Response to Professor Moore on Article III standing

Under the Constitution, it is up to the judiciary, not Congress, to determine whether an injury suffices for a federal court to hear the case.

That fundamental principle has generated impassioned discussion. Over at the Civil Procedure and Federal Courts Blog, Professor Patricia Moore provided a vigorous critique of my post this week on Spokeo v. Robins. The plaintiff in that pending Supreme Court case sued Spokeo for mistakenly overstating his wealth and education. The question presented is whether Congress can create Article III standing, a prerequisite for a plaintiff to sue in federal court. Professor Moore criticizes me for my description of the facts and my characterization of the law. Her criticisms are misguided.

With respect to the facts, the district court found that the plaintiff’s alleged injuries were “speculative, attenuated and implausible.” Even the Ninth Circuit, which ruled for the plaintiff, noted that his “allegations of injury were sparse” and did not decide for itself “whether harm to his employment prospects or related anxiety could be sufficient injuries” under Article III of the Constitution. Rather, the court held that the plaintiff had standing to sue in federal court by nothing more than the “virtue of the alleged violations of his statutory rights.” That’s the big issue before the Supreme Court: whether Congress may confer Article III standing upon a plaintiff who has suffered no concrete harm.

Turning to the law, Congress can create a cause of action to allow plaintiffs to remedy concrete injuries in federal court, but it cannot create constitutional injuries with a bare assertion that the plaintiff has been harmed. Both cases cited by Professor Moore as examples of the latter are actually examples of the former. Both involve problems of quantifying the harm, not (as here) the problem of identifying it. Copyright law, for example, provides nominal damages in cases where actual damages are “difficult or impossible” to ascertain. Similarly Webb v. Portland Mfg. Co. involved a slight, but actual diversion of water from the plaintiff’s mill. Allowing the plaintiff to bring suit in that case allowed him to  prevent the wrongdoer from establishing adverse water rights. Justice Story’s opinion in Webb does not support Professor Moore’s assertion that a statutory violation, without actual injury, is sufficient to confer standing. And Justice Story himself debunks that claim in a book published just a few years later.

Though I disagree with Professor Moore on the merits, I agree that Spokeo v. Robins is an important case. The Court should no more countenance Congress’s efforts to exercise the judicial power of defining injury under Article III than it would allow Congress to exercise the executive power under Article II. As James Madison, one of the principal authors of the Constitution, put it long ago: the “accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”