Risk magnified: standing under the statist lens.

AuthorFan, Mary D.
PositionFuture harms

Central Delta Water Agency v. United States, 306 F.3d 938 (9th Cir. 2002).

Why some harms count before the courts and others do not is a matter of acute expressive and practical impact. Judicial refusal to see claimed injuries is an effective denial of legal personhood (1) and a bar from powerful judicial machinery. The issue of "erratic, even bizarre" judicial recognition of supplicants vexed Professor Joseph Vining as early as 1978. (2) Recent scholarship argues that injuries are seen through a subjective lens, reflecting the relative privilege of the judiciary and their concomitant difficulties in perceiving injuries to minorities and the poor. (3) This is a troubling contention. So long as another, objective explanation remains, it should be superimposed, not to conceal and legitimate potentially problematic practices, but to substitute as an alternative rationality and a neutral and transparent principal for future decisions. This Comment advances such an alternative explanation: The erratic pattern of judicial sight is partly a refraction of how judges view the risk of probabilistic future injury.

Present harm is immediately visible, but the contours of risked injury are less distinct, requiring congressional or constitutional magnification. Aspects of positive law aimed at reducing the risk of prescribed probabilistic future harms are telescopes. (4) Such collectively constructed magnifiers, however, often do not track social risk or vulnerability, since some clout is typically necessary to enshrine interests in positive law. As a result, those whose interests are socially slighted may find themselves similarly slighted before the courthouse doors.

This Comment proceeds in two Parts. Part I describes how the differential perceptions of risk as injury in City of Los Angeles v. Lyons (5) and Friends of the Earth v. Laidlaw Environmental Services (6) illustrate the rules of risk recognition employed by the judiciary. Part II discusses Central Delta Water Agency v. United States as an example of when risks alleged as harms do not match the risks magnified in law. (7) The Part concludes that, in such cases, the rules of recognition established by Supreme Court cases may be obeyed, and the crushing impact of a no-injury finding avoided by dismissal on timing grounds.

I

The standing axiom is oft-incanted. The Supreme Court interprets the case-or-controversy requirement of Article III, Section 2 of the Constitution to mandate three requirements for bringing suit. A plaintiff must claim (1) an "injury in fact," (2) that the injury is fairly traceable to the challenged action of the defendant, and (3) that redress of the injury by a favorable judgment is likely. (8) The Court defines an "injury in fact" as "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." (9) Future harms are thus cognizable as injuries only if they are "imminent," the meaning of which is "certainly impending." (10) The metric of cognizability, therefore, is the probability of occurrence--"certainly."

The probability of a claimed future injury occurring ranges from nil to certainty. The imminence standard shows that the Supreme Court calls for future injuries near certainty to find standing. As discussed below, however, the Court has viewed future injuries in the realm of probability, adopting a statist lens. As formulated by Jerry L. Mashaw, the statist perception of legal rights and personality depends "on legislative definitions of public welfare and on the organizational imperatives" of the administrative state. (11) The judiciary may enforce goals and duties arising from these collective definitions. (12) In contrast, rights to adjudication under the individualist model stem from losses. Rights are informed by the moral principle of corrective justice. (13) Standing law traditionally operates under the individualist model.

This Comment posits that probabilistic future injuries, which are not determinate events and therefore are invisible through the individualist lens, can be seen through a statist lens--but only if a risk-reducing statute or constitutional provision underlies the suit, providing the collective judgment that the risks alleged count. (14) When such legislative judgments exist, the separation-of-powers concerns over judicial interference with collectively defined policies, which underlie a rigid injury requirement, (15) are not implicated. Of course, the plaintiff still must allege personally experienced risk, for the statist lens is hybridized with the individualist search for personalized harm, the heart of the injury inquiry. When no underlying risk-reducing provision provides the basis for perceiving risks, courts do not see probabilistic injuries and try to prod allegations of risk into allegations of an impending loss, visible under an individualist lens.

The dual nature of the injury standard becomes clearer when the injury analysis in City of Los Angeles v. Lyons (16) is contrasted with the recent Supreme Court decision in Friends of the Earth v. Laidlaw Environmental Services. (17) Lyons is among the most troubling examples of how probabilistic future injuries are viewed through the individualist lens. After a traffic stop for a burned-out taillight, Los Angeles police subjected Lyons to a pat-down search. When Lyons dropped his hands after the search, the officers slammed them back against...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT