Essay  |  Volume 165

Spelling Out Spokeo

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165 U. Pa. L. Rev. Online 47 (2016)

Posted on 11-2016

Essay - Spelling Out <i>Spokeo</i>










The modern law of Article III standing in federal courts constitutes an enduring conundrum. It rests on “an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” Over the years, efforts to capture that idea in doctrine have spawned cycles of refinement and reformulation. But as Justice Harlan observed in dissent at the beginning of the last cycle of reform, the process often threatens to “reduce[] constitutional standing to a word game played by secret rules.” In 1970, the Court unveiled a new touchstone for standing—the “injury in fact” requirement. Over the next four and a half decades—under the Burger, Rehnquist, and Roberts Courts—“injury in fact” became the “bedrock” Article III prerequisite for a party invoking the power of federal courts. Over one hundred Supreme Court cases turned on the presence or absence of “injury in fact,” festooning the bedrock with adjectives: adequate “injury in fact” was to be “personal and tangible,” “concrete and particularized,” “actual or imminent,” and/or “distinct and palpable.”

Last Term, in Spokeo, Inc. v. Robins, a short‐handed Court endeavored to bring order to the adjectives. The case generated more than three‐dozen amicus briefs from the defense bar, the business establishment, and the technology sector arrayed against those from academics, public interest advocates, and consumer protection organizations. In resolving the arguments, Justice Alito’s majority opinion distinguished between the requirement of “particularized” injury and the requirement of “concrete” injury and established the proposition that a plaintiff might demonstrate “injury in fact” that is “concrete” but “intangible.” The opacity of these categories refreshes Justice Harlan’s worry about “word game[s] played by secret rules.” In what follows, we seek to parse the rules of Spokeo so that, even if fuzzy, they are a bit less secret. We derive from the cryptic language of Spokeo a six‐stage process (complete with flowchart) that represents the Court’s current equilibrium. We put each step in the context of standing precedent, and demonstrate that while Spokeo added structure to the injury in fact doctrine, each stage of the analysis adds play in the joints, leaving future courts and litigants substantial room for maneuver


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