Standing's Expected Value

This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive expected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing jurisprudence by proposing a theory of expected value-based standing. It argues that the Constitution presents no obstacle to expected value-based standing, that the "injury-in-fact" test requires only a positive expected value, and that the prudential barrier to generalized grievances is the sole obstacle to expected value-based standing.IntroductionSuppose that Jones has an investment worth $10. Suppose that the government takes action that renders the investment worthless. Has Jones suffered an "injury in fact"? The answer is clear. Jones has lost an asset, and if the government takes that asset, it has injured Jones.1Now suppose that Jones has another investment. It is far more likely than not that the investment will turn out to be worthless. But there is a small chance-1 in 10,000-that the investment will be worth $1 million. Suppose that the government takes action that renders the investment certainly worthless. Has Jones suffered an "injury in fact"? Under existing standing doctrine, the answer is fairly clear. Jones has lost an asset, the expected value of which is $100, and if the government takes that investment, it has injured Jones.2Now suppose that Smith faces a mortality risk of 1 in 100,000. Smith wants the Environmental Protection Agency ("EPA") to eliminate that risk, which he believes it is legally required to do. The EPA refuses to act. Has Smith suffered an "injury in fact"? Under existing doctrine, the answer is not entirely clear; confusion over whether to classify the injury as procedural or substantive muddles the issue.3 But using monetary figures for the value of life the government itself has used, the expected value of a mortality risk of 1 in 100,000 is $60.4Whether a plaintiffcan establish that he or she has suffered an "injury in fact" is critical to whether the plaintiffcan pursue his or her legal action in federal court. Traditional Article III standing jurisprudence requires that a plaintiffdemonstrate (1) "injury in fact," (2) a causal link between that injury and the conduct complained of, and (3) redressability.5 "Injury in fact" is a necessary antecedent to standing analysis-without injury, there is no causal link between the plaintiffand the challenged conduct, and there is nothing to redress.My principal claim is simple: standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive expected value, they have suffered an "injury in fact." It is unhelpful to say, as courts often have done, that an injury is "speculative" or "conjectural"6 when it has a positive expected value. A 1-in-10,000 chance of losing $100,000 is the equivalent of a $10 loss (assuming risk neutrality7), and a $10 loss is an injury. A small risk of death is an injury in the sense that rational people would pay to eliminate the risk.8 Indeed, the federal government treats small risks of death as injuries calling for a regulatory response.9These points cast doubt on many of the Supreme Court's decisions in which it denies standing on the ground that the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor.10 Speculative risks have a positive value; to suffer them is to suffer an "injury in fact." If victory by the plaintiffwould give the plaintiffan asset with a positive expected value, then the plaintiff's injury would be redressed by a decree in his favor. …