THE TRANSPARENCY FIX: ADVOCATING LEGAL RIGHTS AND THEIR ALTERNATIVES IN THE PURSUIT OF A VISIBLE STATE

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 transparency regimes. This Article surveys and analyzes transparency advocacy campaigns and the “fix” that each proposes to the problems created by the state’s asymmetrical information advantage over the public. It sketches the history of four campaigns: the FOI movement in the U.S., the global anti-corruption movement (spearheaded by Transparency International), the digital transparency movement, and WikiLeaks. 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, and as a result, the Article unveils transparency as a contested political issue which 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

The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights

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 revision and tightening after a stirring four-justice dissent in Kelo v. City of New London and an enormous public protest decrying the majority decision. Notwithstanding this reversal, the 2005 decisions offer a coherent approach to Takings Clause enforcement—albeit one that is likely to frustrate commentators, theorists, and property rights advocates. More clearly than ever before, the Court in its 2005 decisions abandoned the difficult, if not impossible, task of providing a clear normative justification for the Takings Clause. Instead, its decisions reveal a marked preference for preserving and furthering its vision of an institutional system of governance—a jurisprudence that is focused on the question of who should decide rather than on the substantive issue of what should be decided, and that is committed to the passive virtue of deference. In short, the Rehnquist Court explicitly chose to adopt a “legal process” approach to takings. Because it privileges structure and process over explicit considerations of substantive legal and normative issues, this approach is unsatisfactory to property and constitutional theorists; because it defers to government decisions, it is maddening to property rights advocates; and because it is technocratic and abstract, it is unsatisfactory to the public. Given the prominence of the legal process approach to constitutional review of state regulatory action in the post-New Deal era, however, judicial passivity remains attractive, if unromantic, to judicial actors. Ultimately, recognizing the Court’s shift away from defining constitutional property rights via the Takings Clause offers important descriptive and prescriptive insights into the future of takings law in the Roberts Court, especially if a majority of justices decide to tighten review of eminent domain actions or otherwise heighten judicial review under the Takings Clause

Breach Agents: The Legal Liability of Third Parties for the Breach of Reputational NDAs

Nondisclosure agreements intended to keep secret information that could harm one or both parties’ reputations have proliferated over the past decade. Many of them have been breached, some quite famously. Does a third party who assists a contracting party in breaching such an agreement — a member of the press or a family member, for example — risk liability for tortious interference with performance of a contract? This article asserts that the answer is no in most instances, in part because of limitations inherent in the tort and in part because such liability would violate the defendant\u27s First Amendment rights. The answer proves more difficult in cases where the third party acted wrongfully or the information is purely private and not of public concern

Seeing the State: Transparency as Metaphor

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 operates as a metaphor that identifies and decries the distance between the public and the state, and that drives and shapes the desire for a more perfect democratic order. Viewed together, these two meanings both demand efforts to impose legal obligations on the state to be “open” and suggest that such efforts are necessary to allow the public to eradicate the state’s physical, organizational, and affective remove or mitigate its ill-effects. This article considers the implications of the latter meaning, and that meaning’s effect on efforts to develop and implement the technocratic tools in the former meaning. It argues that the state cannot in fact be made thoroughly visible - that the state’s organizational complexity, territorial dispersal across space, and enclosure within buildings inevitably obstruct the public’s view. Reviewing the law and culture of “transparency,” the article concludes that the metaphoric meaning’s logical end, a reversal of Bentham’s Panopticon, demonstrates the impossibility and unattractive consequences of imposing a fully visible state. Nevertheless, the article argues, the populist understanding of transparency is too embedded within our political culture to ignore or avoid entirely, demonstrating that technocratic advances in making the state appear more open must ultimately rely upon metaphoric, populist gestures

The Stubborn Incoherence of Regulatory Takings

The Supreme Court\u27s unanimous decision in Lingle v. Chevron U.S.A., Inc. was met with restrained but largely appreciative notice by commentators. Lingle declared that the Takings Clause affirmatively protects property owners by awarding them compensation for regulations that impose the functional equivalent of a condemnation of their property. The regulatory takings doctrine thus differs from the substantive due process doctrine, which instead reviews the validity of a regulation and offers as its remedy the invalidation of an offending government action. Clearing the underbrush that had grown in nearly a century of Supreme Court precedent, the Court appeared to have made the path forward clear. But political and philosophical conflicts as well as doctrinal indeterminacy have always driven regulatory takings litigation and theory. Given the open-ended, indeterminate constitutional text on which the doctrine is based, which is silent as to the definition of taken and makes no mention of regulation, as well as the fraught terrains of property rights and land use and environmental regulation in whose terms opposing parties state their respective positions, it seems inevitable that any effort to resolve the issue and stabilize the doctrine will generate disputes. Any effort will also result in an entangled, complex doctrine, one unlikely to please those who long for clear analytical distinctions and bright-line rules. Although the conventional trope in takings scholarship requires the analyst to lament such potential confusion and to offer a prescriptive solution, I want to suggest that the complex muddle of takings and its entanglement with other doctrines are neither bad nor avoidable things. I intend in this Article neither to condemn conceptual fuzziness nor to lament its inevitability, nor even to celebrate indeterminacy and imprecision. Case-by-case adjudication is inevitable in an area where bright lines are impossible and courts are forced to review an infinite variety of state regulatory actions. Analytical purity and abstract doctrinal coherence are likely impossible to achieve in difficult cases, as courts engage in the imprecise balancing they must perform when they consider the complex impacts of a regulation on property rights, as well as the complex political and policy decisions a government agency made in imposing that regulation. To invoke the jargon of software design, this messiness is neither a bug nor a feature in regulatory takings doctrine but part of its operating instructions, as those instructions have been shaped by the political and jurisprudential changes wrought by the New Deal and legal realism. The Penn Central test in a post-Lingle world, I argue, offers an explicitly realist solution to the multi-tiered field of land use and environmental regulation, a tool that grants courts discretion to make their way through the fact-intensive conflicts that hard cases present

