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Abstract:
The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance, promises the moon - 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 from complying with transparency's sweeping and powerful legal mandates and complain about transparency's enormous compliance costs.

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 that 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.

This 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 an informed public.

Abstract:
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 during 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.

takings, property, land use, Kelo, eminent domain, administrative law, legal process

Abstract:
The legal realist and New Dealer Thurman Arnold's mid-1930s books, The Symbols of Government (1935) and The Folklore of Capitalism (1937), proposed a new field of interdisciplinary post-realist legal scholarship. Called "Political Dynamics," it eschewed realism's commitment to cleansing legal scholarship of the formalist assumption that law lives an independent existence as a quasi-scientific, comprehensive, complete, and conceptually ordered system. Instead, Arnold proposed to study the symbols of legal formalism - including its commitment to procedural rituals and its fetish of the judiciary - as cultural objects through which governing institutions attempt to exercise their political will. Realists sought to debunk formalism's symbols; Arnold sought to understand and ultimately use them to support the New Deal. Arnold's break from legal realism - typically forgotten in descriptions of Arnold as a radical realist - took a number of forms: he abandoned realism's focus on law as a distinct discourse and set of institutions for a wider study of law as one among many governing institutions; he embraced a wide range of qualitative methodologies from the social sciences as appropriate for the study of law and governing institutions generally; and he adopted a detached, ironic voice that enhanced his critical approach with an absurdist sense of humor attractive to readers outside of the confines of legal academia. Nevertheless, though successful in their time and still a source of droll attacks on legal pretensions, Symbols and Folklore failed to establish a coherent and recognizable field of inquiry with a replicable methodology.

This Article makes two claims. First, to the extent that Arnold both built on and broke from his realist colleagues, Symbols and Folklore force us to consider the limits of realism's continuing relevance as a foundation of contemporary scholarship. Second, in his ironic and accessible monographs Arnold established a critical public voice for the legal academic; that voice remains a compelling, if limited, model for legal scholarship that hopes to intervene in the public sphere. Ultimately, the monographs' position within the narrative of American legal theory provides both an inspiring account of cross-disciplinary inquiry and a cautionary tale of interdisciplinarity's perils.

Legal Realism, Legal Theory, Social Science, Interdisciplinary, Legal history

Abstract:
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 James Landis, and on the contemporaneous challenge to their work raised by the legal realist Thurman Arnold. Arnold characterized early modern administrative law as a quasi-formalist effort to impose a logical system of procedure and judicial review on what he saw as pragmatic, functional regulatory agencies that were attempting to address the crisis of the Depression. Although he conceded the persuasive power of this logical system, Arnold predicted that its requirements, especially for adversarial litigation and judicial review, would ultimately impede the optimal operations of a modern administrative state. Although Arnold's eclectic alternative proposals had no influence, his predictions and critique remain incisive and relevant to an academic field and body of doctrine that regularly face regular bouts of intellectual and political crisis.

The Article carries the historical disagreement between Arnold and his contemporaries into the present by connecting their debates first to the development of legal process theory as an approach to federal courts and constitutional law in the 1950s and then to similar debates in administrative law today. Arnold's challenge to early modern administrative law, the Article argues, remains relevant because American law still demands a systemic, legalistic conception of the administrative state. A logical system of administrative and legal process has enormous symbolic power even though, as its current detractors note, it often produces suboptimal regulatory practices. The recurring conflict between an enormously durable system and its critique, a conflict that continues to drive administrative law scholarship, began in the 1920s and 1930s; any efforts to reform the field should understand the terms and implications of the conflict's foundations.

Administrative law, legal realism, legal history, legal process, New Deal, legal theory, jurisprudence

Abstract:
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), two regulatory takings decisions that reviewed "exactions," regulatory conditions placed on proposals to develop land. These decisions required courts to apply the heightened scrutiny of their "nexus" and "proportionality" tests to review not only the challenged condition's effects but also its validity and means. In a somewhat oblique final section of Lingle that could be dismissed as non-binding dicta, the Court characterized its exactions jurisprudence as a limited effort to protect owners from extortionate exactions that single out individual property owners and confiscate their land and right to exclude the public. Lingle explained that the Court's rigorous tests for exactions, and their focus on regulatory means, apply only when an exaction's effects constitute a clear taking of property.

