Standing's expected value.

• Author: Nash, Jonathan Remy
• Position: III. Objections and Criticisms through Conclusion, with footnotes, p. 1316-1335

3. OBJECTIONS AND CRITICISMS

Skeptics might raise several objections to my proposal. I address them in this Part. I consider arguments that question (1)whether courts are competent to evaluate expected value-based standing, (2) whether expected value-based standing extends standing too far past the limits set by existing jurisprudence, and (3) whether expected value-based standing is normatively desirable.

1. Are Courts Competent to Evaluate Expected Value-based Standing?

   An initial question is whether courts are competent to make the calculations (that is, to calculate the product of the probability and magnitude of the relevant harms) and determinations necessary to apply expected value-based standing. If we cannot expect courts to do so competently, then it matters little whether expected value-based standing is consistent with existing jurisprudence or whether it is normatively desirable.

   In fact, courts already perform similar calculations in different settings. First, consider the responsibility of a judge in determining whether to grant bail and, if so, at what level. Among the factors the judges must weigh under the standard test are the defendant's risk of flight and the risk of future harm. (193) Both factors ask the court to make determinations based on risk.

   Consider next the judicial determination of whether to grant a preliminary injunction. In such circumstances, a court is directed to weigh, among other things, the irreparable harm to the defendant if the injunction issues and the plaintiff's likelihood of success on the merits, against the irreparable harm to the plaintiff if the injunction is not issued. (194) Here, the court must make at least three estimates of probability. While one of the factors--the likelihood of success on the merits--may fall within a court's particular area of expertise, (195) the others--determining whether granting the injunction will result in irreparable harm--calls on the court to make more difficult calls of probability. (196) The court must determine whether any harm is indeed likely to occur (or continue) in the future and, if so, whether there is a sufficient showing that the harm will be irreparable. (197)

   In addition, consider the Supreme Court's 2009 decision in Caperton v. A.T. Massey Coal Co., where the Court held that the Due Process Clause required an elected judge's recusal when there was an "intolerable probability of actual bias." (198) The Court concluded as follows:

   [T]here is a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. (199) Finally, an approach that incorporates expected-value calculations is also present in the Court's test for determining whether a criminal defendant is prejudiced--and therefore perhaps entitled to relief--by virtue of ineffective assistance of counsel. The defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (200)

   To be sure, there are settings in which courts have been historically reticent to engage in difficult probabilistic assessments. For example, the anticipatory nuisance doctrine generally bars nuisance suits until it can be alleged that a nuisance actually exists. (201) Courts are also often reluctant to award damages for lost profits in contracts cases on the grounds that they are speculative. (202) Still, even if courts sometimes refrain from probabilistic damage calculations, they often do award probabilistic damages. (203) Moreover, the calculation required to determine whether there is standing need not be as precise as it often must be in other contexts--to set damages, for example. In any event, my overarching point is not that courts embrace all opportunities to engage in probabilistic calculations, only that they do so--and are quite capable of doing so--in many circumstances.

   For purposes of exploring expected value, I do not suggest any kind of complex arithmetic. In most cases, the central issues will be straightforward. In addition, the calculations will often not have to be precise (204); all that a court must analyze is whether there is a positive expected value, not the exact amount. (205) For these reasons, the issue of judicial competence does not seem to be a serious problem.

2. Does Expected Value-Based Standing Extend Standing Doctrine Too Far Beyond Its Existing Constitutional Moorings?

   Is expected value-based standing consistent with existing constitutional doctrine? Some people might be skeptical. (206) My defense of expected value-based standing proceeds in two basic steps. I first respond to the argument that expected value-based standing is inconsistent with the requirements that the Supreme Court has identified for standing--and, in particular, that it calls for recognizing injuries that do not satisfy the existing "injury in fact" requirements. Second, I bolster my argument by demonstrating that my proposal for expected value-based standing would not fundamentally alter most of existing standing doctrine. To do this, I show first that existing law recognizes (if implicitly) various forms of standing based on probabilistic analysis. I also ground the consistency of expected value-based standing with existing law by arguing that injuries in cases of expected value-based standing are often felt, in various ways, in the present. (207)

   I begin by observing that the Supreme Court has left open the validity of probabilistic standing. (208) Indeed, although it has never recognized it formally, the Court has from time to time acquiesced in the notion of probabilistic standing. (209) Next, I recall the discussion above in Section II.C to the effect that injury as conceived under expected value-based standing meets the traditional requirements for "injury in fact." Only if the expected value of the probabilistic injury is sufficiently concrete will there be expected value-based standing. Having established that the existing understanding of "injury in fact" is broad enough to encompass injuries in cases of probabilistic harm, I turn to points that bolster that conclusion. First, there are existing standing doctrines that rely, if implicitly, on probabilistic analysis. Second, the injury in many cases of expected value-based standing can be felt in the present.

   I identify five types of standing under existing doctrine that rely, if implicitly, on probabilistic analysis. First, standing is in some sense grounded on probabilities almost any time an allegation of future harm is the basis for standing. (210) After all, one can rarely be certain that an alleged future harm will indeed come to pass. Standing rests on the probability that it will in fact come to pass. Consider, for example, Younger abstention doctrine, under which federal courts abstain from enjoining pending criminal prosecutions. (211) This means that standing to proceed in federal court must extend precisely to cases where the there is no prosecution pending yet the threat of prosecution is sufficiently high enough. (212) As another example, consider the Court's 2008 decision in Davis v. FEC. (213) The Court upheld the petitioner's right to challenge a federal election law rule that allowed petitioner's opponent to receive greater contributions than usual based on petitioner's intent to spend more than $350,000 of his personal funds on his campaign. (214) Justice Alito's opinion for the Court explained that the federal election rule in question "would shortly burden his expenditure of personal funds by allowing his opponent to receive contributions on more favorable terms." (215) The Court concluded that "there was no indication that his opponent would forgo that opportunity," (216) apparently on the ground that "the record at summary judgment indicated that most candidates who had the opportunity to receive expanded contributions had done so." (217)

   The Court's reliance on what "most candidates" under the relevant circumstances would do indicates tacit endorsement of probabilistic standing. Even beyond that, the Court assumed (without stating) that the additional funding the opponent could or would receive would make it more likely that the opponent would win the race. And, insofar as the petitioner's real harm would seem to be losing the election, that conclusion also rests on probabilities.

   Standing under the Declaratory Judgment Act similarly rests on probabilistic calculation. The Act permits federal courts to "declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." (218) Professor Borchard's justification for allowing declaratory judgments rests on the ground that a "prospective victim" ought not to be told "that the only way to determine whether the suspect is a mushroom or a toadstool is to eat it." (219) Put another way, the Declaratory Judgment Act allows a "prospective victim" to determine "whether the suspect is a mushroom or a toadstool" before eating it--while the chance that it is in fact a toadstool is merely probabilistic. The Supreme Court has underscored this probabilistic understanding of the Act, recognizing as a basic proposition that

   where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.... The plaintiff's own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction. (220) It is on this basis, moreover, that facial constitutional challenges are permissible. (221)

   A possible response is that these examples are settings in...