January 31, 2017 Articles

“Concrete” Disparities in Article III Case Law after Spokeo

Some courts independently analyze whether concrete harm has been alleged; others find the violation of certain statutory “rights” to be inherently concrete.

By Michael N. Wolgin

When is an intangible injury, such as an unlawful disclosure or an invasion of privacy, “concrete” for purposes of establishing Article III standing? The question has been fiercely debated since the U.S. Supreme Court issued its opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). And while Spokeo is not entirely clear on the factors that determine concreteness, the majority opinion in Spokeo is clear that concreteness must be determined by the courts, not by Congress. The majority held that it is always the role of the courts to review a statutory right to determine whether it qualifies as “real” or merely “abstract.” In a concurring opinion, however, Justice Thomas argued in favor of a different framework in which concreteness automatically exists for violations of all “private rights” created by statute. This discrepancy between the majority opinion and Justice Thomas’s concurrence has also emerged in divergent rulings by various circuit courts of appeals and district courts.

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