"Whistle . . . And You've Got an Audience"

One of the questions for discussion today is whether public rights litigation is an effective means of social change. This Article does not attempt an answer but begins to explore a set of issues central to any answer: the extent, types, uses, and potential shortcomings of government whistleblowing. There is considerable sociological and legal literature on government whistleblowing, but little of it addresses the issue from the angle relevant to maximizing the efficacy of public rights litigation. This Article begins to fill that gap.

Part I discusses the importance of whistleblowers in the vindication and enforcement of public rights. Part II suggests eight traits that increase a government whistleblower’s utility to public rights litigators, such as access to information, insight, willingness to disclose, and relative honesty. Part III proceeds on the assumption that the effectiveness of public rights litigation depends in part on litigators’ use of the highest utility whistleblowers. This Part also suggests several concrete issues one could explore empirically to assess litigators’ present use of such whistleblowers; the discussion concludes with a somewhat more in-depth examination of one such issue: the legal landscape confronting federal government whistleblowers.

Part IV offers very preliminary empirical evidence that the predictions of Parts II and III accord with reality. The Article concludes with a summary of outstanding questions about the importance of government whistleblowing to effective public rights litigation, and an outline of a possible approach to investigating these questions.