Charting a Course Past Spokeo and TransUnion

45 Pages Posted: 29 Oct 2021

See all articles by Elizabeth Earle Beske

Elizabeth Earle Beske

American University - Washington College of Law

Date Written: September 15, 2021


The Supreme Court’s 5-4 decision in TransUnion LLC v. Ramirez has dramatically upended standing doctrine, apparently out of concern that any other move will invite congressional manipulation and give rise to even greater evils. The Court has done so at considerable cost. TransUnion’s concreteness inquiry leaves lower courts at sea, inviting them to substitute their own policy preferences for legislative will in frustration of the separation of powers. It curtails the deferential review of economic legislation the Court has employed since the New Deal. It circumscribes Congress’s ability to act proactively to respond to novel challenges. Bearing these costs, we are told, is necessary.

But the concreteness inquiry should not have had a role to play in the adjudication of private rights by private parties at all. Since Spokeo v. Robins, Justice Thomas has persuasively demonstrated that the injury-in-fact inquiry applies as a filtering mechanism only where Congress has conferred public—not private—rights. Before TransUnion, Justice Thomas’s approach was gaining ground. In Uzuegbunam v. Preczewski, handed down three months earlier, eight members of the Court found actionable injury in the violation of a private right although plaintiff could show no harm and had sought only nominal damages. After TransUnion, this simple principle—the violation of a private right gives rise to presumed injury—no longer applies to private rights created by Congress. The TransUnion Court rejected the public-private right dichotomy in this context out of fear of congressional manipulation. The Court suggested that anything but a one-size-fits-all approach requiring federal judges to independently assess and find actual harm would permit Congress to confer “private” rights to public goods, thereby clogging the courts with generalized grievances and trammeling on the enforcement prerogatives of the Executive Branch. The Court apparently believed itself incapable of policing the distinction.

The Court’s lack of confidence in its own ability to avert congressional manipulation is misplaced. This Article demonstrates that for two decades an adjacent line of cases—Alexander v. Sandoval and Gonzaga v. Doe—has required lower federal courts to use text-based analysis to discern whether a statute has conferred an individual right. This approach, which focuses on rights-creating language and examines whether a statute has an aggregate or individual focus, supplies the limiting principle that will prevent the parade of separation-of-powers horribles the TransUnion majority fears.

Keywords: standing, federal courts, separation of powers

Suggested Citation

Beske, Elizabeth Earle, Charting a Course Past Spokeo and TransUnion (September 15, 2021). George Mason Law Review, Forthcoming, Available at SSRN:

Elizabeth Earle Beske (Contact Author)

American University - Washington College of Law ( email )

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