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 …
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 …
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 …
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 …
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 …
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 …
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 …
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 …
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), …
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 …
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 …
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 …
