Seeing the state: Transparency as metaphor

Administrative Law Review

Volumn 62, Issue 3, 2010, Pages 617-672

  Fenster, Mark ^a  

^a UNIVERSITY OF FLORIDA   (United States)

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EID: 79959428042     PISSN: 00018368     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (424)

1. DANIEL ELLSBERG, SECRETS: A MEMOIR OF VIETNAM AND THE PENTAGON PAPERS 35-36 (2002).
2. Id. at 81.
3. See Dep't of the Air Force v. Rose, 425 U. S. 352, 361 (1976)
4. -(declaring that Congress's clear intent in enacting the Freedom of Information Act, Pub. L. No. 89-554, 80 Stat. 383 (1966)
5. -(codified as amended at 5 U. S. C. § 552 (2006)), was "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny"
6. -(quoting Rose v. Dep't of the Air Force, 495 F.2d 261, 263 (2d Cir. 1974)));
7. Common Cause v. Nuclear Regulatory Comm'n, 674 F.2d 921, 928 (D. C. Cir. 1982)
8. -(noting that Congress's purpose in enacting the Government in the Sunshine Act, Pub. L. No. 94-409, 90 Stat. 1241 (1976)
9. -(codified as amended at 5 U. S. C. § 552b (2006)), was "to make government more fully accountable to the people");
10. Peter M. Shane, Legislative Delegation, the Unitary Executive, and the Legitimacy of the Administrative State, 33 HARV. J. L. & PUB. POL'Y 103, 108 (2010) ("The essence of accountability lies in the transparency of government actions, the public's capacity to insist on justifications for the exercise of power, and arrangements that subject officials to discipline when justifications for their actions fall short.");
11. Senator Richard Shelby, Accountability and Transparency: Public Access to Federally Funded Research Data, 37 HARV. J. ON LEGIS. 369, 370 (2000) ("Transparency and accountability in government are two principles crucial to securing the public trust.").
12. THE OXFORD ENGLISH DICTIONARY 419 (2d ed. 1989).
13. The same dynamic exists even when a commentator complicates the concept by substituting "translucent" for "transparency" in recognizing the inevitable limitations on public access to government information. See, e.g., Adam M. Samaha, Government Secrets, Constitutional Law, and Platforms for Judicial Intervention, 53 UCLA L. REV. 909, 923, 969-76 (2006).
14. Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002). The quotation almost immediately inspired the tides of two law review articles.
15. See Lauren Gilbert, When Democracy Dies Behind Closed Doors: The First Amendment and "Special Interest" Hearings, 55 RUTGERS L. REV. 741 (2003);
16. Rena Steinzor, "Democracies Die Behind Closed Doors": The Homeland Security Act and Corporate Accountability, 12 KAN. J. L. & PUB. POL'Y 641 (2003);
17. see also Clark-Cowlitz Joint Operating Agency v. FERC, 798 F.2d 499, 501 (D. C. Cir. 1986) ("The Government in the Sunshine Act embodies the general policy mat federal agencies should 'conduct their meetings in the open, rather than behind closed doors."' (quoting S. REP. No. 94-354, at 1 (1975))).
18. LOUIS D. BRANDEIS, OTHER PEOPLE'S MONEY AND HOW THE BANKERS use IT 92 (Augustus M. Kelley 1986) (1914) ("Sunlight is said to be the best of disinfectants; electric light the most efficient policeman. ");
19. see also infra note 28 (identifying the influence this metaphor has on legal academic writings).
20. Freedom of Information Act (FOIA), Pub. L. No. 89-554, 80 Stat. 383 (1966)
21. -(codified as amended at 5 U. S. C. § 552 (2006)).
22. David E. Pozen, Deep Secrecy, 62 STAN. L. REV. 257, 289-93, 305-25 (2010);
23. Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited, 92 IOWA L. REV. 489, 514-15, 542-43 (2007).
24. The most vocal proponents of transparency in its strongest form are journalists and open government advocates. See, e.g., National Freedom of Information Coalition, About NFOIC, Bylaws, http://www.nfoic.org/about (last visited Aug. 5, 2010) (describing the group as "a nonpartisan alliance of citizen-driven nonprofit freedom of information organizations, academic and First Amendment centers, journalistic societies and attorneys");
25. Reporters Comm. for Freedom of the Press, Freedom of Information Resources, http://www.rcfp.org/foia/ (last visited Aug. 5, 2010) (describing the organization as "the nation's leading advocate for open government issues on behalf of journalists").
26. See Mark Fenster, The Opacity of Transparency, 91 IOWA L. REV. 885, 910-14 (2006) (describing the balance between benefits and limitations in conceptions of transparency).
27. See, e.g., Government in the Sunshine Act, Pub. L. No. 94-409, 90 Stat. 1241 (1976)
28. -(codified as amended at 5 U. S. C. § 552b (2006)) (establishing open meeting requirements for federal administrative agencies);
29. Bagley-Keene Open Meeting Act, CAL. GOV'T CODE §§ 11120-11132 (West 2005) (establishing open meeting requirements for California public agencies).
30. See, e.g., FOIA, 5 U. S. C. § 552 (establishing disclosure requirements for federal administrative agencies);
31. California Public Records Act, CAL. GOV'T CODE §§ 6250-6276.48 (West 2008) (establishing disclosure requirements for California public agencies).
32. See Seth F. Kreimer, The Freedom of Information Act and the Ecology of Transparency, 10 U. PA. J. CONST. L. 1011, 1014-15 & nn. 9-12 (2008) (summarizing and collecting recent commentaries decrying the current state of open government laws).
33. See generally Fenster, supra note 11.
34. JAMES A. MORONE, THE DEMOCRATIC WISH: POPULAR PARTICIPATION AND THE LIMITS OF AMERICAN GOVERNMENT (rev. ed., Yale University Press 1998).
35. See infra text accompanying notes 36-47.
36. Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1667, 1669-71 (1975).
37. Cf. Cary Coglianese, The Transparency President? The Obama Administration and Open Government, 22 GOVERNANCE 529, 537 (2009) (distinguishing between "fishbowl" transparency, which focuses on the maximal release of government data, and "reasoned" transparency, which more effectively requires government officials to provide "sound reasons for their decisions");
38. Mark Schmitt, Transparency for What?, AM. PROSPECT, Mar. 2010, at A10 (criticizing efforts to require the release of government data and praising legislative enactments that instead focus on increasing public understanding).
39. See Fenster, supra note 11, at 941;
40. see also Lawrence Lessig, Against Transparency: The Perils of Openness in Government, NEW REPUBLIC, Oct. 21, 2009, at 37 (questioning the likely consequences of what he describes as the "naked transparency movement");
41. William J. Stuntz, Secret Service: The liberal Case Against Individual Privacy and Government Transparency, NEW REPUBLIC, Apr. 17, 2006, at 12, 14 ("Transparency makes politics a running argument about decision-making, not about decisions.").
42. Donald F. Kettl, Public Bureaucracies, in THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS 366, 373 (R. A. VV. Rhodes et al. eds., 2006);
43. see also Kenneth J. Meier & Gregory C. Hill, Bureaucracy in the Twenty-First Century, in THE OXFORD HANDBOOK OF PUBLIC MANAGEMENT 51, 51 (Ewan Ferlie et al. eds., 2005) ("[L]arge-scale tasks that government must perform... will remain key functions of governments in the twenty-first century and... bureaucracies, likely public but possibly private, will continue to be the most effective way to do these tasks.").
44. BarackObama.com, Ethics,. http://www.barackobama.com/issues/ethics/index- campaign. php (last visited Aug. 5, 2010).
45. See Coglianese, supra note 19, at 533 (describing how, "[a]s a candidate, Obama had clearly signaled his support of open government reforms").
46. Indeed, soon after taking office, President Obama declared in an official memorandum published in the Federal Register that his "Administration is committed to creating an unprecedented level of openness in Government." Memorandum from President Barack Obama on Transparency and Open Government to the Heads of Executive Departments and Agencies (Jan. 21, 2009), 74 Fed. Reg. 4685 (Jan. 26, 2009), available at http://www.whitehouse.gov/the-press-office/ transparency-and-opengovernment.
47. DEMOCRATIC PARTY PLATFORM OF 1976, http://www.presidency.ucsb.edu/ws/ index.php?pid=29606 (last visited Aug. 5, 2010).
48. John McCain's 2008 campaign and the Republican Party's 2008 platform also promised transparency, but the former focused more on campaign finance and the latter focused on the budget process and earmarks. See Klaus Marre, McCain Vows Unprecedented Transparency, THE HILL, May 15, 2008, http://thehill.com/homenews/ campaign/1356-mccain-vows-unprecedented-transparency-2008-05-15.html;
49. Posting of Laura Meckler to Washington Wire, McCain Promises Transparency, Accountability, http://blogs.wsj.com/washwire/2008/05/15/mccain- promises-transparency-accountability/ (May 15, 2008, 06:00 EST);
50. REPUBLICAN PARTY PLATFORM, http://www.presidency.ucsb.edu/ws/index.php? pid=78545 (last visited Aug. 5, 2010).
51. TED GUP, NATION OF SECRETS 9 (2007).
52. See Judicial Watch, Our Programs, http://www.judicialwatch.org/programs (last visited Aug. 5, 2010);
53. OpenTheGovernment.org, Statement of Values, http://www.openthegovernment. org/article/subarchive/63 (last visited Aug. 5, 2010);
54. Reporters Comm. for Freedom of the Press, supra note 10;
55. Soc'y of Professional Journalists, Project Sunshine, http://www.spj.org/ sunshine.asp (last visited Aug. 5, 2010);
56. Sunlight Foundation, About the Sunlight Foundation, http:// sunlightfoundation.com/about/ (last visited Aug. 5, 2010).
