Can a plaintiff who has not yet suffered an injury sue based on the risk of future harm? After decades of addressing whether these “no injury” or “unmanifested defect” suits are cognizable, courts today are intractably divided. This conflict has created incentives for forum-shopping as plaintiffs search for a jurisdiction friendly to “no injury” lawsuits and class certification. Using these “no injury” or “unmanifested defect” cases as a frame of reference, this Article argues that private risk-exposure should not be compensable. The Article begins by considering whether risk-exposure itself should be considered “harm.” Concluding that risk alone is not a setback to an interest, the Article then examines whether risk exposure should be compensable. Using the two dominant private law camps — utilitarianism and justice — the Article concludes that allowing liability for private risk-exposure is not justified. Claims for private risk-exposure are best addressed through the administrative process.
Scheuerman, Sheila B., Against Liability for Private Risk-Exposure (March 26, 2012). Harvard Journal of Law and Public Policy, Vol. 35, 2012, Forthcoming.