I’ve been indirectly pursuing the question of the problems faced by privacy plaintiffs in data cases by looking at the origins of the Supreme Court’s standing doctrine. Basically, plaintiffs have to show an “injury in fact,” and courts often find privacy harms not to meet this standard. Although presented as dating from time immemorial, the injury in fact requirement was actually announced rather abruptly in 1970 (all of this is part 1). I’ve been exploring the historical antecedents that will help understand what that language implies – in a very early Supreme Court case (part 2), in other federal case law (part 3), and in federal cases about the Administrative Procedure Act (part 4). Here I want to extend the genealogy into some early state cases; I’ll draw a somewhat arbitrary cutoff at 1930. This time I’ll look at a general potpourri of cases. Next time I want to specifically look at a few libel cases because the language is especially clear in them. I don’t claim this to be exhaustive (and I’m ignoring some of the cases around trusts and deeds because the facts in them are often very confusing, but I think it collectively paints a pretty good picture of what “injury in fact” connoted in Data Processing.
On the whole, the cases point to the legal vs non-legal harm distinction I’ve been developing, As the New Jersey Supreme Court used the concept in an estate case, “there was no injury, in fact or in contemplation of law, to prevent in this case the merger” of the estates (Den ex dem. Wills v. Cooper, 25 N.J.L. 137, 159 (1855).
(a) Technical violation versus actual harm:
An 1853 Wisconsin case, Walker v. Shepardson (1853), for example, uses the term to distinguish between a technical violation and an actual, material harm:
“The bill charges an obstruction of public navigation--"a public nuisance"--(of which the public authorities can alone complain) without the least pretence that the plaintiff has suffered the least injury in fact, but only the apprehension of an "inconsequential injury," or "contingent future damages, or incidental or consequential injuries of indefinite amount, not capable of estimation," or "a mere diminution of the value of the property, without irreparable mischief," "instead of the great, continued and irreparable injury," and producing some "private, direct and material damage, beyond the public at large," demanded by Justice Woodbury” (479, internal citation omitted)
An Ohio court articulates this reasoning as a premise of common law, proposing that:
“There are many cases where a sheriff is only liable for nominal damages. It is always so at common law in the absence of a statute, and where there is a technical omission of duty without any injury in fact or legal intendment. Thus, a sheriff neglects to return an execution, or perform some other duty; he is liable for nominal damages only, if no injury in fact ensued (Bradt v. Skillen, 1863 Ohio Misc. LEXIS 7, *9-10, 2 Ohio Dec. Reprint 727, 76 (1863)). The court then notes that it was to change this rule that statutes sometimes authorized fines.
So, if the sheriff fails to deliver a summons, he can’t be assessed more than nominal damages, unless that failure led to an injury in fact – a material harm – or there is a statutory scheme that fines him. The case strikes me as compatible with the Supreme Court’s logic in Data Processing, where the goal was clearly to expand the number of cases that could reach court. Either there was an authorizing statute, or there was injury in fact; either was sufficient to establish justiciability (recall: the post 1970 jurisprudence went from authorizing either to explicitly subordinating statutory harm to injury in fact).
(b) As insisting on legal rights:
Later in the 19th Century, a Texas Court – sounding downright Hobbesian (declaring that the state’s penal “codes have been pronounced by the bench and bar of our State to be the most perfect system of criminal laws ever devised” and that “many errors have crept into the decisions of the courts of this State, especially in criminal cases, by following common law rules and decisions of other States, overlooking our own statutes” and should therefore be corrected (Leeper v. State, 29 Tex. Ct. App. 63, 72 (1890)) – ruled that mistakenly including someone a jury who was not a property owner and who was therefore not legally qualified to sit on a jury was nonetheless not a grounds for a retrial, on statutory grounds. A lengthy dissent constructs an argument out of precedent to the effect that this case was unique because the juror lied about his qualifications during voir dire, and then asks “What is meant by injury? Must there be injury in fact, or injury in law?” (81). In related cases, the dissent reasons, “without fault on his part, he has been deprived of a legal right. Hence, in law, there is a legal injury, for which injury he has a legal remedy” in the form of a new trial (81). Thus in this case:
“The plaintiff in the case--the State itself--by its law-making power declares that unless a householder or a freeholder a person is not fit to try her citizens. Without fault, without laches, without negligence of any kind, these appellants have been tried by a juror who is thus condemned and repudiated by the plaintiff--the State. They have not been tried legally, but illegally. They have thus been tried without fault on their part. They have been denied a legal right. They certainly should have a legal remedy, which remedy is a new trial” (82).
(c) Land use
A couple of turn-of-the century cases concern land use. In one, similar reasoning applied to jury instructions. A Pennsylvania case concerned whether a landowner whose water was polluted by an upstream coal mining operation was entitled to compensatory damages equal to the amount of her loss. The Court noted at one point that:
“A man has no right to turn a stream out of its natural channel into another stream, thereby increasing the flow of the latter through another man's land; and though no appreciable damage could be proved, an action would lie. If it be conceded that the turning of water from a colliery into a stream is an exceptional case, for which an action will not lie where it has done no injury in fact; yet if it has fouled the stream the injured party is entitled to redress. The plaintiff avers that the defendant has subjected her to conditions that did not exist when she built the dams, laid pipes, improved her property and began to use the water of the stream, not by increasing the quantity but by spoiling the water for her uses” (Sanderson v. Pennsylvania Coal Co., 102 Pa. 370, 375-376 (1883))
Water and land recur in an Iowa case from around 1900 where a landowner charged that negligent construction of a railway bridge subjected his land to periodic flooding. The question was whether a settlement for damages in 1902-3 was considered permanent, or if future flooding could be subject to future damage claims. In working through the facts on its way to the proposition that they could, the court noted that “If the waterway provided by the bridge was sufficient for ordinary stages of the stream as the evidence indicates it was, he sustained no injury in fact or in law until a period of high water arrived to test its capacity” (Hughes v. Chicago, B. & Q. R. Co., 141 Iowa 273, 277-8 (1909). Thus separate flood incidents could be treated separately.
(d) Shutting down vagueness:
A Pennsylvania case establishes the same distinction: in it, private homeowners sued a construction company to stop construction of a multicar parking facility, citing that their deeds specified that only single-dwelling garages would be built on remaining parcels in their development. The court notes a general principle of nuisance law:
“The construction of a building that may to some extent affect the personal comfort or preferences of neighbors does not constitute it a nuisance so as to justify equitable intervention. The mere fact that those residing in a city are subjected to annoyance by the conduct of a business complained of will not establish the existence of such as a nuisance. Urban dwellers must bear with the inconveniences growing out of residence there, just as they enjoy the benefits flowing from it. Ordinarily, the complainant, asking relief, must establish that the proposed use will work some positive injury to his property” (Ladner v. Siegel, 293 Pa. 306, 310 (1928)).
In the present case, however, the question of harm isn’t relevant - after finding that the parcels were “exclusively residential,” the court rules that:
“[The developers] suggested below, and here, that, if permission were given to operate the building under the direction of the court, or a master appointed to supervise, it could be demonstrated that no injury in fact would be inflicted. We have held that the present intended use is a nuisance per se when carried on in a residential community, and to permit experiments in separate instances, to determine the extent of the harm suffered, would lead to endless disputes” (312).
Given the vagaries attending to injury in fact determinations in, for example, privacy cases, one can appreciate the bright line drawn by the application of a legal rule.
Next time I'll conclude the historic rabbit hole with a few defamation cases, because they way they handle gender is illuminating in its own right, but also as a question of what "injury" means.
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