'Concrete' Disparities In Article III Case Law After Spokeo

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.

The Spokeo Majority Opinion

In Spokeo, the Supreme Court considered whether a plaintiff had Article III standing to bring suit for various violations of the Fair Credit Reporting Act (FCRA) against Spokeo, Inc., a people search website. Spokeo allegedly gathered and disseminated inaccurate information about the plaintiff, Thomas Robins, in response to a search conducted by a third party. Robins alleged that the profile of himself generated by Spokeo misrepresented his family, employment, financial status, age, and level of education. Robins contended that Spokeo willfully violated certain provisions of the FCRA, including the requirements to ensure the accuracy of an FCRA "consumer report" and to notify providers and users of consumer information of their responsibilities under the act.

The Ninth Circuit held that Robins met the injury test because the FCRA provides a private right of action and statutory damages for the violations alleged by Robins. The Ninth Circuit found that Robins sufficiently alleged that his particular statutory rights were violated and that his personal interests in the handling of his credit information were sufficiently individualized. The court further found that it was not necessary to evaluate the sufficiency of Robins's alleged actual injuries (harm to his employment prospects and anxiety); standing existed solely by virtue of the alleged statutory violations.

Justice Alito, writing for the majority of the Supreme Court, reversed and remanded for the Ninth Circuit to determine whether Robins alleged a "concrete" injury. The Court explained that a "concrete"...