p. 520, new note 4.a.

4.a. Not-so-concrete guidance about what it means to be “concrete.” In its first significant discussion of constitutional standing since the death of Justice Scalia, the Court reiterated that an injury-in-fact must be both “concrete and particularized,” and, in addition, it shared some thoughts on what it means to be “concrete.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).

The Fair Credit Reporting Act of 1970 (FCRA) imposes various requirements governing the creation and use of “consumer reports” by “consumer reporting agencies.” It also creates a cause of action enabling an individual to sue “[a]ny person who willfully fails to comply with any requirement [of the FCRA] with respect” to that individual. 15 U.S.C. § 1681(n)(a). Liability can include actual damages, statutory damages, and punitive damages.

Spokeo produced a consumer report about Robins that contained many inaccuracies (e.g., his marital status), and Robins responded by using FCRA’s private cause of action to sue Spokeo. The Ninth Circuit concluded that Robins had suffered an injury-in-fact that was both particularized and concrete given that “Spokeo violated his statutory rights, not just the statutory rights of other people,” and that Robins’ interest at stake was “individualized rather than collective.” 742 F.3d at 413.

Justice Alito, writing for a six-justice majority, held that the Ninth Circuit had not given proper thought to whether Robins’ injury was properly “concrete.” He explained that an injury, to satisfy this requirement, must be “de facto,” it must “exist,” and it must be “real” rather than “abstract.” 136 S. Ct. at 1548. It need not, however, be “tangible.” Determining whether an intangible injury is concrete enough for standing implicates both “history and the judgment of Congress.” Id. at 1549. Regarding history, “it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.” Id. As for Congress, its judgment is “instructive and important” because it “is well positioned to identify intangible harms that meet minimum Article III requirements.” Id. (citing Lujan, 504 U.S. at 578). This congressional power does not extend, however, to authorizing plaintiffs to sue for violation of any statutory right at all—a plaintiff still must suffer “a concrete injury even in the context of a statutory violation.” Id. On a slightly more specific note, Justice Alito used the informational injury suffered in Akins (discussed in note 4, above) as an example of an intangible harm that turned out to be concrete enough for standing.

Justice Alito then observed that it was easy to imagine some violations of FCRA that would not actually cause anyone any real harm—e.g., a consumer report misidentifying someone’s zip code. Id. Robins therefore could not properly claim an injury-in-fact merely by “alleging a bare procedural violation” of the statute’s various reporting and process requirements. Id. The Ninth Circuit had not properly addressed “whether the particular procedural violations alleged in this case entail a degree of risk [of harm to Robins] sufficient to meet the concreteness requirement.” Id. So the Court remanded to the Ninth Circuit to think it over.

Justice Ginsburg, joined by Justice Sotomayor, would have upheld standing for Robins rather than remand to the Ninth Circuit on this issue. In support of this position, she included a big string cite of opinions suggesting that the “concreteness” requirement speaks to whether a litigant has a personal stake in the outcome of a case and whether that case involves genuinely adverse parties:

Illustrative opinions [explaining what it means to be “concrete”] include Akins, 524 U.S. at 20 (“[C]ourts will not pass upon abstract, intellectual problems, but adjudicate concrete, living contests between adversaries.” (internal quotation marks and alterations omitted)); Diamond v. Charles, 476 U.S. 54, 67 (1986) (plaintiff's “abstract concern does not substitute for the concrete injury required by Art [icle] III” (internal quotation marks and ellipsis omitted)); Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (“Plaintiffs must demonstrate a personal stake in the outcome.... Abstract injury is not enough.” (internal quotation marks omitted)); Babbitt v. Farm Workers, 442 U.S. 289, 297-98 (1979) (“The difference between an abstract question and a ‘case or controversy’ is one of degree, of course, and is not discernable by any precise test. The basic inquiry is whether the conflicting contentions of the parties present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” (citation, some internal quotation marks, and ellipsis omitted)); Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40 (1976) ( “organization's abstract concern ... does not substitute for the concrete injury required by Art. III”); California Bankers Assn. v. Shulz, 416 U.S. 21, 69 (1974) (“There must be ... concrete adverseness”; “[a]bstract injury is not enough.” (internal quotation marks omitted)); Railway Mail Assn. v. Corsi, 326 U.S. 88, 93 (1945); Coleman v. Miller, 307 U.S. 433, 460 (1939) (opinion of Frankfurter, J.) (“[I]t [is] not for courts to pass upon ... abstract, intellectual problems but only ... concrete, living contest[s] between adversaries call[ing] for the arbitrament of law.”).

Id. at 1555-56 (Ginsburg, J., dissenting).

Justice Ginsburg then observed that Robins “complains of misinformation about his education, family situation, and economic status, inaccurate representations that could affect his fortune in the job market.” Id. at 1556 (Ginsburg, J., dissenting). Given this much, she saw “no utility in returning this case to the Ninth Circuit to underscore what Robins’ complaint already conveys concretely: Spokeo's misinformation causes actual harm to his employment prospects.” Id. at 1556 (Ginsburg, J., dissenting) (citation, internal quotation marks, and brackets omitted).