Volume 64 Preview – Book 1
Associate Dean for Faculty & Professor of Law
University of Nebraska College of Law
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.
Brent Evan Newton
Deputy Staff Director, United States Sentencing Commission
Adjunct Professor of Law, Georgetown University Law Center & Georgetown University School of Medicine
Adjunct Professor of Law, American University Washington College of Law
Adjunct Professor of Political Science & Criminology, University of Maryland
Knowledgeable and respected authorities inside and outside the legal academy are correctly describing the American system of legal education as being in a state of “crisis” and in need of dramatic reforms. Yet most members of the legal academy refuse to accept that major structural reforms are necessary. Despite the academy’s intransigence, I feel compelled to nail my 95 theses to the academy’s door in the hope of hastening, however slightly, its glacial movement towards meaningful reform. The theses comprise six major themes, the first five concerning the legal academy and the sixth concerning the legal profession itself: (1) defects in the law school admissions process; (2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools; (3) defects in law schools’ curricula, pedagogical methods, and assessments of students; (4) deficiencies in the professoriate at law schools; (5) problems related to legal scholarship and law reviews; and (6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market. Most of the problems are interrelated and result in a negative synergy that increasingly threatens the health of the legal profession. As a result, the only way to effect meaningful change likely to persist is to implement systemic reform—root to branch.
Every major decision made by a law school should reflect a genuine fiduciary commitment to their students—with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are “practice ready.” They should hire faculty members; design curricula and pedagogies; and admit and assess students with the primary goal of producing attorneys who can hit the ground running upon graduation. Law professors should make legal scholarship secondary to their teaching duties, and their scholarship should be relevant to the bench, bar, and legal policy-makers. Law schools also need to charge a fair amount of tuition in view of the quality of the legal education that they provide to students and expect students to carry reasonable amount of debt in relation to their job prospects. Finally, state licensing authorities should require law school graduates to demonstrate the broad range of competencies needed to be an effective entry-level practitioner before licenses are issued.
With these aspirations for the legal academy and legal profession in mind, I contend that that many structural changes in the current system of legal education are necessary—beginning with the manner that schools admit law students, continuing with the manner they teach and assess them during law school, and concluding with the manner in which law school graduates are admitted to the bar. Some proposed reforms look to effective practices in American medical schools and business schools as models. For most of the reforms to occur, law schools must engage in paradigm shifts in several areas in addition to modernizing their curricula and pedagogies—they must alter the composition of their faculties, their approach to legal scholarship, and their relationship with members of the bench and bar. The ABA’s Section on Legal Education and Admissions to the Bar must pave the way in order for these structural changes to occur. In particular, the ABA standards governing law school accreditation must be amended substantially—with respect to faculty composition, faculty governance, faculty duties concerning scholarship, and law school curricular requirements. Without such changes, no meaningful systemic reform will ever occur, and the many problems that currently plague legal education will continue. The ball is in the ABA’s court but, ultimately, law schools must effect change themselves (with or without the ABA’s help, to the degree that they are able)—for the good of law students, the legal profession, and the public. We can, and should, turn the current crisis in legal education into an opportunity for meaningful change.
Christopher K. Odinet
Phelps Dunbar, LLP
The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention
Derek A. Webb
Stanford Law School Constitutional Law Center
Winner of the 2012 American Inns of Court Warren E. Burger Prize
For the past twenty years, legal scholars have poured over the records of the Philadelphia Constitutional Convention for insights into how to best interpret the Constitution’s various provisions. In this Essay, I pour over these same materials for insights into how the delegates to the convention themselves maintained a level of civility through four months of grueling deliberations. At a time when our legislative assemblies, still today populated mostly by lawyers, are too often prone to incivility, ad hominem argumentation, polarization, and resistance to compromise, the ups and downs of the Philadelphia Constitutional Convention may yet prove a fruitful model for constructive dialogue. In particular, I argue that the convention was marked by a surprising degree of civic friendship borne out of frequent interaction, daily dinner parties that cut across party and sectional lines, and a variety of parliamentary procedures designed to encourage open-mindedness and rational deliberation. Upon this foundation of civic friendship, the delegates reasoned together, utilizing a form of public reason when deliberating about more abstract, structural matters and compromising when deliberation broke down over issues that cut deep into economic or political interests. This rich but often overlooked story about our nation’s founding deserves a telling for lawyers and politicians especially interested in the quality and tenor of deliberations in legislative assemblies today.