Psychological Harm and Constitutional Standing

81 Pages Posted: 1 Oct 2015 Last revised: 10 Sep 2017

See all articles by Rachel Bayefsky

Rachel Bayefsky

University of Virginia School of Law

Date Written: September 18, 2015


When do psychological or emotional harms count as “injury-in-fact” for the purposes of satisfying Article III standing requirements, and when should they? Courts have wrestled with whether to grant standing, for example, to family members of a man killed by the police who argued that as relatives of the deceased, they had suffered emotional pain; members of an animal-welfare organization who claimed they had undergone “sleeplessness, depression, and anger” when they were unable to visit an elephant at the zoo; and members of a Catholic organization who challenged a city resolution criticizing the Catholic Church’s stance on adoption by same-sex couples and contended that they had standing because they had experienced “spiritual or psychological harm.”

Some have expressed the concern that recognizing psychological harm would sanction an unlimited expansion of constitutional standing. At the same time, established Article III injuries such as aesthetic and “spiritual” harm seem to contain psychological components. The legal standards for accepting psychological or emotional harm as injury-in-fact remain murky, even as the question of which kinds of harm plaintiffs must allege in order to enter federal court has become increasingly important.

This article proposes and applies a framework by which courts can explicitly accept psychological harm as injury-in-fact while distinguishing in a principled way between cognizable and non-cognizable psychological harms. In doing so, this article and the accompanying appendix offer a detailed analysis of the current treatment of psychological harm in constitutional standing doctrine across geographical and temporal boundaries. This article’s approach enables the federal courts to acknowledge more fully citizens’ genuine experiences of harm without abandoning the restrictions on jurisdiction that Article III standing doctrine reflects.

Keywords: Psychological Harm, Constitutional Standing

Suggested Citation

Bayefsky, Rachel, Psychological Harm and Constitutional Standing (September 18, 2015). Brooklyn Law Review, Vol. 81, Summer 2016 , Available at SSRN:

Rachel Bayefsky (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States


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