Apost-Spokeo Taxonomy of Intangible Harms

By Erpenbach, Jackson | Michigan Law Review, December 2019 | Go to article overview

Apost-Spokeo Taxonomy of Intangible Harms


Erpenbach, Jackson, Michigan Law Review


Introduction

To bring a claim in federal court, plaintiffs must satisfy the standing requirement found in Article Ill's "case" or "controversy" language.1 Over time, the Court has refined standing doctrine by framing it in terms of three neat, formalist elements: injury in fact, causation, and redressability.2 The Court's articulation of standing has provided additional clarification for parties but has also raised new questions regarding the doctrine's limits.3 Because of standing's threshold nature, resolving these questions has consequences for countless federal cases.4

One area of significant controversy is what constitutes a cognizable injury in fact. Without one, a plaintiff cannot file suit in federal court. In the past, the Supreme Court has described cognizable injuries as "concrete and particularized,... 'actual or imminent, [and] not " conjectural" or "hypothetical." ' "5 Until the Court's 2016 decision in Spokeo, Inc. v. Robins, lower courts generally treated the "concrete and particularized" language as one requirement: particularized injuries were presumed to be sufficiently con- crete.6 But in Spokeo, the Court made clear that concreteness is a separate, necessary requirement for a cognizable injury in fact.7

Yet Spokeo only further confused standing doctrine. The Court held that a plaintiff raising a statutory violation under a private right of action must have suffered some concrete injury beyond the mere violation.8 In doing so, the Court created new distinctions in the doctrine, dividing tangible from intangible harms, and "bare procedural violation[s]" from "risk[s] of real harm."9 The interplay between Spokeo and the doctrine's constitutional nature has created significant confusion in the lower courts.10 A confused jurisprudence could, as Justice Harlan feared, reduce "constitutional standing to a word game played by secret rules."11

A confused standing doctrine is especially troubling in the area of consumer protection because it may prevent consumers from vindicating their interests in a federal forum.12 The modern patchwork of federal laws can be a powerful tool for consumer interests.13 Yet since its inception, the system has been underfunded and underenforced.14 As a result, federal consumer protection statutes are heavily reliant upon private rights of action to police bad behavior.15 Private right of action provisions enable consumers wronged by fraudulent business practices to vindicate their rights by acting as their own "private attorneys general."16 Crucially, standing doctrine limits the reach of such private rights of action.17 Because standing is constitutional, it cannot be statutorily conferred.18 How lower courts apply Spokeo, then, has enormous implications for the future of consumer protection statutes.

This Note argues that lower courts have applied the Spokeo standard for standing to certain consumer protection statutes in an overly strict and inconsistent fashion. Part I tracks the development of Article III standing from the original language of "cases" or "controversies" through the formulation of its modern three-part structure in Lujan v. Defenders of Wildlife to the Court's decision in Spokeo. Part II introduces an active circuit split between the Third and Ninth Circuits, which concerns standing under the Fair Credit Reporting Act (FCRA), as a heuristic for subsequent discussion. Part III offers a novel taxonomy of intangible harms recognized by lower courts in applying the Spokeo analysis. Finally, Part IV provides a starting point for a more consistent standing doctrine through greater deference to congressional factfinding.

I. Background

This Part briefly tracks the development of the Court's modern standing doctrine, culminating in Spokeo's "concrete injury" standard. Section I.A describes standing's constitutional roots, with an emphasis on the Court's influential Lujan decision. Section I.B provides the background for the Court's 2016 Spokeo decision and its focus on concreteness. …

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