Mixed Emotions: How Lower Courts Misconstrue TransUnion and Have Since Created a New Judicially Cognizable Injury for Stand-Alone Emotional Distress

Authors

Varun Elangovan, Georgetown University Law Center

Date of this Version

11-16-2022

Document Type

Article

Citation

Nebraska Law Bulletin (November 16, 2022)

Comments

Copyright 2022, the author

Abstract

In TransUnion, LLC v. Ramirez, the United States Supreme Court held that “in a suit for damages, mere risk of future harm, standing alone, cannot qualify as a concrete harm—at least unless the exposure to the risk of future harm itself causes a separate concrete harm.” Notably, the Court failed to take a position on what common law analog would suffice as a “separate concrete harm,” and instead, affirmed that an emotional distress injury caused by the risk of future harm may be a sufficient concrete injury. Resultingly, lower courts have construed TransUnion to stand for the proposition that an emotional distress injury plus a risk of future harm satisfies the concrete harm requirement for Article III standing. However, this Article argues that lower courts are improperly applying Supreme Court precedent regarding Article III standing, regarding the misapplication of TransUnion—and Spokeo, Inc. v. Robins before it—by failing to identify a suitable common law analogy for this type of emotional distress injury. This Article provides proper guidance as to the concreteness inquiry post-TransUnion, guidance that remains loyal to Article III standing precedent.