Mark Fenster's legal research has focused on government transparency, legal intellectual history and constitutional limits on government regulation. He is the author of The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information. and Conspiracy Theories: Secrecy and Power in American Culture.
Areas of Expertise (6)
Open Government Laws
Freedom of Information Act
National Security: The Sublime and the BureaucraticThe New Rambler
Review of the books The National Security Sublime: On the Aesthetics of Government Secrecy by Matthew Potolsky and Paranoid Visions: Spies, Conspiracies and the Secret State in British Television Drama by Joseph Oldham.
Revealing Secrecy ToolsHarvard Law Review
The issues surrounding NDAs aren’t merely theoretical for academics and counsel. NDAs are now intimately related to our politics, as well as to larger questions of human relations and rights. By hiding public harms and widespread private ones, NDAs create public costs notwithstanding their seemingly private nature.
The Dramas of Criminal Law: Thurman Arnold's Post-Realist Critique of Law EnforcementTulsa Law Review
The high legal realist period of the 1930s was not known for its criminal law scholarship, while until fairly recently, criminal law theory was not as well-developed as those fields that had faced a realist and post-realist critique. This Essay attempts to address these issues by describing in detail the criminal law scholarship of Thurman Arnold, a prominent realist whose best known academic writings were his mid-1930s monographs on the New Deal and resistance to it. Arnold’s criminal law scholarship serves as a forgotten link between the classical doctrinal work that dominated midcentury legal academic work on criminal law and the more socially- and culturally-focused scholarship of recent decades. Reconsidering Arnold’s sociological, doctrinal, and cultural analysis of criminal law, law enforcement, and the criminal trial informs our understanding of the history of criminal law scholarship, legal realism, and post-realist legal theory.