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Selected Works

Constitutional Law

Mark Fenster

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Full-Text Articles in Law

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 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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