Who Should Define Injuries for Article III Standing?

Stanford Law Review Online, Vol. 68, p. 76, 2015

9 Pages Posted: 19 Dec 2015

Date Written: December 16, 2015


This essay discusses an argument, which it terms the "non-legal injury" argument, raised most recently by the Supreme Court case Spokeo v. Robins. The "non-legal injury" argument is that Article III's injury-in-fact requirement cannot be satisfied by the mere violation of a legal right without some more tangible accompanying harm. The argument, which has been wrongfully framed by many as being about whether "uninjured plaintiffs" should have the right to sue, is really about separation of powers. Who has the power to define what injuries "count" for Article III's purposes? Because many significant injuries do not have a corresponding tangible harm, this essay rejects the non-legal injury argument. It then argues that, more broadly, it will be difficult to create a judicially manageable standard as to what injuries "count" that is not underinclusive. Congress, meanwhile, has an important role to play in defining injuries — it represents social consensus as to what kinds of harms are significant enough to elevate into law, and it often includes new statutory injuries as part of significant new policies. The essay concludes that Article III courts should defer to Congress's definitions of injury.

Keywords: Spokeo, injury, standing, Article III, federal courts, Congress, separation of powers, constitutional law

Suggested Citation

Wilf-Townsend, Daniel, Who Should Define Injuries for Article III Standing? (December 16, 2015). Stanford Law Review Online, Vol. 68, p. 76, 2015, Available at SSRN: https://ssrn.com/abstract=2704648

Daniel Wilf-Townsend (Contact Author)

Georgetown University Law Center ( email )

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