Article III.142Cf. Murthy, 144 S. Ct. at 1987 (“[B]ecause the plaintiffs are seeking only forward-looking relief, the past injuries are relevant only for their predictive value.”).
Even if a plaintiff’s prior encounter does not give rise to compensable damages, they should at least receive nominal damages that suffice for constitutional purposes.143See Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021). Uzuegbunam’s rule that “a party whose [legal] rights are invaded can always recover nominal damages without furnishing any evidence of actual damage,” and such nominal damages satisfy the redressability prong of Article III standing, id. at 800–02, is not easy to square with TransUnion’s rejection of the violation of a legal right as sufficient for injury in fact. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205 (2021) (“[U]nder Article III, an injury in law is not an injury in fact.”). After all, Justice Thomas—who wrote for the majority in Uzuegbunam—dissented in TransUnion on this ground. Id. at 2218–19 (Thomas, J., dissenting). The key point, to our mind, is that Uzuegbunam was a mootness case in which the plaintiff’s injury in fact at the outset of litigation was conceded and the question was whether, later on, any remedial claim remained viable. See Uzuegbunam, 141 S. Ct. at 797. In TransUnion, by contrast, the plaintiffs held to lack standing had never yet incurred a sufficient injury in fact. See Transunion, 141 S. Ct. at 2198. As the discussion in the text explains, the perspective of mootness is critical in assessing whether one remedy can sustain a lawsuit when another remedy drops out.
There is, in this situation, a “case or controversy” for purposes of Article III. The problems that arise in such cases are rather ones of timing and remedy: Does the cessation of the defendant’s action render a claim for injunctive relief moot? Is a future repetition of the action insufficiently certain or imminent to make a claim for declaratory or injunctive relief ripe? Can the plaintiff show the irreparable harm necessary to support an injunction? The law of remedies and the prudential aspects of mootness and ripeness are more flexible instruments than Article III’s jurisdictional standing requirements. They can thus better accommodate the disparate interests at stake in cases of sporadic unlawful actions by government officers.
Start with remedies: The likelihood and severity of future violations of a plaintiff’s rights are the bread and butter of remedial inquiries as to the appropriateness of injunctive relief. Arguably, once a past encounter between the parties creates a live controversy over damages, whether the plaintiff is entitled to other relief is purely a remedial question. And the law of remedies furnishes a range of options that can be calibrated to the circumstances of particular cases. As Lyons suggests, only extraordinarily compelling circumstances might justify an intrusive structural injunction mandating federal judicial supervision of state and local institutions.144See City of Los Angeles v. Lyons, 461 U.S. 95, 112–13 (1983); see also O’Shea v. Littleton, 414 U.S. 488, 500–02 (1974).
A prohibitory injunction—for example, “No chokeholds absent a clear threat to police officers”—would be less intrusive and perhaps require less imminence or less severe harm, although concerns about judicial second-guessing would remain.
Likewise, if a plaintiff can show injury from a past encounter, a declaratory judgment concerning the illegality of the defendant’s past conduct should be broadly available. After all, the past encounter surely satisfies the only statutory requirement—”a case of actual controversy within [the court’s] jurisdiction.”14528 U.S.C. § 2201.
Such a binding declaration may be valuable to a plaintiff if unlawful conduct recurs, both for establishing a violation of clearly established law and as a basis for a future injunction. And of course, such a declaration could be written narrowly to address only a particular fact pattern, if a more general ruling about legality was inadvisable. The important point is simply that a remedial frame presents courts with a range of options rather than an all-or-nothing judgment on standing.
The barrier to treating sporadic government legal violations as primarily a remedial problem is the “remedial standing” rule attributed to Lyons itself. Subsequent decisions have cited Lyons for the proposition that “a plaintiff must demonstrate standing separately for each form of relief sought”146Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000); see also, e.g., TransUnion, 141 S. Ct. at 2210; Town of Chester v. Laroe Ests., Inc., 581 U.S. 433, 439 (2017); Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008). The Court has contended that “standing is not dispensed in gross,” but that is consistent with an alternate reading of the remedial standing rule as simply affirming that standing requirements differ depending on whether the plaintiff seeks retrospective or prospective relief. Lewis v. Casey, 518 U.S. 343, 358, n.6. If plaintiffs have standing to seek damages, whether they can also get an injunction should be seen as a problem of remedy, not standing.
—language that might plausibly mean either of two different things. First, it might mean that a plaintiff who seeks multiple forms of relief—say, damages and an injunction—must establish standing separately for each of them and might well be found to have standing with respect to one and lack it for the other. Second, it might mean that the requirements for standing differ depending upon the remedy sought—for example, some sorts of injuries might support standing to seek an injunction, but not damages. But one might accept this latter principle and still say that once a plaintiff has established standing to seek one form of relief, that makes a case or controversy, and the availability of additional relief is simply a question of remedies. The Supreme Court has emphasized the second principle as recently as TransUnion, holding that a risk of future injury could establish standing to seek injunctive relief but did not suffice in a case seeking only damages.147See TransUnion, 141 S. Ct. at 2210–11.
It has never, to our knowledge, applied the first principle to hold that a plaintiff seeking multiple remedies has standing to seek some remedies but not others, although some lower courts seem to have done so.148See, e.g., Williams v. Reckitt Benckiser LLC, 65 F.4th 1243, 1253–57 (11th Cir. 2023); Waskul v. Washtenaw Cnty. Cmty. Mental Health, 900 F.3d 250, 255 (6th Cir. 2018). For a private law analog to Lyons, see Freeman v. MAM USA Corp., 528 F. Supp. 3d 849 (N.D. Ill. 2021), in which a parent sued a producer of “orthodontic” pacifiers for falsely advertising that the product would benefit her son’s dental health. The court held that the plaintiff obviously had standing to seek damages, but that she lacked standing to seek injunctive relief because she was now aware of the falsity of the defendant’s health claims and thus faced no risk of future harm. See Freeman, 528 F. Supp. 3d. at 853, 856–58. But see Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969–70 (9th Cir. 2018) (allowing suit for injunctive relief despite plaintiff’s knowledge that the advertising was false because the plaintiff might either end up relying on the advertising in the future in the belief that it was no longer false or might avoid buying the product altogether because of uncertainty about what representations they can trust).
We contend that the second principle is a valuable insight, but the first misreads Lyons and creates inconsistencies with other relevant doctrines.
To begin, Justice White’s majority opinion in Lyons articulated no remedial standing rule whatever. But it could not support the first reading of that rule, other than in dictum. Because Mr. Lyons’s damages claim had been severed from his claim for injunctive relief—and only the latter appealed—the Court had only one form of relief before it and did not consider whether Lyons could have grounded standing in the claim of damages for past unlawful conduct.149See Lyons, 461 U.S. at 105 n.6.
It would be strange not to permit him to do so. Once a plaintiff has standing to bring one claim for relief, there is a case or controversy permitting the Court to resolve his legal claim. A request for an additional remedy is not a distinct substantive claim over which a court might lack jurisdiction, and it makes more sense to treat the availability of another form of relief as strictly a question of remedy.
At a minimum, the remedial standing doctrine should be considered prudential in nature, rather than constitutional, because it goes to which claims a party can make in litigation, not to the court’s ability to hear the dispute at all.150Cf. Bradley & Young, supra note 15, at 26 (noting that the prudential rule against third-party standing concerns “what arguments or legal principles a party can raise as a claim or defense” rather than “who has the right to invoke the power of a court”).
Consider a case in which a party with a live damages claim against the local police moves permanently out of the jurisdiction, so that there is no likelihood of a future encounter supporting his claim for injunctive relief.151Cf. Camreta v. Greene, 563 U.S. 692, 697–98 (2011) (holding that a dispute over a standard governing child welfare officers became entirely moot once the plaintiff’s damages claim failed on qualified immunity grounds and plaintiff moved permanently out of the defendant’s jurisdiction).
That case comes within Article III because the plaintiff has an injury in fact from his prior encounter with the police. But the argument for injunctive relief would rest on the rights of other persons who might be injured by police misconduct in the future, and it would properly run afoul of the general rule disfavoring third-party standing.152See, e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975).
That rule is a prudential one, and courts may set it aside for countervailing prudential reasons.153See, e.g., June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2117–19 (2020) (plurality opinion); Bradley & Young, supra note 15, at 17–25.
Justiciability’s timing doctrines, ripeness and mootness, reflect this same prudential flexibility.154Whether ripeness and mootness are entirely prudential is an interesting question but outside the scope of our present effort. See, e.g., Hart & Wechsler, supra note 6, at 201–02; Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 Harv. L. Rev. 603 (1992). We rely on aspects of mootness and ripeness here that are generally viewed as not “forced upon us by the case or controversy requirement of Art. III itself.” Honig v. Doe, 484 U.S. 305, 330 (1988) (Rehnquist, C.J., concurring).
Scholars have debated whether dismissal in a case like Lyons should rest on standing, ripeness, or mootness.155E.g., Hart & Wechsler, supra note 6, at 234 (suggesting that Lyons could be viewed as any of the three).
When a plaintiff clearly has been or is being subjected to the defendant’s challenged action or policy, remaining temporal uncertainties generally are—and should be—resolved under the timing doctrines. As Professor Fallon pointed out in his article on Lyons, “the issue arising from the passage of time after an acknowledged injury, sufficient at some moment to confer standing, easily could have been analyzed as one of mootness instead of standing.”156Fallon, Lyons, supra note 75, at 24.
Three settled aspects of mootness doctrine are relevant. First, once a plaintiff has established a basis for being in federal court, “a case ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party’ ”; “[a]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.”157Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Knox v. Serv. Emps. Int’l Union, Loc. 1000, 567 U.S. 298, 307–08 (2012)); accord N.Y. State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525, 1533 (2020) (Alito, J., dissenting). Citing Chafin, the Court emphasized this point recently in Moore v. Harper, 143 S. Ct. 2065, 2077 (2023).
These standards are plainly easier to meet than the standard for establishing standing in the first instance. In a case like Lyons, they would ask whether the plaintiff can make a case for any meaningful form of prospective relief. Second, where plaintiffs were subjected to unlawful action in the past, mootness doctrine does not require them to establish standing afresh to forestall a potential recurrence. Rather, the defendant must shoulder the “ ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to” recur.158Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203 (1968)).
Finally, although recurrences must affect the same plaintiff, the standard is simply whether “there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.”159Turner v. Rogers, 564 U.S. 431, 440 (2011) (quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). The Court has held that “the mootness exception for disputes capable of repetition yet evading review . . . will not revive a dispute which became moot before the action commenced,” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109 (1998) (quoting Renne v. Geary, 501 U.S. 312, 320 (1991), but it is far from clear that that rule should apply to particular remedies in a case with concededly live claims.
These principles illustrate that, simply because claims arising out of a past encounter with the defendant may have become moot, the plaintiff need not start back at square one to establish standing to enjoin a recurrence of the defendant’s conduct.
Cases like Lyons also implicate ripeness, because plaintiffs in these cases ask a court to consider future events. Ripeness doctrine helpfully shifts the inquiry away from pure (and intractable) questions of probability to more manageable questions about the court’s ability to decide the case now and the impact on the parties if it chooses to wait. If Mr. Lyons had sought pre-enforcement review of LAPD’s chokehold policy, ripeness doctrine would have required him to establish that the issues were fit for judicial review and that he would experience hardship if forced to litigate after the policy had been applied to him in the future.160Abbott Lab’ys v. Gardner, 387 U.S. 136, 148–49 (1967).
The fact that he had already been subjected to the policy would both tee up the issues in a concrete factual setting and allow him to argue that he should not be exposed to the risk of further physical injury. Conversely, if future occurrences were likely to be quite different from the past incident, then a court might appropriately hold claims for prospective relief to be premature.
These prudential rules should govern where, unlike in Lyons, a live damages claim is still part of the case. But our fundamental point is that the probability problem in cases like Lyons cannot be solved by trying to establish a threshold likelihood of injury. Standing doctrine should not duplicate the work already done by remedial law and temporal doctrines like ripeness or mootness. We take up the latter point again below in Part IV, but first we consider the question whether careful definition of injury in the first place can reduce the scope of the problem.
III. Uncertain Harm and Cognizable Injury
What if the plaintiff is subject to the challenged action but not certain to be harmed? Canonical statements of the injury-in-fact requirement have long said that the injury must be “actual or imminent, not conjectural or hypothetical,”161Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).
or “certainly impending.”162Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)).
Courts have employed this language—which speaks to both certainty and temporal proximity163Cox, supra note 93, at 79. As Professor Cox notes, these two concepts “are related in that, intuitively, the closer temporally the threatened harm is, the greater the certainty that the harm will occur because there is less time for other events to intervene.” Id. at 79 n.20.
—as a limit when the plaintiff grounds injury in a future harm. But, as Professor Cox has noted, “what is meant by ‘imminent’ or ‘certainly impending’ remains ambiguous, poorly defined, and inconsistently applied.”164Id. at 79.
No one seems to know how certain, or how imminent, an injury has to be. And what is the relationship between the imminence requirement, which seems like a mini-ripeness doctrine within the standing criteria, and the ripeness doctrine itself?
A. Probability and the Definition of Injury
To evaluate the imminence or probability of injury, one must know what kind of injury counts for purposes of Article III. Consider, for example, the range of injuries at issue in TransUnion. The named plaintiff, Sergio Ramirez, suffered a good old-fashioned tangible injury when he was denied the opportunity to buy a car based on the erroneous OFAC alert in his credit report.165See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2215–16 (2021) (Thomas, J., dissenting) (describing these events in more detail).
