Post-Spokeo, Standing Arguments Rise and Fall on Interpretation of 'Concreteness'

© 2016 The Texas Lawbook.By Michelle Hartmann and Christa Powers of Sidley Austin (Oct. 24) – Injury-in-fact is one of the three “irreducible constitutional minimum[s]” necessary for standing to sue in federal court. It requires not only that the relevant “invasion of a legally protected interest” be “particularized,” but also that it be “concrete.” Before the Supreme Court’s recent decision in Spokeo, Inc. v. Robins, courts frequently collapsed the element of “concrete and particularized,” requiring that a plaintiff merely demonstrate that the injury affected him or her in a personal and individual way. But following the Supreme Court’s guidance in the Spokeo decision, courts are required to analyze the separate and independent element of “concreteness,” which the Court defined as “quite different from particularization.” This article examines that separate element and post-Spokeo decisions interpreting it. Before Spokeo, some circuit courts imposed a fairly lenient standing requirement for plaintiffs. For example, the 9th Circuit previously held that “the violation of a statutory right is usually a sufficient injury in fact to confer standing,” which was supported by its previous decision in Edwards v. First American Corp., as well as the 6th Circuit’s decision in Beaudry v. TeleCheck Services Inc. In Spokeo,…