October 2013
New York University Journal of Law & Business;Fall2013, Vol. 10 Issue 1, p37
Academic Journal
Legal regulation of whistleblowing activity has evolved into a critical tool for identifying wrongdoing in both the private and public spheres, and at both the state and federal levels. Robust growth continues in the use and sophistication of statutes designed to promote whistleblowing. These include long-existing statutes, such as the False Claims Act, and newer laws-such as numerous state false claims acts, the Sarbanes-Oxley Act of 2002, the Dodd-Frank Act of 2010, and the Whistleblower Protection Enhancement Act of 2012. Implementation of these statutes, particularly those providing financial rewards to whistleblowers, has led to the revelation of scores of large-scale government and private sector frauds and the recovery of billions of dollars from wrongdoers These successes, however, mask numerous barriers encountered by whistleblowers within the complex legal framework designed to encourage disclosures. In many situations, whistleblowers are not protected from retaliation, and financial incentives are often denied for reasons inconsistent with legislators' intent to promote reporting. A more effective and cohesive approach to whistleblower incentives and protection across the U.S. has the potential to yield important benefits for law enforcement, government entities, businesses, and other organizations. We address barriers to whistleblowing by examining the current legal landscape and providing recommendations for strengthening whistleblower laws and policies. First, we review existing state and federal statutory measures protecting and encouraging whistleblowers to elucidate the evolutionary trends in whistleblowing law and policy approaches. Next, we identify the weaknesses in these existing frameworks before proposing a model comprehensive statutory approach. These recommendations maximize the likelihood that the primary goals of whistleblowing--deterring, exposing, and halting wrongdoing--will be achieved.


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