Spelling Out Spokeo

17 Pages Posted: 27 Aug 2016 Last revised: 2 Dec 2016

See all articles by Craig Konnoth

Craig Konnoth

University of Virginia School of Law

Seth F. Kreimer

University of Pennsylvania Law School

Date Written: 2016


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

Suggested Citation

Konnoth, Craig and Kreimer, Seth F., Spelling Out Spokeo (2016). University of Pennsylvania Law Review Online, Vol. 165, P. 47, 2016, U of Penn Law School, Public Law Research Paper No. 16-26, Available at SSRN: https://ssrn.com/abstract=2828759

Craig Konnoth

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Seth F. Kreimer (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-7447 (Phone)
215-573-2025 (Fax)

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