Volume 59, Issue 2

By Julide Ozmeral

In May of 2025, the Department of Justice (DOJ) began promoting use of the False Claims Act (FCA) for whistleblowing on organizations maintaining “divisive” diversity, equity, and inclusion (DEI) policies via its newly minted “Civil Rights Fraud Initiative.” In doing so, the DOJ outlined an unprecedented pathway for potential relators to apply the FCA’s qui tam provisions. This Comment argues that deploying the FCA in this manner is a wrongful application of the Act and distorts its intent. Alleged unlawful DEI practices do not constitute false claims under a traditional understanding of the FCA and would likely fail to meet the Supreme Court’s materiality and knowledge thresholds for FCA implied certification actions. For these reasons, the DOJ’s promotion of these sorts of FCA actions constitutes an illegitimate and likely unsuccessful legal strategy.

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By Claire Wilson

In 2024, in Barclift v. Keystone Credit Services, the U.S. Court of Appeals for the Third Circuit applied a “kind-of-harm” approach to evaluate whether a plaintiff’s intangible injury satisfied the concrete injury requirement for Article III standing. This approach differs substantially from the “element-for-element” approach used by other circuits. This Comment argues that circuit courts’ approaches to the intangible injury analysis fall along a spectrum rather than the strict binary suggested by the Barclift court. An approach like the Third Circuit’s “kind-of-harm” is preferable because it respects Congress’s authority to recognize contemporary and evolving harms and allows plaintiffs with modern, intangible harms to vindicate their rights. This Comment concludes that, to resolve this circuit split, the Supreme Court should adopt the following modified test for evaluating intangible harms: (i) courts should take the plaintiff’s given comparator tort and identify the harm it seeks to protect from, then (ii) compare the facts pled by the plaintiff with the tort’s harm to see if they are similar in kind. If the harm resembles that of the comparator tort, the cause of action that the plaintiff relies on supports standing. This test allows federal courts to keep pace with the modern world and redress injuries that may not cause tangible harm in the traditional sense, but that Congress has nonetheless recognized as harmful to the public by providing a right of action.

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