Mark Fenster
Mark Fenster is the Cone, Wagner, Nugent, Hazouri & Roth Tort Professor at the Levin College of Law. His legal research has focused on government transparency, legal intellectual history, and constitutional limits on government regulation. He is the author of the book The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (Stanford University Press, 2017), and his articles and essays have appeared in the California Law Review, Michigan Law Review, Iowa Law Review, Hastings Law Journal, Administrative Law Review, among others. He is the author of Conspiracy Theories: Secrecy and Power in American Culture, 2nd ed. (University of Minnesota Press, 2008), an influential work of cultural and political theory.
He joined the UF faculty in 2001. He currently teaches Contracts, Payment Systems, and Statutory Interpretation, and in the past has taught Property, Contracts, Administrative Law, Land Use, and Intellectual Property, among other courses. Prior to working at UF Law, Fenster clerked for Judge Carlos F. Lucero of the Tenth Circuit of the U.S. Court of Appeals in Denver and worked in private practice in San Francisco as an Environmental and Land Use Law Fellow at Shute Mihaly & Weinberger.
Fenster earned his J.D. degree from Yale Law School and holds a PhD from the Institute of Communications Research at the University of Illinois at Urbana-Champaign. He earned his BA from the University of Virginia, and an MA from the Radio-Television-Film program at the University of Texas at Austin. He is admitted to practice law in New York and California.
Phone: +1 3522730962
Address: PO Box 17625
Gainesville, FL 32611
He joined the UF faculty in 2001. He currently teaches Contracts, Payment Systems, and Statutory Interpretation, and in the past has taught Property, Contracts, Administrative Law, Land Use, and Intellectual Property, among other courses. Prior to working at UF Law, Fenster clerked for Judge Carlos F. Lucero of the Tenth Circuit of the U.S. Court of Appeals in Denver and worked in private practice in San Francisco as an Environmental and Land Use Law Fellow at Shute Mihaly & Weinberger.
Fenster earned his J.D. degree from Yale Law School and holds a PhD from the Institute of Communications Research at the University of Illinois at Urbana-Champaign. He earned his BA from the University of Virginia, and an MA from the Radio-Television-Film program at the University of Texas at Austin. He is admitted to practice law in New York and California.
Phone: +1 3522730962
Address: PO Box 17625
Gainesville, FL 32611
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Transparency papers by Mark Fenster
Debates about government transparency presume that the state controls an informational spigot, which can be made to allow information to flow or to stop its movement. All sides agree that information is a thing that can be made to move, indeed that is defined by its movement, and that its movement down a pipeline to the public is unidirectional and inevitable. This metaphor of informational flow has long been central to both the majority and dissent in canonical Supreme Court information access decisions.
It may once have been accurate, but it is no longer. Instead, this essay posits and illustrates that the feed captures, as a metaphor, the current means by which the public comes to think about and know the state. The universe of social media feeds constitute non-directional, multi-vocal, seemingly random, and occasionally autonomous ways by which information moves. Laws and theories that attempt to restore the metaphorical ideal of an ordered flow will only disappoint those who bank on their ability to free or control government information.
This article argues that the frustrations with creating an open government originate in the concept of “transparency” itself, which fails to consider the tensions it conceals. The easy embrace of transparency as a basis for normative and utilitarian ends evades more difficult questions: When is transparency most important as an administrative norm? To what extent should an agency be held to that norm? Open government laws fall short in answering these questions because, relying on the assumptions of “transparency,” they typically operate at exceptionally high levels of abstraction. As a result, they establish both broad mandates for disclosure and broad authority for the exercise of a state privilege of non-disclosure, and they ultimately fail to produce an effective, mutually acceptable level of administrative openness. Transparency theory’s flaws result from a simplistic model of linear communication which assumes that information, once set free from the state that creates it, will produce an informed, engaged public that will hold officials accountable. To the extent that this model fails to describe accurately the state, government information, and the public, as well as the communications process of which they are component parts, it provides a flawed basis for open government laws.
The article critiques the assumptions embedded in transparency theory and suggests an alternative approach to open government laws that would allow a more flexible, sensitive means to evaluate the costs and benefits of information disclosure. It also proposes institutional alternatives to the current default regime in open government laws, which relies on weak judicial enforcement of disclosure mandates, and offers substantive suggestions that would improve efforts to establish a more accountable state and informed public.
The article offers two insights: First, although these movements share a basic set of assumptions and tell a similar policy story-secrecy is a pressing administrative problem that can be fixed with the right policies and institutional arrangements-they diverge significantly in how they understand not only the problem's causes but the state itself Second, the article unveils transparency as a contested political issue that masquerades as an administrative tool. Rooted in contestable claims about the state's legitimacy and performance, the transparency fix leads to tendentious prescriptions about law, policy, and the state.
Conspiracy theory papers by Mark Fenster
Regulation papers by Mark Fenster
Papers by Mark Fenster
Debates about government transparency presume that the state controls an informational spigot, which can be made to allow information to flow or to stop its movement. All sides agree that information is a thing that can be made to move, indeed that is defined by its movement, and that its movement down a pipeline to the public is unidirectional and inevitable. This metaphor of informational flow has long been central to both the majority and dissent in canonical Supreme Court information access decisions.
It may once have been accurate, but it is no longer. Instead, this essay posits and illustrates that the feed captures, as a metaphor, the current means by which the public comes to think about and know the state. The universe of social media feeds constitute non-directional, multi-vocal, seemingly random, and occasionally autonomous ways by which information moves. Laws and theories that attempt to restore the metaphorical ideal of an ordered flow will only disappoint those who bank on their ability to free or control government information.
This article argues that the frustrations with creating an open government originate in the concept of “transparency” itself, which fails to consider the tensions it conceals. The easy embrace of transparency as a basis for normative and utilitarian ends evades more difficult questions: When is transparency most important as an administrative norm? To what extent should an agency be held to that norm? Open government laws fall short in answering these questions because, relying on the assumptions of “transparency,” they typically operate at exceptionally high levels of abstraction. As a result, they establish both broad mandates for disclosure and broad authority for the exercise of a state privilege of non-disclosure, and they ultimately fail to produce an effective, mutually acceptable level of administrative openness. Transparency theory’s flaws result from a simplistic model of linear communication which assumes that information, once set free from the state that creates it, will produce an informed, engaged public that will hold officials accountable. To the extent that this model fails to describe accurately the state, government information, and the public, as well as the communications process of which they are component parts, it provides a flawed basis for open government laws.
The article critiques the assumptions embedded in transparency theory and suggests an alternative approach to open government laws that would allow a more flexible, sensitive means to evaluate the costs and benefits of information disclosure. It also proposes institutional alternatives to the current default regime in open government laws, which relies on weak judicial enforcement of disclosure mandates, and offers substantive suggestions that would improve efforts to establish a more accountable state and informed public.
The article offers two insights: First, although these movements share a basic set of assumptions and tell a similar policy story-secrecy is a pressing administrative problem that can be fixed with the right policies and institutional arrangements-they diverge significantly in how they understand not only the problem's causes but the state itself Second, the article unveils transparency as a contested political issue that masquerades as an administrative tool. Rooted in contestable claims about the state's legitimacy and performance, the transparency fix leads to tendentious prescriptions about law, policy, and the state.