Spelling Out Spokeo

Abstract

For almost five decades, the injury-in-fact requirement has been a mainstay of Article III standing doctrine. Critics have attacked the requirement as incoherent and unduly malleable. But the Supreme Court has continued to announce “injury in fact” as the bedrock of justiciability. In Spokeo v. Robins, the Supreme Court confronted a high profile and recurrent conflict regarding the standing of plaintiffs claiming statutory damages. It clarified some matters, but remanded the case for final resolution. This Essay derives 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. We show that while Spokeo added some structure to the injury in fact doctrine, each stage of the analysis allows play in the joints that leaves future courts and litigants substantial room for maneuver.

Keywords: Constitutional law, Article III, cases and controversies, case-or-controversy requirement, standing doctrine, courts, litigation, injury-in-fact requirement, justiciability