57. Ann Florini, Introduction: The Battle Over Transparency, in THE RIGHT TO KNOW: TRANSPARENCY FOR AN OPEN WORLD 1, 5 (Ann Florini ed., 2007).
58. See, e.g., Steven Aftergood, Reducing Government Secrecy: Finding What Works, 27 YALE L. & POL'Y REV. 399, 399 (2009) ("[S]unlight in the form of robust public access to government information is essential to the vitality of democratic governance.");
59. Rebecca M. Bratspies, Regulatory Trust, 51 ARIZ. L. REV. 575, 622-23 (2009) (quoting Brandeis to begin a section arguing in favor of a strong conception of transparency as a means to create greater trust in regulators);
60. Cynthia A. Williams, The Securities and Exchange Commission and Corporate Social Transparency, 112 HARV. L. REV. 1197, 1212-13 (1999) (using the Brandeis quote, noting his importance in the development of securities laws, and arguing the SEC should require expanded disclosures);
61. Note, Disclosure as a Legislative Device, 76 HARV. L. REV. 1273, 1273 (1963) (deploying the Brandeis quote as epigraph). A Westlaw search on April 19, 2010, in the Journals and Law Reviews database for articles that include the terms "sunlight" and "disinfectant" in the same sentence found 552 documents.
62. See, e.g., Aftergood, supra note 28, at 399 ("[T]he free flow of information to interested members of the public is a prerequisite to their participation in the deliberative process and to their ability to hold elected officials accountable.");
63. Michael Herz, Law Lags Behind: FOLA and Affirmative Disclosure of Information, 7 CARDOZO PUB. L. POL'Y & ETHICS J. 577 (2009) (arguing for the relevance of understanding information as needing to be free as part of open government obligations);
64. Heidi Kitrosser, Secrecy in the Immigration Courts and Beyond: Considering the Right to Know in the Administrative State, 39 HARV. C. R.-C. L. L. REV. 95, 167 (2004) (decrying government's tendency to "seal off information at its source").
65. The X-Files: The Erlenmeyer Flask (Fox Television broadcast May 13, 1994).
66. ALL THE PRESIDENT'S MEN (Warner Bros. 1976).
67. CARL BERNSTEIN & BOB WOODWARD, ALL THE PRESIDENT'S MEN (1974).
68. ELLSBERG, supra note 1;
69. DAVID RUDENSTINE, THE DAY THE PRESSES STOPPED: A HISTORY OF THE PENTAGON PAPERS CASE 33-47 (1996).
70. See HERBERT N. FOERSTEL, FREEDOM OF INFORMATION AND THE RIGHT TO KNOW: THE ORIGINS AND APPLICATIONS OF THE FREEDOM OF INFORMATION ACT 46-48 (1999).
71. See Senator Edward M. Kennedy, Foreword: Is the Pendulum Swinging Away from Freedom of Information?, 16 HARV. C. R.-C. L. L. REV. 311, 311-12 (1981);
72. Note, Keeping Secrets: Congress, the Courts, and National Security Information, 103 HARV. L. REV. 906, 908-09 (1990).
73. See Fenster, supra note 11, at 895-902.
74. See Memorandum from Peter Orszag, Director, Office of Mgmt. and Budget, on Open Government Directive to the Heads of Executive Departments and Agencies, (Dec. 8, 2009) http://www.whitehouse.gov/omb/assets/memoranda-2010/ml0-06.pdf (announcing the directive to federal agencies to increase government information available online, improve the quality of government information, and "create and institutionalize a culture of open government");
75. see also Coglianese, supra note 19, at 533-35 (describing the Obama administration's early efforts to expand transparency).
76. See, e.g., Glenn Greenwald, Obama and Transparency: Judge for Yourself, SALON. COM, June 17, 2009, http://www.salon.com/news/opinion/glenn-greenwald/ 2009/06/17/transparency/ (collecting and endorsing criticisms from the left);
77. Michael Isikoff, Obama Closes Doors on Openness, NEWSWEEK, June 29, 2009, available at http://www.newsweek.com/id/202875 (criticisms from a mainstream periodical);
78. Editorial, Health-Care Secrets, WALL ST. J., Aug. 29-30, 2009, at A12 (editorial criticism from the right).
79. I leave aside for purposes of this Article the precise nature of the historical relationship between populism and transparency's metaphoric understanding and whether, for example, it represents an aspect of what historian Richard Hofstadter described as the "paranoid style" in American politics, or whether it is a more recent and more rational response to the expansion of the executive branch since the Great Depression and especially following World War II. See RICHARD HOFSTADTER, THE PARANOID STYLE IN AMERICAN POLITICS (2d prtg., Alfred A. Knopf 1966). My purpose here is merely to note the relationship and to assert that the rhetoric of strong-form transparency advocacy and that implied by the term's underlying metaphor clearly align with the rhetoric of American populism.
80. On populism as a flexible, rhetorical mode of persuasion in politics as well as an historical survey of populist movements, see generally MICHAEL KAZIN, THE POPULIST PERSUASION (1995).
81. On the populist logic in American political culture, see MARK FENSTER, CONSPIRACY THEORIES: SECRECY AND POWER IN AMERICAN CULTURE 84-89 (rev. and updated ed. 2008).
82. See ERNESTO LACLAU, ON POPULIST REASON 18 (2005).
83. Margaret Canovan, Trust the People! Populism and the Two Faces of Democracy, 47 POL. STUD. 2, 4-5 (1999).
84. KAZIN, supra note 40, at 192-93.
85. Cf. BONNIE HONIG, POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS 3, 15 (1993) (describing the "perpetual contest" and unending resistance that mark politics).
86. Francisco Panizza, Introduction, in POPULISM AND THE MIRROR OF DEMOCRACY 1, 14 (Francisco Panizza ed., 2005).
87. See J. M. Balkin, Populism and Progressivism as Constitutional Categories, 104 YALE L. J. 1935, 1945 (1995)
88. -(reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993)).
89. See, e.g., LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004);
90. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).
91. For a summary and critique of popular constitutionalism, see Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, 93 GEO. L. J. 897 (2005).
92. Balkin, supra note 46, at 1946-47.
93. See Edward Rubin, It's Time to Make the Administrative Procedure Act Administrative, 89 CORNELL L. REV. 95, 96-98 (2003). This debate is merely another instance of the longstanding struggle over the administrative state's legitimacy, one that began in the United States in earnest during the New Deal era, when progressive academics engaged in battle with conservatives fearful of an unaccountable and unconstitutional executive branch.
94. See Mark Fenster, The Birth of a "Logical System": Thurman Arnold and the Making of Modem Administrative Law, 84 OR. L. REV. 69, 80-91 (2005).
95. EDWARD L. RUBIN, BEYOND CAMELOT: RETHINKING POUTICS AND LAW FOR THE MODERN STATE 13 (2005).
96. See id. at 140 (noting criticisms of various federal open government laws, but ultimately approving of them as means by which administrative agencies interact with the public);
97. see also infra notes 142-45 (discussing ambivalence of "new public governance" scholars towards transparency). Political leftists and progressives may espouse a strong commitment to transparency.
98. See, e.g., Ellen Miller, Obama at One, NATION, Feb. 1, 2010, at 21 (contribution by the Sunlight Foundation Executive Director to a progressive magazine's forum both praising and criticizing Obama's record on transparency in his first year in office);
99. Greenwald, supra note 38 (leftist writer condemning Obama's poor commitment to transparency). In doing so, they espouse a left populism analogous to that of the popular constitutional theorists identified above, many of whom would also identify themselves as progressives or leftists.
100. See supra note 48 and accompanying text.
101. MORONE, supra note 16, at 5-9.
102. See MORTON KELLER, AMERICA'S THREE REGIMES: A NEW POLITICAL HISTORY 67-200 (2007);
103. SEAN WILENTZ, ANDREW JACKSON 6 (2005).
104. See MORONE, supra note 16, at 92-94;
105. Jerry L. Mashaw, Administration and "The Democracy": Administrative Law from Jackson to Lincoln, 1829-1861, 117 YALE L. J. 1568, 1583-84 (2008).
106. See MORONE, supra note 16, at 11-13;
107. Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801-1829, 116 YALE L. J. 1636, 1734-35 (2007).