In Ramirez’s case, that injury is certain—it had already occurred when he filed suit. No such tangible injury had yet happened to the larger group of 1,852 class members. But because TransUnion had disseminated erroneous information about them to third-party businesses, that group stood at risk of similar harm in the future.166Id. at 2208.
This depended, however, upon the reaction of those businesses to the misinformation—it depended, in other words, on the behavior of third parties not before the court. The 6,332 remaining class members bore a similar risk, because their credit files likewise contained a false OFAC alert. But that risk was less imminent (and also somewhat less likely) because no OFAC alert had yet been disseminated to third-party businesses during the class period.167Id.
The TransUnion majority saw a tangible injury like Ramirez’s as sufficient but not necessary for injury in fact. Rather, they accepted the plaintiffs’ argument that “publication to a third party of a credit report bearing a misleading OFAC alert injures the subject of the report” in a way closely analogous to the reputational harm of defamation.168Id.
That injury sufficed for standing, and it was just as certain as Ramirez’s injury, having already occurred. For the remaining class members, however, this reputational injury remained probabilistic. These plaintiffs argued that, because a similar misleading alert might well be disseminated to third parties in the future, “the existence of misleading OFAC alerts in their internal credit files exposed them to a material risk that the information would be disseminated in the future to third parties and thereby cause them harm.”169Id. at 2210.
The Court held that such a risk is not, by itself, a sufficient injury for purposes of Article III standing to seek damages.170Id. at 2210–11; see, e.g., Maddox v. Bank of N.Y. Mellon Tr. Co., 19 F.4th 58 (2d Cir. 2021) (holding that a state law claim for statutory damages failed to meet Article III standing requirements because the defendant’s failure to record satisfaction of a mortgage on time exposed the plaintiffs to risk but caused them no concrete harm).
Injuries can be defined in different ways, even on the same basic facts, and the choice of definition can significantly affect the probability of the respective injuries. But some capacious forms of injury tend to obviate the probability problem altogether. The 6,332 residual plaintiffs did arguably have an injury that had already occurred: the violation of their legal right under the FCRA not to have false or misleading information included in their files. The dissenters argued that such a purely legal injury is sufficient, as long as the injury is to private, rather than public, rights.171TransUnion, 141 S. Ct. at 2217–18 (Thomas, J., dissenting).
The majority, by contrast, insisted that “under Article III, an injury in law is not an injury in fact.”172Id. at 2205.
Another possibility is that risk of harm should be deemed a cognizable injury in fact. In TransUnion, all class members faced a risk that they would experience tangible harm like Ramirez’s. Defining risk as injury avoids the need to describe the injury itself as probabilistic; we know for sure, in TransUnion, that the risk exists at the present moment.173See Sunstein, After Lujan, supra note 18, at 228 (noting that characterizing the injury “as a greater risk of cancer” makes “the injury less speculative; but it is unclear that it is sufficiently particularized”).
Similarly, the class members might have argued—although apparently they did not—that TransUnion’s FCRA violation caused them present distress or forced them to incur present expenses to guard against future reputational damage. Recognizing these sorts of present injuries would likewise dissolve any doubts about the probability of future injury.
Much discussion of these various classes of injury has asked whether risk, or costly precautions, or anxiety simply “is” or “is not” a cognizable injury for Article III purposes. We would resist that approach on the principle that Article III is not a font of tort law174Cf. Paul v. Davis, 424 U.S. 693, 701 (1976) (warning against making the Due Process Clause of the Fourteenth Amendment “a font of tort law to be superimposed upon whatever systems may already be administered by the States”).
(or contract or property law either)—that is, it does not purport to define the interests that give rise to cognizable injuries. Article III’s text alone offers no guidance as to which interests are in or out. The Court has instead looked to tradition, considering whether an alleged harm has a “close relationship” to injuries historically “recognized as providing a basis for a lawsuit in American courts.”175TransUnion, 141 S. Ct. at 2208.
Consistent with this statement, much of the law structuring the federal judicial system looks to historical practice and the practice of the state courts, while leaving a considerable say to Congress.176See generally Young, Judicial Power, supra note 67, at 572 (“Federal courts law incorporates the English common law and equitable practice . . . as a pragmatic solution to the generality of the Article III judicial power and its instantiation in the various judiciary acts.”).
The Court’s standing jurisprudence establishes a kind of reflective equilibrium between the injuries generally recognized in federal and state positive law, including the English common law background, and the more specific values of Article III standing jurisprudence, which usually sound in separation of powers.
TransUnion thus embraced two principles for evaluating possible injuries as a basis for Article III standing that push in different directions. First, the injuries that count for standing will often be a function of the underlying substantive law.177See generally Fletcher, supra note 39, at 239 (“The essence of a standing inquiry is . . . the meaning of the specific statutory or constitutional provision upon which the plaintiff relies rather than a disembodied and abstract application of general principles of standing law.”); David P. Currie, Misunderstanding Standing, 1981 Sup. Ct. Rev. 41, 47 (“[T]he proper inquiry in nonconstitutional standing cases is whether the law grants the plaintiffs ‘a right to judicial relief.’ ” (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)).
“Congress’s views may be ‘instructive’ ” in “determining whether a harm is sufficiently concrete to qualify as an injury in fact,” and “[c]ourts must afford due respect” to legislative choices in this area.178TransUnion, 141 S. Ct. at 2204 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016)); see also Spokeo, 578 U.S. at 341 (“Congress is well positioned to identify intangible harms that meet minimum Article III requirements . . . .”).
The Court looked to the common law to see if a plaintiff’s injury “bears a ‘close relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in American courts.”179TransUnion, 141 S. Ct. at 2208 (quoting Spokeo, 578 U.S. at 330).
Second, the Court insisted that Article III imposes a floor on interests that can count for standing. Congress “may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.”180Id. at 2205 (quoting Hagy v. Demers & Adams, 882 F.3d 616, 622 (6th Cir. 2018)).
Analysis of particular classes of injury must take its cues from the underlying substantive law yet appreciate that Article III imposes an independent constraint.181The constraint applies to state law claims brought in federal court as well as federal law claims. See, e.g., O’Leary v. TrustedID, Inc., 60 F.4th 240 (4th Cir. 2023) (holding that there was no standing to assert a claim for a breach of a South Carolina state statute because the claim involved “a bare statutory violation”); cf. Webb v. Injured Workers Pharmacy, LLC, 72 F.4th 365 (1st Cir. 2023) (upholding standing to assert state law claims relating to a data breach where “the complaint plausibly alleges an imminent and substantial risk of future misuse of the plaintiffs’ [personal information]”). On the other hand, state standing rules may well permit both state and federal claims for “bare statutory violations” to be brought in state court. See Thomas B. Bennett, The Paradox of Exclusive State-Court Jurisdiction over Federal Claims, 105 Minn. L. Rev. 1211 (2021); Rebekah G. Strotman, Note, No Harm, No Problem (In State Court): Why States Should Reject Injury in Fact, 72 Duke L.J. 1605, 1609–10 (2023).
The case law reveals three categories of interests. The first consists of interests that are clearly in, such as property and liberty interests and other interests traditionally protected by the common law. When plaintiffs can show physical injury or financial loss occasioned by a defendant’s conduct, courts do not usually look to see if there is some further legal recognition of the plaintiffs’ harm before concluding that they have injury in fact.182See, e.g., Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 642 (2007) (Souter, J., dissenting) (suggesting that “[i]n the case of economic or physical harms, of course, the ‘injury in fact’ question is straightforward,” while other forms of harms “must be evaluated case by case”); Rachel Bayefsky, Constitutional Injury and Tangibility, 59 Wm. & Mary L. Rev. 2285, 2292 (2018) (arguing that the Court’s “distinction between tangible and intangible harm reflects an effort to identify a set of uncontroversially legitimate human interests that would justify courts in reordering the status quo”).
The second category encompasses interests that are clearly out—that is, that cannot establish injury in fact even if Congress enacted a statute purporting to protect them. Interests of this kind typically involve some sort of generalized grievance, such as “harm to . . . every citizen’s interest in proper application of the Constitution and laws.”183Lujan v. Defs. of Wildlife, 504 U.S. 555, 573–74 (1992); see also Ann Woolhandler & Caleb Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 720–24 (2004).
Likewise, the Court has “consistently held” that taxpayers’ interest in the use of tax monies for lawful purposes “is too generalized and attenuated to support Article III standing.”184Hein, 551 U.S. at 599. The TransUnion majority appeared to worry that allowing standing based on purely legal injuries would allow Congress effectively to authorize litigation of generalized grievances. See TransUnion, 141 S. Ct. at 2206.
The most interesting category consists of interests that are not obviously cognizable but which positive law may recognize as actionable and thus cognizable under Article III.185See Lujan, 504 U.S. at 578 (noting Congress’s authority to “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law”). This framework parallels the Supreme Court’s treatment of liberty and property interests in procedural due process cases. See Hart & Wechsler, supra note 6, at 518–20.
One example is the FCRA’s transformation of an interest in reputation. In TransUnion, the credit-reporting company argued that the erroneous information included in the plaintiffs’ credit reports was merely misleading, while the common law of defamation required actual falsity.186See TransUnion, 141 S. Ct. at 2209 (citing Restatement (First) of Torts, § 559 (1938)).
The Court responded that although a plaintiff’s injury must bear “a ‘close relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in American courts, we do not require an exact duplicate.”187Id. at 2209. The “close relationship” language appears to originate in Spokeo. See 578 U.S. at 341.
Within certain bounds, in other words, Congress may by statute expand the set of actionable harms beyond claims that the common law would have recognized as sufficient for liability.188See also Spokeo, 578 U.S. at 341 (“[B]ecause Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important.”).
The Court thus concluded that “the harm from a misleading statement of this kind bears a sufficiently close relationship to the harm from a false and defamatory statement.”189TransUnion, 141 S. Ct. at 2209.
In contrast, for those plaintiffs whose credit files had not yet been accessed by third parties, there was “no historical or common-law analog where the mere existence of inaccurate information, absent dissemination, amounts to concrete injury.”190Id. at 2209 (quoting Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of Transp., 879 F.3d 339, 344–45 (D.C. Cir. 2018)); see also, e.g., Phillips v. U.S. Customs & Border Prot., 74 F.4th 986 (9th Cir. 2023) (holding that the government’s mere retention of records obtained from surveillance was not a sufficiently concrete injury to support standing).
This approach is similar to what Tom Merrill has called a “patterning definition” in the context of property interests protected under the Due Process Clause.191See Merrill, supra note 17, at 952–54.
That clause generally does not itself create property interests, but it does set outer bounds. Some interests must be treated as property for due process purposes, even if state law does not treat them as such, while other interests cannot be even if they are recognized as such by other positive law.192Compare, e.g., Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980) (stating that interest accruing on an interpleader account was “property” for purposes of the Fifth and Fourteenth Amendments even though state law did not recognize it as such), with Bd. of Regents v. Roth, 408 U.S. 564 (1972) (recognizing that state law protections for tenure of public university teacher had created a property interest protected under the Due Process Clause), and Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673–74 (1999) (holding that the interest in being free from a competitor’s false advertising created by the federal Lanham Act was not a property interest for due process purposes). A similar pattern exists with respect to liberty interests. See Hart & Wechsler, supra note 6, at 518–20.
Likewise, Article III allows legislatures and common law courts considerable freedom to determine whether invasion of particular interests will qualify as injury in fact (category 3), but federal constitutional criteria both treat some familiar interests as conclusively sufficient (category 1), on the one hand, and limit the interests that may be recognized (category 2), on the other.193Compare, e.g., Scanlan v. Eisenberg, 669 F.3d 838, 845 (7th Cir. 2012) (“[T]he actual or threatened injury required under Article III can be satisfied solely by virtue of an invasion of a recognized state-law right.”), with Hollingsworth v. Perry, 570 U.S. 693, 713–14 (2013) (holding that California’s delegation of right to defend the legality of a state constitutional amendment adopted by referendum to the referendum’s proponents failed to confer Article III standing because the delegation did not satisfy federal criteria for a valid agency relationship).
Critics have argued that TransUnion’s approach “significantly changes the law and places in doubt the ability to sue to enforce countless federal laws,”194Erwin Chemerinsky, What’s Standing After TransUnion LLC v. Ramirez, 96 N.Y.U. L. Rev. Online 269, 270 (2021).
but this charge seems overstated. TransUnion’s references to the common law are not new,195See, e.g., Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 285 (2008) (finding common law history and U.S. historical practice “well nigh conclusive” on the standing question (quoting Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 777–78 (2000))); Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., joined by Ginsburg, J., concurring) (discussing “the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement”). Nor does the practice of looking to common law analogies appear to be controversial among the current justices. See, e.g., Uzuegbunam v. Preczewski, 141 S. Ct. 792, 797–98 (2021) (in opinion for eight justices, beginning justiciability inquiry by “look[ing] to the forms of relief awarded at common law”).
and whether application of the historical test has changed remains to be seen. To be sure, statutory citizen-suit provisions conferring rights to sue without any showing of an individualized interest will be hard to square with TransUnion, but the validity of that sort of suit has been in doubt for at least 30 years.196See Lujan v. Defs. of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring in part) (stating that “we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition,” but “Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit”).
