Peter Ormerod, ‘Privacy Injuries and Article III Concreteness’

ABSTRACT
The Supreme Court’s 2016 decision in Spokeo, Inc v Robins requires federal courts to investigate the ‘concreteness’ of a plaintiff’s injury, even after Congress has recognized the injury by statute. Spokeo’s concreteness discussion is a confusing mixture of several distinct considerations, and there is little rhyme or reason to how the lower courts have interpreted and applied Spokeo to other statutorily authorized injuries.

This Article offers a descriptive framework that situates Spokeo among the Court’s past cases, which recognize four distinct informational injuries – those arising from the withholding, acquiring, using, and disseminating of information. This four-injury taxonomy is instrumental to developing an alternative approach that avoids Spokeo’s mistakes: Federal courts should give binding deference to Congress’s decision to make an injury privately enforceable when three conditions are met – when the plaintiff alleges an informational injury; when the defendant is a non-governmental actor; and when Congress has effectively personalized the injury and the plaintiff is among the injured …

Ormerod, Peter, Privacy Injuries and Article III Concreteness (June 13, 2020). Florida State University Law Review, volume 48.

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