Standing Uncertainty: An Expected-Value Standard for Fear-Based Injury in Clapper v. Amnesty International USA

Andrew C. Sand*

The Supreme Court has held that a plaintiff can have Article III standing based on a fear of future harm, or fear-based injury. The Court’s approach to fear-based injury, however, has been unclear and inconsistent. This Note seeks to clarify the Court’s doctrine using principles from probability theory. It contends that fear-based injury should be governed by a substantial-risk standard that encapsulates the probability concept of expected value. This standard appears in footnote 5 of Clapper v. Amnesty International USA, a recent case in which the Court held that a group of plaintiffs lacked standing to challenge the constitutionality of a section of the Foreign Intelligence Surveillance Act of 1978.

This Note begins by tracing three competing lines of doctrine within the Court’s jurisprudence on fear-based injury and analyzes them using probability theory, arriving at a tripartite framework. After applying this framework to Clapper, this Note concludes that footnote 5’s substantial-risk standard should govern fear-based injury. Finally, this Note argues that the substantial-risk standard should be informed by an expected-value inquiry and justifies this proposal through precedent, probability principles, and practical concerns.

* J.D. Candidate, May 2015, University of Michigan Law School; M.S. Statistics, 2005, Stanford University. I am grateful to my Note editor, Daniel Cellucci, and Note supervisor, Professor Julian Davis Mortenson, for their invaluable insights and edits; my good friends Helen Hwang, Joseph Platt, and Alexander Robbins for their helpful comments; Katherine Warren for a generous last-minute read; and the Michigan Law Review Notes Office and editors for their assistance. Finally, I would like to thank my sister, Victoria Sand, and my parents, Robert and Ya’el Sand, for their steadfast support throughout my time in law school.

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