Justice Kavanaugh’s opinion in TransUnion made clear that, in looking for historical analogies to support a new statutory cause of action, “we do not require an exact duplicate.”197TransUnion, 141 S. Ct. at 2209.
The Court’s willingness to recognize dissemination of erroneous information as injury without any showing of tangible harm does not strike us as all that restrictive.198See, e.g., Green-Cooper v. Brinker Int’l Inc., 73 F.4th 883 (11th Cir. 2023) (concluding that the dissemination of the plaintiffs’ credit card and personal information on the dark web created a sufficient present injury and risk of future injury to satisfy standing requirements).
On the other hand, some courts have interpreted TransUnion as requiring a pretty close match between the harms addressed by statutory causes of action and harms recognized by common law torts (such as for defamation or invasion of privacy).199See, e.g., Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1245–49 (11th Cir. 2022) (en banc) (rejecting standing under the Fair Debt Collection Practices Act (FDCPA) for debtor whose information had not been made public “[b]ecause the harm Hunstein now asserts . . . lacks a close relationship with a traditional common-law tort”); Ward v. Nat’l Patient Acct. Servs. Sols. Inc., 9 F.4th 357, 362 (6th Cir. 2021) (rejecting standing to assert a claim under the FDCPA, in a 2–1 decision, because “the procedural injuries [the plaintiff] asserts do not bear a close relationship to traditional harms”).
The closer the “harm-to-harm comparison” that courts demand,200Hunstein, 48 F.4th at 1244.
the smaller the third category of legislative flexibility becomes.201See id. at 1262 (Newsom, J., dissenting) (“[B]y insisting on a rigid . . . element-for-element test . . . the majority denies Congress any breathing space in which to recognize judicially enforceable rights that didn’t exist at common law.”).
Divergent approaches to this question among the circuit courts of appeal have arguably ripened into a circuit split,202See, e.g., id. at 1267 (Newsom, J., dissenting) (identifying a circuit split); Pierre v. Midland Credit Mgmt., Inc., 29 F.4th 934, 953–55 (7th Cir. 2022) (Hamilton, J., dissenting) (same); Pucillo v. Nat’l Credit Sys., Inc., 66 F.4th 634, 636, 642–44 (7th Cir. 2023) (dividing 2–1 over whether sending improper debt collection letters to the plaintiff, in violation of the FDCPA, was sufficiently analogous to a common law invasion of privacy).
and the proliferation of holdings that Article III forecloses particular claims under the Fair Debt Collection Practices Act (FDCPA) may well require Supreme Court review sooner rather than later.203Other statutes raise similar issues. For example, the Fair and Accurate Credit Transactions Act (FACTA) prohibits merchants from printing more than the last five digits of a credit card number, or the card’s expiration date, on receipts offered to customers, and courts have had to consider whether and under what circumstances there is standing to sue for a violation of that prohibition. Compare, e.g., Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917 (11th Cir. 2020) (en banc) (disallowing standing), with Jeffries v. Volume Servs. Am., Inc., 928 F.3d 1059 (D.C. Cir. 2019) (allowing standing). Although the circuits have divided over standing to assert statutory FACTA violations, most of the decisions predate TransUnion. See, e.g., Barrientos v. Williams-Sonoma, Inc., No. 21-cv-05160, 2023 WL 5720855, at *3, *7–10 (N.D. Ill. Sept. 1, 2023) (collecting cases and analyzing FACTA injuries in light of TransUnion). The Driver’s Privacy Protection Act (DPPA) prohibits the release of personal information relating to motor vehicle records. For a 2–1 decision holding that there was no standing to sue for disclosure of a driver’s license number in violation of the Act because “the disclosure of a number in common use by both public and private actors does not correspond to any tort,” see Baysal v. Midvale Indemnity Co., 78 F.4th 976, 980 (7th Cir. 2023). The Supreme Court granted certiorari and heard argument in the 2023 term to consider the propriety under TransUnion of “tester” standing. Tester standing is the standing of individuals to challenge a defendant’s failure to comply with the law in their offer of goods or services (for example, by engaging in improper discrimination or by failing to provide required information) in situations in which the challengers do not actually intend to avail themselves of the products or services. The Court did not address the propriety of such standing because it concluded that the case was moot. See Acheson Hotels, Inc. v. Laufer, 144 S. Ct. 18 (2023).
The broader question of how broadly Article III permits legislatures to recognize new categories of harm is beyond the scope of this Article. It does seem clear that, after TransUnion, considerable room remains for argument about whether particular forms of injury can suffice for Article III injury in fact. The next two sections play that analysis out for the most frequently invoked categories of injury in probabilistic standing cases.
B. Legal Injuries, Risk, and Remedies
Many probabilistic standing cases involve a present legal injury that may or may not result in actual harm sometime in the future. Notwithstanding the majority’s insistence in TransUnion that purely legal injury is not sufficient under Article III, the Court’s modern standing jurisprudence has waffled back and forth.204See William Baude, Standing in the Shadow of Congress, 2016 Sup. Ct. Rev. 197, 209–27.
It is not easy to reconcile TransUnion, for example, with the Court’s decision the same term in Uzuegbunam v. Preczewski. That case—an 8–1 decision written by Justice Thomas—adopted the common law rule “allowing nominal damages for a violation of any legal right” and held that nominal damages satisfy Article III.205See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 799–80 (2021); see also Carey v. Piphus, 435 U.S. 247, 266 (1978) (holding that a plaintiff may obtain nominal damages for violation of her constitutional rights).
Does that mean that all of the TransUnion plaintiffs could have had standing if the FCRA had authorized them to recover one dollar for violation of their legal rights?206See Pierre v. Midland Credit Mgmt., Inc., 29 F.4th 934, 949 (Hamilton, J., dissenting) (observing that if “nominal damages are available and even presumed where a plaintiff proves a violation of her legal rights,” then “I have trouble seeing why Congress cannot authorize a modest damages remedy where a plaintiff’s statutory rights are violated”); cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 372 (1974) (White, J., dissenting) (noting that the common law “allowed the recovery of nominal damages for any defamatory publication”).
Uzuegbunam suggests that, in some circumstances, Congress could authorize damages for a purely legal violation, at least those involving constitutional or traditional legal interests.
Moreover, neither TransUnion nor Spokeo purported to disturb a variety of well-established causes of action that do not require the plaintiff to establish any actual injury to prevail. One example is unjust enrichment. Although “the paradigm case of unjust enrichment is one in which the benefit on one side of the transaction corresponds to an observable loss on the other,” unjust enrichment may also arise when the defendant has obtained a benefit “ ‘in violation of the other’s legally protected rights,’ without the need to show that the claimant has suffered a loss.”2071 Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. a (Am. L. Inst. 2011).
Plaintiffs may thus seek restitution of a defendant’s gains obtained by commercial bribes or kickbacks, wrongful appropriation of a business opportunity, misuse of confidential information, or other conflicts of interest without showing any consequential damage.208See Brief of Restitution and Remedies Scholars as Amici Curiae in Support of Respondent at 6–13, Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (No. 13-1339).
Likewise, owners of copyrights, trademarks, or trade secrets can recover a defendant’s profits from an infringement even if the plaintiff cannot show losses of her own.209See id. at 13–15; Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390, 404–06 (1940); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 487 (9th Cir. 2000).
Some torts, moreover, are actionable without proof of damage to the plaintiff;210See, e.g., Restatement (Second) of Torts § 7 cmt. a (Am. L. Inst. 1965) (“[A]ny intrusion upon land in the possession of another is an injury, and, if not privileged, gives rise to a cause of action even though the intrusion is beneficial, or so transitory that it constitutes no interference with or detriment to the land or its beneficial enjoyment.”); 1 Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 47, at 120 (2d ed. 2011) (noting that under the law of assault, “[t]he invasion of the plaintiff’s rights is regarded as a harm in itself and subject to an award of damages”); Brief of Respondent at 16–22, Spokeo, 578 U.S. 330 (No. 13-1339) (collecting early English and American cases).
in fact, the tort of defamation at the heart of TransUnion is one of them.211See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 372 (1974) (White, J., dissenting) (“In 1938, the Restatement of Torts reflected the historic rule that publication . . . of defamatory material . . . subjected the publisher to liability although no special harm to reputation was actually proved.”) (citing Restatement of Torts § 569 (1938)).
Finally, as the Court acknowledged in Spokeo, invasions of constitutional rights can suffice for concrete injury without any consequential harm.212See Spokeo, 578 U.S. at 340 (citing Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (free exercise of religion)).
The Court has not clearly articulated a theory of standing that squares these circumstances in which legal injury seems to suffice with its analysis and results in Spokeo and TransUnion. Two possibilities seem plausible. The first draws on TransUnion’s point that standing requirements differ depending upon the remedy that the plaintiff seeks. As we discuss further below, the Court said that plaintiffs may rely on a risk of sufficiently imminent harm to establish injury in fact if they seek a preventive injunction but not in an action for damages.213See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210–11 (2021); see also, e.g., Dinerstein v. Google, LLC, 73 F.4th 502, 515 (7th Cir. 2023) (“To the extent that [the plaintiff] rests his claim for damages on allegations of future risk, the argument is a nonstarter [under TransUnion].”).
That would explain the constitutional rights cases cited in Spokeo, and one could accommodate the unjust enrichment cases by stressing that restitution is a fundamentally different remedy than compensatory damages.214See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 215 (2002) (discussing differences between restitution and damages relief); 1 Dan B. Dobbs, Law of Remedies § 1.1 at 5 (2d ed. 1993) (“[R]estitution is measured by the defendant’s gains, not by the plaintiff’s losses.”); Brief of Restitution and Remedies Scholars, supra note 208, at 4–6.
But it is hard to explain why a claim for nominal damages based on the violation of Mr. Uzuegbunam’s legal rights sufficed for standing, while a claim for statutory damages for TransUnion’s violation of FCRA rights was insufficient.215But see supra note 143 (noting that Uzuegbunam concerned whether a plaintiff’s claim that had initially established concrete injury for standing purposes had become moot).
The better explanation is that a violation of someone’s legal rights may involve “an invasion of a legally protected interest that is concrete and particularized,”216Spokeo, 578 U.S. at 339 (quoting Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992)).
even if there are no further consequential damages. Spokeo and TransUnion both acknowledged that intangible injuries may suffice as injury in fact. Just as the Court has accepted violation of a personal constitutional right as a sufficient injury, so too the violation of a property right in a trespass case, or a duty of loyalty owed to the plaintiff in an unjust enrichment case, may amount to “actual” injury even if no further physical or financial consequences flow from it. That was true in TransUnion, where the Court did not require plaintiffs to prove any consequential damages from the publication of incorrect information about them.217See TransUnion, 141 S. Ct. at 2209; see also Santos v. Healthcare Revenue Recovery Group, LLC, 90 F.4th 1144, 1151, 1157 (11th Cir. 2024) (per curiam) (upholding standing under TransUnion for FCRA plaintiffs who alleged publication but not actual damages, based on consistency with the common law rule).
Each of these injuries “bears a ‘close relationship’ to a harm traditionally recognized as providing a basis for a lawsuit in American courts.”218TransUnion, 141 S. Ct. at 2208 (quoting Spokeo, 578 U.S. at 341); see Brief of Restitution and Remedies Scholars, supra note 208, at 20–22 (demonstrating that unjust enrichment and trespass claims without injury pre-date the American Founding); Uzuegbunam v. Preczewski, 141 S. Ct. 792, 797–800 (2021) (tracing the pedigree of nominal damages for violations of common law and constitutional rights).
But the more important point may be that in each of these situations, the law provides a particular individual with a right to do something, have something, or enjoy a certain sort of security (e.g., from the fear that an agent may have a conflict of interest or from publication of false information), and the denial of these entitlements by a defendant’s unlawful act works an “actual” injury. Although the line will not always be easy to draw, that sort of wrong can reasonably be seen as harmful in a way that the incorrect but undisseminated OFAC alert in the TransUnion plaintiffs’ files was not.219Justice Thomas would distinguish between private rights (which he contends that Congress may render actionable without further need to show “actual” injury) and public ones (which Congress can authorize private plaintiffs to enforce only if they can show private injury of some kind). See Spokeo, 578 U.S. at 344–46 (Thomas, J., concurring) (defining public rights as rights owed “to the whole community, considered as a community, in its social aggregate capacity” and private rights as rights “belonging to individuals, considered as individuals” (first quoting 3 William Blackstone, Commentaries *2; and then quoting 4 Blackstone, supra, at *5)). Although the line between public and private rights will not always be clear, Justice Thomas’s position might provide a cleaner line than the one we have offered in the text. Nonetheless, it is unclear how much support his approach has on the Court, and our object in this Article is to develop as coherent an account of current doctrine as we can within the bounds set by the Court’s recent cases.
If this is correct, then the key in so-called “legal injury” cases will be to distinguish between invasions of legal interests analogous to individual constitutional rights, trespass, and unjust enrichment and “bare procedural violation[s]” of the sort found wanting in TransUnion.220TransUnion, 141 S. Ct. at 2213 (quoting Spokeo, 578 U.S. at 341).
At least with respect to the plaintiffs alleging only such violations, the Court in TransUnion likely saw the suit as one in which Congress had simply offered a bounty for private enforcement of the FCRA’s procedural requirements rather than an effort to protect a real personal interest.221See Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 772 (2000) (stating that a plaintiff’s interest in a bounty for enforcing federal law does not, by itself, suffice to establish standing).
