Central Delta Water Agency v. United States, risk, future injury, harm

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Why some harms count before the courts and others do not is a matter of acute expressive and practical impact. Judicial refusal to see claimed injuries is an effective denial of legal personhood and a bar from powerful judicial machinery. The issue of “erratic, even bizarre” judicial recognition of supplicants vexed Professor Joseph Vining as early as 1978. Recent scholarship argues that injuries are seen through a subjective lens, reflecting the relative privilege of the judiciary and their concomitant difficulties in perceiving injuries to minorities and the poor. This is a troubling contention. So long as another, objective explanation remains, it should be superimposed, not to conceal and legitimate potentially problematic practices, but to substitute as an alternative rationality and a neutral and transparent principal for future decisions. This comment advances such an alternative explanation: The erratic pattern of judicial sight is partly a refraction of how judges view the risk of probabilistic future injury. Present harm is immediately visible, but the contours of risked injury are less distinct, requiring congressional or constitutional magnification. Aspects of positive law aimed at reducing the risk of prescribed probabilistic future harms are telescopes. Such collectively constructed magnifiers, however, often do not track social risk or vulnerability, since some clout is typically necessary to enshrine interests in positive law. As a result, those whose interests are socially slighted may find themselves similarly slighted before the courthouse doors.

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