Article III Standing After TransUnion: Concrete Injury, Traceability, and the End of No-Injury Claims

Summary. Who may sue in federal court, and why winning that fight sometimes loses the case.

The constitutional floor

Article III extends the judicial power to "Cases" and "Controversies." Standing is the doctrine that decides whether a dispute is one.

The elements, stated canonically in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992):

1. Injury in fact — an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.
2. Traceability — the injury must be fairly traceable to the challenged conduct, not the independent action of a third party.
3. Redressability — it must be likely, not merely speculative, that a favorable decision will redress the injury.

The plaintiff bears the burden, and the burden increases as the case progresses: general allegations suffice at the pleading stage, specific facts at summary judgment, and proof at trial.

Standing is jurisdictional. It cannot be waived, cannot be conferred by consent, may be raised at any time, and must be examined by the court on its own motion. That last feature is what makes it dangerous — a case can be dismissed for lack of standing years in, by a court that raised the issue itself.

Concreteness: the fight that matters

Particularity is rarely contested — the plaintiff must be affected personally rather than complaining about a generalized grievance. Concreteness is where modern standing litigation lives.

Spokeo

Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) presented the question directly: does violating a statute that creates a private right of action automatically confer standing?

The Court said no. Concreteness and particularity are separate requirements, and a plaintiff cannot satisfy the injury requirement "by alleging a bare procedural violation, divorced from any concrete harm." At the same time, the Court held that intangible harms can be concrete, and that both history and legislative judgment are instructive:

"[B]ecause Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important."

Spokeo was widely read as either a major restriction or a minor clarification, depending on the reader. Five years of inconsistent lower court application followed.

TransUnion

TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) resolved much of it, and did so on facts that made the distinction vivid.

TransUnion had placed alerts on credit files indicating that consumers were potential matches to names on a government watch list. A class of 8,185 consumers sued. For 1,853 of them, the misleading credit report had actually been provided to a third-party business. For the remaining 6,332, the flawed report sat in TransUnion's files and was never disseminated.

The Court held that the 1,853 had standing and the 6,332 did not. Justice Kavanaugh's framing:

"No concrete harm, no standing."

And on the relationship between statutory violations and injury:

"Only those plaintiffs who have been concretely harmed by a defendant's statutory violation may sue that private defendant over that violation in federal court. . . . An injury in law is not an injury in fact."

The test the Court supplied asks whether the alleged harm has a "close relationship to a harm traditionally recognized as providing a basis for a lawsuit in American courts" — historical or common law analogues such as physical harm, monetary harm, and various intangible harms including reputational harm, disclosure of private information, and intrusion upon seclusion.

For the 1,853, the analogue was defamation: a false statement communicated to a third party. For the 6,332, there was no publication, and so no analogue.

Two further holdings that matter as much as the main one:

Risk of future harm does not support damages. A plaintiff seeking damages cannot rely on a material risk of future harm; the risk must have materialized. Risk may support injunctive relief where it is sufficiently imminent, which is a meaningful distinction in practice.

Every class member must have standing for damages. The Court was explicit:

"Every class member must have Article III standing in order to recover individual damages."

This is the holding with the largest practical consequence, discussed below.

Applying the historical analogue test

Courts now ask, for any intangible harm: what traditional cause of action does this resemble?

Analogues that have worked:

Analogues that have failed:

• A statutory violation with no dissemination, no reliance, and no consequence
• A technical failure to include required language in a document nobody read
• An increased risk that never materialized, where damages are sought
• A "loss of value" of personal information with no market or transaction alleged
• Dissatisfaction with a product that performed as it actually performs

The test is a "close relationship," not an exact match. The Court cautioned that the analogue need not be an exact duplicate, and lower courts have accepted analogies at some level of generality. But the further the analogy stretches, the more likely dismissal becomes.

Informational injury remains contested. Where a statute requires disclosure and the defendant fails to disclose, is the deprivation of information itself concrete? The answer appears to be that it can be, where the plaintiff sought the information for a purpose the statute contemplated and suffered a downstream consequence from not having it — but a plaintiff who never wanted the information and did nothing differently has a harder case.

The class action consequence

The holding that every class member must have standing to recover damages has reshaped class practice.