One might still effectively sweep in all legal violations by treating the risk of future harm as a present concrete injury. The TransUnion plaintiffs tried to establish “actual” injury by asserting that “misleading OFAC alerts in their internal credit files exposed them to a material risk that the information would be disseminated in the future to third parties and thereby cause them harm.”222TransUnion, 141 S. Ct. at 2210.
This sort of argument enjoys considerable support in the commentary. Professor Nash points out, for example, that conventions of risk analysis typically calculate the “expected value” of a risk “by multiplying the magnitude of the harm by its probability.”223Nash, supra note 85, at 1306; see also Mank, supra note 59, at 671; Sunstein, After Lujan, supra note 18, at 207.
Nash argues that “[i]f people have suffered a loss with a positive expected value, they have suffered an ‘injury in fact.’ It is unhelpful to say, as courts often have done, that an injury is ‘speculative’ or ‘conjectural’ when it has a positive expected value.”224Nash, supra note 85, at 1285.
Some lower courts have accepted this sort of reasoning while others have not.225The Eleventh Circuit has identified a circuit split on the issue, Tsao v. Captiva MVP Rest. Partners, LLC, 986 F.3d 1332, 1340–43 (11th Cir. 2021), although the Second Circuit more recently questioned that conclusion, McMorris v. Carlos Lopez & Assocs., LLC, 995 F.3d 295, 300–01 (2d Cir. 2021); see also Hunstein v. Preferred Collection & Mgmt. Servs.., Inc., 48 F.4th 1236, 1267 (11th Cir. 2022) (en banc) (Newsom, J., dissenting) (identifying a circuit split). Whether or not the circuits’ positions are legally irreconcilable, the cases in this area display sufficient differences in approach and result as to cry out for clarification. See Tsao, 986 F.3d at 1345 (Jordan, J., concurring) (“Hopefully the Supreme Court will soon grant certiorari in a case presenting the question of Article III standing in a data breach case.”). See generally Sheila B. Scheuerman, Against Liability for Private Risk-Exposure, 35 Harv. J.L. & Pub. Pol’y 681, 691–716 (2012) (surveying cases).
The answer seems to turn not only on divergent readings of Spokeo and TransUnion, but also on the plaintiff’s legal theory. A negligence or strict liability theory, for example, generally requires a realized harm;226See John C. P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 Va. L. Rev. 1625, 1651 (2002) (“Criminal law sometimes prohibits and punishes genuinely inchoate wrongs—uncompleted wrongful acts. Tort law does not.”); Heidi M. Hurd, The Deontology of Negligence, 76 B.U. L. Rev. 249, 262–65 (1996) (observing that tort law “does not premise liability upon a defendant’s creation of risks”).
a breach of warranty theory, on the other hand, may be more likely to recognize failure to prevent a future risk as a present harm.227See, e.g., In re Aqua Dots Prods. Liab. Litig., 654 F.3d 748, 751 (7th Cir. 2014) (reasoning that the plaintiffs’ loss in this situation “is financial: they paid more for [the product] than they would have, had they known of the risks”).
Another variable, in state law cases, is different jurisdictions’ decisions on whether to permit liability for exposure to risk under the relevant substantive law.228See, e.g., Scheuerman, supra note 225, at 691–701, 713–16 (contrasting various state approaches).
There are good reasons to hesitate before recognizing subjection to risk as an independent injury in fact. One is that this solution to the probability problem is largely semantic because the next question would be how much risk must exist to constitute a cognizable injury in fact. It is hard to see how that question is any less difficult than asking how probable some future harm must be to satisfy the same standard. Professor Nash initially avoids this trap by saying that all positive present value amounts to injury in fact,229Nash, supra note 85, at 1306.
but then he hops right back into it by introducing a prudential restriction eliminating “de minimis” injuries.230Id. at 1308–09; see also Mank, supra note 59, at 737–41 (also proposing a de minimis threshold).
How minimal is de minimis? The Supreme Court, after all, has said that even small or nominal injuries are sufficient for Article III.231See United States v. SCRAP, 412 U.S. 669, 689 n.14 (1973). In a sense, almost all risk imposes some injury, in that the person exposed to it would be willing to pay something to avoid it—even if only a penny (unless the person obtained enjoyment from the risk, such as from skydiving or writing daring law review articles about standing).
The present-value argument also conflates two distinct questions. As Professor Cox observes, standing law always requires a normative judgment about whether a particular injury will be “cognizable,”232See Cox, supra note 93, at 92 (“[I]njury in fact is not a factual inquiry, but an irreducibly normative endeavor . . . .”). Similarly, one may accept that risk is a “harm” and still question whether harms based on unrealized risks should be actionable in law. See, e.g., Claire Oakes Finkelstein, Is Risk a Harm?, 151 U. Pa. L. Rev. 963, 964–66 & n.11 (2003); Goldberg & Zipursky, supra note 226, at 1651.
but considering whether risk of an injury should itself be cognizable requires two such judgments: “one about primary interests, and one about a secondary, derivative interest in not having increased risk of harm to the primary interest.”233Cox, supra note 93, at 99.
She notes that “identity theft can be an injury, while the increased risk of it might not be . . . .”234Id.
Professor Chris Schroeder similarly observes that even though everyone agrees that harm to human health counts as regulable harm, “modern governmental regulation . . . reflect[s] our wide disagreement over what constitutes a regulable risk.”235Schroeder, supra note 9, at 496.
Reducing risk to merely the “expected value” of any injury that would otherwise be actionable tends to overlook meaningful disagreements about when—and how much—risk ought to suffice.
A second question concerns whether the injury of being subjected to a risk of future harm is sufficiently particularized. Writing for the D.C. Circuit, then-Judge Kavanaugh argued that “the mere increased risk of some event occurring is utterly abstract—not concrete, direct, real, and palpable. . . . [I]ncreased risk falls on a population in an undifferentiated and generalized manner; everyone in the relevant population is hit with the same dose of risk, so there is no particularization.”236Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1297–98 (D.C. Cir. 2007); see also Sunstein, After Lujan, supra note 18, at 228 (acknowledging that “it is unclear that [risk] is sufficiently particularized”).
We are less sure that such injury is undifferentiated; each person’s risk is that they will get cancer, not someone else.237See FEC v. Akins, 524 U.S. 11, 35 (1998) (Scalia, J., dissenting) (explaining that an injury may be particularized even though it is “widely shared,” so long as “each individual suffers a particularized and differentiated harm”).
The more fundamental problem is that, although we may be confident that the risk will materialize with respect to some members of the relevant population, those members remain “statistical persons rather than identifiable persons.”238Mank, supra note 59, at 668.
TransUnion addressed the interest in avoiding risk of harm by distinguishing sharply between damages and injunctive relief. The Court acknowledged that “ ‘risk of real harm’ . . . can sometimes ‘satisfy the requirement of concreteness.’ ”239TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 (2021) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 341–42 (2016)).
But it insisted that this possibility is limited to “suit[s] for injunctive relief,” stating that “a person exposed to a risk of future harm may pursue forward-looking, injunctive relief to prevent the harm from occurring, at least so long as the risk of harm is sufficiently imminent and substantial.”240Id. (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013) and City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)).
The last phrase suggests that plaintiffs seeking injunctive relief cannot avoid the “imminence” requirement simply by recharacterizing an uncertain future harm as a harm experienced in the present. We argue in Section IV.A that imminence is better handled as a matter of ripeness. In any event, “a plaintiff’s standing to seek injunctive relief does not necessarily mean that the plaintiff has standing to seek retrospective damages.”241Id. The Court made this point immediately after invoking the remedial standing rule that “a plaintiff must ‘demonstrate standing separately for each form of relief sought.’ ” Id. (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). As in Lyons, however, the plaintiffs in TransUnion sought only one form of relief. Id. at 2202. This suggests (as we noted earlier) that the true import of the remedial standing rule is not that a plaintiff with a live, justiciable claim for one form of relief must surmount the Article III standing hurdle all over again for every additional form of relief claimed, but rather that the standing requirements may vary according to the nature of the relief that a plaintiff seeks.
TransUnion thus accepted the defendant’s argument “that in a suit for damages, the mere risk of future harm, standing alone, cannot qualify as a concrete harm—at least unless the exposure to the risk of future harm itself causes a separate concrete harm.”242Id. at 2210–11.
By “separate” harm, the Court meant emotional distress or some other present injury arising from exposure to risk243See id. at 2211 n.7.
—a possibility that we consider in the next section. But why distinguish between injunctions and damages in the first place? Although these remedies might well address different kinds of harm, one would expect that distinction to be a function of the law of remedies, not Article III standing.
The Court did not fully explain its reasoning on this point, but it offered a suggestive hypothetical example:
Suppose that a woman drives home from work a quarter mile ahead of a reckless driver who is dangerously swerving across lanes. The reckless driver has exposed the woman to a risk of future harm, but the risk does not materialize and the woman makes it home safely. . . . [T]hat would ordinarily be cause for celebration, not a lawsuit. . . . But if the reckless driver crashes into the woman’s car, the situation would be different, and . . . the woman could sue the driver for damages.244Id. at 2211.
As with the woman who got home safely, the Court stressed that “the 6,332 plaintiffs did not demonstrate that the risk of future harm materialized—that is, that the inaccurate OFAC alerts in their internal TransUnion credit files were ever provided to third parties or caused a denial of credit.”245Id.
This discussion suggests that the distinction between damages and injunctions rests on a more fundamental difference between realized and unrealized harm. Injunctions are frequently available to prevent the realization of harm; if there were a way to predict the bad driver’s reckless behavior in advance, one might well obtain a prohibitory injunction against it. But courts generally award damages only for realized harms.246See, e.g., United States v. Hatahley, 257 F.2d 920, 923 (10th Cir. 1958) (“The fundamental principle of damages is to restore the injured party, as nearly as possible, to the position he would have been in had it not been for the wrong of the other party.”); see also Douglas Laycock, Modern American Remedies: Cases and Materials 15 (5th ed. 2019).
This is sufficient reason to doubt that Professor Nash’s expected-value analysis—familiar to investors and risk managers—can translate well to the law of remedies.
Whether the law should recognize risk of future harm as a present injury remains controversial.247See, e.g., Adriana Placani, When the Risk of Harm Harms, 36 L. & Phil. 77, 77–78 (2017) (describing “[c]an a risk of harm be a wrong and harm?” as a “particularly divisive” question).
We have considerable sympathy for Professor Cox’s view that Article III does not itself take a position on whether risk should count for injury. The contrary view would certainly put much weight on words like “case,” “controversy,” or “judicial power.” Cox argues, consistent with a general theme of this Article, that the question is not so much whether to recognize risk as an independent injury in fact but rather who should decide that issue.248Cox, supra note 93, at 77.
In other words, courts should ordinarily defer to the underlying substantive law—whether it comes from a legislature, executive agency, or common law court—in determining whether to treat a present risk of a future injury as injury in fact. If Professor Mank is right that “most environmental and safety risks are probabilistic in nature,”249Mank, supra note 59, at 723.
for example, then Congress could build that recognition into the relevant statutes (and leave it out of statutes involving more traditional harms).
Squaring this position with TransUnion depends on the size of our third category of harms, in which legislators exercise some discretion to authorize suits by parties suffering harms that are analogous to traditionally actionable wrongs.250See Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016) (emphasizing the importance of “the judgment of Congress” in identifying concrete injuries).
TransUnion seems to have read the effort to seek FCRA damages for errors in undisseminated credit reports as a bounty for private enforcement of an essentially public procedural obligation, not a meaningful personal interest. But that decision need not be read to foreclose Congress from elevating exposure to risk of actual private harms to a legally cognizable injury. TransUnion did not attempt to explain why Article III forecloses recognition of risk as cognizable injury. State law sometimes permits damages for imposing a risk of future harm,251See, e.g., Lloyd v. Gen. Motors Corp., 916 A.2d 257, 266 (Md. 2007) (recognizing damages liability for plaintiffs exposed to risk of injury by a defective product); Scheuerman, supra note 225, at 713–15.
and it would be odd for a federal court sitting in diversity to dismiss such a case for lack of Article III standing. And the Court’s willingness to hear claims for prospective relief when the only present injury is the risk of future harm strongly suggests that such risk can sustain an Article III lawsuit.
Although TransUnion has become a central focus of standing doctrine in the lower courts, we contend that it is being read more expansively than necessary. Dean Chemerinsky may be correct that it “has the potential to dramatically restrict standing to sue in federal courts to enforce federal statutes,”252See Chemerinsky, supra note 194, at 269 (emphasis added).
but that reading is not inevitable. In suits for prospective relief—the heart of public law litigation253See Young, Equity, supra note 70, at 1907 (emphasizing the prevalence of equitable relief in public law litigation generally).
—TransUnion has little bite by its own terms.254TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 (2021).
And although federal statutes should generally not be read to permit recovery of damages based on exposure to risk of future harm, the Court has not categorically foreclosed that possibility. Even read for all it is worth, TransUnion did not bar a legislature from providing for statutory damages based on the likely present harms arising from risks.
