DeGirolami on Spokeo Oral Argument

My colleague, Marc DeGirolami, read through the Spokeo oral argument transcript and had the following observations. I thought they might be of interest to readers of the blog.


* Justice Kagan emphasized to counsel for Spokeo that the reporting/dissemination of false information in credit reports is itself plausibly described as a harm. So that although Congress has to identify a concrete harm, that is such a harm. In response to counsel for Spokeo's claim that Robins needed to show some tangible consequence from the dissemination of false information (e.g., an employer's decision not to hire him), Justice Kagan said that such evidence was extremely difficult to come by.


*  Justice Sotomayor fairly plainly indicated that an "injury in fact" is any legally recognized right, a right that Congress can create. So that ought to be concrete enough.


* On the latter point, it seemed to me that Justice Kagan disagreed with Justice Sotomayor. Justice Kagan instead agreed with the following statement by Spokeo's counsel: "de facto injuries as to which there's no cause of action can be made actionable when Congress creates a cause of action. [But] [t]hat's quite different from saying that something that doesn't qualify under this Court's injury ­in ­fact standard as tangible harm can be made actionable." 


* There was also a dispute about precisely what the "harm" identified by Congress in the statute actually is. Justice Kagan said it was "misinformation." But Justice Scalia pointed out that the actual harm is the failure to follow various procedures imposed by Congress on credit agencies (e.g., failure to provide an 800 number), whether the information reported was accurate or not. That is, in Justice Scalia's view, the "harm" might even be the failure to follow proper procedures even as to accurately reported information. That really doesn't sound like a concrete harm at all, of course. Justice Kagan countered that for Robins, the harm complained of wasn't just procedural failure, but the dissemination of false information.


*  Justice Kennedy clearly was not persuaded by the argument that the "harm" is the inability to get the money damages remedy created by Congress (that is, he did not seem to be agreeing with Justice Sotomayor). He called that argument "circular."


* CJ Roberts offered a few fun hypotheticals to counsel for Robins and to the government, all of which suggest that he is perhaps inclined toward Spokeo. Here are the three that stood out to me:


A. Suppose Congress passes a law that you are entitled to $10,000 if somebody publishes inaccurate information about you. The harm Congress identifies is having inaccurate information out there about you. Then somebody publishes your private telephone number. But they get your private telephone number wrong (they mess it up). Do you have standing in such a case, even though you have suffered absolutely no concrete harm, but there has been a technical violation of the statute?


B. Suppose Congress passes a law that anybody who publishes information about you has to pay you $10 per year, no more and no less. Violations of the statute result in a $10,000 fee. But now suppose that Spokeo publishes information about you and pays you $20 per year. Do you have standing to collect $10,000?


C. Suppose Congress thinks the President is not doing enough to stop illegal immigration, and so it passes a law that says, "anybody in a border state who is unemployed may bring an action against an illegal immigrant who has a job." Does such a person have standing? The point the Chief was getting at was that Congress should not be able to tell a group of citizens that they get to enforce the law through a cause of action whether or not they have been injured. 


*  The CJ's last hypothetical was directed at the lawyer for the government, which had filed a brief in support of Robins. The Chief wondered why the executive would not be concerned that Congress could essentially create an alternative enforcement mechanism outside of Article II.

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