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Yuval
Feldman
&
Orly
Lobel,
The
Incentives
Matrix:
The
Comparative
Effectiveness
of
Rewards,
Liabilities, Duties,
and
Protections
for
Reporting
Illegality,
88
TEXAS LAW REVIEW
1151,
1155
(2010) (noting
that
monetary
incentives
can
sometimes
be
counterproductive).
See,
e.g.,
id.
at
1181-82.

Id.
at
1155
(stating
that
"[o]ur
findings
suggest
that
a
systematic
approach
to
regulation
must
include
an
understanding
of
the
fit
between
the
adopted
law, the
misconduct
it
addresses,
and
the
individual
it
aims
to
incentivize").
Yuval
Feldman
&
Orly
Lobel,
Behavioral
versus
Institutional
Antecedents
of
Decentralized
Enforcement
in
Organizations:
An
Experimental
Approach,
2
REG
&
GOVERNANCE
165,
201
(2008).
65
Feldman
&
Lobel,
supra
note
2,
at
1155.
6
6
Id.
at
1192.
6
7
Id.
at
1193-94.
68
Monetary
incentives
can
result
in
a
"crowding
out
effect,"
whereby
informants
are
discouraged from
reporting illegal
activity
because
the
presence
of
external
rewards
discounts
moral
incentives
and intrinsic
motivation
to report.
Id.
at
1178-
81.
In the
presence
of
monetary incentives,
reporting
of
illegal activity
can
be
viewed
as
a
"transaction
rather
than
a
charitable
act."
Id.
at
1179.
69
Id.
at
1171
(making
a
positive
analogy between
the
new
SEC
bounty
program
and
the
recently
reformed
IRS
bounty
program).
See
also
Tax
Relief
and
Health
Care
Act
of
2006, Pub.
L.
No.
109-432,
§
406,
120
Stat. 2922,
2958
(legislation
creating
the
IRS
whistleblower
bounty
program).
70
Feldman
&
Lobel,
supra
note
2,
at
1204
(stating
that
tax
fraud
is
generally
not
viewed
as
morally culpable)
Cf
Feldman
&
Lobel,
supra
note
2,
at
1168
(Feldman
and
Lobel point
out
that
the
IRS
has
already
made
billions.
There
is a
logical
inference
that
since
the
IRS
has
recovered
billions
in
the
past,
that
they
stand
to
recover
billions
in
the
future.)




Feldman
&
Lobel,
supra
note
2,
at
1190
(noting
empirical
research
in
which
survey
participants
"[revealed]
a
perception
that
a
stranger's
decision
to
report
[illegal
activity]
is
more likely
to be externally
driven"
as
opposed
to
being
driven
by
moral
considerations).
See
156
CONG.
REC.
S4076
(May
20, 2010)
(Senator
Shelby
stating that
"the
guaranteed
massive
minimum
payouts
and limited
SEC
flexibility
ensures
that
a
line
of
claimants
will
form
at
the
SEC's
door.").


Orly
Lobel,
Lawyering
Loyalties:
Speech
Rights
and
Duties
Within
Twenty-
First-Century
New
Governance,
77
FORDHAM
L.
REV.
1245,
1250
(2009)




Feldman
&
Lobel,
supra
note
2,
at
1177
("Overprotection
may
encourage
bad-
faith
reporting
and
exaggerated,
or
even
false,
accusations.
It
can
also
diminish
the
positive
ties
and organizational
citizenship
behavior
of
institutional
players.")
http://moritzlaw.osu.edu/students/groups/oseblj/files/2013
/04/6-5.pdf

BLOWING
THE
WHISTLE
ON
THE
DODD-FRANK
WHISTLEBLOWER
PROVISIONS
DAVE
EBERSOLE*
uris
Doctor,
The
Ohio
State
University
Moritz
College
of
Law,
expected
2011.
Special
thanks
to
Professors Paul
Rose and Dale
Oesterle.
1
Robert
Chew,
Calling
All
Whistleblowers!
The
SEC
Want
April 10, 2008
On Law and Loyalty
Orly Lobel
Prawf's Blawg

My article, Citizenship, Organizational Citizenship, and the Laws of Overlapping
Obligations, forthcoming California Law Review 2008, is now posted on ssrn. The
article explores a
deep ambivalence in the law about the role of individual
dissent within public and private settings and offers a way to reconcile the
conflicting demands of organizational loyalty and legal compliance.

It describes the vast inconsistencies that currently exist in the laws of private
sector wrongful discharge, public employee First Amendment rights, and the
fiduciary duties of institutional players.

Broadening the inquiry beyond employment law contexts to legal debates over family
privileges, community ties, civic disobedience, and professional roles, I try to bring
some analytical clarity to
recurring dilemmas regarding following rules while
maintaining independent judgment.

In particular, I propose a sequenced approach to protecting dissent within
groups, forming a reporting pyramid which prioritized internal problem-
solving over external opt-outs
when feasible. I very much hope to get feedback
on the article.

Citizenship/Organizational Citizenship is the first step in a broader project of mine,

employing the lens of conflicting obligations to analyze the broad range of
laws on retaliatory discharge,
immunities, and protections for informants, including
post-Enron legislation (SOX) and other recent legislative reforms, such as the 2006
Tax Relief and Health Care Act authorizing federal offices to enhance their
whistleblower programs, together with recent Supreme Court adjudication, such as
Garcetti v. Ceballos (2006), which limits the First Amendment rights of public
employees,
and Rockwell. v. United States(2007), which narrows the scope of qui
tam claims by employee informants. These questions are facing rapid changes in the
statutory arrangements at both the federal and state levels. Current legislation has
been approved by the House of Representatives that would cancel the effect of
Garcetti. In December 2007, the Senate passed the Federal Employee Protection of
Disclosures Act designed to enhance the protection for federal employee
whistleblowers by expanding the scope of protected activity to cover complaints within
an employee’s chain of command. A 2008 conference between the House and the
Senate is attempting to agree on final legislative language. State law has similarly
witnessed rapid developments and increased attention to whistleblower protections in
the past three years. For example, in January 2008, New Jersey became the twentieth
state to pass its own version of the federal False Claims Act, which provides
informants with a share of the recovered “bounty.” Less than five years ago, only a
handful of states had passed such laws. Moreover, from a litigation perspective,
retaliation for reporting misconduct is the fastest growing claim in employment and
labor law cases.

Citizenship/Organizational Citizenship tries to bring together the legal questions with
recent empirical insights of new governance studies, including the findings of my
recent experimental studies with my collaborator, social psychologist/behavioral law-
econ professor Yuval Feldman. In our article Behavioral Versus Institutional
Antecedents of Decentralized Enforcement: An Experimental Approach, forthcoming
Regulation & Governance, we analyze experiments we conducted in United States
and Israel, examining the behavior of individuals when confronting workplace unlawful
conduct. We find that the likelihood and the manner of reporting will vary depending
on the type of illegality and is strongly correlated to perceptions of legitimacy, job
security, and voice within the workplace. Comparing illegalities, employees prefer to
report clear violations by rank-and-file employees rather than violations by managers.
At the same time, external reporting to government or media entities is most likely
when violations involve the organization as a whole or implicates top management.
The study also finds cultural and gender differences in reporting patterns. Finally, the
study provides support for the understanding that social norms are more predictive of
social enforcement than expected organizational costs.

Again, I welcome your reactions, ideas and discussion of related projects and areas.

Posted by Orly Lobel on April 10, 2008 at 10:53 PM in Orly Lobel
Orly Lobel, Law Professor USD
Whistle-blowers