CONSTITUTIONAL INJURY AND TANGIBILITY.

• Author: Bayefsky, Rachel

TABLE OF CONTENTS INTRODUCTION 2288 I. CONCRETENESS AND TANGIBILITY IN CONSTITUTIONAL STANDING DOCTRINE 2295 A. Concreteness as a Prerequisite for Injury in Fact 2295 B. Who Decides? Judicial Legitimacy and Concreteness in Spokeo 2301 C. The Role of Tangibility in Standing Doctrine 2305 D. After Spokeo: Deciding Whether Harm Is Real 2309 II. THE BOUNDARIES OF TANGIBILITY 2316 A. The Meaning of Tangibility in Spokeo 2317 B. Tangibility and "Injury to Flesh or Purse" 2321 1. The Treatment of Physical and Economic Harm 2321 2. Intangible Elements of Economic and Physical Harm 2330 C. Tangibility's Neighbors: Counting, Proving, and Paying for Harm 2337 1. Commensurability with Money 2337 2. Quantifiability 2341 3. Susceptibility to Evidentiary Proof 2346 III. BEYOND CONCRETENESS AND TANGIBILITY 2352 A. The Standing Balance 2353 B. Injury Without Tangibility or Concreteness 2359 C. Conceptions of Particularity 2363 CONCLUSION 2369 INTRODUCTION

The Supreme Court's most recent foray into constitutional standing doctrine, the 2016 case Spokeo, Inc. v. Robins, (1) left many questions unresolved. Constitutional standing doctrine has long required plaintiffs seeking to enter federal court to allege that they have suffered an "injury in fact," or a "concrete and particularized" harm, (2) that is "fairly traceable to the challenged conduct of the defendant" and is "likely to be redressed by a favorable judicial decision." (3) In Spokeo, the Court considered the circumstances under which plaintiffs' allegations of statutory violations could give rise to injury in fact. The plaintiff in Spokeo, Thomas Robins, alleged that defendant Spokeo, a consumer reporting agency, violated the Fair Credit Reporting Act by disseminating inaccurate information about Robins--information that, however, may not have adversely affected his credit standing. (4) The Supreme Court held that Robins had to show not only that he had suffered a "particularized" harm, but also that this harm was "concrete" in the sense of "actual[ ]" or "real." (5) The Court did not decide whether Robins's harm was concrete, but rather remanded to the Ninth Circuit to make that determination. (6) The Court also did not settle the more general issue of which kinds of harms plaintiffs need to allege in order to show that they have suffered a "concrete" injury stemming from a statutory violation.

The narrowness of Spokeo's holding should not obscure the fact that Spokeo announced a framework for evaluating standing claims that, though building on prior case law, placed emphasis on a distinctive set of categories. In particular, the Supreme Court in Spokeo distinguished between tangible and intangible harm. (7) Though the Court indicated that intangible harm could be concrete, the Court also applied a specific inquiry to guide the determination of whether a given intangible harm was cognizable. (8) This inquiry involved, the Court stated, consideration of whether the plaintiff's alleged harm bore a sufficiently close relationship to a historically recognized cause of action and of whether Congress had "elevat[ed]" the harm to the level of cognizable injury. (9) More broadly, the Spokeo Court focused on concreteness as a requirement for cognizable injury, independent of whether harm was particularized, in a more direct and explicit way than ever before. (10)

In the wake of Spokeo, federal courts have wrestled with how to operationalize the Supreme Court's pronouncements on the cognizability of intangible harm. Courts have come to an array of conclusions regarding the cognizability of harms ranging from inadequate protection of personal information, (11) to the receipt of unsolicited phone calls and text messages, (12) to the violation of state procedural rules for debt collection. (13) The Ninth Circuit's August 2017 decision on remand in Spokeo typifies courts' efforts to provide further structure to the standing inquiry in cases of intangible harm. According to the Ninth Circuit, drawing on a previous Second Circuit case,