At certification. A class defined to include uninjured members faces a serious problem. Defendants argue that individualized standing inquiries defeat predominance under Federal Rule of Civil Procedure 23, and courts have accepted that argument where determining injury requires member-by-member analysis.

Class definition becomes the battleground. Plaintiffs narrow definitions to include only members who suffered the concrete harm — those whose reports were disseminated, whose data was actually accessed, who actually paid. Defendants argue the narrowed class is unascertainable, or that determining membership requires the same individualized inquiry.

The de minimis question. How many uninjured members can a class tolerate? The Supreme Court has not answered. Lower courts have taken varying approaches, some permitting a small proportion, others requiring a mechanism to exclude them before judgment.

Injunctive classes are different. Because risk of future harm can support injunctive relief, a class seeking an injunction may proceed where a damages class could not. This has pushed some litigation toward injunctive framing.

The settlement class problem. A defendant settling a class including uninjured members faces the question whether the court can approve relief to people who could not have sued. The tension with Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) — which require that certification requirements be satisfied even for settlement — is real and unresolved.

Mootness, ripeness, and the timing doctrines

Standing is measured at filing. Two related doctrines police the other ends.

Mootness asks whether a live controversy persists. A case becomes moot when the plaintiff no longer has a personal stake.

Voluntary cessation does not moot a case unless it is "absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur" — the standard applied in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), with the burden on the party asserting mootness. Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) applied it to a trademark covenant not to sue that was broad enough to make recurrence impossible.

Picking off a named plaintiff does not moot a class action. Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016) held that an unaccepted settlement offer does not moot a claim — "an unaccepted settlement offer or offer of judgment does not moot a plaintiff's case."

Nominal damages preserve a live controversy. Uzuegbunam v. Preczewski, 592 U.S. 279 (2021) held that a claim for nominal damages for a completed constitutional violation defeats mootness, which matters considerably in civil rights litigation where the challenged policy is withdrawn.

Ripeness asks whether the dispute has matured. Clapper v. Amnesty International USA, 568 U.S. 398 (2013) held that a "threatened injury must be certainly impending" and that plaintiffs "cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm."

For declaratory judgment actions under 28 U.S.C. § 2201, the standing and ripeness inquiries merge into the question whether there is a substantial controversy of sufficient immediacy and reality.

Organizational and associational standing

An organization may sue for injury to itself — diverted resources, frustrated mission activities — under the framework the Court has applied for decades, though Food and Drug Administration v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024) tightened it considerably. The Court rejected a theory that an organization suffers injury by expending resources to oppose a policy:

"[A]n organization that has not suffered a concrete injury caused by a defendant's action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant's action."

Associational standing permits an organization to sue on behalf of members where (1) the members would have standing individually, (2) the interests are germane to the organization's purpose, and (3) neither the claim nor the relief requires individual member participation. The third element generally bars damages claims.

Third-party standing is disfavored. A litigant generally must assert their own rights, subject to exceptions where the litigant has a close relationship with the right holder and there is a hindrance to the right holder's own suit. Warth v. Seldin, 422 U.S. 490 (1975) remains the reference point for these limits and for the prohibition on generalized grievances.

The consequence defendants underestimate

Here is the strategic point that decides how standing should actually be litigated: state courts are not bound by Article III.

A federal court that dismisses for lack of standing dismisses without prejudice, for want of jurisdiction. It does not decide the merits. The plaintiff may refile in state court, where the standing requirements are frequently more permissive — many state constitutions have no case-or-controversy clause, and several state courts have expressly declined to import federal standing doctrine.

Two scenarios follow.

The case was filed in federal court. Defendant wins dismissal for lack of standing. Plaintiff refiles in state court, in a forum the defendant did not choose, before a judge and jury pool the defendant did not choose, without federal procedural rules, and without the ability to remove — because there is no federal jurisdiction, which the defendant just established.

The case was filed in state court and removed. Defendant removes, then argues no standing. If the court agrees, the remedy is remand, not dismissal. The defendant has spent months and fees to return the case to where it started, having also created a record that federal jurisdiction is unavailable for the rest of the litigation.

How to think about it:

The disciplined approach: raise standing where the case cannot follow you to state court — because the state has an analogous requirement, because the claim is federal and exclusive, or because the plaintiff's counsel is unlikely to refile. Otherwise, consider whether a merits victory is worth more than a jurisdictional one.

