Academic journal article Michigan Law Review

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

Academic journal article Michigan Law Review

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

Article excerpt


This Note is about uncertainty and justiciable injury. Despite its doctrinal discomfort with uncertainty,1 the Supreme Court clearly allows plaintiffs to bring suit for injuries that have not yet occurred.2 At the same time, however, the Court requires some threshold showing of potential injury.3 This Note seeks to clarify the state of the doctrine4 between these two bookends by using concepts from probability theory.5

The Supreme Court has held that standing is a "core component" of the cases-and-controversies requirement of Article III of the Constitution and that a plaintiff must therefore have standing in order to sue in federal courts.6 The "irreducible constitutional minimum" to establish standing requires three showings: (1) injury in fact, (2) causation, and (3) redressability.7 To satisfy the injury-in-fact prong, a plaintiff must demonstrate a violation of a legally protected interest that is "(a) concrete and particularized, and (b) 'actual or imminent, not conjectural or hypothetical.' "8 For causation, there must be a causal link between the injury suffered and the conduct complained of-that is, the injury must be "fairly . . . trace[able]" to the defendant's actions and not attributable to independent third party actions.9 For redressability, the plaintiff must show that it is " 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.'"10

This Note focuses on an underappreciated11 aspect of injury in fact: fear-based injury. Probabilistic injury refers to any injury where it is uncertain that the underlying injury will actually occur,12 and it includes two categories: (1) threatened injury, and (2) fear-based injury. Threatened injuries are future injuries in which injury to the plaintiff is anticipated but has not yet occurred.13 By contrast, fear-based injuries, also called chilling-effect injuries, are present injuries in which the plaintiff suffers actual injury based on fear or anticipation of a threatened injury.14

The Supreme Court recently addressed fear-based injury in Clapper v. Amnesty International USA,15 which involved a constitutional challenge to § 702 of the Foreign Intelligence Surveillance Act of 1978 ("FISA").16 FISA authorizes and regulates the government's use of communications obtained through electronic surveillance conducted for foreign-intelligence purposes.17 In 2008, Congress amended FISA18 and added § 702, which allows the government to target certain non-U.S. persons located abroad without demonstrating probable cause.19

On the day that Congress enacted § 702, a group of U.S. reporters, attorneys, activists, and workers-the Clapper plaintiffs-challenged the statute, offering two distinct claims under probabilistic standing. First, they alleged threatened injury because there was an "objectively reasonable likelihood" that their communications with their clients, a group including detainees associated with the September 11 attacks, would be intercepted under § 702 at a future time.20 Second, the plaintiffs contended that they had suffered fear-based injury because the risk of § 702 surveillance required them to take "costly and burdensome measures" to protect the confidentiality of their communications.21 In a 5-4 decision, the Supreme Court held that the plaintiffs lacked standing under both claims.22

This Note analyzes the Supreme Court's jurisprudence on fear-based injury and its Clapper opinion using probability theory and argues that fearbased injury should be governed by an expected-value standard.23 Expected value is a concept in probability theory that provides a weighted average of the likelihood and magnitude of injury.24 More importantly, expected value can be used to assign a present value to uncertain future events25-an assessment directly applicable to Clapper's claims of fear-based injury.

This Note proceeds in three Parts. Part I surveys the Supreme Court's doctrine on fear-based injury, moving chronologically from the differing interpretations of Laird v. …

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