Standing Uncertainty:An Expected-Value Standardfor Fear-Based Injuryin Clapper v. Amnesty International USA

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.IntroductionThis 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.5The 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.'"10This 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.14The 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.19On 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. …