A Post-Spokeo Taxonomy of Intangible Harms

Jackson Erpenbach*

Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s standard for what constitutes a cognizable intangible harm has produced inconsistent and arbitrary results in such lower court cases. Courts have come to varying conclusions about which intangible harms are sufficiently concrete to confer standing under the Court’s new standard. This Note makes two contributions. First, it offers a novel taxonomy of these various intangible harms, sorted into five discrete categories. Once these categories are identified, the underlying inconsistencies, both between circuits and between similar consumer protection laws, become evident. Second, it proposes an approach to intangible harms that is more deferential to the judgment of Congress as revealed in its statutes.

*J.D. Candidate, May 2020, University of Michigan Law School. I am indebted to Professor Nicholas Bagley and Professor Julian Davis Mortenson as well as Aviv Halpern and the Notes Office for their helpful comments, critiques, and edits. I am also deeply grateful for my family and Katherine for their patience and support.

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