And note the asymmetry in class cases. Even where dismissal sends an individual claim to state court, defeating a nationwide damages class in federal court on standing grounds is a substantial win, because reassembling it across fifty state courts is a materially harder project.

Litigating standing

Raising it

Rule 12(b)(1) motions come in two forms, and the difference matters.

A facial attack accepts the complaint's allegations as true and argues they are insufficient. The standard resembles Rule 12(b)(6), and no evidence is considered.

A factual attack contests the truth of the jurisdictional allegations. The court may consider evidence outside the pleadings, and the presumption of truthfulness does not attach. This is powerful and underused — a declaration establishing that the plaintiff never received the communication, never saw the disclosure, or never suffered the consequence can resolve standing on a developed record.

Timing considerations. Standing may be raised at any time, including for the first time on appeal, and the court must consider it sua sponte. But raising it early forfeits the chance to develop a factual record; raising it late means litigating a case that should not have proceeded. The usual sequence: a facial attack on the pleadings where the complaint is thin, and a factual attack at summary judgment or in opposition to certification where discovery has produced the evidence.

Standing at each stage. The burden escalates: allegations at the pleading stage, specific facts by affidavit or evidence at summary judgment, and proof at trial. A plaintiff who survives a facial attack has not established standing; it has only alleged it.

Pleading it

For plaintiffs, standing should be pleaded affirmatively rather than assumed.

Plead the concrete harm, not the statutory violation. "Defendant violated § X" is not an injury. "Defendant disclosed my information to Y, who then Z" is.

Identify the historical analogue expressly. A complaint that says "this harm closely resembles the common law tort of intrusion upon seclusion, in that . . ." is materially stronger than one that leaves the court to find the analogy.

Plead the downstream consequence. Did the plaintiff pay something, lose something, do something differently, or suffer something? Even modest consequences establish concreteness where a bare violation does not.

For risk-based claims, plead materialization. Under TransUnion, risk supports injunctive relief but not damages. If the harm has occurred, say so specifically.

For classes, define around the injury. A class definition that sweeps in members who suffered nothing invites the certification fight the defendant wants.

Plead traceability specifically. Where the chain runs through third parties, explain each link. This is where environmental, regulatory, and competitor-standing claims most often fail.

Discovery

Standing discovery is narrow and worth taking.

Defendants should seek: whether the plaintiff received or saw the communication; whether the plaintiff read the disclosure; what the plaintiff did differently; what the plaintiff paid and what they received; whether the plaintiff's information was actually disseminated and to whom; when the plaintiff learned of the conduct; and how the plaintiff came to counsel — which bears on typicality and occasionally reveals that the "injury" was discovered by an investigator rather than experienced by the plaintiff.

Plaintiffs should establish: dissemination, access, reliance, payment, and consequence, with documents rather than testimony where possible.

The document that most often decides it is the defendant's own record showing whether the plaintiff's information was actually transmitted, accessed, or used.

Standing outside consumer litigation

The doctrine is often discussed as a consumer class action issue. It reaches much further.

Competitor standing. A business challenging a regulation that benefits a rival must show injury from the regulation, traceable to it. Increased competition is a cognizable injury; a general interest in lawful government is not.

Environmental and public interest litigation. Aesthetic and recreational injuries are concrete where the plaintiff uses the affected area, per Lujan and Laidlaw. Generalized concern is not. Traceability and redressability are the harder elements in regulatory challenges, particularly where the injury depends on third-party responses to the challenged action.

Challenges to government action. Taxpayer standing is nearly always unavailable. Procedural rights litigation permits somewhat relaxed immediacy and redressability requirements where the plaintiff has a concrete interest the procedure protects.

Intellectual property. A patent licensee's standing to sue depends on whether it holds all substantial rights. Declaratory judgment plaintiffs must show a controversy of sufficient immediacy under the framework of MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007). Trademark false advertising standing is governed by the zone-of-interests analysis of Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), which is statutory rather than constitutional but frequently litigated alongside Article III.

Securities. Purchaser or seller status is a statutory element that operates alongside constitutional standing.

