33 Pages Posted: 11 Mar 2009
Date Written: 2009
Public rights litigants who wish to effect social change must solve two access-to-information problems: (1) how to sift the vast quantities of public information generated by government entities for material that evinces a violation of a widely-shared right or could support legal action to vindicate such a right; and (2) how to obtain similarly useful but nonpublic government information. Government whistleblowers play an essential but under-explored role in solving both problems. On one end of the spectrum, active whistleblowers supply advocates - or other outside entities, such as congressional committees and journalists - with strong, previously nonpublic evidence of substantively illegal or procedurally irregular government conduct. These whistleblowers' stories are the stuff of legend, and their disclosures are indispensible to some public rights litigation. An untold number of government informants, however, engage in an entirely different form of whistleblowing, "insinuating." Insinuators keep a much lower profile, passing on interest-provoking but not particularly damning observations - for example, "That issue is generating controversy at the agency" - which are intended to trigger or facilitate an advocate's investigation into a government program or action. Preliminary surveys indicate that public rights advocates rely even more heavily on insinuators' comments than on active whistleblowers' more newsworthy disclosures.
These observations suggest that one cannot assess the efficacy of public rights litigation without evaluating the activities of insinuators and active government whistleblowers: How much litigation hinges on these informants' participation? What sorts of information do the informants provide? Is that information complete and accurate? Do advocates have adequate screening procedures to guard against biased or otherwise inaccurate disclosures? This essay develops an analytic framework for answering these and related questions. Specifically, the essay identifies eight character traits that increase a government whistleblower's utility to public rights litigators, including honesty and absence of perception bias. The essay then discusses concrete whistleblower characteristics - such as job description - that could serve as proxies for the identified character traits. Finally, the essay describes the empirical work necessary first to vindicate and then to apply the proposed analytic framework.
Suggested Citation: Suggested Citation
Leiter, Amanda C., Whistle . . . And You've Got an Audience (2009). Fordham Urban Law Journal, Forthcoming; CUA Columbus School of Law Legal Studies Research Paper No. 2009-2. Available at SSRN: https://ssrn.com/abstract=1356682