108. THE FEDERALIST NO. 37, at 227-31 (James Madison) (Clinton Rossiter ed., 1961).
109. THE ANTIFEDERALIST PAPERS NO. 14, at 36-38 (George Clinton) (Morton Borden ed., 1965).
110. THE FEDERALIST No. 84, supra note 56, at 516-17 (Alexander Hamilton);
111. cf. THE FEDERALIST No. 10, supra note 56, at 83 (James Madison) (arguing that a republic encompassing a larger territory, and therefore a larger population, would include more distinct parties and interests that would result in more factions that would check each other's tendency to dominate).
112. See PRESIDENT'S COMMITTEE ON ADMINISTRATIVE MANAGEMENT, REPORT OF THE COMMITTEE 40-41 (1937);
113. see also Thomas H. Stanton, Executive Organization and Management After September 11, 2001, in MAKING GOVERNMENT MANAGEABLE, at xvii, xviiixix (Thomas H. Stanton & Benjamin Ginsberg eds., 2004) (more recent complaint about the executive branch's disorganization).
114. On the cyclical, seemingly endless efforts to reorganize the federal government, see PAUL C. LIGHT, THE TIDES OF REFORM: MAKING GOVERNMENT WORK, 1945-1995 (1997);
115. JAMES L. SUNDQUIST, THE DECLINE AND RESURGENCE OF CONGRESS 52-55 (1981);
116. and Jerry L. Mashaw, Reinventing Government and Regulatory Reform: Studies in the Neglect and Abuse of Administrative Law, 57 U. PITT. L. REV. 405, 406-08 (1996).
117. On the long history of state government reform, see JAMES L. GARNETT, REORGANIZING STATE GOVERNMENT: THE EXECUTIVE BRANCH (1980);
118. and Jeffrey L. Brudney et al., Reinventing Government in the American States: Measuring and Explaining Administrative Reform, 59 PUB. ADMIN. REV. 19 (1999).
119. Johan P. Olsen, The Ups and Downs of Bureaucratic Organization, 11 ANN. REV. POL. SCI. 13, 27 (2008).
120. THE ANTIFEDERALIST PAPERS NO. 14, supra note 57, at 37 (George Clinton).
121. -3 MAX WEBER, ECONOMY AND SOCIETY 971 (Guenther Roth & Claus Wittich eds., 1968).
122. Id.
123. Id. at 949-52 (discussing the limits of direct democracy).
124. See MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM 178-81 (Talcott Parsons trans., 1958);
125. Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber's Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought, 55 HASTINGS L. J. 1031, 1056-58 (2004);
126. Rubin, supra note 49, at 149-50.
127. See 1 WEBER, supra note 62, at 218-23.
128. Id. at 225;
129. WEBER, supra note 62, at 992.
130. See SHELDON S. WOLIN, POLITICS AND VISION 348-52 (expanded ed., 2004).
131. On the significance of roles for modern bureaucracies, see 3 WEBER, supra note 62, at 956.
132. See Jim Rossi, Overcoming Parochialism: State Administrative Procedure and Institutional Design, 53 ADMIN. L. REV. 551 (2001). (Pubitemid 33656821)
133. See, e.g., FCC Organizational Chart, http://www.fcc.gov/fccorgchart.html (last visited Aug. 5, 2010);
134. Texas Department of State Health Services Organizational Chart, http://www.dshs.state.tx.us/orgchart/default.shtm (last visited Aug. 5, 2010);
135. City of Houston, 2010 Organization Chart, http://www.houstontx.gov/ budget/10budadopt/orgchrt.pdf (last visited Aug. 5, 2010).
136. See WOLIN, supra note 68, at 351-52.
137. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 26-27 (1974). A proponent of a minimal state would view transparency as merely a practical problem of institutional design and would rely more heavily on markets than on the regulation of governmental behavior.
138. See Malcolm Thorburn, Rethinking the Night-Watchman State?, 60 U. TORONTO L. J. (forthcoming June 2010).
139. See infra Part II. A.
140. See Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. CHI. L. REV. 361, 410-22 (2004).
141. U. S. CONST, art. I, § 5, cl. 3 (requiring Congress to keep and publish "from time to time" a journal of its proceedings and its members' votes, while also allowing Congress to except "such Parts as may in [its members'] Judgment require Secrecy");
142. id. § 9, cl. 7 (requiring Congress to publish "a regular Statement and Account of the Receipts and Expenditures of all public Money");
143. id. § 7, cl. 2 ("[T]he Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.").
144. See U. S. CONST, art. I, § 5, cl. 2 ("Each House may determine the Rules of its Proceedings...."). Congress does so through rules established either by each house or by statute.
145. See Elizabeth Garrett, Conditions for Framework Legislation, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 294 (Richard W. Bauman & Tsvi Kahana eds., 2006);
146. Aaron-Andrew P. Bruhl, Using Statutes to Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of the Proceedings Clause, 19 J. L. & POL. 345, 346 (2003). Each house of Congress enjoys the exclusive authority to establish its own procedural and administrative rules, while courts may review challenges only to a rule's construction or application, not to its rationality, and even then only very deferentially.
147. Yellin v. United States, 374 U. S. 109, 143-44 (1963) (White, J., dissenting)
148. -(applying and quoting United States v. Ballin, 144 U. S. 1, 5 (1892)).
149. See generally John C. Roberts, Are Congressional Committees Constitutional?: Radical Textualism, Separation of Powers, and the Enactment Process, 52 CASE W. RES. L. REV. 489, 530-33 (2001) (summarizing Rulemaking Clause decisions in the Supreme Court and D. C. Circuit). A recent example of a congressional selfdisclosure rule came about as part of Congress's response to scandals in which lobbyists seemed to wield undue influence on the legislative process.
150. See Anita S. Krishnakumar, Towards a Madisonian, Interest-Group-Based, Approach to Lobbying Regulation, 58 ALA. L. REV. 513, 515-17 (2007);
151. Rebecca M. Kysar, Listening to Congress: Earmark Rules and Statutory Interpretation, 94 CORNELL L. REV. 519, 529-33 (2009).
152. Indeed, the Administrative Procedure Act's (APA's) definition of "agency" explicitly excludes Congress. APA, 5 U. S. C. § 551 (1) (A) (2006).
153. The APA's definition is in turn incorporated in many open government statutes, such as the Privacy Act, 5 U. S. C. § 552a (a) (1) (2006)
154. the FOIA, 5 U. S. C. § 552 (f) (2006)
155. the Government in the Sunshine Act, 5 U. S. C. § 552b (a) (1) (2006)
156. and the Federal Advisory Committee Act (FACA), 5 U. S. C. app. § 3 (3) (2006).
157. See generally James T. O'Reilly, Applying Federal Open Government Laws to Congress: An Explorative Analysis and Proposal, 31 HARV. J. ON LEGIS. 415 (1994) (explaining Congress's limited self-imposed disclosure requirements and proposing means to impose more).
158. U. S. CONST, art. II, § 3, cl. 1.
159. For opposing accounts of the what the State of the Union Clause requires of the President, compare Vasan Kesavan & J. Gregory Sidak, The Legislator-in-Chief, 44 WM. & MARY L. REV. 1, 7-34 (2002) (arguing that the clause places a duty on the President to provide extensive information to Congress and assist in deliberative efforts to formulate legislation and coordinate enforcement)
160. with Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1207 n. 262 (1992) (stating that the clause requires no more than occasional presidential reports to Congress on general matters). Current expectations of the State of the Union speech and presidential behavior demonstrate that the latter argument has clearly won out.
161. See Richard Primus, Limits of Interpretivism, 32 HARV. J. L. & PUB. POL'Y 159, 173-74 (2009) (describing current understanding and interpretive tradition of the State of the Union Clause).
162. This was not always the case. President Johnson did not support the original statute, and President Ford vetoed the 1974 amendments to the FOIA that strengthened its disclosure obligations. See FOERSTEL, supra note 34, at 39-48. Prior to his confirmation as a judge on the D. C. Circuit, Antonin Scalia wrote a blistering critique of the statute in the American Enterprise Institute's journal in 1982.
163. See Antonin Scalia, The Freedom of Information Act Has No Clothes, REGULATION, Mar./Apr. 1982, at 14. Today, however, no elected official would propose repealing any of the existing open government laws, and efforts to strengthen them frequently have bipartisan support.
164. See, e.g., Daniel J. Metcalfe, The Cycle Continues: Congress Amends the FOIA in 2007, ADMIN. & REG. L. NEWS, Spring 2008, at 11 (noting the bipartisan effort to enact amendments to the FOIA in 2007). In addition, nongovernmental organizations (NGOs) supporting the FOIA are either nonpartisan or range across the political system.
165. Of the NGOs cited supra note 26, Judicial Watch is avowedly conservative, while others are nonpartisan.
166. See Judicial Watch, About Us, http://www.judicialwatch.org/about-us (last visited Aug. 5, 2010).
167. -5 U. S. C. § 552 (2006).
