My colleague, Marc DeGirolami, read through the Spokeo oral argument transcript and had the following observations. I thought they might be of interest to readers of the blog.
* Justice Kagan emphasized to counsel for Spokeo that the reporting/dissemination of false information in credit reports is itself plausibly described as a harm. So that although Congress has to identify a concrete harm, that is such a harm. In response to counsel for Spokeo's claim that Robins needed to show some tangible consequence from the dissemination of false information (e.g., an employer's decision not to hire him), Justice Kagan said that such evidence was extremely difficult to come by.
* Justice Sotomayor fairly plainly indicated that an "injury in fact" is any legally recognized right, a right that Congress can create. So that ought to be concrete enough.
* On the latter point, it seemed to me that Justice Kagan disagreed with Justice Sotomayor. Justice Kagan instead agreed with the following statement by Spokeo's counsel: "de facto injuries as to which there's no cause of action can be made actionable when Congress creates a cause of action. [But] [t]hat's quite different from saying that something that doesn't qualify under this Court's injury in fact standard as tangible harm can be made actionable."