Home > Journals > WMLR > Vol. 67 (2025-2026) > Iss. 5 (2026)
William & Mary Law Review
Abstract
Article III’s heightened concreteness standard for statutory harms takes federal judges deep into legislative terrain, jeopardizing statutory damage provisions and confining Congress to post hoc solutions rather than preemptive strikes. The Supreme Court has insisted that creating a cause of action is a legislative function. At the same time, its recent standing cases instruct lower federal courts to permit suit on statutory injuries only when they find actual harm that bears a tight connection to injuries recognized at common law. This new harm requirement rests uneasily with countless statutes featuring statutory damage provisions that are in place precisely because damages are difficult to quantify. For decades, and as recently as 2004, the Court has seen the decision to require or forego proof of actual damage as an exclusively legislative call, but Article III now dictates another direction. The Court’s conclusion that “mere” risk of harm, without more, cannot give rise to a damages action makes a normative choice and, with scarce fanfare, deprives Congress of decades-old tools in the regulation of risk. After TransUnion v. Ramirez, Congress is powerless to avoid harm by financially incentivizing limits to exposure. When President George W. Bush signed the Fair and Accurate Credit Transaction Act (FACTA) in 2003, barring merchants from including patrons’ entire credit card numbers on point-of-sale receipts, he praised Congress; the statute, with its various enforcement mechanisms, including private suit, would help prevent identity theft before it occurs. But after TransUnion, nearly every court has said that plaintiffs receiving noncompliant receipts lack an injury in fact sufficient to sue under the statute. Receipts land in pockets and trashcans; the FTC is hard-pressed to learn of violations. If these plaintiffs cannot sue, how do you keep credit card information from getting into the hands of would-be identity thieves? Despite the Court’s professed deference to the legislative function, it is using Article III’s case or controversy requirement to remove sharp tools from Congress’s regulatory arsenal and, in effect, deciding when we can act in relation to harm.