C. Reduced Value, Costly Precautions, and Anxiety
Risks of future harm impinge on present behavior and well-being. Rational persons value property based in part on what is likely to happen to it in the future; they avoid actions they would normally take; they invest in other precautions against future harm; and they worry about future risks—sometimes to the point of severe emotional distress. Each of these phenomena is at least sometimes treated as cognizable harm in substantive causes of action, and each therefore offers a way for plaintiffs to plead around probabilistic standing problems. Much debate among the lower courts in probabilistic standing cases concerns these collateral consequences of risk, and the Supreme Court has sent mixed signals. As with the debate about risk itself, there is a temptation to ask whether diminished value, precautionary expenditure, and psychological harm simply are or are not cognizable under constitutional standing principles, but we contend that this is not a very fruitful inquiry.
This Section analyzes how these types of present harms fit into our three categories of cognizable and noncognizable interests. It will help to begin with cases in which the plaintiff sues under a common law cause of action or a generic statutory one—such as the Administrative Procedure Act or 42 U.S.C. § 1983—that does not specifically make the injury in question cognizable. Our Category 1 interests are those sorts of interests that familiarly form the basis of such lawsuits.
A reduction in the value of property, resulting from the defendant’s conduct, seems to fit comfortably in this category of presumptively cognizable harm. In Cole v. General Motors Corp.,255Cole v. Gen. Motors Corp., 484 F.3d 717 (5th Cir. 2007).
for example, the plaintiffs represented a class of persons who had purchased cars from GM which, they alleged, had defective air bag systems. Although none of the class members had actually been in an accident in which the defect had manifested and caused them injury, they claimed that GM had promoted the air bag systems as a valuable safety feature, failed to deliver that feature, and thus reduced the value of the automobiles they had purchased. Their legal theory focused on breach of express and implied warranties.256See id. at 719–20.
The court of appeals rejected GM’s argument that the plaintiffs lacked standing because they had not yet experienced any injury in fact; it was enough, the court said, that “[p]laintiffs seek recovery for their actual economic harm (e.g., overpayment, loss in value, or loss of usefulness) emanating from the loss of their benefit of the bargain.”257Id. at 723. The court emphasized that “[n]otably in this case, plaintiffs may bring claims under a contract theory based on the express and implied warranties they allege,” id., suggesting that the choice of a warranty over a tort theory made an important difference.
The court in Cole went out of its way to note that “[w]hether recovery for such a claim is permitted under governing law is a separate question; it is sufficient for standing purposes that the plaintiffs seek recovery for an economic harm that they allege they have suffered.”258Id.
That statement seems to contradict our notion that cognizability of an injury for standing purposes depends chiefly on whether the underlying law recognizes that injury. The critical point, however, is that diminished value is a sort of harm commonly and traditionally recognized in American law—even though jurisdictions differ on whether plaintiffs can recover on breach of warranty or tort claims when a product defect has not manifested in a failure causing injury to the plaintiff.259See, e.g., In re Gen. Motors LLC Ignition Switch Litig., 339 F. Supp. 3d 262, 276 (S.D.N.Y. 2018) (surveying cases).
Our first category of injury thus presumptively suffices for injury in fact so long as it is generally recoverable in American law, whether or not the plaintiff will be able to recover in particular circumstances. That is probably why most of the cases refusing to recognize decreased-value injury in no-manifest-injury cases are not standing cases, but cases decided on the merits.260See, e.g., Briehl v. Gen. Motors Corp., 172 F.3d 623, 627–28 (8th Cir. 1999).
On a first cut, precautionary expenses incurred to mitigate risks arising from unlawful action by the defendant fit readily within our first category of presumptively cognizable injury. A personal injury plaintiff’s medical expenses, or expenses incurred to repair property damage, are a mainstay of private litigation. Plaintiffs may also incur such costs in response to a risk of injury. “In recent years,” one court noted, “tort plaintiffs have increasingly sought, and have regularly been awarded, medical monitoring costs in both toxic tort and product liability cases.”261Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 568, 571 (6th Cir. 2005); see also id. (“A medical monitoring award aids presently healthy plaintiffs who have been exposed to an increased risk of future harm to detect and treat any resultant harm at an early stage.”).
In data breach cases, plaintiffs often seek to recover the cost of credit monitoring or changing service providers.262See, e.g., McMorris v. Carlos Lopez & Assocs., LLC, 995 F.3d 295, 298 (2d Cir. 2021); Solove & Citron, supra note 12, at 753.
Courts sometimes allow standing to recover for such precautionary and mitigation costs, but the cases are mixed.
Here, too, courts have tended to over-rely on Clapper.263See, e.g., McMorris, 995 F.3d at 303; Tsao v. Captiva MVP Rest. Partners, LLC, 986 F.3d 1332, 1339 (11th Cir. 2021).
The Clapper plaintiffs tried to establish standing not only by citing the threat that their conversations would be spied upon but also by alleging that that threat had obliged them to take burdensome and sometimes costly measures to protect their conversations’ confidentiality.264See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 415 (2013).
The Supreme Court, however, concluded that “[b]ecause [plaintiffs] do not face a threat of certainly impending interception . . . the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance, and . . . such a fear is insufficient to create standing.”265Id. at 417 (citing Laird v. Tatum, 408 U.S. 1, 10–15 (1972)).
The critical factor was that the plaintiffs could not establish that they were subject to the government action they challenged, and the cost of precautions incurred just in case they were so subject could not supply the necessary injury. “If the law were otherwise,” the Court explained, “an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.”266Id. at 416.
The situation of a mere “nonparanoid fear” is quite different from one involving a known violation of one’s legal rights.
Importantly, the Court did rely on costly precautions to establish injury in Monsanto v. Geertson Seed Farms.267Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 146 (2010).
The plaintiffs there were non-GMO alfalfa farmers who challenged a federal agency’s decision to deregulate Roundup Ready Alfalfa (RRA), a genetically modified form of alfalfa designed to tolerate a popular herbicide.268Id. at 146–49.
In holding that the non-GMO farmers had standing, the district court found that they had “ ‘established a reasonable probability’ that their organic and conventional alfalfa crops will be infected with the engineered gene’ if RRA is completely deregulated.”269Id. at 153 (quoting Petition for a Writ of Certiorari at app. at 50a, id. (No. 09-475)).
Because of that risk, the Court emphasized, plaintiffs had taken “certain measures to minimize the likelihood of potential contamination.”270Id. at 154.
The Court stressed that those expenses injured the plaintiffs “even if their crops are not actually infected with the Roundup Ready gene” and were “sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis.”271Id. at 155.
These decisions hardly provide a clear rule for when costly precautions will suffice to establish injury in fact. As already discussed, plaintiffs who cannot establish that the defendant has acted upon them at all—as in Clapper—cannot ordinarily establish standing. Monsanto’s facts, on the other hand, presented an unusually high degree of certainty that the plaintiffs would be affected by the challenged approval of RRA.272The Monsanto plaintiffs did not immediately challenge the agency’s deregulation of RRA, and when they did, they did not seek preliminary injunctive relief. As a result, “RRA enjoyed nonregulated status for approximately two years. During that period, more than 3,000 farmers in 48 states planted an estimated 220,000 acres of RRA.” 561 U.S. at 146. That meant that many of the uncertainties present in much pre-enforcement review of agency action (the usual scenario for challenging actions alleged to create a risk of future harm) had been resolved by events by the time plaintiffs sued and, ultimately, asked for an injunction.
The central dilemma may be best expressed in cases like Tsao v. Captiva MVP Restaurant Partners, LLC,273Tsao v. Captiva MVP Rest. Partners, LLC, 986 F.3d 1332 (11th Cir. 2021).
decided by the Eleventh Circuit in 2021. That case held that costs of precautions could serve as injury only when there is a “substantial risk” of the underlying harm—the same degree of probable future harm needed to make the underlying future harm itself cognizable for standing purposes.274See id. at 1344; see also In re Adobe Sys., Inc. Priv. Litig., 66 F. Supp. 3d 1197, 1217 (N.D. Cal. 2014) (“[I]n order for costs incurred in an effort to mitigate the risk of future harm to constitute injury-in-fact, the future harm being mitigated must itself be imminent.” (footnote omitted)).
On this approach, costly precautions could never serve as an independent basis for standing.275See, e.g., McMorris v. Carlos Lopez & Assocs., 995 F.3d 295, 303 (2d Cir. 2021) (“[W]here plaintiffs ‘have not alleged a substantial risk of future identity theft, the time they spent protecting themselves against this speculative threat cannot create an injury.’ ” (quoting In re SuperValu, Inc., 870 F.3d 763, 771 (8th Cir. 2017))).
Tsao thus starkly poses the question of whether costly precautions should ever lower the bar for standing when the future harm itself remains insufficiently “imminent” to support standing on its own. Significantly, other lower courts more receptive to costly precautions as injury have found the underlying future harm itself to be sufficiently imminent to satisfy Clapper.276See, e.g., Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 693–94 (7th Cir. 2015); In re Adobe, 66 F. Supp. 3d at 1216–17. Similarly, although Monsanto did not hold that the likelihood of the impending risk was sufficient to establish injury in fact, it did note that the District Court’s “conclusion that the deregulation of RRA poses a significant risk of contamination” to the plaintiffs’ crops was supported by the evidence. 561 U.S. at 154 n.3.
Such decisions are not necessarily inconsistent with Tsao and similar cases.
Courts hesitate to base standing on costly precautions alone because those precautions are within the plaintiff’s control and “monetary expenditures are viewed as too easy to manufacture.”277Solove & Citron, supra note 12, at 752–53.
Precautionary costs thus need some sort of limiting principle to ensure that they are reasonably undertaken, rather than incurred simply to support litigation. If this limiting principle is to be a function of probability—that is, if precautions are reasonable according to the likelihood of the harm they guard against—then it is hard to see why the requisite quantum of probability (whatever it is) for taking reasonable precautions should not be the same as that needed to support judicial action based on the underlying risk. After all, an injunction is a precaution against a risk of future harm.
We would minimize the extent to which courts must assess the various probabilities in individual cases. And we would evaluate the risk of the underlying future harm differently from the costly precautions that plaintiffs sometimes take. Our framework would rest on three principles: First, Clapper stands for the proposition that if a plaintiff cannot establish (under the respective standards at the pleading or summary judgment stage) that they have even been subjected to the defendant’s allegedly unlawful action, then costs incurred in efforts to mitigate that action’s effects will not create injury in fact, even if they seem reasonable in light of the uncertainty. But as we suggested earlier, these circumstances should be quite rare.278See supra Section II.A; see also Remijas, 794 F.3d at 694 (“[I]t is important not to overread Clapper. Clapper was addressing speculative harm based on something that may not even have happened to some or all of the plaintiffs.”).
Most cases will be governed by a second principle, which is that costly precautions will count as injury in fact where they are consistent with the underlying law. We would rely, for example, on tort rules specific to particular classes of cases to establish when harm from a toxic exposure or data breach is likely to warrant precautionary measures.279See, e.g., Dougan v. Sikorsky Aircraft Corp., 251 A.3d 583, 589–93 (Conn. 2020) (surveying the law in various jurisdictions concerning recovery of costs for medical monitoring in the absence of a manifest physical injury). More general principles, such as the doctrine of contributory negligence’s requirement that tort plaintiffs take reasonable precautions in some circumstances, may also be relevant. See, e.g., W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on the Law of Torts § 65, at 460–61 (5th ed. 1984).
In those classes of cases, Article III should pose no additional barrier. Third, even if costly precautions suffice, prudential ripeness limitations might nonetheless bar review if the future harm that is the ultimate subject of the litigation were so amorphous or distant as to render the legal issues in question unfit for review.
Critically, our framework would judge whether precautionary costs count as injury in fact not by assessing the likelihood of the future risk in individual cases but by looking to whether the underlying law (or common practice) generally acknowledges precautions as an appropriate response to a category of risk. In toxic torts, medical monitoring is becoming a common remedy; likewise, credit monitoring is increasingly prevalent in data breach cases.280See, e.g., Victor E. Schwartz & Cary Silverman, The Rise of “Empty Suit” Litigation[TM]: Where Should Tort Law Draw the Line?, 80 Brook. L. Rev. 599, 620–26 (2015) (summarizing medical monitoring cases); Savidge v. Pharm-Save, Inc., No. 3:17-CV-00186-TBR, 2017 WL 5986972, at *5 (W.D. Ky. Dec. 1, 2017) (collecting credit monitoring cases); see also Webb v. Injured Workers Pharmacy, LLC, 72 F.4th 365, 377 (1st Cir. 2023) (holding that “time spent responding to a data breach can constitute a concrete injury sufficient to confer standing, at least when that time would otherwise have been put to profitable use”).
In some cases, the risk may be sufficiently remote that no recovery of precautionary costs is appropriate. But we would leave that for the merits or remedial phase, rather than asking judges to make these particularistic probability judgments up front as part of the standing analysis. It should be enough that the complaint states a plausible claim of injury of a type that is broadly recognized by the underlying body of substantive law. By definition, our approach would allow Congress to create causes of action to recover precautionary costs.281For example, if Congress tied statutory damages under the FCRA to a judgment that incorrect evidence in a consumer’s credit file always justifies certain precautionary measures by the consumer, that should suffice for standing to sue.
We can imagine some hard cases under this rubric, particularly those that do not fall into a well-established “category” of substantive law. If standing in Massachusetts v. EPA282Massachusetts v. EPA, 549 U.S. 497 (2007).
had depended on costly precautions taken by private landowners—building a seawall, for instance, to keep out rising seas caused by climate change—it might be difficult to assess the reasonableness of such precautions considering the unpredictable timing, magnitude, and precise location and character of the impending threat. Two points give us comfort, however: First, courts need not assess the probability of the actual risk but simply whether it is sufficiently probable, in light of both its likelihood of occurring and its magnitude, to render precautionary measures reasonable. Second, because the magnitude of injury is not important under Article III,283See United States v. SCRAP, 412 U.S. 669, 689 n.14 (1973).
courts need not decide whether each particular precaution is reasonable under the circumstances but only whether some precautions are.
