May 28, 2012
Moberly on Whistleblower Protection
Sarbanes-Oxley's Whistleblower Provisions - Ten Years Later, by Richard Moberly, University of Nebraska College of Law, was recently posted on SSRN. Here is the abstract:
Whistleblower advocates and academics greeted the enactment of the Sarbanes-Oxley Act’s whistleblower provisions in 2002 with great acclaim. The Act appeared to provide the strongest encouragement and broadest protections then available for private-sector whistleblowers. It influenced whistleblower law by unleashing a decade of expansive legal protection and formal encouragement for whistleblowers, perhaps indicating societal acceptance of whistleblowers as part of its law enforcement strategy. Despite these successes, however, Sarbanes-Oxley’s greatest lesson derives from its two most prominent failings. First, over the last the decade, the Act simply did not protect whistleblowers who suffered retaliation. Second, despite the massive increase in legal protection available to them, whistleblowers did not play a significant role in uncovering the financial crisis that led to the Great Recession at the end of the decade. These related failures indicate that although whistleblowers had stronger and more prevalent protection than ever before, they had less reason to believe such protection works. This Article examines the developments in whistleblower law during the last decade and concludes that Sarbanes-Oxley’s most important lesson is that the usual approach to whistleblowing may not be sufficient. Encouragingly, the Article also evaluates recent developments in light of Sarbanes-Oxley’s successes and failures to demonstrate that policy makers may have learned from the Sarbanes-Oxley experience. During the last two years, regulators and legislators implemented new strategies that may encourage employees to blow the whistle more effectively.
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