In evaluating Robins's claim of harm, we thus ask: (1) whether the statutory provisions at issue were established to protect his concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests. (14) Applying this inquiry, the Ninth Circuit decided that Robins's alleged harm of having inaccurate information disseminated about him was, in fact, concrete. (15) The Supreme Court has permitted this decision to stand, denying certiorari in a renewed appeal by Spokeo on January 22, 2018. (16)

The concepts of "intangible" harm and "concrete" interests are now part of the standing landscape, helping to play the role of gatekeeper to the federal courts. In evaluating the coherence and plausibility of contemporary standing doctrine, it is instructive to examine the function that these concepts serve and the aims advanced by their inclusion in the standing analysis. This Article investigates the principles underlying the distinction between tangible and intangible harm, as well as the relationship between these categories and "concreteness." Even critics of the Court's constitutional standing jurisprudence tend either not to focus on tangibility--which, after all, assumed particular prominence only recently in Spokeo--or to take for granted the distinction between tangible and intangible harm. (17) This Article argues, by contrast, that the line between tangible and intangible harm is not a deep-seated or clear-cut feature of empirical reality, but a contextually sensitive boundary that reflects normative principles about which kinds of harm should count for standing purposes.

More specifically, "tangible" harm in the constitutional standing context is frequently understood by courts and commentators to refer to physical or economic harm, (18) as distinct from everything else, including being hindered in the exercise of religion, (19) suffering "aesthetic" harm when the environment is damaged, (20) or undergoing a violation of privacy. (21) Yet certain economic interests, such as securities, intellectual property rights, and contract rights, are described as intangible in a variety of legal settings, and economic loss is viewed as intangible in the contexts of property insurance and negligence law. (22) Additionally, the pain and suffering arising from physical damage, which represents a key component of the injury involved in inflicting physical harm, is often considered intangible. (23)

The categorization of economic and physical harm as tangible in the standing context does not, therefore, follow inevitably from the nature of tangibility. Rather, this Article contends, the distinction between tangible and intangible harm reflects an effort to identify a set of uncontroversially legitimate human interests that would justify courts in reordering the status quo. These interests are often conceptualized in terms of those commensurable with money, quantifiable, or susceptible to evidentiary proof. Yet this approach results in a highly contestable portrayal of essential human interests and detracts from the legitimacy of judicial decisions about cognizability. Spokeo's invocation of tangibility and its emphasis on concreteness more broadly--this Article argues--are not needed in order to achieve an appropriate balance between concerns about the separation of powers and the efficient administration of justice, on the one hand, and concerns about access to the federal courts and judicial legitimacy, on the other. Instead, courts should move away from treating concreteness as a factor in constitutional standing doctrine independent of whether harm is adequately particularized. Moreover, courts can fruitfully understand particularity 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.

The analysis here has both doctrinal and theoretical implications. The Supreme Court's decision in Spokeo, as some commentators have noted, suggests that tangibility is "a sufficient but not a necessary condition" for concreteness (24) or that "[t]angible injuries... more easily pass the concreteness test than intangible injuries." (25) As a doctrinal matter, this Article argues against an entrenchment of the distinction between tangible and intangible harm as the law develops. It also challenges the Supreme Court's insistence on concreteness as a requirement for injury in fact independently of particularity. As a theoretical matter, this Article extends the critique that injury in fact is a normative criterion, not a factual one; (26) the same is true, the Article argues, of the categorization of harm as tangible or intangible for the purposes of undertaking the injury-in-fact inquiry. Further, this Article counters the tendency to treat economic and physical harm as firmly established and similar in nature across different contexts, and it questions the value of criteria such as commensurability with money, quantifiability, and susceptibility to evidentiary proof as metrics in evaluating cognizability. These criteria are not needed, the Article suggests, in order to promote fit between standing doctrine and the underlying values that this doctrine furthers.

While drawing on insights from the extensive scholarly literature critiquing the Supreme Court's standing doctrine, (27) this Article focuses on a concept that has been the subject of little critical scrutiny--the idea of tangibility invoked in Spokeo--and considers the development of standing jurisprudence following the recent Spokeo decision. (28) This Article also highlights the less "solid" dimensions of apparently tangible economic and physical harm, rather than focusing solely on the reality of intangible harm. Further, this Article identifies and challenges the...