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