168. Government in the Sunshine Act, 5 U. S. C. § 552b (2006).
169. FACA, 5 U. S. C. app. §§ 1-16 (2006).
170. Presidential Records Act of 1978, 44 U. S. C. §§ 2201-2207 (2006).
171. See FOERSTEL, supra note 34 (history of the FOIA);
172. SUZANNE J. PIOTROWSKI, GOVERNMENTAL TRANSPARENCY IN THE PATH OF ADMINISTRATIVE REFORM 21-24 (2007) (history of the FOIA, focusing on discontent with its shortcomings);
173. PETER L. STRAUSS, TODD D. RAKOFF & CYNTHIA R. FARINA, GELLHORN & BYSE'S ADMINISTRATIVE LAW 762-66 (rev. 10th ed. 2003) (history of the Government in the Sunshine Act and discussion of criticisms of its effects on agency deliberations);
174. Mark Fenster, Designing Transparency: The 9/11 Commission and Institutional Form, 65 WASH. & LEE L. REV. 1239, 1253-58 (2008) (history of the FACA, focusing on discontent with its shortcomings and controversies over its constitutionality);
175. Jonathan Turley, Presidential Papers and Popular Government: The Convergence of Constitutional and Property Theory in Claims of Ownership and Control of Presidential Records, 88 CORNELL L. REV. 651, 666-77 (2003) (history and controversies surrounding the Presidential Records Act of 1978).
176. On the current general state of the doctrines of executive privilege, state secrets, and presidential prerogatives over information bearing on national security and foreign affairs, see Pozen, supra note 9, at 321-22.
177. On the constitutional issues surrounding FACA's limitations on the President's ability to seek advice, see Fenster, supra note 85, at 1254-56.
178. The Attorney General typically issues a memorandum to the federal branch agencies declaring its interpretation of the FOIA and how the Department of Justice plans to litigate contested cases. They tend to vary with each change of party control of the White House-with a Democratic president, the memo tends to favor disclosure, and with a Republican president, it tends to favor nondisclosure. Compare Memorandum from Eric Holder, Attorney General, on the Freedom of Information Act to the Heads of Executive Departments and Agencies (Mar. 19, 2009), http://www.justice.gov/ag/foia-memomarch2009.pdf (withdrawing memorandum from Attorney General Ashcroft and announcing '"a clear presumption: In the face of doubt, openness prevails.'"
179. -(quoting Memorandum from President Barack Obama on the Freedom of Information Act to the Heads of Executive Departments and Agencies (Jan. 21, 2009), http://www.whitehouse.gov/the-press-ofIice/freedom-information-act))
180. and Memorandum from Janet Reno, Attorney General, on the Freedom of Information Act to the Heads of Departments and Agencies (Oct. 4, 1993), http://www.usdoj.gov/oip/foia-updates/Vol-XIV-3/page3.htm ("The Department [of Justice] will no longer defend an agency's withholding of information merely because there is a 'substantial legal basis' for doing so. Rather, in determining whether or not to defend a nondisclosure decision, we will apply a presumption of disclosure.")
181. with Memorandum from John Ashcroft, Attorney General, on the Freedom of Information Act to the Heads of all Federal Departments and Agencies (Oct. 12, 2001), http://www.doi.gov/foia/foia.pdf ("When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis....").
182. See COAUTION OF JOURNALISTS FOR OPEN GOV'T, THE WAITING GAME: FOIA PERFORMANCE HITS NEW LOWS (2007), http://www.cjog.net/documents/CX-FOIA-report- Part-l.pdf (comparing agency request backlog across 1998, 2002, 2005, and 2006 and finding variability over time and among agencies).
183. U. S. CONST, amend. VI.
184. Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 575-76, 581 (1980) (plurality opinion);
185. see also Kitrosser, supra note 29, at 106-11 (summarizing Richmond Newspapers and discussing its progeny).
186. Marci A. Hamilton & Clemens G. Kohnen, The Jurisprudence of Information Flow: How the Constitution Constructs the Pathways of Information, 25 CARDOZO L. REV. 267, 289-93 (2003). Moreover, despite their status as government documents free from the restraints of copyright protection, many judicial documents in the federal system are difficult for the public to view without paying expensive electronic access fees.
187. See Stephen Schultze, Electronic Public Access Fees and the United States Federal Courts' Budget: An Overview (Harvard Univ. Berkman Ctr. for Internet & Soc'y, Working Paper) http://cyber.law.harvard.edu/~sjschultze/Schultze- PACER-Budget-Working-Paper.pdf (last visited Aug. 5, 2010).
188. See Courtroom Television Network, LLC v. State, 769 N. Y. S.2d 70, 96-97 (Sup. Ct. 2003) (giving an overview of federal and state approaches to cameras in the courtroom).
189. See Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N. Y. U. L. REV. 911 (2006) (decrying lack of public access to discretionary governmental decisions in the criminal process, especially in the plea bargain process);
190. Kenneth Feinberg, Transparency and Civil Justice: The Internal and External Value of Sunlight, 58 DEPAUL L. REV. 473 (2009) (former Special Master of the September 11 th Victim Compensation Fund of 2001 discussing the incomplete progress of and prospects for greater transparency in civil litigation);
191. Hamilton & Kohnen, supra note 91, at 293-97 (noting the existence of general rules of judicial and court access, as well as the various exceptions and limiting principles to those rules);
192. Alexandra Natapoff, Deregulating Guilt: The Information Culture of the Criminal System, 30 CARDOZO L. REV. 965, 982-85 (2008) (discussing public access to the criminal justice system in general);
193. Judith Resnik, Uncovering, Disclosing, and Discovering How the Public Dimensions of Court-Based Processes Are at Risk, 81 CHI.-KENT L. REV. 521, 542-60 (2006) (describing the delegation of formal civil adjudication to relatively inaccessible administrative courts, arbitrators, and settlement agreements).
194. See Rossi, supra note 69, at 554-55. Numerous websites offer links to or texts of the fifty states' laws.
195. See, e.g., Nat'l Freedom of Information Coal., State FOI Laws, http://www.nfoic.org/state-foi-laws (last visited Aug. 5, 2010);
196. Reporters Comm. For Freedom of the Press, Open Government Guide, http://www.rcfp.org/ogg/index.php (last visited Aug. 5, 2010).
197. Teresa Dale Pupillo, Note, The Changing Weather Forecast: Government in the Sunshine in the 1990s-An Analysis of State Sunshine Laws, 71 WASH. U. L. Q. 1165 (1993).
198. Nat'l Freedom of Information Coal. & Better Gov't Ass'n, States Failing FOI Responsiveness, http://www.nfoic.org/bga (last visited Aug. 5, 2010).
199. A 2002 version of the study gave failing grades to eight states, but a D+ or lower to twenty-four states, and the remaining states received no higher than a B. Better Gov't Ass'n & Investigative Reporters and Editors, Freedom of Information in the USA: Part 1 (2002), http://www.ire.org/foi/bga/;
200. see also BETTER GOV'T ASS'N & INVESTIGATIVE REPORTS AND EDITORS, FREEDOM OF INFORMATION IN THE USA SURVEY RESULTS (2002), http://www.ire.org/foi/ bga/ranking.pdf (grading and ranking states in 2002 study).
201. See Nat'l Freedom of Information Coal., Audits and Open Records Surveys, http://www.nfoic.org/audits-and-open-records-surveys (last visited Aug. 5, 2010) (collecting and linking to audits performed in different states).
202. Cf. Samaha, supra note 5, at 948-49 (describing the constitutional regime for public access to information as "Unsatisfying").
203. See, e.g., 5 U. S. C. § 552 (a) (2006) ("Each agency shall make available to the public information as follows-");
204. CONG. REC. 13641 (1966) (statement of Rep. Moss in floor debate prior to the House of Representatives' vote to pass S. 1160, which would become the Freedom of Information Act) (The FOIA will "remove every barrier to information about-and understanding of-Government activities....");
205. EDWARD KENNEDY, AMENDING THE FREEDOM OF INFORMATION ACT, S. REP. NO. 93-854, at 3 (1974) (declaring that the FOIA amendments would draw back the "curtains of secrecy... around the business of government").
206. -5 U. S. C. § 552 (a) (1) - (2) (2006).
207. Id. § 552 (a) (3). Some documents are exempted based either on their content, their status as inter-or intra-office memoranda, or specific exemptions created by other statutes.
208. Id. § 552 (b) (1) - (9).
209. Id. § 551 (1) (A), (B) (exempting the Congress and federal courts from the definition of "agency").
210. Id. § 552 (a).
211. Id. § 552 (f) (1) (defining "agency" as "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency").
212. See, e.g., 50 U. S. C. § 403-1 (i) (1) (2006) (directing the CIA to "protect intelligence sources and methods from unauthorized disclosure");
213. id. § 403g (exempting the CIA from any law requiring "disclosure of the organization, functions, names official titles, salaries, or numbers of personnel employed by the Agency").
214. See generally CIA v. Sims, 471 U. S. 159, 167-68 (1985) (applying statutory exemption to CIA).
215. The third exemption of the FOIA, 5 U. S. C. § 552 (b) (3) (2006), provides that the FOIA does not apply to matters that are "specifically exempted from disclosure by statute", so long as the statute meets certain requirements.
