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Mark Fenster

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Full-Text Articles in Law

“Bullets Of Truth”: Julian Assange And The Politics Of Transparency, Mark Fenster Dec 2018

“Bullets Of Truth”: Julian Assange And The Politics Of Transparency, Mark Fenster

Mark Fenster

This essay updates (to early 2019) earlier work on the WikiLeaks story in order to consider what more recent developments reveal about the theoretical promise that Assange articulated at the time of the website’s emergence. Assange has characterized secrecy as both a form and symptom of corruption, and ultimately as the foundation of a “conspiracy” of governance that states like the U.S. inflict on their subjects and the world. He advocates a non-political, vigilante form of transparency in which WikiLeaks serves as a neutral entity that will save the public and free the world with information. He predicted that corrupt …

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Feed: State Transparency Amidst Informational Surplus, Mark Fenster Dec 2018

Feed: State Transparency Amidst Informational Surplus, Mark Fenster

Mark Fenster

An email arrives, promising inside information about the perfidious forces that secretly rule the nation. A Twitter feed from a prominent insider at an establishment think-tank announces the latest disclosure about the president’s secret role in the Russian conspiracy to manipulate the election that elevated him with the blast of toy cannon. Meanwhile, the President’s tweets serve to annoy, distract, humor, or comfort those who see them, and they above all announce some truth about his presidency. 

Debates about government transparency presume that the state controls an informational spigot, which can be made to allow information to flow or to …

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The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster Apr 2016

The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster

Mark Fenster

The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal …

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The Implausibility Of Secrecy, Mark Fenster Apr 2016

The Implausibility Of Secrecy, Mark Fenster

Mark Fenster

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events — among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters — undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all …

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A Remedy On Paper: The Role Of Law In The Failure Of City Planning In New Haven, 1907-1913, Mark Fenster Aug 2015

A Remedy On Paper: The Role Of Law In The Failure Of City Planning In New Haven, 1907-1913, Mark Fenster

Mark Fenster

Part I of this paper provides an overview of the dominant conservative legal doctrines and governing practices that limited planners' goals and strategies in New Haven during the period from 1907 through 1913, and that planning advocates sought to change. Part II provides a narrative of the New Haven planning movement prior to the publication of a 1910 report by Cass Gilbert, a well-known New York-based architect, and Frederick Law Olmsted, Jr., a nationally recognized city planner, on how best to improve New Haven's physical environment and infrastructure. To illustrate the difficulties facing the nascent planning movement in New Haven, …

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Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster Dec 2014

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

Mark Fenster

In Koontz v. St. Johns River Water Management District, a 5-4 majority of the United States Supreme Court reversed a state court decision that had limited the application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan concern the imposition of regulatory conditions on proposed development, also called exactions, which commonly occurs in land use regulation. In Koontz, a property owner challenged a regulatory agency's denial of his permit application following failed negotiations over exactions. The Florida Supreme Court had concluded that Nollan and Dolan did not extend to conditions that the agency had …

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The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster Dec 2014

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Mark Fenster

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …

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The Folklore Of Legal Biography, Mark Fenster Dec 2014

The Folklore Of Legal Biography, Mark Fenster

Mark Fenster

This essay reviews Spencer Weber Waller's recent biography of the legal realist Thurman Arnold (NYU Press 2005). Arnold's academic and popular writings during the 1930s - which not only critiqued what he saw as the foolishness and ill effects of legal formalism and political conservatism, but also recognized the symbolic authority of legal forms and conservative beliefs and the need for any reform movement to respect and appropriate them - force us to reconsider the entire project of legal biography. Arnold's life and work reveal the ways in which the forces of modernity - forces that Arnold celebrated in his …

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The Implausibility Of Secrecy, Mark Fenster Feb 2013

The Implausibility Of Secrecy, Mark Fenster

Mark Fenster

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events—among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters—undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources—each of these constitutes a path out …

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Disclosure's Effects: Wikileaks And Transparency, Mark Fenster Feb 2012

Disclosure's Effects: Wikileaks And Transparency, Mark Fenster

Mark Fenster

Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest on the assumption that the disclosure of information has transformative effects: disclosure can inform, enlighten, and energize the public, or it can create great harm or stymie government operations. To resolve disputes over difficult cases, transparency laws and theories typically balance disclosure’s beneficial effects against its harmful ones. WikiLeaks and its vigilante approach to massive document leaks challenge the underlying assumption about disclosure’s effects in two ways. First, WikiLeaks’s ability to receive and distribute leaked information cheaply, quickly, and seemingly unstoppably enables it to bypass …

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Failed Exactions, Mark Fenster Dec 2010

Failed Exactions, Mark Fenster

Mark Fenster

This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand …

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Seeing The State: Transparency As Metaphor, Mark Fenster Dec 2009