What about anxiety or emotional distress as a basis for injury in fact? TransUnion specifically reserved judgment on this issue, and standing literature has addressed it as a general question under Article III.284See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2211 n.7 (2021) (“We take no position on whether or how such an emotional or psychological harm could suffice for Article III purposes—for example, by analogy to the tort of intentional infliction of emotional distress. The plaintiffs . . . have not claimed an emotional distress injury from the risk that a misleading credit report might be sent to a third-party business.” (citation omitted)); see also Bayefsky, Psychological Harm, supra note 95; Bayefsky, Constitutional Injury, supra note 182.
The Seventh Circuit’s 2022 decision in Pierre v. Midland Credit Management, Inc.285Pierre v. Midland Credit Mgmt., Inc., 29 F.4th 934 (7th Cir. 2022).
provides a good example of the problem. There, a creditor attempted to persuade someone to pay a debt even though the statute of limitations would have barred legal recovery on the debt, thereby allegedly violating the Fair Debt Collection Practices Act (FDCPA). Although the debtor never actually paid the debt in response to the creditor’s efforts, she brought a class action suit under the FDCPA28615 U.S.C. § 1692k.
and obtained a jury award of $350,000. A divided panel rejected the plaintiff’s argument that the worry and confusion she experienced because of the creditor’s actions sufficed for standing.287Pierre, 29 F.4th at 40; see also, e.g., Wadsworth v. Kross, Lieberman & Stone, Inc., 12 F.4th 665, 668 (7th Cir. 2021) (holding, in another FDCPA case, that “anxiety and embarrassment are not injuries in fact”). For a recent decision more receptive to these sorts of injuries, in a different statutory context, see Laufer v. Arpan LLC, 29 F.4th 1268, 1272–74 (11th Cir. 2022), vacated as moot, 77 F.4th 1366 (11th Cir. 2023). Cf. Mack v. Resurgent Cap. Servs., L.P., 70 F.4th 395, 406 (7th Cir. 2023) (allowing standing to assert FDCPA claim based on modest economic injury because the plaintiff “has pled harm to an underlying concrete interest that Congress sought to protect”).
On the one hand, it seems obvious that emotional distress or anxiety ought to satisfy injury in fact in at least some circumstances. Some emotional distress claims have long been actionable at common law (most notably, claims for intentional infliction of emotional distress).288See, e.g., Gerber v. Herskovitz, 14 F.4th 500, 506 (6th Cir. 2021) (allegations of “extreme emotional distress” resulting from picketing of the plaintiffs’ synagogue were sufficient for standing).
Other well-established claims at common law, such as claims relating to invasion of privacy and harm to reputation, are based in part on the emotional injury that such conduct tends to cause.289See, e.g., Carey v. Piphus, 435 U.S. 247, 262–63 (1978) (noting that “statements that are defamatory per se by their very nature are likely to cause mental and emotional distress, as well as injury to reputation”).
On the other hand, the common law has long been cautious about emotional distress claims. Claims for negligent infliction of emotional distress, for example, are typically only actionable in connection with a physical injury.290See, e.g., Metro-North Commuter R.R. Co. v. Buckley, 521 U.S. 424, 429–31 (1997) (observing that the common law generally does not permit recovery in negligent infliction of distress claims unless the plaintiff sustains a physical injury or falls within the “zone of danger” of a physically-injurious act).
Moreover, recognizing anxiety or emotional distress injuries offers a ready end-run around any limits on recognizing legal or future risk-based injuries. And some forms of anxiety may be so widespread as to offend the principle barring generalized grievances.
We would again leave this largely to the underlying substantive law. When a plaintiff alleges a claim under a federal statute that the Supreme Court has held does not permit damages for emotional distress,291See, e.g., Cummings v. Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562 (2022) (holding that damages for emotional distress are not available under the Rehabilitation Act or the Affordable Care Act); Metro-North, 521 U.S. at 428–38 (holding that the Federal Employer’s Liability Act does not permit recovery for negligent infliction of emotional distress in the absence of a physical injury).
for example, emotional distress alone should not suffice for injury in fact. A tort plaintiff alleging intentional infliction of emotional distress, on the other hand, should generally not encounter any standing problem. The question would not be whether this plaintiff’s emotional injury was sufficiently serious or certain but whether the law governing the plaintiff’s claim generally recognizes emotional injury as a harm or part of a larger category of circumstances that includes the plaintiff.292Cf. Metro-North, 521 U.S. at 436 (noting, with respect to emotional distress claim, that “the common law in this area does not examine the genuineness of emotional harm case by case. Rather, it has developed recovery-permitting categories the contours of which more distantly reflect this, and other, abstract general policy concerns”); see also, e.g., Clemens v. Execupharm Inc., 48 F.4th 146, 158 (3d Cir. 2022) (concluding that the plaintiff’s “emotional distress and related therapy costs and the time and money involved in mitigating the fallout” associated with a data breach were sufficient for standing).
Legislatures, moreover, would ordinarily be able to satisfy Article III by rendering emotional injury or anxiety cognizable by statute.
Anxiety and emotional distress also provide a good illustration of our second category: cases in which Article III excludes a particular injury from recognition, even if a legislature attempts to make it actionable. In some circumstances, almost anyone may feel anxiety and emotional distress arising from a defendant’s violation of the law.293The Court has largely eschewed taxpayer standing for similar reasons. See Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 619–20 (2007) (Scalia, J., concurring).
For example, we are both professors of public law, with a considerable intellectual (and even emotional) investment in the rule of law and compliance with constitutional norms in which we are interested. If the President acts unconstitutionally, particularly in a sphere about which we write and teach, that may cause us far more distress and anxiety than if, say, our neighbor lets his dried leaves blow onto our property.294See, e.g., Whitten v. Cox, 799 So.2d 1, 18 (Miss. 2000) (“It is a principle of universal application that every trespass gives the landowner a right to at least nominal damages.” (quoting Chevron Oil Co. v. Snellgrove, 175 So.2d 471, 474 (Miss. 1965))).
But one bedrock principle of standing jurisprudence is that “an injury amounting only to the alleged violation of a right to have the Government act in accordance with law [is] not judicially cognizable.”295Lujan v. Defs. of Wildlife, 504 U.S. 555, 575 (1992); see also Allen v. Wright, 468 U.S. 737, 754 (1984) (“This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.”). The general prohibition on taxpayer standing rests on similar grounds. See Hein, 551 U.S. at 633 (Scalia, J., concurring) (“Is a taxpayer’s purely psychological displeasure that his funds are being spent in an allegedly unlawful manner ever sufficiently concrete and particularized to support Article III standing? The answer is plainly no.”).
So if Congress enacted the Law Professors’ Peace of Mind Act, empowering any academic who plausibly alleged distress and anxiety to challenge illegal action by a government official, the Court would surely strike that down. The generalized grievance rule thus sets an outer bound on the ability of legislatures or courts to expand standing by recognizing rights to recover for emotional distress or anxiety.
* * *
Many probabilistic standing cases turn on framing.296Cf. Daryl J. Levinson, Framing Transactions in Constitutional Law, 111 Yale L.J. 1311, 1314 (2002) (“The question of whether government has harmed some individual citizen (or vice versa) is meaningful only relative to some transactional frame that determines how much of that relationship, which of the multitudinous benefits and harms, should be included within the constitutionally relevant transaction.”).
A future threat of physical harm can be re-framed as a present risk, causing anxiety, distress, or economic impact in the here and now. Generally speaking, the limits of federal jurisdiction should not be a function of artful pleading. At the same time, we do not find in Article III any comprehensive rule about the particular types of injuries that suffice for standing. That tells us that the substantive law underlying a plaintiff’s claim must predominantly shape what interests count for standing, with an outer bound composed by the Court’s insistence on a constitutional floor of actual, de facto injury. The interaction of those two principles is necessarily messy. But our framework will hopefully help courts focus on the right questions.
IV. Imminence, the Timing Doctrines, and Remedies
Much of the difficulty in probabilistic standing cases arises because plaintiffs invoke injuries that have not happened yet. In those cases, the key requirement of contemporary standing doctrine is that the injury must be “actual or imminent, not conjectural or hypothetical.”297Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560).
As already noted, this imminence requirement for standing has both a probability dimension (how likely is the injury), and a temporal dimension (how soon is it likely to occur). These dimensions are related: If harm is unlikely, it might take a long time to come about, and if anticipated harm is far in the future, the likelihood that some circumstances may intervene to prevent it goes up. We have already argued that courts should not seek to establish some minimum probability threshold for standing.298See supra notes 119–22 and accompanying text.
In this Part, we contend that the temporal dimension of “imminence” should be handled largely under the timing doctrines of ripeness and mootness, as well as the law of remedies.
We have two key goals in this Part. The first is to stave off a growing tendency among courts and litigants to conflate standing and ripeness by highlighting some important differences between the doctrines. Those differences make ripeness—and sometimes its close relation, mootness—a more supple instrument for pursuing the values that justiciability doctrine seeks to protect in future injury cases. Conversely, we contend that the “imminence” language in the Court’s standing cases should be read as an allusion to the timing doctrines—not as an alternative temporal principle distinctive to standing.
Our second objective is to explore the role that the law of remedies plays in justiciability.299See, e.g., Fallon, Justiciability and Remedies, supra note 30, at 637 (“[C]ourts . . . decide cases by seeking what they regard as an acceptable overall alignment of doctrines involving justiciability, substantive rights, and available remedies.”).
We have already criticized the most common formulation of the “remedial standing” rule, but one cannot deny that the remedy sought in a case has a great deal to do with what it takes to establish standing. A better understanding of timing and remedial doctrines would, in turn, help clarify the perennial puzzle of how much justiciability doctrine is constitutional in nature and how much is prudential.
A. Standing, Ripeness, and Mootness
The black letter law of justiciability has always distinguished between standing and the timing doctrines. Dean Chemerinsky, for instance, writes that “[w]hile standing is concerned with who is a proper party to litigate a particular matter, ripeness and mootness determine when that litigation may occur.”300 Erwin Chemerinsky, Federal Jurisdiction § 2.41, at 129 (8th ed. 2021); see also 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3532, at 365 (3d ed. 2008) (“Ripeness doctrine is invoked to determine whether a dispute has yet matured to a point that warrants decision.”); id. at § 3533, at 715 (“Mootness doctrine encompasses the circumstances that destroy the justiciability of a suit previously suitable for determination.”).
Particular litigants may be the right parties to bring a particular suit and yet be tossed out of court because they have sued too early or too late.301E.g., Communist Party of the U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 79 (1961) (“That a proper party is before the court is no answer to the objection that he is there prematurely.”).
Despite this sharp distinction in the abstract, in practice contemporary courts—and some commentators—have tended to conflate standing, ripeness, and mootness. This tendency sows considerable confusion in the doctrine by eliding important differences in the relevant standards and the constitutional or prudential nature of their requirements. Further, the availability of two parallel tracks for deciding the same timing issues invites doctrinal manipulation. Most important for present purposes, conflating standing with ripeness and mootness obviates the distinctive role that the timing doctrines can play in addressing probabilistic injury problems.
The most common tendency is to merge or conflate standing and ripeness when a lawsuit rests on concerns about what might happen in the future. In Trump v. New York, for example, the plaintiffs alleged that a plan to exclude aliens lacking lawful immigration status from being counted in the census would violate the law and significantly affect congressional representation and federal funding.302Trump v. New York, 141 S. Ct. 530, 534–35 (2020) (per curiam).
The Court dismissed the case based on “[t]wo related doctrines of justiciability”—standing and ripeness—because it was highly uncertain how many aliens without lawful status would actually be excluded from the count.303Id. at 535.
“At the end of the day,” said the Court, “the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature.”304Id. at 536; see also, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149, 155, 157 n.3 (2014) (concluding, in a case challenging a regulation of free speech that the plaintiff had been subjected to in the past and might be again in the future, that the standing and ripeness issues in the case “boil down to the same question” (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128 n.8 (2007)); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297 (1979) (referring generally to whether there is a “case or controversy” without relying specifically on either the standing or ripeness labels).
Other decisions on the timing of litigation have overlooked ripeness altogether. In McConnell v. Federal Election Commission, for instance, the Court held that a politician could not challenge restrictions on campaign advertising that would not affect him until he ran for re-election in five years.305McConnell v. Fed. Election Comm’n, 540 U.S. 93, 226 (2003), overruled on other grounds by Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
The Court said that “[t]his alleged injury in fact is too remote temporally to satisfy Article III standing,” without mentioning ripeness at all.306Id. at 226.
Both scholars and judges have wondered whether there is any difference between the doctrines.307See, e.g., Hessick, supra note 6, at 64 (suggesting that “the constitutionally mandated imminence requirement is the same for ripeness and standing”); MedImmune, 549 U.S. at 128 n.8 (stating that “[t]he justiciability problem that arises . . . can be described in terms of standing . . . or in terms of ripeness” and suggesting that “standing and ripeness boil down to the same question in this case”). The Hart & Wechsler federal courts casebook asks students to “consider in what ways ripeness differs from the law of standing.” Hart & Wechsler, supra note 6, at 213.
