Mark Fenster

Cone, Wagner, Nugent, Hazouri & Roth Tort Professor

Mailing Address:
Box #117625 Gainesville, FL 32611

(352) 273-0962


Professor Fenster is completing a book manuscript entitled The Transparency Fix: A Critique of the Informational State. Summarizing and advancing work he has published over the past decade on the subject of open government and secrecy, the book argues that the seemingly oppositional ideals of an open government and an informationally secure government share a flawed, overly simplistic theory of the state as a repository of information. Previous publications on the topic have appeared in, among other journals, Iowa Law Review, Washington & Lee Law Review, Hastings Law Journal, Administrative Law Review, and the European Journal of Social Theory.

His other areas of published research include regulatory takings, on which he has published in the California Law Review and Hastings Law Journal among other law journals, and legal intellectual history, on which he has published in the Michigan Law Review, Oregon Law Review, and Buffalo Law Review. In October 2014, he co-organized (with Jack Schlegel) a conference entitled Opportunities for Law’s Intellectual History, whose proceedings are forthcoming in the Buffalo Law Review. He is currently researching the history of the law and technology of payment systems.

His first monograph, Conspiracy Theories: Secrecy and Power in American Culture (2d ed. 2008) helped establish the cultural study of conspiracy theory and is widely cited by scholarship in the social sciences and humanities. He is frequently quoted in the press on the topic.


J.D., Yale Law School
Ph.D., University of Illinois at Urbana-Champaign
Institute of Communications Research
M.A., University of Texas at Austin
Department of Radio/Television/Film
B.A., University of Virginia

Teaching and Scholarship

Administrative Law, Legislation, Torts, Property, Government Transparency, Social Theory.

Professional Activities

  • University of Florida: Joined College of Law in 2001 as Assistant Professor.
  • Yale Law School: Teaching Assistant, Civil Procedure; Conference Coordinator (1997-1998). Editor, Yale Law Journal; Symposium Editor, Yale Journal of Law and the Humanities.
  • Prior Legal Positions: Environmental and Land Use Law Fellow, Shute Mihaly & Weinberger, San Francisco; Judicial Clerk for Judge Carlos Lucero, 10th Circuit U.S. Court of Appeals.
  • Prior Educational Positions: Indiana University, Department of Telecommunications, Visiting Lecturer (1991-93); Shenandoah University, Department of Mass Communications, Assistant Professor (1993-95).
  • Admitted to Practice: New York, California.


Administrative Law - LAW 6520
  • Analysis of the administrative process, with an emphasis on the activities of federal regulatory agencies. Topics include legislative delegations of authority to agencies, executive branch controls, rulemaking and adjudicatory procedures, due process rights, and the scope of judicial review of administrative decision making.
Contracts - LAW 5000
  • An introduction to the law and theory of legally enforceable agreements and promises, including elements of contract formation; consideration; effects of non-performance; conditions for relief from or discharge of obligations; and remedies.
Payment Systems - LAW 6031
  • The study of the laws and regulations governing checks and notes, the collection of checks in the banking system, electronic funds transfers, credit and debit cards, and other evolving payment systems.
Statutory Interpretation - LAW 6524
  • The law is increasingly defined by legislative enactments. Legislators, legislative staff, and lobbyists spend much of their time struggling to negotiate and draft statutes, which judges, administrators, and attorneys then spend a significant amount of time attempting to interpret.
Torts - LAW 5700
  • Civil liability for harm caused by wrongful acts that violate non-contractual duties imposed by law. The course covers negligence and other theories of liability as prescribed by the instructor.


Book Chapters

  • “The Informational Ombudsman: Fixing Open Government by Institutional Design.” In Freedom of Information and Governmental Transparency in an Open Government Era (Irène Bouhadana, William Gilles, & Russell Weaver eds., Paris: Les Éditions IMODEV, forthcoming 2016)


  • Mr. Peabody’s Improbable Legal Intellectual History, __ Buff. L. Rev. __ (2016) (forthcoming symposium essay)
  • Regulating in the Post-Koontz World, 67 Fla. L. Rev. F. 26 (2015)
  • Transparency in Search of a Theory, 18 Eur. J. Soc. Theory 150 (2015) [ SSRN]
  • The Implausibility of Secrecy, 65 Hastings L.J. 309 (2014) [ SSRN]
  • Disclosure’s Effects: WikiLeaks and Transparency, 97 Iowa L. Rev. 753 (2012) [ SSRN]
  • The Transparency Fix: Advocating Legal Rights and Their Alternatives in the Pursuit of a Visible State, 73 University of Pitt. L. Rev. 443 (2012) [ SSRN]
  • Failed Exactions, 36 Vt. L. Rev. 623 (2012) [ SSRN]
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