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Full-Text Articles in Law
Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank
Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank
Faculty Articles and Other Publications
In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies …
Standing And Statistical Persons: A Risk-Based Approach To Standing, Bradford Mank
Standing And Statistical Persons: A Risk-Based Approach To Standing, Bradford Mank
Faculty Articles and Other Publications
This Article proposes that any individual has standing to challenge government action that exposes her to an increased lifetime risk of 1 in 1 million or greater of death or serious injury. Because most regulation involves statistical probabilities of harm, a plaintiff challenging a government regulatory action or inaction as insufficiently protective cannot demonstrate that he or she would likely be harmed by the allegedly inadequate regulation, but merely that a different regulation might reduce the probability of future harm. The beneficiaries of a suit seeking better government regulation are, therefore, statistical persons rather than identifiable persons. By contrast, standing …