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

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

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

The Informational Ombudsman: Fixing Open Government by Institutional Design

[extract] The ombudsman has gradually emerged in the U.S. as a key tool among the various legal doctrines, institutions, and technologies used to reveal the government to the public. After the ombudsman’s initial development and implementation in northern Europe, several prominent administrative law scholars brought the institution to American policymakers and academics’ attention in the 1960s and 1970s during the initial wave of elite liberal disaffection with the regulatory state. Proponents during this initial period viewed the ombudsman as an independent entity within the administrative state that could, at least in theory, close the increasing distance between the bureaucracy and public. In its adaptation to the specific administrative task of open government law compliance and reform, the ombudsman has offered an institutional fix to the revealed deficiencies from which the legal rights approach to “freedom of information” suffers: the bureaucratic tendency to avoid complying with openness obligations and the expense and delays attendant to judicial review.This paper describes the ombudsman’s role in supporting the open government mandates of U.S. state and the U.S. federal governments, and fits it into a framework for understanding transparency that I have developed in earlier articles. I characterize the ombudsman as an institutional transparency fix, one that follows other such fixes—including most prominently the creation of legal rights to government information—in attempting to address the bureaucratic tendency to hoard information. Each fix, including the ombudsman, proceeds from prevailing assumptions about the best means to reveal the state, both reflecting and furthering historically-situated conceptions of government and its reform. Like the other fixes of the past fifty years, the ombudsman has made marginal gains in reforming open government laws and bureaucratic compliance with them. But it has not and it cannot make the state fully transparent or sufficiently transparent for open government advocates, for reasons I will discuss

Takings Formalism and Regulatory Formulas: Exactions and the Consequences of Clarity

A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. This article argues that the Court\u27s suspicions are well founded but that blame for judicial and administrative noncompliance lies with the Court\u27s bifurcated approach to the Takings Clause

A Remedy on Paper: The Role of Law in the Failure of City Planning in New Haven, 1907-1913

Part I of this paper provides an overview of the dominant conservative legal doctrines and governing practices that limited planners\u27 goals and strategies in New Haven during the period from 1907 through 1913, and that planning advocates sought to change. Part II provides a narrative of the New Haven planning movement prior to the publication of a 1910 report by Cass Gilbert, a well-known New York-based architect, and Frederick Law Olmsted, Jr., a nationally recognized city planner, on how best to improve New Haven\u27s physical environment and infrastructure. To illustrate the difficulties facing the nascent planning movement in New Haven, Part II chronicles an early attempt by planning proponents to expand the creation and enforcement of one form of land use regulation, building lines. Part III discusses the Gilbert-Olmsted report, the reaction to it, and the events that led to the establishment of a new administrative agency in New Haven devoted to city planning. Parts II and III include not only those arguments about law and municipal structure made by participants in the New Haven movement, but also those made by attorneys and lay planning proponents associated with the national planning movement. Part IV summarizes the role of law and governance in limitating upon what planners during this era could propose and what the municipal administrative agencies that planners advocated could enact and enforce. In addition, Part IV describes the relationship between the early city planning movement and the centralized city planning that would occur in the years after World War II

The Implausibility of Secrecy

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 constitute paths out of the government’s informational clutches. As a result, permanent, long-lasting secrecy of any sort and to any degree is costly and difficult to accomplish.This Article argues that information control is an implausible goal. It critiques some of the foundational assumptions of constitutional and statutory laws that seek to regulate information flows, while complicating and countering the extensive literature on secrecy, transparency, and leaks that rest on those assumptions. By focusing on the functional issues relating to government information and broadening its study beyond the much-examined phenomenon of leaks, the Article catalogs and then illustrates the formal and informal means by which information flows out of the state in a series of case studies. These informal means play an especially important role in limiting both the ability of state actors to keep secrets and the extent to which formal legal doctrines can control the flow of government information. The same bureaucracy and legal regime that keep open government laws from creating a transparent state also keep the executive branch from creating a perfect informational dam. The Article draws several implications from this descriptive, functional argument for legal reform and for the study of administrative and constitutional law