216. Kissinger v. Reporters Comm. for Freedom of the Press, 445 U. S. 136, 156 (1980)
217. -(quoting H. R. REP. NO. 93-1380, at 15 (1974) (Conf. Rep.)). More recent congressional enactments that incorporate the FOIA's definition of agency similarly make plain the distinction between "Executive Office" and "Office of the President."
218. See Wilson v. Libby, 535 F.3d 697, 708 (D. C. Cir. 2008)
219. -(explaining that the Privacy Act, 5 U. S. C. § 552a, which followed and incorporated the FOIA's definition of agency, similarly excludes the President, Vice President, and their close advisors from liability).
220. The Court considered this issue briefly in Kissinger, but did no more than resolve the issue that Kissinger was acting in his capacity as National Security Adviser when the documents in controversy were created, and therefore, the documents were not considered the records of an agency under the FOIA. See 445 U. S. at 156. The Court made no effort to develop a test for lower courts to apply in more difficult cases.
221. See Citizens for Responsibility & Ethics in Wash. v. Office of Admin., 566 F.3d 219, 222-23 (D. C. Cir. 2009) (reiterating the series of tests).
222. On the complexity of the Executive Office of the President (EOP) and the fact that presidential decisionmaking exempt from the FOIA is in fact decisions made by executive branch bureaucrats, not by the President himor herself, see Peter L. Strauss, Overseer, or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 753 (2007).
223. Soucie v. David, 448 F.2d 1067, 1073 (D. C. Cir. 1971).
224. If so, then it is an "agency" subject to the FOIA. Meyer v. Bush, 981 F.2d 1288, 1293-94 (D. C. Cir. 1993).
225. Soucie, 448 F.2d at 1075.
226. Meyer, 981 F.2d at 1293.
227. Id. at 1293.
228. In this way, the FOIA's definition of agency implicidy recognizes constitutional limits on Congress's authority to regulate the presidential deliberative process, which also turns in part on the relative position of the advisor. as the D. C. Circuit has held, communications made between presidential advisers, but not direcdy to the President, can be protected under the privilege for presidential communications only if the advisers are not too "remote and removed from the President", and at minimum must be within the staff of a White House adviser rather than an executive branch agency. See In re Sealed Case, 121 F.3d 729, 751-52 (D. C. Cir. 1997).
229. Soucie, 448 F.2d at 1078-79.
230. Sierra Club v. Andrus, 581 F.2d 895, 902 (D. C. Cir. 1978)
231. overruled on other grounds, 442 U. S. 347 (1979).
232. Pac. Legal Found, v. Council on Envtl. Quality, 636 F.2d 1259, 1263, 1265-66 (D. C. Cir. 1980).
233. Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1043 (D. C. Cir. 1985).
234. Nat'l Sec. Archive v. Archivist of the U. S., 909 F.2d 541, 545 (D. C. Cir. 1990).
235. Meyer v. Bush, 981 F.2d 1288, 1298 (D. C. Cir. 1993).
236. Sweetland v. Walters, 60 F.3d 852, 855 (D. C. Cir. 1995).
237. Armstrong v. Executive Office of the President, 90 F.3d 553, 565 (D. C. Cir. 1996).
238. Dong v. Smithsonian Inst., 125 F.3d 877, 883 (D. C. Cir. 1997).
239. Citizens for Responsibility and Ethics in Wash. v. Office of Admin., 566 F.3d 219, 224 (D. C. Cir. 2009).
240. Meyer, 981 F.2d 1288.
241. Id. at 1294.
242. Id. at 1298, 1307, 1313 (Wald, J., dissenting).
243. Congress occasionally exempts new, innovative agency-like entities from FOIA obligations. See, e.g., 15 U. S. C. § 7215 (b) (5) (A) (2006) (exempting the Public Company Accounting Oversight Board, created as part of the Sarbanes-Oxley Act, from the FOIA).
244. See supra text accompanying notes 125-27.
245. See Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 916 (D. C. Cir. 1993).
246. In re Cheney, 406 F.3d 723, 731 (D. C. Cir. 2005) (en banc).
247. See also Judicial Watch, Inc. v. Dep't of Energy, 412 F.3d 125, 131-32 (D. C. Cir. 2005) (holding that employees of the Department of Energy, whose work for that agency would be subject to the FOIA, produced work that was not "agency records" subject to the FOIA when they were detailed to the National Energy Policy Development Group, which was not subject to the FOIA).
248. See DONALD F. KETTL, SHARING POWER: PUBLIC GOVERNANCE AND PRIVATE MARKETS 6-8 (1993);
249. Dan Guttman, Governance by Contract: Constitutional Visions; Time for Reflection and Choice, 33 PUB. CONT. L. J. 321, 322-23 (2004).
250. See Louis L. Jaffa, Law Making by Private Groups, 51 HARV. L. REV. 201 (1937).
251. PAUL C. LIGHT, THE TRUE SIZE OF GOVERNMENT 5 (1999).
252. The best conceptual treatment of this issue in the legal academic literature is Chris Sagers, The Myth of "Privatization", 59 ADMIN. L. REV. 37 (2007).
253. The Privacy Act prohibits disclosure of routine personal information except to the person to whom the record pertains, or with that person's permission. 5 U. S. C. § 552a (b), (d) (2006). In addition, the FOIA's exemptions include privacy protection. See id. § 552 (b) (6) (exempting files on individuals for which disclosure "would constitute a clearly unwarranted invasion of personal privacy");
254. id. § 552 (b) (7) (C) (exempting records or information compiled for law enforcement only to the extent that their disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy").
255. Id. § 552 (b) (4). Indeed, corporations engage in extensive "reverse-FOIA" litigation in order to preempt efforts by their competitors to use FOIA requests to obtain their trade secrets and other valuable information.
256. See, e.g., Chrysler Corp. v. Brown, 441 U. S. 281, 293-94, 317-18 (1979) (approving of reverse-FOIA litigation by finding a private right of action under the APA to seek injunctive relief prohibiting the disclosure of information submitted to the government that plaintiffs claim to be commercially sensitive).
257. For agencies, the reverse-FOIA process has proven cosdy, as regulated corporate entities use litigation to secure their information from competitors. See David C. Vladeck, Information Access-Surveying the Current Legal Landscape of Federal Right-to-Know Laws, 86 TEX. L. REV. 1787, 1817 n. 197 (2008). Nevertheless, for industry representatives, the reverse-FOIA process proves relatively indeterminate and not a guarantee to protect against disclosure.
258. See James W. Conrad, Protecting Private Security-Related Information from Disclosure by Government Agencies, 57 ADMIN. L. REV. 715, 729-32 (2005).
259. See Critical Infrastructure Information Act of 2002, Pub. L. No. 107-296, §§211-215, 116 Stat. 2135, 2150-55
260. -(codified at 6 U. S. C. §§ 131-134 (Supp. II 2000));
261. Steinzor, supra note 6.
262. For a recent summary of the field, see Jason M. Solomon, Law and Governance in the 21st Century Regulatory State, 86 TEX. L. REV. 819, 823-37 (2008)
263. -(reviewing LAW AND NEW GOVERNANCE IN THE EU AND THE US (Gráinne de Búrca & Joanne Scott eds., 2006)
264. and LISA HEINZERLING & MARK V. TUSHNET, THE REGULATORY AND ADMINISTRATIVE STATE (2006)).
265. -5 U. S. C. §§ 561-570a (2006).
266. See id. § 564 (a) (requiring notice of regulatory negotiations in the Federal Register);
267. id. § 565 (a) (requiring formal chartering of committees);
268. id. § 566 (d), (g) (requiring that committees keep meeting minutes and records consistent with the FACA).
269. See Lester M. Salamon, The New Governance and the Tools of Public Action: An Introduction, in THE TOOLS OF GOVERNMENT: A GUIDE TO THE NEW GOVERNANCE 1, 9-22 (Lester M. Salamon ed., 2002) [hereinafter TOOLS OF GOVERNMENT] (defining the new governance paradigm and listing various tools that fall within it).
270. See Paul L. Posner, Accountability Challenges of Third-Party Government, in TOOLS OF GOVERNMENT, supra note 141, at 523, 524-28.
271. Charles F. Sabel & William H. Simon, Epilogue: Accountability Without Sovereignty, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 395, 400-01 (Gráinne de Búrca & Joanne Scott eds., 2006);
272. see also Kenneth A. Bamberger, Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State, 56 DUKE L. J. 377, 438-39 (2006) (arguing that proper design of new governance programs can provide sufficient public accountability).
273. See ARCHON FUNG, MARY GRAHAM & DAVID WEIL, FULL DISCLOSURE: THE PERILS AND PROMISE OF TRANSPARENCY 1-7 (2007);
274. Janet A. Weiss, Public Information, in TOOLS OF GOVERNMENT, supra note 141, at 227-33.
275. See Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342, 455-57 (2004) (arguing that transparency and increased access to information do not themselves improve regulation, and that the state may need to be less than perfectly transparent in order to develop more effective regulatory programs). In a volume of essays intended to serve as a guide to new governance, the only essay that mentions and seems to embrace open-ended public transparency appears as the twentieth of twenty-three chapters and includes the topic as one among many "policy tools" that further democratic ends.
