abstract. The standing doctrine articulated by the Supreme Court in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez bars “inconcrete” statutory-damages claims from federal courts. As state courts also restrict their own standing doctrines, they leave valid federal claims without a forum. This problem of forumless claims leaves litigants without redress, frustrates Congress’s legitimate efforts to regulate, and creates tensions in principles of federalism. We argue that the Supremacy Clause requires state courts to hear these claims, and we propose a test for when they must do so that accounts for other doctrinal developments. State courts cannot use state standing rules to leave valid federal claims forumless.

authors. Adam Flaherty is an Associate at Boies Schiller Flexner LLP; J.D. 2024, Yale Law School; M.P.P. 2021, Oxon; B.A./B.S. 2017, University of Mississippi. Isaiah W. Ogren is the Rappaport Fellow at Harvard Law School; J.D. 2024, Yale Law School; M.A. 2021, UCL; B.A. 2020, University of Minnesota. The authors are listed alphabetically and contributed equally. We are grateful to Lea Brilmayer, Amy Chua, Daniel Esses, Owen Fiss, Christine Jolls, Lydia Laramore, Daniel Markovits, Andrew Miller, Judge Kevin Newsom, Cristina Rodríguez, Jed Rubenfeld, Adam Steinman, and the members of the Yale Law School Private Law Clinic for valuable feedback and comments. We are also grateful for the diligent work of the members of the Yale Law Journal, and Victoria Maras in particular. All errors are our own, and surely equally distributed.

Introduction

Federal courts are courts of limited jurisdiction: Article III of the Constitution cabins their subject-matter jurisdiction to certain “cases” and “controversies.”1 Constitutional standing doctrine governs whether a claim constitutes a case or controversy justiciable in federal court. In Lujan v. Defenders of Wildlife, the Supreme Court set out a three-part test defining “irreducible constitutional minimum” requirements for Article III standing.2 To proceed in federal court, plaintiffs must show that they have (1) suffered an actual or imminent injury in fact that (2) is fairly traceable to the conduct of the defendant and that (3) would be redressed by a favorable decision of the court.3

Injuries in fact are “concrete and particularized” harms; they “affect the plaintiff in a personal and individual way” and are “‘real’ and not ‘abstract.’”4 The Court’s recent standing cases—Spokeo, Inc. v. Robins5and TransUnion LLC v. Ramirez6—mark a new era in Article III standing doctrine focused on policing the metes and bounds of justiciable harms. They are the first cases between private parties in which the Court held that the harms alleged were insufficient for federal-court jurisdiction.7 In Spokeo, the Supreme Court decoupled concreteness and particularity into two discrete requirements and set out guidelines for assessing the concreteness of statutory harms.8 While a harm need not be tangible in order to be concrete, it cannot be abstract or amount to a “bare procedural violation” of a statute.9 The Court subsequently explained in TransUnion that only tangible harms and intangible harms analogous to harms traditionally recognized at common law are concrete, further narrowing the kinds of statutory claims that can be heard in federal court.10

Spokeo and TransUnion have been characterized—and we believe misunderstood—by scholars who characterize the cases as imposing “Article III limits on Congress’s power to authorize private parties to sue other private parties.”11 This interpretation illustrates the misapprehension that Spokeo and TransUnion (which we refer to as “the new standing cases”) limit Congress’s Article I power to create causes of action to the confines of federal-court jurisdiction, the boundaries of which are set by Article III.

Yet this is a view that the new standing cases explicitly reject. As the TransUnion Court recognized, to say that Congress cannot confer federal-court jurisdiction over claims for abstract harms is not to say that Congress cannot create a cause of action for them. Writing for the majority, Justice Kavanaugh explained that “[f]or standing purposes, . . . an important difference exists between (i) a plaintiff’s statutory cause of action to sue a defendant over the defendant’s violation of federal law, and (ii) a plaintiff’s suffering concrete harm because of the defendant’s violation of federal law.”12 The Court was clear that, under Article I, “Congress may enact legal prohibitions and obligations. And Congress may create causes of action for plaintiffs to sue defendants who violate those legal prohibitions or obligations.”13 Article III’s injury-in-fact requirement only limits Congress’s ability to authorize plaintiffs to bring inconcrete claims “in federal court.”14 The new standing cases thus reaffirm the distinction between Congress’s power to create rights and corresponding remedies and Congress’s power to confer jurisdiction that Chief Justice Marshall articulated in Marbury v. Madison.15 Article III standing requirements simply reflect the limited jurisdiction of federal courts. But our system also has courts of general jurisdiction: state courts.

Article III’s limitations on the subject-matter jurisdiction of federal courts reflect the assumption, under the Madisonian Compromise,16 that state courts of general jurisdiction would be available to hear federal claims. That assumption is evident in Article III’s text, which vests the “judicial power of the United States . . . in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”17 The Constitution did not fail to provide for courts of general jurisdiction by leaving the creation of federal courts to the discretion of Congress and by limiting their jurisdiction. Instead, the Constitution delegated this constitutional role to state courts, affirmatively binding “the Judges in every State” to enforce “the Laws of the United States,” “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”18 State courts are the constitutional default fora for federal claims.