Standing can also be difficult to distinguish from mootness. Consider City of Los Angeles v. Lyons,308City of Los Angeles v. Lyons, 461 U.S. 95 (1983).
which we discussed in Part II.309See supra note 105 and accompanying text.
Mr. Lyons had a claim for damages based on having been placed in a chokehold in police custody. But afterwards, any claim for an injunction based on that particular encounter was arguably moot (although Lyons might have argued that it fit into one of several exceptions to that bar).310See Hart & Wechsler, supra note 6, at 234. Indeed, the Court specifically rejected Mr. Lyons’s argument that the case was moot because the LAPD had changed its policies during the pendency of the appeal. The Court said that nothing prevented LAPD from resuming its practices, and so the changes had not “irrevocably eradicated the effects of the alleged violation.” Lyons, 461 U.S. at 101 (quoting Los Angeles Cnty. v. Davis, 440 U.S. 625, 631 (1979)); Fallon, Lyons, supra note 75, at 25.
The Court instead held that Lyons lacked standing to seek an injunction because he had not established that any future encounter was sufficiently likely.311Lyons, 461 U.S. at 101.
Professor Fallon concluded that “[a]s a result of Lyons, standing analysis apparently has displaced the more flexible doctrine of mootness as the applicable justiciability hurdle in much federal litigation predicated on past injuries.”312Fallon, Lyons, supra note 75, at 6.
Distinguishing the timing doctrines from standing is difficult in large part because all three principles rest on the fundamental requirement that a plaintiff have a personal stake in the litigation. Uncertainty about whether or to what extent the plaintiff will be affected by the law or conduct they challenge can call into question both whether they have sufficient injury to support standing and whether adjudication is appropriate at this time. As Professor Monaghan has famously observed, “[T]here is no ‘case or controversy’ once the private rights of the litigants are no longer at stake. Mootness is, therefore, the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence.”313Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973); see also Fred O. Smith, Jr., Undemocratic Restraint, 70 Vand. L. Rev. 845, 860 (2017). The Court qualified Professor Monaghan’s formulation in Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). But the Court there simply said that the doctrines are not identical for all purposes; it did not deny that standing, mootness, and ripeness all concern the same necessary injury, with the latter two doctrines simply reflecting temporal reasons why the injury might no longer, or not yet, exist. See, e.g., Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021) (“At all stages of litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether that interest exists at the outset, while the doctrine of mootness considers whether it exists throughout the proceedings.”).
The same can be said of ripeness, which assesses whether there is sufficient threat to the plaintiff’s personal interest at the outset of litigation to support the court’s exercise of jurisdiction.314Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 579–80 (1985).
Or as Professor Nichol put it, “The ‘natural’ overlap between standing and ripeness analysis occurs in the measurement of the cognizability of contingent or threatened harms.”315Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L. Rev. 153, 173 (1987).
Despite the overlap of standing and the timing doctrines in principle, the doctrines have evolved differently. One likely reason is that ripeness and mootness questions generally come up in actions for injunctive relief, and thus both timing doctrines reflect the highly flexible character of equity.316See Douglas Laycock, The Death of the Irreparable Injury Rule 220 (1991).
But whatever the explanation, standing and the timing doctrines apply quite different standards that focus on somewhat different concerns. As we previously noted,317See supra note 160 and accompanying text.
the Abbott Laboratories test for ripeness turns on the fitness of the issues in the case for judicial review and the hardship to the parties of awaiting future litigation.318Abbott Lab’ys v. Gardner, 387 U.S. 136, 149 (1967); see also, e.g., Nat’l Park Hosp. Ass’n v. Dep’t of the Interior, 538 U.S. 803, 808 (2003). The test is framed somewhat differently for pre-enforcement challenges to criminal laws, where the plaintiff must have “alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); see also Steffel v. Thompson, 415 U.S. 452, 459 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”).
This test is designed not so much to limit the power of courts but “to enhance the quality of judicial decision making by ensuring that there is an adequate record to permit effective review.”319 Chemerinsky, supra note 300, § 2.4.1, at 131.
Hence, the Abbott Laboratories test is not generally viewed as a stringent one,320Cont’l Air Lines, Inc. v. Civ. Aeronautics Bd., 522 F.2d 123, 128 (D.C. Cir. 1975), rev’ing en banc, 552 F.2d 107 (1974) (stating that a “presumption of reviewability . . . ‘permeates the Abbott Laboratories ruling’ ” (quoting Nat’l Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 694 (D.C. Cir. 1971))); Daniel Boger, Note, Pre-Enforcement Review: An Evaluation from the Perspective of Ripeness, 36 Va. Envt’l L.J. 77, 85 (2018) (stating that Abbott Labs created a “strong presumption in [pre-enforcement review’s] favor”); A. Raymond Randolph, Administrative Law and the Legacy of Henry J. Friendly, 74 N.Y.U. L. Rev. 1, 9 (1999) (suggesting that, since Abbott Labs, “the pendulum has swung too far in favor of permitting [pre-enforcement] review”).
and it adds another layer of flexibility by allowing one factor to trade off with the other in particular cases.321See, e.g., 13B Wright, Miller & Cooper, supra note 298, at 509 (“The determination that decision is possible without awaiting further events may be affected by the costs of delay.”).
Mootness is likewise often less demanding than standing. As the Court wrote in Friends of the Earth, “[T]here are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.”322Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).
Standing also differs from the timing doctrines in that, aside from certain specialized rules like the third-party standing doctrine,323See generally Bradley & Young, supra note 15, at 17–25 (discussing the prudential status of the third-party rule).
standing is generally considered a constitutional issue while ripeness and mootness are often thought to be at least partly prudential.324See Fallon, Justiciability and Remedies, supra note 30, at 676–81 (stressing prudential elements of mootness and ripeness and their connections to remedial concerns). Despite some recent skepticism about prudential justiciability limits, see Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014); Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125–26 (2014), the Supreme Court and the lower courts routinely invoke prudential aspects of the ripeness doctrine. E.g., DM Arbor Ct., Ltd. v. City of Houston, 988 F.3d 215, 219–20 (5th Cir. 2021).
To be sure, the Court has tied both timing doctrines to the case or controversy requirement of Article III.325See, e.g., Honig v. Doe, 484 U.S. 305, 317 (1988) (mootness); Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297–98 (1979) (ripeness).
But the ins and outs of both doctrines sound predominantly in prudence. Justice Harlan’s opinion in Abbott Laboratories, for example, did not even mention Article III in formulating the modern test for ripeness.326See Abbott Lab’ys v. Gardner, 387 U.S. 136, 148–49 (1967) (grounding ripeness in prudential discretion afforded by equitable rules, the Declaratory Judgment Act, and the Administrative Procedure Act without mentioning Article III); Honig, 484 U.S. at 330–31 (1988) (Rehnquist, C.J., concurring) (concluding that many aspects of mootness are likewise prudential); cf. Simmonds v. INS, 326 F.3d 351, 356–58 (2d Cir. 2003) (Calabresi, J.) (distinguishing between constitutional and prudential ripeness); McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003) (same); Bradley & Young, supra note 15, at 23–24 (noting the pervasive importance of prudential doctrines, including ripeness and mootness, in the law of federal jurisdiction).
In Buckley v. Valeo, the Court emphasized the importance of a legislative provision for expedited judicial review in upholding a pre-enforcement challenge to the Federal Election Campaign Act.327Buckley v. Valeo, 424 U.S. 1, 117 (1976); see also Hart & Wechsler, supra note 6, at 225–26 (discussing Buckley); Nichol, supra note 315, at 155 (“[E]xcept for those instances in which ripeness analysis is employed to eschew advisory opinions—a task performed more directly by the standing requirement—the doctrine serves goals that the Court has typically characterized as prudential rather than constitutional.”).
And the Court has recognized pragmatic exceptions to the mootness doctrine—such as for injuries “capable of repetition yet evading review”328FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007); Roe v. Wade, 410 U.S. 113, 125 (1973) (quoting S. Pac. Terminal Co. v. Interstate Com. Comm’n, 219 U. S. 498, 515 (1911)).
—that would be exceptionally difficult to justify were mootness a hard and fast constitutional rule.329Honig, 484 U.S. at 330 (Rehnquist, C.J., concurring); see also U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 400–01, 408 (1980) (allowing named plaintiff in a putative class action whose personal claim had become moot to continue to challenge the trial court’s denial of class certification).
All three justiciability doctrines share the constitutional requirement that a case must arise from a concrete injury in fact, but when the court decides in relation to that injury’s occurrence has been governed by more flexible prudential notions.
The choice to rely on standing, ripeness, or mootness in assessing the justiciability of a particular case may have important consequences. Without a clear division of labor between the doctrines, a court may choose a demanding standard or a relatively lenient one, a constitutional analysis or a prudential one. At best, the situation is confusing and arbitrary—it raises Justice Harlan’s concern that standing may reduce to “a word game played by secret rules.”330Flast v. Cohen, 392 U.S. 83, 129 (1968) (Harlan, J., dissenting).
At worst, viewing standing and the timing doctrines as interchangeable raises the possibility of manipulating the applicable analysis to bias the outcome. The most significant cost for our present purposes, however, is that conflating standing, ripeness, and mootness obscures the distinctive ways that the timing doctrines can assist in otherwise intractable probabilistic injury cases.
Courts and commentators have been too quick to give up on the basic distinction between a doctrine that seeks the right plaintiffs (standing)331See, e.g., Warth v. Seldin, 422 U.S. 490, 498–99 (1975) (“[T]he standing question is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.”) (internal quotation marks omitted).
and doctrines controlling the timing of when those plaintiffs may pursue their suit (ripeness and mootness).33213A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3531.12, at 50 (2d ed. 1984) (“Ripeness and mootness easily could be seen as the time dimensions of standing.”).
In future injury cases, both standing and the timing doctrines focus on questions of probability. Standing asks (1) whether plaintiffs are subject to the challenged action, and (2) if they are, whether they are likely to be harmed in a cognizable way. Decisions like Clapper suggest that significant uncertainty about the first question will be fatal if it cannot be resolved at the outset of litigation.333See supra Section II.A.
Relatedly, if wrongful conduct is allegedly happening in the world but it is uncertain whether the plaintiff will be exposed to it, the focus will typically be on standing.
But if plaintiffs are subject to the alleged harmful act, then the second question—concerning whether and how the wrongful act will give rise to injury—can be better settled by the timing doctrines. If future harm is the only harm alleged, then ripeness is the relevant doctrine.334See, e.g., Texas v. United States, 523 U.S. 296, 300 (1998) (“A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985))).
If the plaintiff has already experienced sufficient injury to get into court but is seeking relief predicated on that injury continuing or recurring, then mootness will often be the better choice.335See Laycock, Irreparable Injury, supra note 316, at 222 (“Mootness focuses on the past, ripeness on the future, but cases look both ways when plaintiff’s fears for the future are based on an incident in the past.”).
But the crucial point is that both timing doctrines, being largely prudential, focus on pragmatic concerns about the court’s ability to conduct the litigation and the practical needs of the parties. Ripeness emphasizes the extent to which the record before the court is sufficiently developed to proceed and the interests of the parties in avoiding delay.336 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 124 (1962) (explaining that “pure standing ensures a minimum of concreteness” but “the concept of ripeness seek[s] further concreteness, in varying conditions that cannot be described by a fixed constitutional generalization”).
Mootness adds consideration of the plaintiff’s interest in securing a binding judgment to forestall recurrence of the defendant’s wrongful action. These considerations are quite different—and more tractable for courts—than an effort to fix a standard for “imminence” under the standing doctrine (not to mention an effort to determine how likely a particular future injury actually is).337See Bray, supra note 77, at 12 (“If what we are looking for is the court’s ability to give a meaningful decision [at a particular time]—well, that is something judges have a feel for.”).
The Supreme Court’s decision in United Public Workers v. Mitchell338United Pub. Workers v. Mitchell, 330 U.S. 75 (1947).
illustrates these concerns about providing an adequately concrete factual context for judicial review. Federal employees subject to the Hatch Act, which barred them from taking part in political campaigns, challenged the Act on constitutional grounds. The Court held that their claims were not ripe because the plaintiffs had specified the prohibited activities in which they intended to engage in general, abstract terms.339Mitchell did not use the term “ripeness,” but it is generally taken to be a leading ripeness holding. See, e.g., Warth v. Seldin, 422 U.S. 490, 516 (1975); Chemerinsky, supra note 300, § 2.4.2, at 135–36.
This would have made it difficult for the Court to assess whether those activities implicated the government’s interests in preventing corruption or the appearance of corruption.340See Mitchell, 330 U.S. at 90.
As the Hart & Wechsler editors put it, “[T]here is a real issue in UPW v. Mitchell about whether the dispute was too ‘ill-defined’ to be appropriate for judicial resolution until further developments had more sharply framed the issues for decision. If ripeness doctrine has a distinctive role or focus, mustn’t this be it?”341 Hart & Wechsler, supra note 6, at 220 (emphasis added); see also Socialist Lab. Party v. Gilligan, 406 U.S. 583, 588 (1972) (rejecting constitutional challenge to state election law as unripe because—although the plaintiff might have standing to challenge the law, “their case has not given any particularity to the effect on them of Ohio’s affidavit requirement”).
