Constitutional Injury and Tangibility

86 Pages Posted: 11 Sep 2017 Last revised: 29 May 2018

See all articles by Rachel Bayefsky

Rachel Bayefsky

University of Virginia School of Law

Date Written: September 6, 2017


The Supreme Court, in the 2016 case Spokeo, Inc. v. Robins, announced a framework for determining whether a plaintiff had alleged an injury that would permit entry into federal court. The Court indicated that a plaintiff, in order to have constitutional standing, needed to suffer harm that was “concrete” or “real.” In explaining how courts could ascertain whether an alleged harm was concrete, the Court created a category of “intangible” harm subject to a distinctive, and arguably more demanding, concreteness inquiry than “tangible” harm, a category that seemingly includes only physical or economic harm. In particular, Spokeo directed courts to inquire into whether an intangible harm bears a sufficiently close relationship to a historically recognized cause of action and into whether such a harm has been elevated by congressional action to the level of cognizability. Since Spokeo, federal courts have wrestled with how to operationalize the Supreme Court’s statements on intangible harm and standing. Beneath the growing body of doctrine lie fundamental questions about which values are at stake in categorizing harm into tangible and intangible varieties; whether the advancement of these values is justified; and whether, if so, this advancement is best accomplished through the conceptual tools that federal courts have applied to the task.

This Article investigates and challenges the principles underlying the categorizations of harm outlined in Spokeo, particularly the distinction between tangible and intangible harm. This Article argues that this distinction, and the Spokeo Court’s emphasis on the “concreteness” of harm more broadly, reflect an effort to identify a set of uncontroversially pressing human interests that would justify access to judicial proceedings. These interests are often conceptualized in terms of those commensurable with money, quantifiable, or susceptible to evidentiary proof. Yet this approach invites courts to make contestable normative judgments about essential human interests in a way that risks undermining judicial legitimacy, and it obscures the internal complexity and contextual specificity of physical and economic harm. For example, economic loss, as well as pain and suffering resulting from physical harm, are treated as intangible in certain legal contexts, and the damage resulting from economic and physical harm cannot always be readily proven or valued at a given point in time. The Supreme Court’s emphasis on concreteness and its invocation of tangibility, this Article contends, are not needed in order to achieve a nuanced balance between competing features of standing doctrine: concerns about the separation of powers and the efficient administration of justice, on the one hand, and concerns about access to the federal courts and judicial legitimacy, on the other. Rather, courts should eschew concreteness as a factor in the standing inquiry independently of whether harm is adequately particularized. Moreover, particularity can fruitfully be understood, in statutory cases, in terms of whether the legal provision under which a plaintiff is suing defines the scope of potential plaintiffs with sufficient specificity.

Keywords: Constitutional standing; Article III; injury-in-fact

Suggested Citation

Bayefsky, Rachel, Constitutional Injury and Tangibility (September 6, 2017). 59 WM. & MARY L. REV. 2285 (2018), 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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