276. Steven Rathgeb Smith & Helen Ingram, Policy Tools and Democracy, in TOOLS OF GOVERNMENT, supra note 141, at 565, 579. Furthermore, the same volume's introduction concedes that for new governance to succeed in producing a more effective regulatory state, "classical notions of democratic accountability may need to be loosened and more pluralistic conceptions developed", while the introduction fails to include transparency as one of its criteria for evaluating particular new governance tools.
277. Salamon, supra note 141, at 23-24, 38.
278. See Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367, 1369-71 (2003).
279. The academic literature on the privatization of public services is vast; a useful citation to it is in Sagers, supra note 134, at 43-48 & nn. 14-38.
280. See David M. Lawrence, Private Exercise of Governmental Power, 61 IND. L. J. 647, 651-57 (1986).
281. See Office of Information & Privacy, U. S. Dep't of Justice, Treatment of Agency Records Maintained for an Agency by a Government Contactor for Purposes of Records Management, FOIA POST, July 2008, http://www.justice. gov/oip/foiapost/agencyrecords.htm
282. -(stating that the FOIA, as amended by § 9 of the OPEN Government Act of 2007, Pub. L. No. 110-175, § 9, 121 Stat. 2524, 2528-29
283. -(to be codified as amended at 5 U. S. C. § 552 (f) (2)), applies to agency records maintained by private contractors).
284. Christopher Lee, On FOIA Front, More Agencies Contract Out, WASH. POST, June 8, 2004, at A21;
285. J. Nicholas Hoover, Microsoft Taps into Open Government Market, INFORMATIONWEEK, Dec. 15, 2009, http://www.informationweek.com/news/govemment/ info-management/showArticle.jhtml?articleID=222002100.
286. See DAVID G. FREDERICKSON & H. GEORGE FREDERICKSON, MEASURING THE PERFORMANCE OF THE HOLLOW STATE 21 (2006);
287. LIGHT, supra note 134, at 6. This claim is widely contested, particularly in terms of the actual size of government and the limits placed on government control and management of contractors' work.
288. See FREDERICKSON & FREDERICKSON, supra, at 20-21;
289. LIGHT, supra note 134, at 176-79.
290. PAUL VERKUIL, OUTSOURCING SOVEREIGNTY 90, 105-06 (2007).
291. But see Jody Freeman, Extending Public Law Norms Through Privatization, 116 HARV. L. REV. 1285 (2003) (arguing that privatization can extend public norms into the private sector by encouraging and sometimes forcing private entities to incorporate public goals in their activities).
292. Jody Freeman, The Private Role in Public Governance, 75 N. Y. U. L. REV. 543, 586-87 (2000).
293. See Matthew D. Bunker & Charles N. Davis, When Government "Contracts Out": Privatization, Accountability and Constitutional Doctrine, in ACCESS DENIED: FREEDOM OF INFORMATION IN THE INFORMATION AGE 85, 90-93 (Charles N. Davis & Sigman L. Splichal eds., 2000);
294. Craig D. Feiser, Privatization and the Freedom of Information Act: An Analysis of Public Access to Private Entities Under Federal Law, 52 FED. COMM. L. J. 21 (1999). In one illustrative case, the Supreme Court held that private organizations receiving financial grant money from the federal government do not fall within the FOIA definition of agency unless a federal agency provides extensive and detailed supervision of their work.
295. Forsham v. Harris, 445 U. S. 169, 186 (1980). Nearly two decades later, Congress overturned that decision by narrowly extending the FOIA's application to information produced by federal grantees relied upon by an agency in promulgating regulations.
296. See Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105-277, 112 Stat. 2681 (1998).
297. On the history and aftermath of the so-called "Shelby Amendment", see Donald T. Hornstein, Accounting for Science: The Independence of Public Research in the New, Subterranean Administrative Law, 66 LAW & CONTEMP. PROBS. 227, 230-33 (2003).
298. ALASDAIR ROBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE 160-61 (2006).
299. U. S. Census Bureau, State & County QuickFacts: los Angeles County, California, http://quickfacts.census.gov/qfd/states/06/06037.html (last visited Aug. 5, 2010);
300. U. S. Census Bureau, State & County QuickFacts: Alaska, http://quickfacts.census.gov/qfd/states/02000.html (last visited Aug. 5, 2010).
301. See supra text accompanying notes 58-61.
302. See supra text accompanying notes 62-67.
303. See LEONARD D. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY, 199-209 (1948);
304. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L. J. 1256, 1305-07 (2006).
305. Nevertheless, the role of the press in checking government misdeeds-one of the roles that Hamilton hoped it would play-has remained the strongest justification for First Amendment protections against prior restraint. See Near v. Minnesota ex ret Olson, 283 U. S. 697, 719-20 (1931) (asserting that press liberties are necessary as a means to protect against corrupt officials who take advantage of the increasingly complex administration of government).
306. See Judith Resnik, Whither and Whether Adjudication?, 86 B. U. L. REV. 1101, 1106-08 (2006).
307. See supra text accompanying note 97.
308. MICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY: DILEMMAS OF THE INDIVIDUAL IN PUBLIC SERVICES 16-18 (1980).
309. JAMES Q. WILSON, BUREAUCRACY 327-29 (1989).
310. For a recent reconsideration of Lipsky's concept of the street-level bureaucrat, see Simon Halliday, Nicola Burns, Neil Hutton, Fergus McNeill & Cyrus Tata, Street-Level Bureaucracy, Interprofessional Relations, and Coping Mechanisms: A Study of Criminal Justice Social Workers in the Sentencing Process, 31 LAW & POL'Y 405 (2009).
311. JOHN R. SHORT, AN INTRODUCTION TO POLITICAL GEOGRAPHY 123 (1982).
312. On maps' representational ideal, see Michael R. Curry, Shelf Length Zero: The Disappearance of the Geographical Text, in SPACE AND SOCIAL THEORY 88, 90 (Georges Benko & Ulf Strohmayer eds., 1997). As representations, maps are not natural but are instead the result of efforts to produce a visual representation of the social world.
313. See HENRI LEFEBVRE, THE PRODUCTION OF SPACE 84-85 (Donald Nicholson-Smith trans., 1991).
314. John Agnew, Maps and Models in Political Studies: A Reply to Comments, 15 POL. GEOGRAPHY 165 (1996).
315. Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841, 1860-61 (1994);
316. cf. NICHOLAS K. BLOMLEY, LAW, SPACE, AND THE GEOGRAPHIES OF POWER 90-91 (1994) (critiquing the abstract conception of space that maps induce);
317. W. Wesley Pue, Wrestling with Law: (Geographical) Specificity vs. (Legal) Abstraction, 11 URB. GEOGRAPHY 566, 567-68 (1990) (critiquing law's blindness to spatial complexity).
318. I am relying here on Henri Lefebvre's conception of the state's abstract political space and of the state's complex and unfolding relationship with its territory. See HENRI LEFEBVRE, STATE, SPACE, WORLD 224-25 (Neil Brenner & Stuart Elden eds., Gerald Moore et al. trans., 2009);
319. LEFEBVRE, supra note 165, at 278-85.
320. See generally Neil Brenner & Stuart Elden, Henri Lefebvre on State, Space, Territory, 3 INT'LPOL. SOC. 353, 358-61 (2009).
321. Cf. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L. J. 1933, 1935-36 (2008) (describing the difficulty of dividing regulatory authority among different levels of government).
322. JON C. TEAFORD, THE METROPOLITAN REVOLUTION 5 (2006) (describing growth of major metropolitan service areas);
323. cf. PETER CALTHORPE & WILLIAM FULTON, THE REGIONAL CITY 61-63 (2001) (describing the patchwork of local governments in an increasingly "Regional City").
324. See, e.g., Mark T. Imperial & Derek Kauneckis, Moving from Conflict to Collaboration: Watershed Governance in Lake Tahoe, 43 NAT. RESOURCES J. 1009, 1018-32 (2003) (discussing the history of the Tahoe Regional Planning Agency, formed by an interstate compact between California and Nevada, to oversee the planning of Lake Tahoe and its environs);
325. Steven T. Miano & Michael E. Crane, Eastern Water Law: Historical Perspectives and Emerging Trends, NAT. RESOURCES & ENV'T, Fall 2003, at 14, 17-18 (discussing the complexity and varied success of interstate water compacts in the eastern United States).
326. See JOHN A. AGNEW, GLOBALIZATION AND SOVEREIGNTY 6-7 (2009);
327. Saskia Sassen, Bordering Capabilities Versus Borders: Implications for National Borders, 30 MICH. J. INT'L L. 567 (2009).
328. See generally KAL RAUSTIALA, DOES THE CONSTITUTION FOLLOW THE FLAG? 5-9 (2009) (discussing the long history of, and controversy over, the relationship between American territory and the reach of American law). The notion of a state's absolute sovereignty within its borders is untenable in an international legal environment.
329. See, e.g., Stephen D. Krasner, Problematic Sovereignty, in PROBLEMATIC SOVEREIGNTY: CONTESTED RULES AND POLITICAL POSSIBILITIES 1, 2 (Stephen D. Krasner ed., 2001) (identifying competing conceptions of Iess-than-absolute sovereignty);
330. Stuart Elden, Contingent Sovereignty, Territorial Integrity and the Sanctity of Borders, 26 SAIS REV. OF INT'L AFF. 11, 14-18 (2006) (describing emergence of "contingent sovereignty" in international law).
