Understanding Standing F. Andrew Hessick* I. INTRODUCTION .................................................................... 195 II. THE STANDING BACKDROP .................................................. 196 III. SPOKEO, INC. V. ROBINS ...................................................... 198 IV. FASHIONING THE STANDING TEST ....................................... 199 A. History ..................................................................... 199 B. Separation of Powers ............................................... 202 V. CONCLUSION ....................................................................... 204 I. INTRODUCTION Spokeo, Inc. v. Robins, which is before the Supreme Court this term, poses a fundamental question of Article III standing: Does a person have standing to sue to seek redress for the violation of a substantive statutory right, even if he did not suffer any factual harm from the violation of that right? Standing is one of the doctrines that define the power of the federal judiciary. Federal courts cannot hear all disputes.1 Instead, Article III authorizes them to resolve only “cases” and “controversies.”2 The Supreme Court has interpreted those terms to authorize federal courts to resolve only those disputes that were “traditionally amenable to, and resolved by, the judicial process.”3 This restriction, the Court has said, is critical to maintaining the separation of powers.4 * Professor of Law, S.J. Quinney College of Law, University of Utah. Thanks to Lincoln Davies, Heather Elliott, and Carissa Hessick for their comments and suggestions. 1. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). 2. U.S. CONST. art. III, §2, cl. 1. 3. Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000) (internal quotation marks omitted). 4. Cuno, 547 U.S. at 341 (“[N]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”). 195 196 VAND. L. REV. EN BANC [Vol. 68:195 According to the Court, standing enforces these limits on the judicial power.5 Despite standing’s importance to maintaining the federal judiciary’s proper role in the federal government, the Court has been inconsistent on what a plaintiff must show to establish standing. Some cases say that the violation of an individual right is enough; others suggest that a factual harm is required. That inconsistency underlies the standing dispute in Spokeo. If the purpose of Article III standing is to protect the separation of powers by restricting federal courts to resolving only those disputes that courts historically could hear, the answer to that question is clear: the violation of a legal right alone should support Article III standing. II. THE STANDING BACKDROP The basic test for standing is that the plaintiff must demonstrate that he has suffered an “injury in fact.”6 The phrase “injury in fact” suggests a factual injury like a broken bone or the loss of money.7 But the Court has not always followed that literal definition. Instead, it has sometimes defined an “injury in fact” as “an invasion of a legally protected interest” that is “concrete” and “particularized.”8 That definition suggests that what matters is whether the plaintiff suffered a violation of a personal right, rather than a factual harm. Consistent with that understanding, a number of cases say that standing can rest on the violation of “statutes creating legal rights.”9 Under this “rights position,” Congress can confer standing on individuals by creating rights, the violation of which is an injury supporting standing, even though that injury is purely legal.10 5. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (“[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III.”). 6. E.g., Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). 7. Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (defining injury in fact to include injuries to “aesthetic and environmental well-being” and “economic well-being”). 8. Lujan, 504 U.S. at 560 (internal quotation marks omitted); accord Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652, 2663 (2015). 9. Warth v. Seldin, 422 U.S. 490, 500 (1975) (quoting Linda R. S. v. Richard D., 410 U.S. 614, 617, n.3 (1973)). 10. Massachusetts v. EPA, 549 U.S. 497, 516–17 (2007) (“Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”); Vt. Agency, 529 U.S. at 773 (suggesting Congress may “define new legal rights, which in turn will confer standing to vindicate an injury caused to the claimant.”); Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U.L. REV. 881, 885 (1983) (arguing that standing depends on “legal injury,” which is “no more than the violation of a legal right, [which] can be created by the legislature”). 2015] UNDERSTANDING STANDING 197 But in Lujan v. Defenders of Wildlife,11 the Court intimated that “injury in fact” really means a factual injury. The Court said that its decisions stating that standing may rest on the violation of congressionally created rights stood for the principle that Congress may confer standing by making legally cognizable “de facto harms that were previously inadequate at law.”12 In other words, Lujan says that not all factual injuries support standing; but Congress can declare that these otherwise inadequate factual injures do support standing. That reasoning suggests that the violation of a legal right alone is not enough to support standing; rather, there must be a factual injury for the judiciary to intervene. Further muddying the waters is that in many, though by no means all, cases in which the Court has said the violation of a right may confer standing, the Court’s standing analysis has focused on the factual harm that the plaintiff suffered.13 A recent example is Massachusetts v. EPA.14 There, Massachusetts sued the EPA for not promulgating rules regulating greenhouse-gas emissions from new vehicles. Although stating that “Congress has the power to define injuries . that will give rise to a case or controversy where none existed before,”15 the Court did not base its finding of standing on the fact that Congress had conferred a cause of action on Massachusetts or defined the effects of global warming to be an injury. Instead, it found standing based on a potential factual injury: global warming could cause flooding of Massachusetts land.16 Although Lujan and the rights position are conceptually different, they significantly overlap. Some factual injuries do not seem like factual injuries until the law says they are injuries. For example, if I demand money from the government, yet it refuses to give the 11. 504 U.S. 555. 12. Id. at 578. 13. One example of the Court basing standing on the violation of a right alone is Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). There, a black woman sued a real estate company after she received false information about the availability of housing, alleged violations of the Fair Housing Act, which makes it unlawful to misrepresent to any person because of that person's race that an apartment is not available for sale or rental, 42 U.S.C. § 3604(d) and which confers an explicit cause of action to enforce this prohibition, id. § 3612(a). Although the plaintiff did not intend to rent the apartment, the Court nonetheless held that she had standing because she had alleged injury to her “statutorily created right to truthful housing information.” 455 U.S. at 373–74; see also Heckler v. Matthews, 465 U.S. 728, 737–40 (1984) (recognizing standing for a male social security beneficiary who challenged a provision granting higher benefits to females based on the violation of his “right” to receive benefits without regard to his sex). 14. 549 U.S. 497 (2007). 15. Id. at 516 (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring in part and concurring in judgment)). 16. Id. at 522–23. 198 VAND. L. REV. EN BANC [Vol. 68:195 money to me, I have been factually “injured” because I did not get what I wanted. But most people probably would say that I had not suffered a factual harm supporting standing, unless there was a statute entitling me to the money that I demanded.17 Likewise, some things that seem like obvious factual injuries today are injuries only because the law says so. I am hurt when you take my watch without permission, but I own the watch only because the law says I own the watch. That the law can make us recognize factual injuries where we didn’t see them before might mean that Lujan’s injury-in-fact test is not so different from the rights position. Still, the overlap between the two positions is not complete. A person can suffer a legal injury because his rights were violated but no factual harm from that violation. And that is apparently what happened in Spokeo. III. SPOKEO, INC. V. ROBINS Spokeo operates a website that provides information about people. The information it provided about Thomas Robins, though, was inaccurate. For example, it overstated Robins’s wealth and education. These inaccuracies prompted Robins to file a putative class action in federal district court against Spokeo for willfully violating the Fair Credit Reporting Act. That Act requires consumer credit reporting agencies—agencies that gather and provide information about consumers—to take reasonable measures to make sure that the information they provide is accurate.18 The Act confers a private right of action against reporting agencies that fail to comply with these provisions. For “willful” violations of these provisions, the consumer whose rights have been violated may receive “actual damages” or, in the alternative, he may receive statutory “damages of not less than $100 and not more than $1,000.”19 According to Robins, Spokeo willfully failed to take measures to ensure the accuracy of its information and to comply with other procedures prescribed by the Act.20 The district court dismissed the case for lack of standing.