Mark Fenster is UF Research Foundation Professor at the Frederic Levin School of Law, University of Florida. His law degree is from Yale, and he received a PhD in communications and cultural studies from the University of Illinois at Urbana-Champaign. His legal scholarship has focused on three areas: bureaucracy, governance, and the problem of information disclosure and transparency; the intellectual history of legal realism, focusing on the work of Thurman Arnold; and the relationship between formal constitutional conceptions of property rights, as defined by the Supreme Court, and local regulatory institutions and practices. Common to all three areas is the distance between formal, normative conceptions of law (the laissez faire notion of the "rugged individual" that fascinated Arnold; the conflicted, impossible, and largely meaningless normative conception of "transparency"; the Fifth Amendment's protection of "property") and law's actual meanings in practice. He is also the author of Conspiracy Theories: Secrecy and Power in American Culture (revised edition 2008, University of Minnesota Press), a leading work on the cultural politics of conspiracy theory since its first edition in 1999.
Articles
Disclosure's Effects: WikiLeaks and Transparency, Iowa Law Review (2012)
Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest...
Failed Exactions, Vermont Law Review (2011)
This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on...
Seeing the State: Transparency as Metaphor, Administrative Law Review (2010)
When applied as a public administrative norm, the term and concept “transparency” has two intertwined...
The Stubborn Incoherence of Regulatory Takings, Stanford Journal of Environmental Law (2009)
Lingle v. Chevron (2005), the Supreme Court's most recent effort to sort the complex federal...
Designing Transparency: The 9/11 Commission and Institutional Form, Washington & Lee Law Review (2008)
Surpassing the low expectations established by previous investigatory commissions and overcoming the political and legal...
Books
Excerpt from Conspiracy Theories: Secrecy and Power in American Culture (revised and updated edition) (2008)
This is the introduction to the revised and updated edition of Conspiracy Theories: Secrecy and...
Unpublished Papers
The Implausibility of Secrecy, ExpressO (2013)
Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents...
The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of a Visible State, ExpressO (2011)
The administrative norm of transparency, which promises a solution to the problem of government secrecy,...
The Dramas of Criminal Law: Chapter [?] of The Symbols of Governance: Thurman Arnold and Post-Realist Legal Theory (2009)
This essay is a chapter of a book-in-progress on the legal and cultural theory of...