This fall marked the second time Boston University School of Law has offered a three credit seminar course entitled Whistleblower Law and Practice, taught by WLC Co-Founder Bob Thomas. Structured in two parts, the course focuses on the unique role in American law played by whistleblowers in the government and corporate worlds, and on the ever-increasing number of laws at the disposal of whistleblowers and whistleblower lawyers.
Last year, during the BU Whistleblower course inaugural run, there were two unusual factors at work: the pandemic (forcing a quick pivot to remote learning), and President Trump’s assault on the machinery of government, whether it was career prosecutors, agency Inspectors General, or local election officials. If ever there was a year to have such a course, it was the fall of 2020, when internal government whistleblowers filed claims that led to the first of the former President’s two impeachment cases.
This fall’s course showed, however, the staying power of whistleblowers in the news cycle. As the fallout continues from the events of one year ago (January 6, 2021, when armed insurrectionists attacked the U.S. Capitol building in an attempt to stop the counting of Electoral College votes) and commentators increasingly question the stability of American democracy, an internal whistleblower at Facebook, Frances Haugen, came forward to explain how the company has manipulated its algorithms in a way that increases polarization, spreads misinformation and conspiracy theories, and causes an increase in teen suicides and political violence. Facebook, in turns out, was a key platform for communication among the insurrectionists and the people encouraging them, and a critical way of recycling inflammatory and false information. This and dozens of other whistleblower stories from False Claims Act cases or SEC settlements show that young lawyers coming out of law school are well served to have some exposure to this important aspect of American life and law.
Students in the course are required to write a research paper about a whistleblower case or story that has relevance to their lives and are asked to identify either a whistleblower or whistleblower attorney (or both) to locate and interview for the paper. While this requires a different kind of focus than a traditional research assignment, the exercise adds extraordinary depth to the power and quality of the end results. Last year, for example, Andrew Tran ’22 conducted an interview over Zoom with Daniel Ellsberg himself, in a paper that caught the attention of the BU Communications Department, who wrote an article about Tran’s life story, his connection to Ellsberg and the Vietnam War, and how the course brought them together.
What stood out about this year’s seminar of twelve talented students was the overall level of quality of the students’ work, which was exceptional. Students worked with “Professor” Thomas to identify topics that held particular interest for them, and in identifying and locating people who might be available for interviews or who might help open doors for interviews. The students were encouraged to think “outside the box” of topics that they genuinely cared about – so long as it had sufficient connection to the topic of whistleblowing.
They did not disappoint. Writing on a wide array of topics (see below), they took full advantage of the opportunity to interview actual whistleblowers, their attorneys, fired Inspector Generals, experts on whistleblower trauma, prosecutors who pulled together extraordinarily complex cases, sometimes involving new theories of civil liability and even new theories of criminal culpability. Check it out:
- Cheryl Eckard Meads and the drug adulteration case against Glaxo Smith Kline, resulting in a $750 mm settlement.
- The Ranbaxy $500 mm settlement and a comparison of U.S. and Indian whistleblowing laws and cultural attitudes about whistleblowing.
- Frances Haughen’s revelations about Facebook and the tension between First Amendment protections of speech vs. the rise of hate speech and political disinformation.
- A comparison of the federal Inspector General statute and the Massachusetts Constitutional position of Auditor, the advantages and disadvantages of each.
- The role played by a little known whistleblower to bring an end to the government’s shocking treatment of African Americans in the Tuskegee Syphilis Study, and how this changed the field of informed medical consent.
- The mistreatment of whistleblowers in the US Gymnastics scandal relating to sexual abuse of young female athletes by Dr. Larry Nasser, why they weren’t listened to, and lingering whistleblower trauma.
- The divergent paths of the IRS and SEC Whistleblower Programs: why the former has largely failed and the latter succeeded and what this means for whistleblowers and their attorneys.
- Sherron Watkins and the fall of Enron;
- A comparison of whistleblower ostracization and isolation in the clergy abuse scandals the Catholic Church and the less well known abuse incidents involving Orthodox Jewish Communities.
- The conviction of Insys Therapeutics, its principals, and the creative use of the RICO statute in a pharmaceutical criminal trial involving addicting opioids.
- The policy implications of Yesenia Guitron’s whistleblower allegations against Wells Fargo being dismissed in court when the same allegations she brought to light yielded a $300mm enforcement settlement against the bank. What’s not working with the Sarbanes Oxley process?
- The Dawn Wooten story: how a courageous nurse stopped ICE’s practice of performing unwanted hysterectomies on immigrant women in detention.
What these extraordinarily well-done papers show is 1) whistleblowers remain a subject of fascination, inspiration, and relevance in the American psyche and polity, and 2) that the young men and women coming out of BU Law know how to research and write with passion and clarity. “Professor” Thomas said: “This was the best and most interesting set of papers I’ve read in the twelve years I’ve been teaching at BU. I’m really proud of these young lawyers-to-be. They give me hope for the future, and I look forward to seeing where they go with all of these good insights and good energy.”
