In recent years, the U.S. Supreme Court has repeatedly said that the doctrine of Article III standing deprives the federal courts of jurisdiction over some lawsuits involving intangible injuries. The lower federal courts are carrying out the Supreme Court’s instructions, and privacy injuries have borne the brunt of the Court’s directive. This Article identifies two incoherencies in the Court’s recent intangible injury decisions and builds on the work of privacy scholars to fashion a solution.
The first incoherency is a line-drawing problem: the Court has never explained why some intangible injuries create an Article III injury in fact while others do not. The second problem is more fundamental: the Court has never provided a justification for using counter-majoritarian constitutional standing to deprive plaintiffs of a remedy against companies engaged in abusive informational practices. These incoherencies have sparked much confusion in the lower courts and have invited curious arguments that the Constitution prohibits courts from adjudicating all but the narrowest sliver of privacy disputes.
To address the line-drawing and counter-majoritarian problems, this Article builds on Helen Nissenbaum’s contextual integrity framework. Contextual integrity observes that privacy is context specific and that privacy violations are the byproduct of practices that violate entrenched informational norms.
Constructing a legal framework based on contextual integrity solves both problems: contextual integrity provides courts with a principled way to distinguish between informational practices that are injurious and those that are not, and contextual integrity supplies courts with a persuasive justification for dismissing cases divorced from shared conceptions about abusive informational practices. The legal framework proves useful in understanding the statutes and circumstances that create justiciable privacy injuries.
It’s too late to undo all the havoc wreaked by the Court’s constitutional standing cases. This Article proposes a mechanism for cabining the doctrine’s most extreme implications and provides courts with a consistent and coherent way to protect privacy.
Recommended CitationPeter Ormerod, Making Privacy Injuries Concrete, 79 Wash. & Lee L. Rev. 101 (2022).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol79/iss1/4