Monday’s Supreme Court ruling in Spokeo, Inc. v. Robins appeared to break no new legal ground. A long line of prior cases had said that in order for a plaintiff to have legal standing to sue in federal court, the plaintiff must have suffered or be in danger of imminently suffering a “concrete and particularized injury.”
The lower court—the U.S. Court of Appeals for the Ninth Circuit—had permitted Robins to proceed with his lawsuit charging that the people-search company Spokeo had provided users with inaccurate information about him in violation of the federal Fair Credit Reporting Act (FCRA), because the data related to Robins. That suffices to show that the alleged injury is “particularized,” the Supreme Court said in an opinion by Justice Samuel Alito, but a plaintiff must also allege a “concrete” injury—and the dissemination of false information does not necessarily cause concrete injury. Accordingly, the Court remanded the case to the Ninth Circuit for consideration of the concreteness question.
What exactly is a “concrete” injury? As I explain below, the Spokeo opinion provides inadequate guidance on that question, and the guidance it does provide is highly problematic. The Court would do better to abandon the concreteness requirement, at least in cases, such as Spokeo, where one private party sues another.
The Concrete Injury Requirement
Modern standing doctrine is an inference from Article III of the Constitution, which limits federal courts to resolving “cases” and “controversies.” Although historical practice dating back to the George Washington administration justifies reading this language to forbid judges from giving purely advisory opinions, the case law limiting standing on the basis of the so-called case-or-controversy requirement developed only in the second half of the twentieth century. Nevertheless, it is now firmly established that a plaintiff cannot come to federal court seeking relief without alleging a “concrete and particularized injury.”
There is not much dispute about what it means for an injury to be “particularized.” This requirement appears to be the converse of the prohibition on the litigation of “generalized grievances.” Suppose that I think that the Board of Governors of the Federal Reserve System and the Federal Open Market Committee are setting interest rates too high to achieve the statutory goal of “maximum employment.” Nonetheless, I lack legal standing because my injury—low return on my stock portfolio, say—is not particular to me. The complaint is general, that is, shared with a broad swath of the public.
The Supreme Court agreed with the Ninth Circuit that the injury alleged by Robins was adequately particularized. Even though firms like Spokeo are legally forbidden from disseminating false information about anyone, the allegedly false information that is the basis for this lawsuit relates to Robins in particular. The fact that many others might also suffer particularized injuries of the same sort does not render the injury alleged by Robins a generalized grievance.
However, Justice Alito noted for the Court, a particularized injury is not necessarily a concrete one. What makes an injury concrete? Some of what the Court says about that question in Spokeo is unhelpful. We are told that the injury must be “de facto” and that “it must actually exist.” Okay, but what is the it that must actually exist?
From the rest of the opinion and prior cases, it appears that the Court means to distinguish between the set of things that can happen to or about someone and the subset of those things that can fairly be called “injuries.” Quoting language from an important 1992 case denying standing to environmentalists, the Court in Spokeo acknowledged that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” However, the Court also reiterated an outer limit on that congressional power. Only de facto injuries can be so elevated.
In Spokeo, the Court said that the dissemination of some kinds of inaccurate information would not be injurious and thus could not be the basis for a suit under the FCRA. Justice Alito gave the example of “an incorrect zip code. It is difficult to imagine,” he said, “how the dissemination of an incorrect zip code, without more, could work any concrete harm.”
Confusing Standing With the Merits
But is it really that difficult to imagine that an incorrect zip code would cause harm? Robins alleged that prospective employers use information they obtain from Spokeo and similar firms in making hiring decisions. A firm that relied on an address from Spokeo to send notices to prospective employees with incorrectly listed zip codes could surely harm those prospective employees, because they would lose out on employment opportunities if the notices never reached them.
Moreover, as Justice Ginsburg noted in dissent, Robins did not simply allege generally incorrect information. He alleged that Spokeo erroneously listed him as married with children and financially well off. Each of these errors could have cost him an employment opportunity: the erroneously listed family ties would dissuade prospective employers from offering jobs requiring relocation and the erroneous financial claim would dissuade prospective employers from considering Robins for low-paying jobs.
The majority decision in Spokeo leaves open the possibility that on remand the lower courts could find that these or other factors entail that Robins actually did suffer a concrete injury in virtue of the dissemination of false information about him, but it is not at all clear why he should have to make such a showing as a threshold for bringing suit—rather than as part of his damages case if he establishes liability. Why does the Court think that the mere dissemination of false information about someone cannot be an injury?
The Court in Spokeo says that in defining the outer limits of what counts as an injury, “both history and the judgment of Congress play important roles.” But Congress in enacting the FCRA made clear that it thinks that disseminating false information about someone is itself injurious. Thus, the Court, in overriding that judgment, is saying that in this case history plays the decisive role.
But again, why? The Court says it looks to the common law for the outlines of the sorts of claims that can be deemed injurious. However, the common law did not include a concept of injury. The relevant question at common law was simply whether the plaintiff had a valid cause of action—i.e., a valid substantive claim. In looking to the common law for the boundaries of injuries that Congress may recognize, the Court thus appears to confuse the threshold standing question with the different question of substantive liability.
No one doubts that the common law would not have provided a remedy for the mere dissemination of false information. Under the traditional common law in England and the United States, a plaintiff seeking damages for defamation had to prove both that the defendant made a false statement about the plaintiff and that the false statement damaged the plaintiff’s reputation. But legislatures can alter the common law.
Separation of Powers
The Constitution undoubtedly limits the ability of Congress to alter the common law. In altering the common law—which is state law—Congress must exercise one of its enumerated powers (such as the Article I power to regulate interstate commerce). And a federal statute altering the common law must not violate the Bill of Rights (as it would violate the First Amendment if it permitted defamation liability too readily). But the majority in Spokeo appears to be saying that Article III’s case-or-controversy requirement limits the ability of Congress to alter the common law. That is a strange interpretation of a constitutional provision regarding the jurisdiction of the federal courts.
What, then, is the Court up to? Perhaps the best explanation for the ruling in Spokeo is that the justices forgot why they articulated limits on congressional power to expand standing in the first place. In the leading cases questioning the power of Congress to confer standing on persons who had not, in the Court’s judgment, suffered a sufficiently concrete injury, a private party sued a government official, alleging that the latter had violated a non-discretionary duty to bring an enforcement action against some third party (such as a polluter). The Court’s reluctance to permit such cases to go forward was rooted in separation of powers. Article II gives the president the duty to execute the law. Congressional authorization of private lawsuits to compel enforcement could thus be seen as an effort to shift power from the president to Congress. Accordingly, prior standing cases expressly invoke separation of powers.
Yet standing doctrine is at best an awkward tool to limit congressional aggrandizement of its power relative to the president. After all, asking whether some particular plaintiff has suffered a “concrete injury” is not the most direct means of measuring the ebb and flow of power between the branches. But at least in cases in which plaintiffs seek to compel executive enforcement of the law, there is a reason for the courts to limit Congress’s power.
By contrast, as Justice Clarence Thomas suggests in a concurrence in Spokeo, the separation-of-powers concern is largely absent where Congress authorizes one set of private parties to sue another set of private parties. In a case like Spokeo, the substitution of judicial judgment for congressional judgment about what constitutes a private wrong is simply misguided.