Abstract

http://ssrn.com/abstract=1099600
 
 

Citations (2)



 
 

Footnotes (690)



 


 



Designing Transparency: The 9/11 Commission and Institutional Form


Mark Fenster


University of Florida - Fredric G. Levin College of Law

November 26, 2008

Washington and Lee Law Review, Vol. 65, No. 4, p. 1239, 2008
University of Florida Levin College of Law Research Paper No. 2008-07

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.

Number of Pages in PDF File: 83

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

Accepted Paper Series





Download This Paper

Date posted: March 3, 2008 ; Last revised: August 29, 2011

Suggested Citation

Fenster, Mark, Designing Transparency: The 9/11 Commission and Institutional Form (November 26, 2008). Washington and Lee Law Review, Vol. 65, No. 4, p. 1239, 2008; University of Florida Levin College of Law Research Paper No. 2008-07. Available at SSRN: http://ssrn.com/abstract=1099600

Contact Information

Mark Fenster (Contact Author)
University of Florida - Fredric G. Levin College of Law ( email )
P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0962 (Phone)
352-392-3005 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 1,546
Downloads: 145
Download Rank: 122,369
Citations:  2
Footnotes:  690

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.281 seconds