This flexible, prudential inquiry is well-suited to the concerns associated with the “imminence” element of the Court’s standing jurisprudence. If plaintiffs are, or will be, subject to the challenged action—and they plead a cognizable form of actual injury with the requisite specificity—then they should generally have Article III standing to challenge it. But prudential ripeness can still usefully assess whether the Court has the requisite information to decide the case, or whether, as in Mitchell, the issue will not be fit for judicial resolution until further developments have fleshed out the record. Delay may also help avoid unnecessary resolution of constitutional issues.342See, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).
Against this concern, the Court must pragmatically weigh the hardship to the plaintiff if review is delayed, including the costs of any interim precautions the plaintiff must take to avoid future harm.343See Abbott Lab’ys. v. Gardner, 387 U.S. 136, 152 (1967) (discussing the hardship prong); cf. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 154–55 (2010) (considering costs of precautions as part of the standing inquiry).
To the extent that these factors weigh against one another on a sliding scale,344See, e.g., City of Kennett v. EPA, 887 F.3d 424, 432 (8th Cir. 2018) (“Both of these factors are weighed on a sliding scale, but each must be satisfied to at least a minimal degree.”) (internal quotation marks omitted); Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995) (stating that “both prongs of the test ordinarily must be satisfied . . . [but] there may be some sort of sliding scale under which, say, a very powerful exhibition of immediate hardship might compensate for questionable fitness . . . or vice versa”).
they preclude establishing any set doctrinal threshold for ripeness. But attempting to concoct such a threshold for “imminence” as part of the standing inquiry would both obviate the Court’s Abbott Laboratories inquiry for ripeness and sacrifice valuable flexibility on a question unsuited for categorical rules.
To be sure, prudential inquiries often elevate the discretion available to courts, and courts may sometimes abuse prudential discretion to mask decisions motivated by other concerns. But absent any textual mandate or guidance as to a probability threshold for standing, interpolating such a threshold into Article III is surely the more aggressive extension of judicial power. The ripeness criteria, moreover, focus discretionary judgment on issues falling more clearly within the judicial wheelhouse—that is, on the ability of the court to decide the case on the facts as they stand, and the hardship to the parties of delay.
B. Standing and Remedies
A final source of guidance in probabilistic injury cases is the law of remedies. Nearly two decades ago, Professor Fallon suggested that “the thesis that justiciability doctrines are deeply influenced by concerns about judicial remedies seems almost self-evidently true—even if it has seldom been stated expressly.”345Fallon, Justiciability and Remedies, supra note 30, at 661.
Fallon emphasized, however, the importance of “[i]mplicit judgments about appropriate judicial remedies”346Id. at 643.
—for instance, the judgment that an injunction providing for monitoring of police practices would be overly intrusive on state and local governmental prerogatives347E.g., City of Los Angeles v. Lyons, 461 U.S. 95, 112–13 (1983) (stressing “principles of equity, comity, and federalism that should inform the judgment of federal courts when asked to oversee state law enforcement authorities”).
—that might influence courts to construe standing or other justiciability doctrines more strictly. We build on Fallon’s work here by adding two points. The first is that remedial principles can and should interact with standing and the timing doctrines not just implicitly, but also explicitly—as part of the legal framework for establishing what justiciability doctrine requires. Second, in certain circumstances, courts should be more willing to apply the remedial rules of their own force rather than developing an “imminence” doctrine as part of standing that purports to serve the same function. This is particularly true in cases seeking injunctive relief to forestall an uncertain future harm.
In Lyons, the Court acknowledged at the outset that “case-or-controversy considerations ‘obviously shade into those determining whether the complaint states a sound basis for equitable relief.’ ”348Id. at 103 (quoting O’Shea v. Littleton, 414 U.S. 488, 499 (1974)).
Although Professor Fallon and other commentators often seem to treat justiciability and remedial law as doctrinally autonomous,349See Fallon, Justiciability and Remedies, supra note 30, at 644.
the Court’s interpretation of Article III’s “case or controversy” language has long focused on those disputes “traditionally amenable to, and resolved by, the judicial process.”350Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998); see also Muskrat v. United States, 219 U.S. 346, 356–59 (1911) (collecting citations to the effect that a case or controversy must involve the sort of “regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs” (quoting In re Pac. Ry. Comm’n 32 F. 241, 255 (Field, Circuit Justice, C.C.N.D. Cal. 1887)); Young, Equity, supra note 70, at 1893–96 (discussing the Court’s historical test).
Standing doctrine, in other words, is built on the traditional requirements for a lawsuit in the Anglo-American courts. It is hardly surprising, then, that the traditional rules for securing legal and equitable remedies should inform the content of standing and other rules of justiciability.
TransUnion is the best recent example. As we have already discussed, the Court distinguished sharply between remedies with regard to what sorts of harm may constitute concrete injury in fact.351See supra Section III.B.
The majority acknowledged that the threat of future harm could suffice in a suit for an injunction, but it rejected the notion that such harm could ground standing in a suit for damages.352See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210 (2021) (“As this Court has recognized, a person exposed to a risk of future harm may pursue forward-looking, injunctive relief to prevent the harm from occurring . . . .”).
This was true even though the Fair Credit Reporting Act specifically authorized persons who had not yet been injured by a violation of the Act’s requirements to seek statutory damages. For the Court, the longstanding rule that damages may be made available only for realized harms informed the meaning of Article III.353Id. at 2210–11; see also Laycock, Remedies, supra note 246, at 15 (stating that damages are generally only available for realized harms).
At the same time, the fact that equitable relief is traditionally available to forestall unrealized future injuries would have permitted Congress to authorize injunctions for the same plaintiffs. Cognizable injury under Article III varies according to the remedy sought in a case.
The Court did muddy the waters in TransUnion, however, by stating that a plaintiff may pursue injunctive relief from future harm “at least so long as the risk of harm is sufficiently imminent and substantial.”354TransUnion, 141 S. Ct. at 2210.
That could mean either that standing itself requires a judgment of the harm’s imminence or simply that plaintiffs cannot secure injunctive relief under the law of remedies without showing a likelihood of imminent and substantial harm.355See, e.g., D.T. v. Sumner Cnty. Schs., 942 F.3d 324, 326 (6th Cir. 2019) (stating that “immediate, irreparable harm” is a prerequisite for a preliminary injunction); Cnty. of Allegheny v. Commonwealth, 544 A.2d 1305, 1307 (Pa. 1988) (noting that for a preliminary injunction, “the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted” (emphasis omitted) (quoting Singzon v. Commonwealth, 436 A.2d 125, 127 (Pa. 1981)) (internal quotation marks omitted)); 11A Wright & Miller, supra note 300, § 2942 (noting that “the injury [must be] impending or threatened” to warrant injunctive relief (quoting Bonaparte v. Camden & A. R. Co., 3 F. Cas. 821, 827 (Baldwin, Circuit Justice, C.C.D.N.J. 1830) (No. 1,617))).
The latter view makes considerably more sense. Just as Article III articulates no standard for how likely a risk of injury must be, so too it sets no standard for how proximate a future injury must be in time. If the federal courts were to erect such a standard, they would surely draw heavily on the existing law of remedies, which for centuries has had to determine whether a harm was sufficiently imminent to warrant equitable relief.356See Kellis E. Parker & Robin Stone, Standing and Public Law Remedies, 78 Colum. L. Rev. 771, 782 (1978) (“The law of remedies has a long and familiar tradition of denying relief to persons whose relations to the case are deemed insufficient.”).
But why not let that law simply operate of its own force? Plaintiffs who can establish that they are subject to a risk of future harm should have standing to seek an injunction against it, but they should lose a motion to dismiss or for summary judgment if they cannot establish that the harm is sufficiently imminent under the relevant remedial law.
One might object that remedial considerations should be postponed to the end of the case and not be part of any threshold determination of standing.357See, e.g., Allen v. Wright, 468 U.S. 737, 791 (1984) (Stevens, J., dissenting) (arguing that “the possibility that the relief might be inappropriate does not lessen the plaintiff’s stake in obtaining that relief”); Parker & Stone, supra note 356, at 778 (arguing that incorporating remedial questions in standing analysis “does violence to the public interest in public law remediation by cutting off inquiry in advance of an informed judgment concerning public law remedies”).
But the norm that litigation proceeds in stages—from establishing jurisdiction to deciding the merits to formulating a remedy—has long coexisted with the possibility that a case may be dismissed at the threshold if the pleadings or summary judgment evidence are inadequate to support the plaintiff’s obligations at a later stage. Motions to dismiss may implicate the merits as well as jurisdiction, and so a plaintiff who has pleaded a claim for damages based on an unrealized harm might have their case dismissed for failure to state a claim upon which that relief can be granted.
That is not to say that everything should always be decided up front. Professor Fallon argued years ago that “[b]ecause sound decisionmaking about appropriate remedies requires sensitivity to context, the minimal requirements of standing should be set relatively low, . . . and courts should consider whether to award injunctions . . . within the more flexible frameworks of ripeness doctrine and the law of equitable remedies.”358Fallon, Justiciability and Remedies, supra note 30, at 638.
We agree and would further suggest that some courts may be inclined to unduly restrict standing in probabilistic injury cases because the remedial law has shifted not only to favor pre-enforcement review359See Hart & Wechsler, supra note 6, at 221–22; Jerry L. Mashaw, Improving the Environment of Agency Rulemaking: An Essay on Management, Games, and Accountability, L. & Contemp. Probs., Spring 1994, at 185, 235–36; sources cited supra note 320.
but to make preliminary injunctions routinely available.360See Bray, supra note 77, at 6 (demonstrating that “if the court agrees with the plaintiffs on the merits, it is . . . routine for the preliminary injunction to be granted”).
Standing, in other words, is being used as a filter for cases that courts deem premature but that permissive interpretations of ripeness and remedies would permit. We contend that this approach distorts standing doctrine, and that, if overly preemptive litigation needs to be forestalled, the timing and remedial doctrines should be tightened accordingly.
Unlike Professor Fallon, however, we contend that existing standing doctrine need not be fundamentally reframed to achieve that end. Our discussion of the definition of injuries under TransUnion demonstrated that the underlying law—including the law of remedies—plays an important role in defining what injuries are cognizable for standing purposes. And nothing in the Court’s standing jurisprudence demands that “imminence” become the basis for a separate set of temporal standards independent of established timing or remedial doctrines. Imminence is the bread and butter of ripeness, mootness, and remedies law. Standing will work better if its neighboring doctrines are allowed to shoulder part of the load.
Conclusion
Questions of probability pervade standing analysis. They affect all three core elements of Article III standing: injury, traceability, and redressability. And although the federal courts have decided a steady diet of probabilistic standing cases, no settled framework has emerged. We attribute this continuing confusion to courts and commentators asking standing doctrine to do too much, in several respects. Some scholars have sought to develop a unified theory of probabilistic standing that would apply to all sorts of cases. That approach, however, elides important distinctions between different categories of cases. We have labeled those categories uncertain exposure, uncertain injury, and uncertain causation. Each displays its own complexities, although certain themes overlap.
One of those overlapping themes is the notion that courts ordinarily should not seek to decide how probable an event must be to create standing—a task for which Article III provides little guidance and which courts are ill-positioned to assess. As Alexander Bickel said, “No answer is what the wrong question begets.”361 Bickel, supra note 336, at 103.
Rather, courts should ask who decides questions of probability—that is, which of several available institutions (juries, agencies, legislators) is best able to make the call. We have also argued that how injuries are framed makes a considerable difference in assessing their probability. Such framing should ordinarily come from the underlying substantive law—not standing doctrine—but the Court has complicated matters by holding that Article III sets certain constraints. That floor remains relatively modest in the cases so far, leaving plenty of room for deference to the underlying law.
Finally, it is worth remembering that standing doctrine is not the only source of law limiting access to courts and judicial remedies. The Court has developed important timing doctrines of ripeness and mootness, and it should resist the temptation to collapse them all into standing. Likewise, the law of remedies has for centuries dealt with the sorts of issues concerning probabilistic future harm that most bedevil standing doctrine. Both timing and remedial doctrines serve similar functions to standing doctrine, but they do so by asking different sorts of questions. Sometimes those questions will be both more appropriate and easier for courts to answer.
Perhaps if a committee of law professors could take standing doctrine down to the studs, they could rebuild it in a way that would be both more coherent and more workable. We often find such efforts valuable and enlightening, but we have not tried to do that here. Instead, we have offered an account that conforms reasonably well to most of the decided cases (suggesting an adjustment here and there) while trying to uncover the underlying rationales of these existing doctrines. As long as the doctrines are not asked to do more work than they are designed for, they hold up surprisingly well.
* Allen M. Singer Distinguished Service Professor of Law, University of Chicago Law School.
** Alston & Bird Distinguished Professor of Law, Duke University School of Law.
For helpful comments and suggestions, we thank Jonathan Adler, Thomas Bennett, Joseph Blocher, Erin Blondel, Kathy Bradley, Zachary Clopton, Deborah DeMott, Richard Fallon, Tara Grove, Andrew Hessick, Doug Laycock, Henry Monaghan, Richard Re, Neil Siegel, and participants in faculty workshops at Duke Law School, George Washington University Law School, and the Northwestern Pritzker School of Law, as well as at the University of Chicago Law School’s Standing Doctrine Conference. We are also grateful to Sydney Engle, John Macy, Mary Gen Sanner, and Rebekah Strotman for excellent research assistance.