331. This issue concerns the overlapping itself, not whether multiagency and multigovernment cooperation, their opposites, or some point along a continuum of cooperation and conflict will provide an optimal level of transparency. On the concept of "cooperative federalism", see Susan Rose-Ackerman, Cooperative Federalism and Co-optation, 92 YALE LJ. 1344 (1983);
332. Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N. C. L. REV. 663 (2001). For an account that seeks to complicate the "cooperative" concept
333. see Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE LJ. 1256 (2009). On the role of thoroughgoing conflict between federal and state governments
334. see Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1295-1301 (2004).
335. HAROLD D. LASSWELL WITH MERRITT B. FOX, THE SIGNATURE OF POWER: BUILDINGS, COMMUNICATION, AND POLICY 18 (1979);
336. Mary R. Domahidy & James F. Gilsinan, The Back Stage Is Not the Back Room: How Spatial Arrangements Affect the Administration of Public Affairs, 52 PUB. ADMIN. REV. 588 (1992). On the highly structured nature of the courtroom as a controlled public space
337. see Gordon Bermant, Courting the Virtual: Federal Courts in an Age of Complete Inter-Connectedness, 25 OHIO N. U. L. REV. 527, 529-33 (1999);
338. and Jonathan D. Rosenbloom, Social Ideology as Seen Through Courtroom and Courthouse Architecture, 22 COLUM.-VLAJ. L, & ARTS 463 (1998).
339. Two additional, secondary purposes that government buildings attempt to further, which this Article does not discuss, are the broader sense of community and social capital they can create in dense urban locations, see JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES 179-86 (1961), and their ability to help deter criminal activity
340. see Neal Kumar Katyal, Architecture as Crime Control, 111 YALE L. J. 1039 (2002). Neither purpose direcdy furthers public access, while efforts to achieve them may in fact limit the state's visibility.
341. See CHARLES T. GOODSELL, THE AMERICAN STATEHOUSE: INTERPRETING DEMOCRACY'S TEMPLES 3-4, 15-34 (2001) (discussing statehouse architecture's expressiveness and the historical evolution of architectural styles);
342. AMOS RAPOPORT, THE MEANING OF THE BUILT ENVIRONMENT 55-56 (1982) (discussing nonverbal communication in architecture).
343. See Jody Freeman, The Private Role in Public Governance, 75 N. Y. U. L. REV. 543, 572 (2000) (noting that an agency's headquarters announces its existence to the world as a coherent, material entity).
344. See, e.g., Ed Gibson, Tales of Two Cities: The Administrative Facade of Social Security, 35 ADMIN. & SOC'Y 408 (2003) (chronicling the location and architecture of the buildings housing the Social Security Administration).
345. See LASSWELL, supra note 174, at 16-17 (contrasting how public architecture in popular democratic and autocratic regimes communicates thee regimes' relationships with their respective publics). Compare Arthur Goldberg, An Inside Perspective on the 1962 Guiding Principles for Federal Architecture, DESIGN Q., No. 94/95, 1975, at 16, 16-17 (describing "Guiding Principles for Federal Architecture", an influential federal report which advocated that architects and officials emphasize the aesthetic qualities of public buildings and draw the public into the "public parts" of government buildings through artwork and architecture)
346. with Richard Briffault, Facing the Urban Future After September 11, 2001, 34 URB. LAW. 563, 568-69 (2002) (describing how efforts to enhance the security of government buildings after the 9/11 and Oklahoma City terrorist attacks have limited public access to them)
347. and Edward H. Ziegler, American Cities and Sustainable Development in the Age of Global Terrorism: Some Thoughts on Fortress America and the Potential for Defensive Dispersal II, 30 VVM. & MARY ENVTL. L. & POL'Y REV. 95, 139 (2005).
348. tSee also Charles T. Goodsell, Bureaucracy's House in the Polis: Seeking an Appropriate Presence, 7 J. PUB. ADMIN. RES. & THEORY 393, 396-407 (1997) (complaining that government building design in the 1970s led to massive structures that fail to take seriously their role in housing democratically accountable entities).
349. Dvora Yanow, Built Space as Story: The Policy Stories That Buildings Tell, 23 POL'Y STUD. J. 407, 417-19 (1995) (explaining how buildings tell "policy stories" to multiple audiences through their design).
350. -42 U. S. C. § 12183 (a) (1) (2006).
351. HAROLD L. CROSS, THE PEOPLE'S RIGHT TO KNOW: LEGAL ACCESS TO PUBLIC RECORDS AND PROCEEDINGS 180-84 (1953);
352. JAMES RUSSELL WIGGINS, FREEDOM OR SECRECY 9-16 (1956).
353. ANN TAYLOR SCHWTNG WITH CONSTANCE TAYLOR, OPEN MEETING LAWS 2D § 1. 1 (2000);
354. Note, Open Meeting Statutes: The Press Fights for the "Right to Know", 75 HARV. L. REV. 1199, 1199-1200 (1962).
355. The federal open meeting statute is called the "Government in the Sunshine Act." Pub. L. 94-409, 90 Stat. 1241 (1976)
356. -(codified as amended at 5 U. S. C. § 552b (2006)). Analogous state laws are frequently referred to similarly.
357. See Sandra F. Chance & Christina Locke, The Govemment-in-ihe-Sunshine Law Then and Now: A Model for Implementing New Technologies Consistent with Florida's Position as a Leader in Open Government, 35 FLA. ST. U. L. REV. 245, 245 & n. 1 (2008) (explaining that all of Florida's open government laws are popularly referred to as "Sunshine Laws"); My Florida Sunshine-The "Sunshine" Law, http://www.myflsunshine.com/sun.nsf/pages/Law (summarizing Florida's open government laws) (last visited Aug. 5, 2010);
358. see also MICH. COMP. LAWS SERV. § 15. 263 (1) (LexisNexis 2009) (state Open Meetings Act, declaring that "fa]ll meetings of a public body... shall be held in a place available to the general public").
359. See, e.g., Regents of Univ. of Cal. v. Superior Court, 976 P.2d 808, 826 (Cal. 1999) (Brown, J., concurring) ("There is rarely any purpose to a nonpublic premeeting conference except to conduct some part of the decisional process behind closed doors.");
360. Town of Palm Beach v. Gradison, 296 So. 2d 473, 477 (Fla. 1974) (declaring that Florida's "government in the sunshine law" barred instances when a city engages in its "decisional process behind closed doors");
361. Atlanta Journal v. Hill, 359 S. E.2d 913, 914 (Ga. 1987) (describing Georgia's Open Meetings Act as intended "to protect the public-both individuals and the public generally-from 'closed door' politics");
362. Okla. Ass'n of Mun. Att'ys v. State, 577 P.2d 1310, 1313-14 (Okla. 1978) ("If an informed citizenry is to meaningfully participate in government or at least understand why government acts affecting their daily lives are taken, the process of decision making as well as the end results must be conducted in full view of the governed.").
363. See, e.g., 5 U. S. C. § 552b (a) (2) (defining meeting as "the deliberations of at least the number of individual agency members required to take action on behalf of the agency where such deliberations determine or result in the joint conduct or disposition of official agency business").
364. SCHWING, supra note 183, §6.6 (discussing various definitions of meeting in open meeting law, and describing it as "[t]he most telling single element to determine whether an open meeting act is strong and encompassing or weak and limited in scope").
365. See David A. Barrett, Note, Facilitating Government Decision Making: Distinguishing Between Meetings and Nonmeetings Under the Federal Sunshine Act, 66 TEX. L. REV. 1195, 1205-06 (1988) (distinguishing among stages in which a body is engaged in "collective inquiry" into the existence of and facts surrounding an issue, deliberation over a narrow range of proposals, or when the officials are deciding about a particular proposal).
366. This hypothetical case is based on two actual cases that did not result in reported decisions. See Joseph W. Little & Thomas Tompkins, Open Government Laws: An Insider's View, 53 N. C. L. REV. 451, 452 n. 5 (1975);
367. Peter H. Seed, Florida's Sunshine Law: The Undecided Legal Issue, 13 U. FLA. J. L. & PUB. POL'Y 209, 212-13 (2002).
368. Elizabeth Johnson Wallmeyer, Open Meeting Laws: A Comparison of the Fifty States and the District of Columbia 60-62 (2000) (unpublished M. A. thesis, University of Florida) (on file with author) (noting that thirty of forty-two states whose open meeting laws define meeting require either a quorum or majority of members).
369. See, e.g., GA. CODE ANN. § 50-14-1 (a) (2) (2009) (defining meeting as a "gathering of a quorum of the members... at a designated time and place" to discuss or take action on official business);
370. N. C. GEN. STAT. § 143-318. 10 (d) (2009) (defining meeting as "a meeting, assembly, or gathering together at any time or place... of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business within the jurisdiction, real or apparent, of the public body").
