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Introduction
Two lines of Article III standing law are at odds with each other. Forty years ago, in Havens Realty Corp. v Coleman,1 the Supreme Court held that a tester had standing for a stigmatic injury due to the violation of a statutory right.2 Scores of testers have since gotten into federal court for claims of discrimination under laws like the Civil Rights Act, the Americans with Disabilities Act (ADA), and the Fair Housing Act (FHA). This type of tester standing seemed like settled law. But in last term's decision in TransUnion v. Ramirez,3 the Court reframed Article III standing. Under TransUnion, violations of statutory law are justiciable in federal court only if the violated rights have "a close historical or common-law analogue."4 Additionally, plaintiffs must have suffered a real, not just legal, harm.5 Havens Realty's tester standing seems irreconcilable with TransUnion's standing redefinition, yet both remain good law. Now what?
The courts of appeal have begun to venture their guesses. In four near-identical cases in the year following TransUnion, all involving a tester plaintiff suing for online disability accommodations required by the ADA, the circuit courts reached different conclusions.6 The Second, Fifth, and Tenth Circuits denied standing to their tester plaintiffs, though for different reasons. The Eleventh Circuit concluded the tester plaintiff had standing. While these cases strained to follow both Havens Realty and TransUnion (along with TransUnion's predecessor case, Spokeo v. Robins7), none presented a satisfactory theory of standing doctrine that accommodates them both.
This Note analyzes the circuit court split on tester stigmatic injury standing and concludes that the conflict between Havens Realty and TransUnion is untenable. One must bend to the other, if standing law is to be coherent. Part I looks at the circuit court cases that have taken on this conflict, summarizing their decisions and evaluating each court's rationale on its own terms. Part II argues that this collective body of decisions, in failing to harmonize Havens Realty and TransUnion, presents a meaningful problem for standing law. Part III considers options for resolution. Until this conflict is resolved, it will remain unclear what is leftstanding of tester stigmatic injury claims.
I. TESTER STIGMATIC INJURY STANDING IN THE SECOND, FIFTH, TENTH, AND ELEVENTH CIRCUITS
Four cases decided on the grounds...