Public Law & Legal Theory
American law never reached a satisfying conclusion about public access to information on government operations. But recent events are prompting reconsideration. As our current system is reassessed, three shortfalls in past debates should be overcome. The first involves ignorance of foreign systems. Other democracies grapple with information access problems, and their recent experiments are illuminating. Indeed they expose two additional domestic weaknesses. One is a line we have drawn within constitutional law. Courts and commentators tend to treat constitutional issues of public access separately from those of executive discretion to withhold information. These matters should be seen as parts of an integrated system. When they are, it is difficult to constitutionalize one without the other. The final deficiency concerns the boundary between constitutional and ordinary law. In a very practical sense, constitutional law and judicial intervention in this field should turn on the character of non-constitutional law—whether nonjudicial actors have built an adequate “platform” for judicial action. That connection is not obvious, but a defensible access system is impossible without confronting it. This Article aims to remedy these three mistakes, and it presents a method for evaluating judicial platforms in the information access context and beyond.
Adam Samaha, "Executive Exposure: Government Secrecy, Constitutional Law, and Platforms for Judicial Elaboration ," University of Chicago Public Law & Legal Theory Working Paper, No. 101 (2005).