Mark Fenster (University of Florida - Fredric G. Levin College of Law) has posted Seeing the State: Transparency as Metaphor on SSRN. Here is the abstract:
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When applied as a public administrative norm, the term and concept “transparency” has two intertwined meanings. First, it refers to those constitutional and legislative tools that require the government to disclose information in order to inform the public and create a more accountable, responsive state. Second, it is frequently used metaphorically to recognize and decry the distance between the public and the state, and to call for efforts to make the state thoroughly and constantly visible to the public. This article considers the implications of the latter meaning, and that meaning’s effect on efforts to develop and implement the technocratic tools in the former meaning. It associates the metaphor with a populist skepticism of the state that has historically (and ironically) led to the state’s increased size and complexity. It also argues that the state cannot in fact be made thoroughly visible due to its organizational complexity, territorial dispersal across space, and enclosure within buildings. Reviewing the law and culture of “transparency,” the article concludes that the metaphoric meaning’s logical end, an inversion of Bentham’s Panopticon, demonstrates the impossibility of imposing a fully visible state. Nevertheless, the article argues, the populist understanding of transparency is too embedded within our political culture to ignore or avoid entirely. Technocratic advances in opening the state will ultimately require metaphoric, populist gestures.