Lingle's description of its exactions decisions left important matters open for debate - matters that this Article attempts to resolve. Lingle's narrow characterization of its exactions decisions is not dicta because Lingle aimed to provide a comprehensive, unifying explication of the entirety of the Court's takings jurisprudence; and even if dicta, Lingle repeats similar statements in recent decisions about the limited nature of Nollan and Dolan and therefore makes plain what the Court assumes it has already settled. Furthermore, when read as Lingle requires, Nollan and Dolan fit within the broader approach to the Takings Clause that the Court articulated in Lingle and its other Takings Clause decisions from the same term, San Remo Hotel v. City and County of San Francisco (2005) and Kelo v. City of New London (2005). A narrow understanding of Nollan and Dolan is thoroughly consistent with the Court's effort to establish an institutionalist approach to the Takings Clause that defers to the properly derived decisions of competent, settled institutions. Nollan and Dolan can be read narrowly because judicial enforcement of the federal constitution is merely one institutional check among a web of public and private institutions that constrain local regulatory discretion. The powerful constitutional protection that "nexus" and "proportionality" provide may be limited, but in their shadow public actors in state courts and legislatures and in local governments, as well as voters, property owners, developers, and homebuyers offer a more complex, responsive, and locally sensitive web of legal, political, and market controls than the broad, formal rules established in Nollan and Dolan.

Takings Clause, regulatory takings, exactions, land use, planning, property

Abstract:
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 federal courts have recently been resolving federal constitutional takings litigation. But Lingle did not - and, this article argues, could not - thoroughly disentangle and bring coherence to a doctrine that past cases and current disputes over real property, the environment, and land use planning make stubbornly unresolvable in the abstract. The so-called Penn Central ad hoc balancing test ultimately brings a degree of incoherence to "takings jurisprudence" - an incoherence that allows courts sufficient room to adjudicate difficult cases and protect the institutional deference that has become central to post-New Deal review of administrative decisionmaking.

regulatory takings, substantive due process, Kelo, Lingle

Abstract:
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. Exactions are the concessions local governments require of property owners as conditions for the issuance of the entitlements that enable the intensified use of real property. In two cases decided over the past two decades, Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the Court has established under the Takings Clause a logic and metrics for constitutionally permissible exactions that requires concessions to have an "essential nexus" and be "roughly proportional" to the harms a proposed development is expected to cause. This Article argues that the Court's suspicions are well-founded, but that blame for judicial and administrative non-compliance lies with the Court's bifurcated approach to the Takings Clause. This approach, which the Court recently reaffirmed in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, requires certain types of regulatory acts, including exactions, to be reviewed under a rule-formalist heightened scrutiny, while the majority of regulatory acts enjoy deferential treatment in an ad hoc balancing test.

The Supreme Court's formalist efforts in Nollan and Dolan have failed to establish doctrinal clarity in, or regulatory control of, the dealmaking processes of local land use regulation. What the Article describes as the Court's takings formalism fails to constrain regulatory practices in its intended way, and results in constraints on the variable, locally situated, and intensely political context of local governance. These constraints, which include incentives for local governments to develop preconstituted regulatory formulas and disincentives against individualized, negotiated concessions, often promote neither the Court's preferred normative vision of strong property rights protection nor the Court's stated secondary concern for better, more efficient land use regulation. Most perniciously, the Court's limited doctrinal, normative, and utilitarian visions of takings law may block or even damage the essential political and social processes necessary to legitimate and functional local governance. At stake, ultimately, in Nollan and Dolan's failures is not only their unfortunate consequences for local land use regulation, but also the integrity and legitimacy of takings formalism and the wisdom of the Court's bifurcated approach to the Takings Clause.

