Surviving Summers

Lee, Michelle Fon Anne
May 2010
Ecology Law Quarterly;2010, Vol. 37 Issue 2, p381
Academic Journal
In Summers v. Earth Island Institute, the Supreme Court held that an organizational plaintiff could not establish standing based on the likelihood of having among its members an injured individual. The standing requirement was not met until that individual and his or her injury were specifically identified. The move apparently reined in the development of "probabilistic" theories of injury. However, the concept of probabilistic injury has not been well defined, and consequently the case law and commentary on probabilistic injury suffer from imprecise and inconsistent reasoning. To clarify the doctrine, this Note proposes that probabilistic injury can be divided into three categories: "uncertain injury" cases, "uncertain plaintiff" cases, and "increased-risk-as-injury" cases. Reading Summers with these categories in mind permits a clearer picture of how Summers affects the concept of probabilistic standing. Summers restricts, or maintains the restrictions on, uncertain injury and uncertain plaintiff cases. Meanwhile, the theory of increased risk as injury survives Summers. Increased risk injuries should be recognized by the Court as cognizable injuries for standing purposes.This recognition is not only constitutionally permissible but also desirable to ensure that meritorious claims are not barred. Increased-risk-as-injury cases, which survive Summers, should continue to survive.


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