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.