Protecting Whistleblower Protections in the Dodd-Frank Act

Samuel C. Leifer

In 2008, the United States fell into its worst economic recession in over seventy years. In response, Congress enacted the near-comprehensive Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 922 of Dodd-Frank, in particular, includes specific provisions designed to incentivize and protect corporate whistleblowers. These provisions demonstrated Congress's belief that a comprehensive and robust whistleblower protection scheme was essential to preventing many of the abuses that caused the financial crisis. Unfortunately, this section's inconsistent language has produced conflicting decisions within the federal judiciary. In accordance with the Securities and Exchange Commission ("SEC")'s own reading of Section 922, several district courts have held that individuals engaging in "whistleblower activities" are entitled to Dodd-Frank's antiretaliation protections, irrespective of whether these individuals report directly to the SEC or report through internal channels in their own companies. In contrast, the U.S. Court of Appeals for the Fifth Circuit has limited Dodd-Frank's whistleblowing protections to individuals who report directly to the SEC. This Note contends that remedial legislation like Dodd-Frank should be broadly interpreted to further its purpose, that a broad interpretation of Section 922 is consistent with the text, structure, and legislative history of Dodd-Frank, and that courts unable to resolve the apparent conflict in this section should defer to the SEC's administrative expertise and interpretation.


A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle

Avi M. Kupfer

For thirty years, the Armed Career Criminal Act ("ACCA") has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, the Supreme Court's guidance on sentencing ACCA defendants has been unclear. The resulting ambiguity creates inequity between defendants and fails to give them fair warning of the statute's scope. This ambiguity also depletes the resources of courts, defendants, and prosecutors and prevents the statute from realizing its full potential of deterring violent crime. This Note argues that rather than allowing this debacle to continue, Congress should delegate to a federal agency the task of compiling a binding list of state statutes that qualify as predicate offenses. Under this approach, the states would assist the federal agency by providing initial guidance on their ambiguous statutes. The U.S. Sentencing Commission has the manpower, subject familiarity, and institutional incentives to build and maintain the appendix, and state sentencing commissions would make ideal partners. In states that do not have sentencing commissions, comparable agencies and even properly incentivized attorneys general may be able to aid the federal Sentencing Commission. Congress should leverage this undertaking to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.


Rethinking the Timing of Capital Clemency

Adam M. Gershowitz

The Political Safeguards of Horizontal Federalism

Heather K. Gerken & Ari Holtzblatt

A Solution to Michigan's Child Shackling Problem

Gabe Newland

Judicial Diversity After Shelby County v. Holder

William Roth