Land Use, Takings, Regulatory Takings, Exactions, Formalism

Abstract:
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 9/11 Commission indeed offers an important model for encouraging or forcing the executive branch to disclose information about an especially significant and controversial past event or future decision. As such, it suggests that Congress or the President consider establishing such commissions when information held by the executive branch can help the public to hold the state accountable for past actions or decide whether to support important, irreversible decisions the state must imminently make. The 9/11 Commission demonstrates that transparency can be better achieved in a time of crisis through institutional design than through constitutional common law and statute. The Article is less sanguine, however, about the 9/11 Commission as a model for policy formation. With limited accountability and relative independence from the political branches, an ad hoc, independent institution can make errors or misjudgments that can in turn have undue influence over the legislative process. Congress or the President should therefore limit the legal authority granted to investigative advisory commissions established during times of crisis so that political actors can fully deliberate over their prescriptions.

transparency, administrative law, advisory commission, advisory committee, 9/11, intelligence community

Abstract:
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 American, and perhaps modern and postmodern, life. Not simply an outlying style of American politics, conspiracy theory has always been a significant element of American political rhetoric, with wide-ranging, sometimes salutary effects. Populist concerns about the concentration of public and private power and of foreign control of domestic authority, for example, have long animated American political practice and governance, and are visible in governmental structures (such as the separation of federal powers and federalism) as well as legislative enactments (e.g., antitrust laws). Conspiracy theory is an aspect of the longstanding populist strain in American political culture - an especially intense strain, to be sure, and one that can have violent, racist, and antidemocratic effects (as well as salutary and democracy-enhancing ones) on the political and social order, but a strain that is neither independent from nor necessarily threatening to the country's political institutions or political culture. Rather than seek some underlying cause for the pathological political or cognitive errors that explains conspiracy theories, the book focuses on conspiracy as a cultural practice, a way of interpreting and narrating politics as part of an oppositional individual and collective project. By studying and understanding how conspiracy theory works, how it constitutes an attractive, engrossing, and prevalent means of engaging in politics, the book offers a better way of conceptualizing and responding to conspiracy theories' rise and circulation. In addition to updating and revising the original edition, the revised edition adds an entirely new chapter on conspiracy theories that concern the 9/11 attacks that considers the additional question of how the state - in the form of the 9/11 Commission - responds to radical challenges to its authority.

conspiracy, conspiracy theory, populism, cultural theory, political theory

Abstract:
This essay is a chapter of a book-in-progress on the legal and cultural theory of the legal realist Thurman Arnold, who was prominent as a Yale law professor from 1932 until he joined the Justice Department as head of its antitrust division in 1938. Arnold's work focused on the symbolic role of law in governance, both as a means by which the state gains legitimacy and as a means by which those who oppose a political majority attempt to frame their opposition. As public law that defines and enforces substantive prohibitions, criminal law and procedure allowed Arnold to develop some of his most important ideas regarding the law, politics, and the state. And although it is doctrinally, procedurally, and administratively complex, criminal law and the criminal justice system are the areas of law to which the public and press pay the greatest attention. As a result, they served as an especially good means for Arnold to think through the relationships between law, the state, and popular sentiment. Writing in the midst of Prohibition, Arnold examined how the public sought to understand and affect criminal justice through political and moral debate. Arnold was not uninterested in the doctrinal and administrative complexity of criminal law and procedure - his first major law review article, written during his initial year-long visit to Yale, waded into the morass that was (and remains) of the law of criminal attempt. But he sought to understand why the law and the legal system appeared convoluted, how the public responded to the state's legal opacity, and how legal and political institutions sought to maintain their legitimacy while balancing the need for protecting individual rights, administering an overburdened criminal justice system, and enforcing - or appearing to enforce - the law.

criminal law, criminal procedure, attempt, Thurman Arnold, legal realism

Abstract:
This essay reviews Spencer Weber Waller's recent biography of the legal realist Thurman Arnold (NYU Press 2005). Arnold's 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's 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's 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's 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.

legal realism, biography, legal profession, legal theory, law and humanities