Volume 85, No. 2, Winter 2013

False Certainty: Judicial Forcing of the Quantification of Risk

Risk, which is by definition only the possibility of harm, is speculative and amorphous. To transform risk into something more concrete and measurable, courts reviewing risk determinations by agencies or individuals in certain contexts will insist that the parties quantify this risk. However, the quantification of risk does not fulfill its promise; beneath the veneer of objectivity and certainty is a messy and subjective process. Instead of ensuring that agencies adhere to their legislative mandates, quantifying risk may force agencies to contradict precautionary directives. Moreover, the quantification of risk leaves room for political and self-interested maneuvering by obscuring the role of policy in agency decision making. The quantification of risk becomes a proxy for reasonableness and a rhetorical reinforcement against the accusation of judicial overreach and extrajudicial action.

This Article analyzes the judicial forcing of the quantification of risk in two contexts: first, the review of agency action, and second, the determination of whether probabilistic injury satisfies the injury-in-fact standing requirement. By juxtaposing these two contexts, the Article illuminates the work expected of the quantification of risk and the flaws in the process. It then turns to proposals for improving the judicial review of risk determinations.

85 Temp. L. Rev. 315