Consistent with the distinction between courts of limited and general jurisdiction, the Court held in ASARCO Inc. v. Kadish that state courts can hear federal claims over which federal courts would lack subject-matter jurisdiction under Article III.19 In other words, federal standing and state standing need not be coterminous, and Congress’s power to create causes of action is not limited by the boundaries of Article III jurisdiction.

Yet state standing requirements vary and increasingly mimic the requirements for Article III standing, leading to an ever-greater number of states in which no court will hear certain federal statutory-damages actions.20 This trend risks rendering relief contingent on geography or even foreclosing it entirely.

When state courts refuse to hear a cause of action that Congress validly created and for which there is no other forum, they abdicate their constitutional role—undermining the supremacy of federal law, straining the horizontal and vertical separation of powers, and depriving would-be litigants of their statutory rights without due process.

Happily, this is not the law. The best reading of the Supremacy Clause and the Court’s precedent applying it to state courts—Testa v. Katt21 and its progeny—requires state courts to exercise jurisdiction over these claims. In other words, the Supremacy Clause forbids state courts from wielding standing rules in a manner that leaves valid federal claims forumless. We argue that the Constitution affirmatively requires state courts to exercise jurisdiction over federal claims that (1) are insufficiently concrete for Article III standing and (2) are for violations of private rights, but (3) allege a particularized harm to a private statutory right traceable to the defendant’s conduct and redressable by the court and (4) have been created by Congress as a matter of statutory interpretation. Put another way, we believe that state courts must hear claims between private parties that Congress did in fact create if the claims are insufficiently concrete but otherwise satisfy the criteria for standing in federal court.

Our argument has important practical stakes both for Congress’s ability to regulate and for people put at risk by the illicit behavior of others. The stringent standard for concreteness set out in Spokeo and TransUnion creates concern that the federal judiciary will frustrate legitimate legislative attempts to regulate intangible harms in areas such as credit reporting, data management, and digital privacy.

Even before the new standing cases, standing doctrine was contentious. Critics have decried it as an ahistorical and amorphous doctrine that denies relief to litigants, encroaches on the authority of Congress, and permits courts to use justiciability to achieve policy and political goals or to avoid difficult disputes.22 Spokeo and TransUnion have not quieted the skeptics. An age-old metaphysical question asks whether a tree that falls in a forest makes a sound if no one is around to hear it. The Court’s new standing doctrine seems, to its detractors, to provide the wrong answer to a high-stakes variation on the same question. To borrow the formulation from Judge Tatel that the TransUnion Court cited approvingly, “‘If inaccurate information falls into’ a consumer’s credit file, ‘does it make a sound?’”23 Our solution shows that the Court’s new standing doctrine can be interpreted in a way that resolves apparent tensions between principles of federalism, preserves Congress’s ability to regulate risk through private enforcement, and protects the rights of litigants.

We proceed in four Parts. Part I describes the doctrinal shift signaled in Spokeo and TransUnion, which narrowed the definition of concrete harms, establishing a stricter approach to the injury-in-fact requirement. Part II explains how the new standing cases create what we call “forumless claims”—valid federal claims for statutory damages that cannot be brought in any forum due to state standing requirements that increasingly mimic those of the federal courts. Part II also describes the claims most vulnerable to this problem. We argue that when state courts leave valid federal claims forumless, they abdicate their constitutional role as the default fora for federal claims. This role is immanent in the Constitution’s text, structure, and history and is integral both to our horizontal and vertical separation of powers and to due process. The problem of forumless claims makes it more difficult for Congress to regulate effectively and for litigants to seek relief, putting pressure on important constitutional principles.

In Part III, we advance a novel argument that the Court’s Supremacy Clause precedents require state courts to exercise jurisdiction over forumless claims when Congress requires.24 These precedents prohibit states from discriminating against federal claims or substantially burdening federal rights, and, correctly understood, permit state courts to decline jurisdiction over federal claims only on the basis of narrowly defined “valid excuse[s].”25 We read these precedents to require state courts to hear certain federal claims that would otherwise be forumless because the application of state standing rules would fail both the nondiscrimination and burden requirements.

Part IV addresses the administrability of this constitutional obligation. We explain how the obligation can be enforced and propose a test for determining whether the requirement has been triggered. Next, we consider when courts should construe Congress as having directed them to hear these claims. Finally, we respond to concerns about the implications of our argument for the uniformity of federal law.

Our aim in this Note is not to show that the prevailing approach to standing, exemplified in cases like Spokeo and TransUnion, is right and just and true. Our more modest goal is to show what must follow if we accept the present approach to standing as a durable feature of our legal practice. The counterintuitive upshot of our argument is that these cases can be interpreted to produce a legal system that is on the whole more friendly to plaintiffs and more effective at deterring conduct that Congress has proscribed. Put differently, we aim to show that even though there may be good reasons to think that the new standing cases were wrongly decided, all is not lost. We offer plaintiffs a new argument: state courts must adjudicate their valid claims when federal courts cannot.