Professor Ramirez has taken on a difficult problem in Blowing the Whistle, harmonizing the objectives of general framework legislation with the distinct imperatives of the specific regulatory contexts in which such a framework must be effectively implemented. The problem is made more difficult by the tensions inherent in the framework itself, all of which Professor Ramirez ably summarizes in her introduction. How does one stretch the notion of loyalty inherent in an employment relationship to impose loyalty obligations to employer, state and society simultaneously? Whistleblower statutes attempt to provide a framework in which the principal duty of loyalty to employer is preserved but made contingent on the greater duty of the employer to the state and its regulations.
Professor Ramirez chooses a particularly thorny context in which to explore these issues—the whistleblower provisions of the Sarbanes Oxley Act of 2002. She starts with an analysis in which the issues arise. Here she does an admirable job of moving from the general to the specific and from regulatory objectives to implementation deficiencies. She nicely naturalizes the problems in the difficult social and cultural context in which whistle blowing is understood, and the consequences of that context in the lives of whistle blowers. Whistle blowing statutes are, in a sense, perverse. Their aim, effectively, is to privatize enforcement of law, by deputizing employees and empowering them to come forward, without consequence, to denounce employer wrongdoing. The employee works for the state in this capacity, and thus owes a measure of loyalty to the extent of the obligation to inform imposed by law. But that deputization upends the traditional hierarchical relationship between employer and employee—a relationship heavily privileged by the state as well. Indeed, the Sarbanes Oxley Act is riddled with this deputization of private actors, and the monopolization of the remedial power. See, Larry Catá Backer, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring After Sarbanes-Oxley, Law Review of Michigan State University-Detroit College of Law. As a consequence, the employee whistleblower is pulled simultaneously in two directions; and, as Professor Ramirez convincingly shows, the employee-enforcer is torn in two in the process.
In Part III, Professor Ramirez moves from the general to the specific—focusing on the way the whistleblower provisions of the Sarbanes Oxley Act both to evidence the general deficiencies of the current approach to regulating whistle blowing, as well as to demonstrating the way in which the Sarbanes Oxley whistle blowing provisions as specifically elaborated, produces it own set of perverse incentives. In the process she lays the groundwork for the heart of her analysis, a suggestion for the creation of an omnibus provision standardizing a general framework for the protection for whistleblowers that would provide them more effective protection when engaging, for all practical purposes, in unpaid work as government agents.
That approach is then elaborated in Part IV, in which she moves back from the contextual to the general. Here she elaborates arguments from policy as well as from efficiency perspectives. It is here that she tackles head on the issue of dual loyalty at the heart of the whistleblower problem. She considers the issue from multiple perspectives—business interests, economic and social costs, and the interests of senior managers. In each case, whistleblowing serves to threaten the traditional nexus of rules regulating relationships. The irony, of course, is that many of those relationships are also creatures of statute. The law, in effect, works against itself. In that context, Professor Ramirez nicely demonstrates the deficiencies of the current whistleblower framework as an overlay on the realities of the organization and functioning of the offices of in-house legal counsel. She was thus able to combine both analysis and the suggestion of corrective implementation strategies in an effective manner that makes for a strong contribution to the field.
Professor Ramirez’s work suggests the depth of issues at the heart of something that might appear as simple on its surface as whistleblowing. At the heart of the whistleblowing conundrum is the contradiction in building relationships between labor, management, shareholders, economic entities and the state that remain true with respect to relations already regulated by law among these actors (for example: shareholder/entity; labor/capital; entity/state etc.) and that between these actors and the state apparatus. The conflicts of loyalty inherent in whistleblower provisions suggest the difficulties of teasing out the appropriate relationship between these actors in ways that do not threaten the matrix of other relationships. It is clear that senior managers owe a specific duty of loyalty to their shareholders. And it is also true that employees owe a duty of loyalty to their employers. Whistleblower provisions suggest that there may be developing a parallel specific duty of loyalty to the state, as well.
Lastly, whistleblowing analysis is no longer confined to the national arena. When the state seeks top interpose itself within the relationship matrix of the internal affairs of the entity, that effort might come up against conflicting similar attempts by other states. In a sense, each state seeks to use its legislative power to privilege its relationship with the entity in a manner similar to the way that shareholders seek to use their investment power to privilege their voice within corporate organization. But such privileging might produce extraterritorial effect or conflict with other actors.
Interlocking relations between public and private actors, the allocation of public obligations on private actors, and the undertaking of private market activity by public actors defines the frontiers fo law and regulation. Professor Ramirez suggests that in that context much of the traditional frameworks for lawmaking, governance and analysis are no longer adeqaute. The coming years will see the emergence of new regulatory frameworks and techniques. Or more likely it will evidence failure as traditional techniques are piled on on another until the edifice of regulation collapses fo its own weight and irrelevance.