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- Title
TRANSUNION V. RAMIREZ: LEVELS OF GENERALITY AND ORIGINALIST ANALOGIES.
- Authors
ALTABET, JASON
- Abstract
In TransUnion v. Ramirez, the Court entrenched a "close relationship" test for defining concrete injuries under Article III's injury-in-fact requirement. In order to assess concreteness, courts must attempt to analogize a plaintiff's harm to a harm traditionally recognized by English or American courts. Without a close relationship to a traditional harm, plaintiffs may not maintain their action in federal court. This test necessarily raises an important question: how analogous is analogous enough? By varying the level of generality, a possibly analogous traditional harm might be sufficiently, or insufficiently, close to a plaintiff's current harm. The more generally one is willing to view a traditional harm, the more likely the close relationship test will be satisfied. The more specifically one views a traditional harm, the less likely the plaintiff's harm will suffice. In TransUnion itself, Justice Kavanaugh's majority opinion simultaneously used a rather specific level of generality for certain questions of similarity, leading to a rejection of various claims under the close relationship test, and a general, more forgiving, level for another question, allowing certain claims to continue. Justice Thomas, in dissent, uniformly used a highly general level and accordingly concluded that all of plaintiffs' claims were sufficiently analogous. The uneven application of levels of generality in TransUnion helpfully illustrates the problem of unsystematic application of levels of generality in legal analogies. The issue is present in many parts of legal reasoning, from the definition of rights to whether prior precedent is binding or merely persuasive. But varying levels of generality are particularly problematic when present in originalist analysis. Originalism purports to be a formalist, discretion-limiting, method of constitutional interpretation. But the ability to switch between levels of generality when describing and applying historical cases and practices inserts significant discretion. By recognizing and better systematizing the levels of generality used for originalist analogies, judges, practitioners, and scholars can better and more faithfully apply originalism.
- Subjects
UNITED States; DAMAGES (Law); TRANSUNION LLC; LEGAL judgments; STATUTORY interpretation
- Publication
Harvard Journal of Law & Public Policy, 2022, Vol 45, Issue 3, p1077
- ISSN
0193-4872
- Publication type
Article