Employment and civil rights. Individual plaintiffs generally have straightforward standing; the issues arise with organizational plaintiffs and with claims for prospective relief where the plaintiff no longer works for the defendant. A former employee seeking an injunction against a policy affecting current employees usually lacks standing for that relief.

Data breach litigation. The most contested area outside credit reporting. Courts divide on whether exposure without misuse is concrete. Actual fraudulent charges, identity theft, or documented misuse establish standing; a database intrusion with no evidence anyone's data was taken, or taken but never used, frequently does not — for damages. Mitigation costs incurred in response to a non-imminent risk run into Clapper's prohibition on manufacturing standing.

A worked analysis

Bellhaven Grocers operates 240 supermarkets. It suffers a payment card intrusion: an attacker accesses point-of-sale systems for eleven weeks and exfiltrates card data for approximately 1.4 million transactions.

Four plaintiffs file a putative nationwide class action in federal court.

The four plaintiffs

Plaintiff A had fraudulent charges of $2,340 on the card used at Bellhaven, reversed by her bank. She spent about six hours disputing them.

Plaintiff B received a notification from Bellhaven, cancelled his card, and paid $14.99 a month for a credit monitoring service for a year. No misuse occurred.

Plaintiff C received the notification and did nothing. He alleges the "loss of value" of his personal information and an increased risk of future identity theft.

Plaintiff D shopped at Bellhaven during the period but used cash. She alleges she "may have been affected."

The standing analysis, plaintiff by plaintiff

Plaintiff A: standing. Fraudulent charges are monetary harm — the most straightforward concrete injury there is. That the bank reversed them does not eliminate the injury; she also spent time, and the misuse materialized. Traceability is contested but pleadable: the card was used at Bellhaven, the intrusion covered that period, and the fraud followed. Redressability is straightforward.

Plaintiff B: contested. He suffered no misuse. His claim is mitigation costs. Under Clapper v. Amnesty International USA, 568 U.S. 398 (2013), a plaintiff "cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm." The counter-argument is that where data was actually stolen by an attacker who took it deliberately, the risk is not hypothetical, and mitigation is reasonable. Courts split on precisely this, and the answer often turns on whether the data taken is the kind used for fraud and whether any class member's data has been misused.

Plaintiff C: no standing for damages. He alleges risk that has not materialized and a "loss of value" with no market and no transaction. Under TransUnion LLC v. Ramirez, 594 U.S. 413 (2021), risk of future harm does not support damages. The loss-of-value theory has been rejected repeatedly absent an allegation that the plaintiff would have paid less, or sold the information, or lost a specific opportunity.

Plaintiff D: no standing. She has not alleged that her data was in the compromised set. "May have been affected" is conjecture.

What Bellhaven's counsel actually does with this

Defense counsel Adaeze Thorogood-Nkemelu does not immediately move to dismiss all four for lack of standing, and her reasoning is the point of this example.

First, she asks where the case goes if she wins. The plaintiffs' firm is regional and files in state court routinely. Bellhaven's state has no case-or-controversy clause and its courts have declined to import federal standing doctrine. A complete standing victory produces a state court class action Bellhaven cannot remove, because it will have established that no federal jurisdiction exists.

Second, she separates the objectives. What Bellhaven wants is not dismissal of four individuals; it is defeat of a 1.4-million-member nationwide damages class. Standing is an excellent tool for that and a poor tool for the first.

Her approach:

• Do not move to dismiss Plaintiff A. Her standing is solid; contesting it wastes credibility.
• Do not move to dismiss anyone at the pleading stage. A facial attack on the complaint's general allegations is winnable but produces amendment, not resolution.
• Take standing discovery. Whether each plaintiff's card was in the compromised set; whether any misuse occurred; what each actually paid; when each learned of the breach. Bellhaven's own forensic data answers most of it.
• Attack at class certification, factually. Under TransUnion, every class member must have standing to recover damages. Determining which of 1.4 million cardholders suffered misuse is an individualized inquiry, and that defeats predominance under Rule 23(b)(3).
• Concede the narrow class. If plaintiffs narrow to cardholders with documented fraudulent charges, the class shrinks from 1.4 million to perhaps 9,000. That is a case Bellhaven can defend and settle on rational terms.

