On the Centrality of Information Law : A Rational Choice Discussion of Information Law and Transparency

Information law rests upon two premises. The first is that information is a legally cognizable concept - that it can be framed in legal terms and has legal significance. The second is that there exists a rationale for government regulation and provision of information, either explicitly (through legislation) or implicitly (through adjudication). This article addresses those two premises in the context of official transparency, which is, roughly speaking, a term referring to governmental openness and provision of information on government operations to the general public. In so doing, it explores the significance of transparency and information law to ordered society, using tools from information theory and rational choice theory to explore market failures related to inherent qualities of the information marketplace. These failures, in turn, provide strong rationales for policies of high official transparency. In addition, transparency is a vital response to certain problems of the political economy of government functioning. The centrality of transparency and information law to broad democratic participation in the ordering of public life flows naturally from these observations