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Sarbanes-Oxley's Whistleblower Provisions - Ten Years Later

55 Pages Posted: 22 May 2012 Last revised: 23 Jan 2013

Richard Moberly

University of Nebraska College of Law

Date Written: May 21, 2012

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.

Keywords: whistleblower, whistleblowing, retaliation, Sarbanes-Oxley Act

Suggested Citation

Moberly, Richard, Sarbanes-Oxley's Whistleblower Provisions - Ten Years Later (May 21, 2012). 64 South Carolina Law Review 1 (2012). Available at SSRN: https://ssrn.com/abstract=2064061

Richard Moberly (Contact Author)

University of Nebraska College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States
402-472-1256 (Phone)

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