The outcome

The court certifies a class limited to cardholders with documented unauthorized charges. Plaintiffs C and D are dismissed. Plaintiff B's individual claim survives but the mitigation subclass is denied certification as requiring individualized proof.

The class went from 1.4 million to about 9,000 without a single merits ruling, and Bellhaven never risked sending the case to state court, because the individual claims that were dismissed were too small for anyone to refile.

Adaeze's summary to the client: "We did not win on standing. We used standing to define what the case is."

Standing in removed cases

The removal scenario deserves separate treatment because it produces the most frequent unforced error in this area.

The sequence that goes wrong:

1. Plaintiff files a statutory damages class action in state court.
2. Defendant removes, invoking diversity jurisdiction under the Class Action Fairness Act.
3. Defendant then moves to dismiss for lack of Article III standing.
4. The court agrees — and remands rather than dismissing, because a federal court that lacks jurisdiction must return the case to the court from which it came.
5. Defendant has spent six figures to put the case back where it started, has established on the record that federal jurisdiction is unavailable, and has taught the plaintiff's firm to keep filing in state court.

Why the remedy is remand. Where a case was removed and the federal court determines it lacks subject matter jurisdiction, the statute directs remand. Dismissal is not available. The defendant's own removal created the situation.

How to avoid it. Before removing, ask whether the plaintiff has Article III standing. If the answer is no, removal is a mistake — the defendant will not get a federal forum, and the effort will be wasted.

When removal still makes sense despite doubtful standing: where the defendant wants federal procedural rules for the portion of the case that does have standing; where the class definition can be narrowed in federal court in a way that binds; or where the defendant intends to seek transfer or consolidation available only federally. These are real reasons, and they should be articulated before removal rather than discovered after remand.

A note on the reverse strategy. Some plaintiffs' counsel now plead deliberately to avoid Article III standing, keeping cases in state court where the requirement does not apply and removal is futile. Defense counsel should recognize the pattern: a complaint that recites a statutory violation and conspicuously omits any allegation of consequence may be drafted to be unremovable.

Frequently asked questions

Can a defendant waive standing by agreement? No. Standing is jurisdictional, and parties cannot confer subject matter jurisdiction by consent. A forum selection clause designating federal court does not create standing, and a settlement agreement providing for federal enforcement may be unenforceable there if no independent basis for jurisdiction exists — the reason parties seeking federal enforcement of a settlement ask the court to retain jurisdiction expressly.

How does standing interact with arbitration? A motion to compel arbitration does not require the court to decide standing first in most circuits, on the theory that the arbitration question is antecedent and the arbitrator can address the merits. But some courts insist on jurisdiction before any ruling. Where both defenses are available, consider which produces the better outcome: arbitration keeps the dispute out of court entirely; standing may send it to state court.

Does standing apply in state court? Not as a federal constitutional matter. Many states have adopted analogous requirements by statute or decision, and some have expressly declined to. Check the specific state before assuming a federal standing victory travels.

What happens to a class member who lacks standing after a settlement is approved? This is unresolved and genuinely difficult. A settlement class including uninjured members raises the question whether a court may approve relief to people who could not have sued, and it sits uneasily with the requirement that certification standards be satisfied even for settlement classes. Practitioners structure around it by defining settlement classes around the injury.

Does a statutory damages provision confer standing? No. TransUnion is explicit: "An injury in law is not an injury in fact." Congress may elevate previously inadequate harms to actionable status, but it cannot create Article III injury where none exists.

What if the statute says any violation is an injury? Congress does not define the constitutional minimum. The legislative judgment is instructive, not dispositive.

Can a plaintiff without standing represent a class of injured members? No. The named plaintiff must have standing, and for damages every class member must as well.

Does winning on standing end the case? Usually not. Dismissal is without prejudice for lack of jurisdiction, and state courts frequently apply more permissive standing rules.

Is standing decided before or after class certification? Courts vary. Many address the named plaintiff's standing first, then consider absent members' standing as part of the certification analysis under Rule 23.

Can risk of future harm ever confer standing? For injunctive relief, yes, where sufficiently imminent. For damages, no under TransUnion.

Who bears the burden? The plaintiff, at every stage, with the evidentiary demand increasing as the case proceeds.

