Independently, court inefficiency and increased caseloads make justices push off data-protection cases.

The Seventh Circuit may have said the quiet part out loud: "The standing rule reduces the workload of the federal judiciary...." (205) While literally true, that is neither an accepted nor acceptable justification for standing doctrine. (206) The existence of a "Case" or "Controversy" does not depend on how pleased the court will be to hear it. Article III does not give the judiciary the ability to set its caseload. And a dispute will be no less adversarial between the parties if it is the tenth hearing on a court's calendar rather than the first. Indeed, around the time that the Supreme Court threw standing jurisprudence for a loop in Clapper, it admonished that federal courts are obligated to hear cases falling within their jurisdiction. (207)

Yet the appeal of the standing dismissal to the federal judge is impossible to ignore. The massive and increasing caseload in the federal courts is well known. In the data-protection context, cases typically promise to be long and involved. Most arise from large-scale data breaches or inappropriate, indiscriminate data collection. As such, they are usually brought as class actions and implicate complex technical issues. One can certainly understand why overworked judges might be eager to get such cases off their dockets.

With that in mind, dismissal for lack of standing has a special appeal over other means of dispensing with a case: it is a non-merits dismissal. Even if erroneous or improperly motivated, a dismissal for lack of standing works relatively little injustice, as its effect is only to banish the suit to state court. Moreover, as the data show, state-law and common-law claims predominate in data-protection litigation--the majority of cases analyzed involved such claims, while fewer than half of cases asserted claims under federal law. Allowing state courts to deal with state-law claims is a hallmark feature of the federal system, CAFA notwithstanding.

The Northern District of Illinois' BIPA series of cases may proceed from this impulse. Most were brought initially in state court, then removed to federal court by defendants who seemed intent on challenging plaintiffs' right to bring suit at all. Confronted with the prospect of overseeing a lengthy, complicated class-action lawsuit brought by plaintiffs who did not want to be in federal court in the first place against defendants who appeared to be engaging in gamesmanship, the judges of the Northern District of Illinois may well have viewed dismissal for lack of standing as the best of all possible worlds.

The data are potentially consistent with this explanation. In particular, appellate courts have been significantly more solicitous of plaintiffs in data-protection cases, finding standing in 75% of cases, compared to only 51% of district courts. In data-breach cases, which likely present both the most technically complicated inquiries and the most diffuse harms, appellate courts upheld standing in 79% of cases, compared to a mere 41% of district court cases.