Optimizing Whistleblowing

Whistleblowers have exposed misconduct in settings ranging from public health to national security. Whistleblowing thus consistently plays a vital role in safeguarding society. But how much whistleblowing is optimal? And how many meritless claims should we tolerate to reach that optimum? Surprisingly, legislators and scholars have overlooked these essential questions, a neglect that has resulted in undertheorized, stab-in-the-dark whistleblower regimes, risking both overdeterrence and underdeterrence. This Article confronts the question of optimal whistleblowing in the context of financial fraud. Design choices, which play out along two axes, have profound effects on the successful implementation of whistleblowing policy. One axis varies by end goal to provide whistleblowers with positive monetary incentives or to make them whole with antiretaliation protection. The other axis centers on the mechanism for achieving that goal agency intermediation or a private cause of action in the courts. The existence of three parallel financial-fraud whistleblowing regimes presents a unique opportunity to consider how different whistleblower policy approaches play out in the real world. First, using original, hand-collected datasets from these three regimes, this Article gathers and analyzes data from courts and administrative agencies. Second, it identifies structural whistleblower reforms rooted in the data. Finally, this Article develops a new analytical framework to help legislators and scholars design regimes to better protect and incentivize optimal whistleblowing