Traceability and redressability: the underused elements

Concreteness gets the attention. The other two elements defeat more cases than practitioners expect, particularly in regulatory and competitor litigation.

Traceability requires that the injury be fairly traceable to the challenged conduct, "and not the result of the independent action of some third party not before the court." The difficulty arises whenever the causal chain runs through someone else's choices.

Recurring failure patterns:

• The regulated-party problem. A plaintiff challenges a rule governing someone else, alleging harm from how that party will respond. Whether the third party will actually respond as predicted is speculative, and the chain frequently breaks.
• The market-effects problem. A plaintiff alleges that a defendant's conduct changed market conditions to the plaintiff's detriment. Where many factors affect the market, attribution to the challenged conduct is contested.
• The upstream-supplier problem. A plaintiff several steps removed from the conduct alleges that the harm flowed down. This is also where the proximate cause analysis of Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) operates for statutory claims.
• The self-inflicted problem. Clapper v. Amnesty International USA, 568 U.S. 398 (2013) forecloses standing based on costs a plaintiff incurred in response to a speculative risk.

Redressability requires that a favorable ruling be likely to remedy the injury. It fails where:

• The remedy would not change the third party's behavior. Enjoining an agency does not help if the private actor causing the harm would act the same way.
• The relief is unavailable. A plaintiff seeking an injunction against a completed act, or damages the statute does not authorize, cannot be redressed by the court.
• Other causes persist. Where multiple independent sources produce the harm, removing one may not redress it.
• The plaintiff would not benefit. A plaintiff who would not receive the license, the contract, or the benefit even if the challenged barrier were removed has a redressability problem — though the Court has been more forgiving where the plaintiff seeks an opportunity to compete rather than a guaranteed outcome.

Procedural rights are treated differently. Where a plaintiff asserts a procedural right protecting a concrete interest — an environmental impact statement, a notice-and-comment requirement — the immediacy and redressability requirements are relaxed. The plaintiff need not show the agency would have decided differently, only that the procedure protects an interest the plaintiff holds.

For defense counsel: these elements are worth pleading and briefing even where concreteness is contested, because they are frequently stronger and because they require the plaintiff to explain a causal chain that many complaints leave implicit.

Standing and the separation of powers

The doctrine is usually taught as a technical threshold and is better understood as a structural one, which explains several results that otherwise seem arbitrary.

The premise. Article III limits federal courts to resolving concrete disputes between adverse parties. A court that entertains a generalized grievance about government conduct is not resolving a dispute; it is supervising the executive. TransUnion put it directly, quoting the Court's earlier framing: the standing requirement helps ensure that courts do not "usurp the powers of the political branches."

What follows from that premise, and explains the case law:

Why Congress cannot simply confer standing. If a statute could make any violation an Article III injury, Congress could convert the courts into a general enforcement mechanism for its own statutes, wielded by any citizen. The Court's insistence that "an injury in law is not an injury in fact" is a limit on legislative power over the judiciary, not a judgment about the importance of the statute.

Why generalized grievances fail. A harm shared equally by everyone is a matter for the political process. This is why taxpayer standing is almost always unavailable, and why a citizen's interest in lawful government does not support suit.

Why the historical analogue test uses common law torts. Those are the disputes courts have always resolved. Anchoring intangible harms to them keeps the judicial power within its historical bounds rather than expanding it to whatever a legislature designates.

Why risk supports injunctions but not damages. Preventing an imminent harm is a traditional equitable function. Compensating for a harm that has not occurred is not.

The counterargument, which is serious. Critics observe that the doctrine has the practical effect of insulating certain conduct from any judicial review — particularly where a legislature has identified a harm, created a remedy, and the courts have then declined to enforce it because the harm is intangible. Justice Thomas's dissent in TransUnion argued that the majority conflated public rights with private rights, and that a plaintiff suing over a violation of their own private statutory right has always had standing without showing anything more.

Why any of this matters to a practitioner. Because arguments framed in structural terms land better than arguments framed in element-checking terms. A defendant explaining that the plaintiff is asking the court to enforce a statute in the abstract, on behalf of no one in particular, is making the argument the doctrine exists to serve. A plaintiff explaining that the defendant's conduct injured this person in a way courts have always remedied is making the other one.

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