Rachel Bayefsky (Harvard Law School) has posted Constitutional Injury and Tangibility (59 WM. & MARY L. REV . ___ (Forthcoming)) on SSRN. Here is the abstract:
The Supreme Court, in the 2016 case Spokeo, Inc. v. Robins, announced a framework for determining whether a plaintiff’s claimed injury is sufficiently “real” to justify the plaintiff’s entry into federal court. This framework created a category of “intangible” harm that is subject to a distinctive, and arguably more demanding, inquiry into cognizability than “tangible” harm, a category that seemingly includes only physical or economic harm. In particular, Spokeo directed courts to inquire into whether an alleged intangible harm bears a sufficiently close relationship to a historically recognized cause of action and whether such a harm has been elevated by congressional action to the level of cognizability. Since Spokeo, federal courts have wrestled with how to operationalize Spokeo’s statements on intangible harm and standing, especially when the harm arises from a claimed statutory violation. These cases have given rise to new layers of doctrine addressing the “concreteness” of the interests that statutory provisions target and the likelihood that a specific legal violation represents a “material risk of harm” to these interests. Beneath the growing body of doctrine, however, lie fundamental questions about which values are at stake in categorizing harm into tangible and intangible varieties; whether the advancement of these values is justified; and whether, if so, this advancement is best accomplished through the conceptual tools that federal courts have applied to the task.
This article investigates and challenges the principles underlying the categorizations of harm outlined in Spokeo, particularly the distinction between tangible and intangible harm. It argues that this distinction, and the Spokeo Court’s emphasis on the concreteness of harm more broadly, reflect an effort to identify a set of uncontroversially pressing human interests that would justify access to judicial proceedings, and that these interests are often conceptualized in terms of those commensurable with money, quantifiable, or susceptible to evidentiary proof. Yet this approach requires courts to make contestable normative judgments about essential human interests in a way that risks undermining judicial legitimacy, and it obscures the internal complexity and contextual specificity of physical and economic harm. For example, economic loss, as well as pain and suffering resulting from physical harm, are treated as intangible in certain legal contexts, and the damage resulting from economic and physical harm cannot always be readily proven or valued at a given point in time. The Supreme Court’s emphasis on concreteness and its invocation of tangibility are not needed in order to achieve a nuanced balance between concerns about the separation of powers and the efficient administration of justice, on the one hand, and concerns about arbitrariness in standing determinations and access to legal redress in the federal courts, on the other. Rather, courts should eschew concreteness as a factor in the standing inquiry independently of whether harm is adequately particularized. Further, particularity can fruitfully be understood, in statutory cases, in terms of whether the legal provision under which a plaintiff is suing defines the scope of potential plaintiffs with sufficient specificity.