TransUnion v. Ramirez: Levels of Generality and Originalist Analogies.

• Author: Altabet, Jason

Introduction

Is a hot dog a sandwich? (1) That age-old question has dogged many an undergraduate dorm room. The debate can take many forms, ranging from raw intuitions about how surprised one would be to show up at a sandwich shop that only sells hot dogs (2) to empirical evaluation of linguistic usage. (3)

In many respects, the question boils down to one of generality. Certainly, defining a sandwich as only bacon, lettuce, and tomato on two pieces of rye bread would be too specific. But what about two separate pieces of bread with a filling? (4) That level of specificity eliminates the hot dog. How about merely bread and a filling? (5) Under that level of generality, the hot dog qualifies as a sandwich. Or what about just an edible outside and a filling (allowing for the newly popular lettuce wrap sandwiches alongside the traditional hot dog)? (6)

In TransUnion v. Ramirez, (7) the Court wrestled with a more legal, less humorous, question of generality. There, the Justices examined whether failure to maintain reasonable procedures before labeling a class of plaintiffs potential terrorists in a credit report database was similar enough to the traditional harm of defamation to be an injury-in-fact.

The Court, splitting 5-4, rejected the claims of most class plaintiffs because their harms were not similar enough to that traditional injury. The Court explained that, to have a concrete injury-in-fact for standing purposes, a plaintiff's injury must have a "close relationship" to traditionally recognized harms in English or American courts. (8) Without such a relationship, federal courts have no jurisdiction over the action. (9) The majority dismissed most plaintiffs' claims because their harms failed this close relationship test, that is, they were not analogous enough to traditional harms. (10)

The Court's close relationship requirement provides a helpful lens for evaluating the important issue of levels of generality for legal analogies. This Comment first reviews the basic facts and implications of TransUnion. It then explores the various, conflicting levels of generality used in Justice Kavanaugh's majority opinion as well as the level of generality in Justice Thomas's dissenting opinion. Finally, this Comment reviews how levels of generality are a lurking presence in various parts of legal reasoning and--importantly--in current originalist reasoning.

This Comment argues that unsystematic analysis of levels of generality gives judges significant discretion to arrive at favored outcomes even in the confines of purportedly formalist and non-discretionary doctrines like originalism. Accordingly, faithfully originalist jurists must be careful to apply rules of generality systematically when looking to historical analogies.

1. THE TransUnion DECISION

   In TransUnion, a class of plaintiffs sued the credit reporting company TransUnion under the theory that the firm had "failed to use reasonable procedures to ensure the accuracy of their credit files." (11) Specifically, plaintiffs were incorrectly listed in TransUnion's files as "potential[ly]" being on "a [government-made] list of 'specially designated nationals' who threaten America's national security," (12) sometimes known as the "OFAC list." (13) TransUnion erroneously listed the plaintiffs because the company failed to perform any due diligence when linking credit files to the OFAC list. (14) Any person with the same first and last name as an individual on the OFAC list would be labeled by TransUnion as "a potential match" to the terrorist database. (15) And "TransUnion did not compare any data other than first and last names.... [This] generated many false positives." (16)

   For lead plaintiff Sergio Ramirez, TransUnion's practices led to a whole lot of hassle and humiliation. (17) At a car dealership, the salesman rejected Mr. Ramirez's attempt to purchase a vehicle, informing Ramirez that he appeared on a "terrorist list." (18) Mr. Ramirez immediately contacted TransUnion and demanded a copy of his credit file. (19) Shortly thereafter, Mr. Ramirez received a mailing from TransUnion with his report, sans any mention of the OFAC list, alongside a "statutorily required summary of rights." (20) He then separately received a second mailing, this time telling him that he was a match for the OFAC list, but without the summary of rights. (21) After cancelling a planned trip out of the country, and with the help of a lawyer, Mr. Ramirez's efforts led TransUnion to remove the link between him and the OFAC list. (22)

   Not content with that result alone, Mr. Ramirez filed a class action lawsuit in the U.S. District Court for the Northern District of California. (23) He and his class members solely pursued theories under the federal Fair Credit Reporting Act. (24) Specifically, the suit claimed that TransUnion failed to: (1) "follow reasonable procedures to ensure the accuracy of information in his credit file [;]" (2) provide an OFAC list alert in its mailing; and (3) provide the statutorily required summary of rights. (25)

   The district court held a jury trial that ended with victory on all three claims for Mr. Ramirez and his class. (26) The jury awarded each class member $984.22 in statutory damages and then punitive damages of $6,353.08. (27) The Ninth Circuit affirmed, save for reducing the punitive damages for each class member to $3,936.88. (28)

   The Supreme Court reversed in a five-Justice majority opinion written by Justice Kavanaugh. In his opinion, Justice Kavanaugh cited Spokeo, Inc. v. Robins, (29) a recent opinion that also considered the circumstances under which plaintiffs with intangible injuries have standing to sue for damages. (30)

   In Spokeo, the Court explained that a statutory cause of action alone is insufficient to establish a concrete injury-in-fact for an interested plaintiff. (31) Rather, federal courts must independently consider whether the harm protected by the statute is constitutionally cognizable under Article III--with deference to Congress's choice. (32) The Court stated that "it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts," although it tempered that position with the observation that "because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important." (33)

   In TransUnion, Spokeo's "instructive" suggestion became a firm constitutional requirement. The TransUnion Court explained that "[c]entral to assessing concreteness is whether the asserted harm has a 'close relationship' to a harm traditionally recognized as providing a basis for a lawsuit in American courts." (34) As Justice Thomas explained in his dissent, the majority's reasoning ensures that Congress has much less of an "instructive and important" role than originally recognized for determining whether a harm is concrete. (35) Instead, the Court held that Congress may merely "elevate harms that exist in the real world" to legally cognizable status, while courts "independently decide whether a plaintiff has suffered a concrete harm." (36)

   Thus, to determine whether there was a sufficiently concrete harm for the various TransUnion plaintiffs, the Court was required to consider whether any traditionally recognized harm had a close relationship to a harm asserted by the plaintiffs. (37) The majority and dissenters split on all three of the plaintiffs' claims.

   The majority held that only class members who had their credit reports disseminated could bring suit on the reasonable procedures claim, because publication had been a historically required element for defamation actions. (38) At the same time, the majority rejected TransUnion's argument that all the claims should have been dismissed given that TransUnion's statements calling plaintiffs "potential" terrorists was not false. (39) Despite falsity being historically required for defamation actions, the Court explained that the new cause of action need not be an "exact duplicate" of the traditional one. (40) Finally, the majority held that no one other than the lead plaintiff had standing on the other two claims. (41) In dissent, Justice Thomas first argued that the majority's "close relationship" test has no basis in history or the Constitution and then asserted that, even under the majority's test, all plaintiffs had a sufficiently concrete harm for all three claims. (42)

2. LEVELS OF GENERALITY IN JUSTICE KAVANAUGH'S MAJORITY OPINION AND JUSTICE THOMAS'S DISSENT

   The opinions by Justice Kavanaugh and Justice Thomas offer helpful illustrations of levels of generality in legal analogies--particularly, their evaluations of whether the...