Seeing The State: Transparency As Metaphor, Mark Fenster

Mark Fenster

When applied as a public administrative norm, the term and concept “transparency” has two intertwined meanings. First, it refers to those constitutional and legislative tools that require the government to disclose information in order to inform the public and create a more accountable, responsive state. Second, it is frequently used metaphorically to recognize and decry the distance between the public and the state, and to call for efforts to make the state thoroughly and constantly visible to the public. This article considers the implications of the latter meaning, and that meaning’s effect on efforts to develop and implement the technocratic …

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The Dramas Of Criminal Law: Chapter [?] Of The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster Dec 2008

The Dramas Of Criminal Law: Chapter [?] Of The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

Mark Fenster

This essay is a chapter of a book-in-progress on the legal and cultural theory of the legal realist Thurman Arnold, who was prominent as a Yale law professor from 1932 until he joined the Justice Department as head of its antitrust division in 1938. Arnold's work focused on the symbolic role of law in governance, both as a means by which the state gains legitimacy and as a means by which those who oppose a political majority attempt to frame their opposition. As public law that defines and enforces substantive prohibitions, criminal law and procedure allowed Arnold to develop some …

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The Stubborn Incoherence Of Regulatory Takings, Mark Fenster Dec 2008

The Stubborn Incoherence Of Regulatory Takings, Mark Fenster

Mark Fenster

Lingle v. Chevron (2005), the Supreme Court's most recent effort to sort the complex federal constitutional regulatory takings doctrine, resulted in what commentators have praised as a relatively unified and coherent "takings jurisprudence" and two-step adjudicatory roadmap for federal and state courts. This article reviews Lingle more than three years after its issuance to see the extent to which the Court succeeded in taming and explaining regulatory takings. It notes Lingle's successes, especially in disentangling the worst confusions regarding the relationship between regulatory takings and the substantive due process and in providing an understandable process by which state and lower …

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Excerpt From Conspiracy Theories: Secrecy And Power In American Culture (Revised And Updated Edition), Mark Fenster Dec 2007

Excerpt From Conspiracy Theories: Secrecy And Power In American Culture (Revised And Updated Edition), Mark Fenster

Mark Fenster

This is the introduction to the revised and updated edition of Conspiracy Theories: Secrecy and Power in American Culture (Minneapolis: University of Minnesota Press, forthcoming 2008). The book challenges the dominant academic and popular approach to conspiracy theories, which views them as a paranoid, extremist expression of marginal groups and individuals that pathologically challenges the basic assumptions of American history and the pluralistic political system of the United States. The book is premised on the contrary proposition that the prevalence of conspiracy theories is neither necessarily pernicious nor external to American politics and culture but instead an integral aspect of …

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Designing Transparency: The 9/11 Commission And Institutional Form, Mark Fenster Dec 2007

Designing Transparency: The 9/11 Commission And Institutional Form, Mark Fenster

Mark Fenster

Surpassing the low expectations established by previous investigatory commissions and overcoming the political and legal obstacles created by the Bush administration’s opposition to its creation, the 9/11 Commission accomplished what appeared to be the impossible: an authoritative investigation, a widely-read final report, and direct influence on significant legislation. At a time when legal scholars have committed themselves to the study of innovative institutional design, the formal legal innovations and administrative operations of the 9/11 Commission warrant close examination to consider whether and how it can serve as a model for similar institutions in the future. This Article argues that the …

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Coolhunting The Law, Mark Fenster Dec 2006

Coolhunting The Law, Mark Fenster

Mark Fenster

This symposium essay, offers a small critique of Victor Fleischer's interesting and valuable work on branding as part of an initial public offering strategy (e.g., the Google and MasterCard IPOs). It seeks to complicate both the idea of the "brand" both as a mysterious means of communication and the notion that an attorney can and should, in his professional role as legal counsel, attempt to assist a client to create "brand" value in its regulatory compliance.

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Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster Dec 2006

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

Mark Fenster

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual’s property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation’s validity and the means by which the regulation attempts to meet the government’s objective. Lingle’s explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), …

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The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster Dec 2006

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

Mark Fenster

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

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The Opacity Of Transparency, Mark Fenster Dec 2004

The Opacity Of Transparency, Mark Fenster

Mark Fenster

The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance promise the world—a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public’s engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes that result …

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Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster Dec 2003

Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster

Mark Fenster

A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. Exactions are the concessions local governments require of property owners as conditions for the issuance of the entitlements that enable the intensified use of real property. In two cases decided over the past two decades, Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the Court has established under the Takings Clause a logic and metrics …

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The Birth Of A "Logical System": Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster Dec 2003

The Birth Of A "Logical System": Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster

Mark Fenster

Much of what we recognize as contemporary administrative law emerged during the 1920s and 1930s, a period when a group of legal academics attempted to aid Progressive Era and New Deal regulatory efforts by crafting a legitimating system for the federal administrative state. Their system assigned competent, expert institutions—most notably administrative agencies and the judiciary—well-defined roles: Agencies would utilize their vast, specialized knowledge and abilities to correct market failures, while courts would provide a limited but crucial oversight of agency operations. This Article focuses both on this first generation of administrative law scholarship, which included most prominently Felix Frankfurter and …

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