The Symbols of Governance: Thurman Arnold and Post-Realist Legal Theory

This article is an effort to provide both the intellectual context of Thurman Arnold\u27s 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\u27s 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\u27s proposed field of Political Dynamics, an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold\u27s authorial voice in Symbols and Folklore, which established him as an ironic observer of the odd, self-destructive folkways of 1930s American governance. Part IV explains how Arnold applied his theory to the criminal trial and to the emerging field of administrative law (or, more specifically, the judicial review of administrative agencies)

The Folklore of Legal Biography

This essay reviews Spencer Weber Waller\u27s recent biography of the legal realist Thurman Arnold (NYU Press 2005). Arnold\u27s 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\u27s life and work reveal the ways in which the forces of modernity - forces that Arnold celebrated in his work and helped unleash in the New Deal and at Arnold & Porter - call into question the rugged individual that biography requires. Arnold\u27s critical realist project sought to uncover the historically contingent and ideological nature of the classical liberal conception of the subject who authors his own individual life; but at the same time, the culturalist side of Arnold\u27s work explains why this conception remains necessary, given the symbolic nature of a legal system and the deeply felt needs we have in residual concepts

How Reputational Nondisclosure Agreements Fails (Or, in Praise of Breach)

Investigative reporters and the #MeToo movement exposed the widespread use of non-disclosure agreements intended to maintain confidentiality about one or both contracting parties’ embarrassing acts. These reputational NDAs (RNDAs) have been widely condemned and addressed in the past half-decade by legislators, activists, and academics. Their exposure, often via victims’ breaches, revealed a curious and distinct dilemma for the non-breaching party whose reputation is vulnerable to disclosure. In most contracts, non-breaching parties might choose to forgo enforcement because of the cost and uncertain success of litigation and the availability of other pathways to a satisfactory resolution. Parties to a RNDA, by contrast, often decide to forgo enforcement when doing so would increase the very harm the contract sought to limit, and when victory would bring limited relief. It is unsurprising, then, that RNDAs are often underenforced, or enforced sporadically and with limited success. In such instances, the RNDAs have failed to meet their goals while they worsened the reputational harm of the embarrassing acts themselves. This Article describes RNDAs’ instances of failure and considers the consequences of these failures for parties to the contracts, the legal profession, and those who are troubled by their extensive use. It also considers the reasons behind those failures and their significance for understanding secrecy, disclosure, and contract law: secrecy is always vulnerable to defection; information’s intangibility allows it to move freely, costlessly, and immediately; RNDAs purport to resolve a dispute fraught with hurt, emotion, and trauma through a one-shot financial transaction; and reputation is ethereal, susceptible to the vicissitudes of public opinion, and shaped by fact and rumor alike. RNDAs’ vulnerability to breach constitutes an alternative means to hold their abusive use in check beyond the well-worn paths of traditional legal reforms established through legislation and common law reform. Breach appears to be the best means not only to help victims but to discourage the use of RNDAs to silence victims, as well as to force attorneys and their clients to reconsider how they use contract law to protect secrets

Populism and Transparency: The Political Core of an Administrative Norm

Transparency has become a preeminent administrative norm with unimpeachable status as a pillar of democracy. But the rise of right-wing populism, reminiscent of older forms of militaristic authoritarianism, threatens transparency’s standing. Recently elected governments in Europe, Latin America, and North America represent a counter-movement away from liberal-democratic institutions that promote the visibility and popular accountability that transparency promises. Contemporary populist movements have not, however, entirely rejected it as an ideal. The populist rebuke of power inequities and its advocacy for popular sovereignty implicitly and sometimes explicitly include a demand for a more visible, accessible state. Populists’ seemingly hypocritical embrace of transparency in the face of their resistance to open government mandates demonstrates transparency’s important historical connections and conceptual affiliations with populism, in the process illuminating its complicated politics and the difficulty of ensuring legal compliance in a period of renewed populism. Drawing on transparency and populism’s historical development and using Donald Trump’s presidency as a case study, this article reveals the relationship between an administrative norm and a political movement and style, and what democracy’s current state portends for transparency’s future

Coolhunting the Law

In this essay, I want to use the image of the coolhunter to consider what Victor Fleischer has called the branding moments in a corporation\u27s legal life -- specifically, those events, most notably in initial public offerings, in which a company, with the assistance of counsel, uses its legal infrastructure and corporate transactions to further its brand. This essay is a small effort to use Fleischer\u27s work to think through these issues by focusing, in turn, on branding, on the various audiences for these branding moments, on the relationship between the brand and transparency norms, and, finally, on the role of the attorney in this process