371. Hough v. Stembridge, 278 So. 2d 288, 289 (Fla. Dist. Ct. App. 1973);
372. see also Fla. Op. Att'y Gen. 2000-08 (2000), http://myfioridalegal.com/ ago.nsf/Opinions/EDBA5F9E248932DA8525688000523870 (opining that the Sunshine Law "is generally applicable to any gathering where two or more members of a public board or commission discuss some matter on which foreseeable action will be taken by that board or commission", including a forum for all county fire commissioners where on some occasions more than one commissioner from a specific district may attend the same meeting). For an extended critique of this approach to Florida's law arguing that it is inconsistent with the statute's text and legislative history, see Seed, supra note 189. Other states take a similar approach.
373. See, e.g, VA. CODE ANN. § 2. 2-3701 (2008) (defining meeting to include the "informal assemblage of (i) as many as three members or (ii) a quorum, if less than three, of the constituent membership");
374. Mayor of el Dorado v. el Dorado Broad. Co., 544 S. W.2d 206, 207-08 (Ark. 1976) (holding that state Freedom of the Information Act applies to informal meetings of less than a quorum of members).
375. See SCHWING, supra note 183, §5.74 (discussing how state opei. meeting laws consider the public or private character of the government's meeting place).
376. Sacramento Newspaper Guild v. Sacramento County Bd. of Supervisors, 263 Cal. App. 2d 41, 50 (Ct. App. 1968).
377. See Goodson Todman Enter., Ltd. v. City of Kingston Common Council, 550 N. Y. S.2d 157, 159 (App. Div. 1990) (holding that a meeting in a council member's home can be subject to open meeting law if it is planned and relates to government business);
378. Stephen Schaeffer, Comment, Sunshine in Cyberspace? Electronic Deliberation and the Reach of Open Meeting Laws, 48 ST. LOUIS U. LJ. 755, 761-64 (2004) (discussing the application of open meetings laws to telephone and video conferences);
379. Mark Thompson, Comment, Opening Virtual Doors: Addressing Ohio's Open Meeting Law and the use of Electronic Communication, 34 U. DAYTON L. REV. 407, 418-21 (2009) (discussing courts' applications of open meeting laws in five states).
380. See U. S. Dep't of Justice v. Tax Analysts, 492 U. S. 136, 144-46 (1989). Note that this only speaks to the question of whether a record was improperly
381. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U. S. 136 (1980).
382. Id. at 140.
383. Id. at 140-41.
384. Id. at 141-42.
385. Id. at 142-43. Some of the requests were filed before the files' removal. Id.
386. Id. at 159 (Brennan, J., concurring in part and dissenting in part).
387. See Forsham v. Harris, 445 U. S. 169, 188 (1980) (Brennan, J., dissenting).
388. Kissinger, 445 U. S. at 150-51.
389. Part of this limitation emanates from the FOIA's limited reach. It does not require an agency to create or retain records; instead, the Federal Records Act, 44 U. S. C. §§ 2901-2910 (2006), and the Records Disposal Act, id. §§3301-3324, govern how records are managed and disposed of, and neither statute provides for a private right of action. The FOIA thus does not itself obligate an agency to retrieve a document that it allowed to leave its possession.
390. Kissinger, 445 U. S. at 148-50.
391. Kissinger, 445 U. S. at 155.
392. A companion case to Kissinger, decided by the Court on the same day, came to a similar conclusion, holding that medical records produced by a private research organization under the aegis and with the funding of a federal agency are not subject to the FOIA because they were neither made nor received by a federal agency. Forsham, 445 U. S. at 186.
393. See Kissinger, 445 U. S. at 156.
394. Id. at 157.
395. Goland v. CIA, 607 F.2d 339 (D. C. Cir. y1978)
396. vacated in part on other grounds, 607 F.2d 367 (D. C. Cir. 1979) (per curiam).
397. Id. at 347. See, e.g., United We Stand Am., Inc. v. IRS, 359 F.3d 595 (D. C. Cir. 2004) (holding records created by IRS for the congressional Joint Committee on Taxation were agency records because, other than in its initial request, Congress failed to show sufficient intent to retain control over them);
398. Paisley v. CIA, 712 F.2d 686, 695-96 (D. C. Cir. 1983)
399. vacated in part on other grounds, 724 F.2d 201 (D. C. Cir. 1984) (per curiam) (holding records created by the CIA to aid a congressional investigation were agency records subject to the FOIA because Congress did not manifest sufficient intent to retain control over them);
400. Holy Spirit Ass'n for the Unification of World Christianity v. CIA, 636 F.2d 838, 842-43 (D. C. Cir. 1980)
401. vacated in part on other grounds, 455 U. S. 997 (1982) (per curiam) (holding that documents created by the CIA for Congress, which were sent to Congress and then returned to the CIA, constituted agency records subject to the FOIA because Congress failed to retain control over them).
402. See, e.g., Feiser, supra note 153, at 58 (criticizing Kissinger's approach as "cramped" and arguing that "this approach would keep its records out of the public eye unless the FOIA agency actually possesses and uses the documents");
403. Samaha, supra note 5, at 971-72 (criticizing Kissinger as exemplifying one of the FOIA's main weaknesses: the ability of the government to avoid accountability to the public by moving or destroying documents);
404. The Supreme Court, 1979 Term-Freedom of Information Act: Threshold Definitional Barriers to Disclosure, 94 HARV. L. REV. 232, 240 (1980) (characterizing Kissinger's limited reading of the FOIA as " unsatisfactory");
405. Marie Veronica O'Connell, Note, A Control Test for Determining "Agency Record" Status Under the Freedom of Information Act, 85 COLUM. L. REV. 611, 628-29 (1985) (attempting to read Kissinger broadly as part of a "control" theory that would make possession a non-determinative test for the FOIA's applicability).
406. See, e.g., David Robinson et al., Government Data and the Invisible Hand, 11 YALE J. L. & TECH. 160, 160 (2009) (claiming that the government should release reusable, rather than processed, data, which would "embrace the potential of Internet-enabled government transparency"); Sunlight Foundation, supra note 26 (characterizing itself as using "cuttingedge technology and ideas to make government transparent and accountable... [by] focus [ing] on the digitization of government data and the creation of tools and Web sites to make that data easily accessible for all citizens").
407. JEREMY BENTHAM, Panopticon: Or, The Inspection-House, &c, in IV THE WORKS OF JEREMY BENTHAM 40, 44 (John Bowring ed., 1843). The best recent legal academic summaries and treatments of Bentham's Panopticon are
408. Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 MICH. L. REV. 291, 357-61 (1998);
409. and Katyal, supra note 175, at 1130-32.
410. Bentham, supra note 214, at 40.
411. Id.
412. Michel Foucault, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 200 (Alan Sheridan trans., 1979).
413. Id. at 172.
414. SHOSHANA ZUBOFF, IN THE AGE OF THE SMART MACHINE 322 (1988).
415. JEREMY BENTHAM, POLITICAL TACTICS 29-34 (Michael James et al. eds., 1999).
416. See FREDERICK ROSEN, JEREMY BENTHAM AND REPRESENTATIVE DEMOCRACY 27-28 (1983).
417. Id. at 111;
418. see also JANET SEMPLE, BENTHAM'S PRISON 321 (1993) ("Bentham's democracy is a structure full of light, as was the panopticon, but the light falls on those in authority.").
419. Alan McKinlay & Ken Starkey, Managing Foucault: Foucault, Management and Organization Theory, in FOUCAULT, MANAGEMENT AND ORGANIZATION THEORY 1, 3-4 (Alan McKinlay & Ken Starkey eds., 1998).
420. SEMPLE, supra note 222, at 192-281.
421. -3 MICHEL FOUCAULT, ESSENTIAL WORKS: POWER 232 (James D. Faubion ed., 2000).
422. It is unsurprising, therefore, that writers decrying public and private surveillance use the Panopticon as a metaphor for contemporary society. See, e.g., REG WHITAKER, THE END OF PRIVACY 32-46 (1999) (describing the Panopticon as a model for contemporary society).
423. See generally Julie E. Cohen, Privacy, Visibility, Transparency, and Exposure, 75 U. CHI. L. REV. 181, 184-86 (2008) (noting the prevalence of the Panopticon in academic discussions of surveillance and privacy).
424. I am for this reason skeptical of Edward Rubin's efforts to purge political concepts of their popular and (what he sees as therefore) unhelpful resonances with historical references to a long-vanished state and ideological misrecognitions of the current one by employing uninteresting, uninformative, and naive heuristics. See RUBIN, supra note 50, at 16-17. as the legal realist Thurman Arnold argued regarding the conservative opposition to New Deal reform, which frequently expressed itself in legal formalist terms that attempted to thwart the administrative state, "[s]o long as our belief in rational moral government depends upon the law, it must continue to balance logically the contradictory ideals which that government must express." THURMAN W. ARNOLD, THE SYMBOLS OF GOVERNMENT 69 (5th prtg. 1948). In other words, incremental reform that appears to be a substitute for a new age of transparency must nevertheless present itself as the next important step toward the dawn of a full transparency that can never be achieved.