Abstract

The Supreme Court held in TransUnion LLC v. Ramirez that history requires reading Article III to bar recovery of damages in federal court absent proof of concrete injury. Whatever the validity of this proposition as a general matter—a matter of intense scholarly and judicial debate—this Article argues that the Court’s Article III jurisprudence has ignored the lengthy history of penal statutes. Such statutes have, since before the Founding, authorized recovery of statutory damages, regardless of concrete injury, to punish and deter wrongdoing and provide protection from a material risk of concrete injury even if that injury has not yet been proven. TransUnion’s holding expressly turns on its understanding of the history of Article III and of the sorts of cases and controversies over which courts took jurisdiction at and around the time of the Founding. This Article illuminates TransUnion’s complete failure to consider the directly relevant, longstanding history of penal statutes. Beginning with the First Congress, Congress has repeatedly enacted, and the federal courts have repeatedly taken jurisdiction over, claims to recover penal statutory damages not requiring concrete injury. This Article makes two novel points. First, TransUnion entirely failed to consider this longstanding history of penal statutes authorizing recovery of damages absent concrete injury. Congress—including the First Congress—enacted many such penal statutes. And neither courts nor commentators have recognized that the First Congress, in the Judiciary Act of 1789, specifically dictated that the federal district courts have exclusive jurisdiction over actions on congressional penal statutes. This provides compelling historical evidence that, at the time of the Founding, the original public understanding of Article III not only permitted but mandated resolution in federal court of claims under congressional penal statutes that did not require proof of concrete injury. Second, in Securities and Exchange Commission v. Jarkesy, the Court recently considered the history of penal statutes—but did so in the context of the Seventh Amendment. Jarkesy held that when Congress enacts a penal statute intended to punish and deter rather than to compensate for any actual injury, claims under such statutes cannot be resolved in an administrative tribunal and instead must be resolved by a jury in an Article III court. TransUnion held that actions on such penal statutes seeking damages absent concrete injury cannot be resolved in an Article III court; Jarkesy, looking to the history of penal statutes ignored in TransUnion, mandates that those actions must be resolved in an Article III court. The Court should recognize that the history of penal statutes mandating, under the Seventh Amendment, that recovery of damages absent concrete injury must be in federal court perforce permits recovery pursuant to such statutes under Article III.

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