Trapped: When Acting Ethically Is Against the
Law
By John Hasnas
About
the Book Since Enron's collapse in 2002, the
federal government has stepped up its campaign against white-collar crime.
In doing so, contemporary federal criminal law has created a "Catch-22,"
in which businesspeople are forced to act either unethically or
illegally.
In Trapped: When Acting Ethically is Against the
Law, Cato Institute senior fellow and Georgetown University business
professor John Hasnas examines the ethical dilemmas raised by
over-criminalization. "Because there is an increasing divergence between
the demands of the law and the demands of ethics," Hasnas explains,
"current federal criminal law incentivizes and in some cases mandates
unethical behavior by businesspeople."
In creating white-collar
criminal law, the federal government has eviscerated the liberal
safeguards of the traditional criminal law to permit conviction for merely
negligent or innocent actions and to circumvent the presumption of
innocence, the 5th Amendment privilege against self-incrimination, and the
attorney-client privilege.
Thus, federal criminal law creates
serious problems for businesses that wish to respect their employees.
According to Hasnas: "It gives corporations strong incentives to invade
employees' privacy, deny them the presumption of innocence, and breach
promises of confidentiality."
Hasnas concludes that the solution to
the problem of white collar crime does not rest with more vigorous federal
enforcement efforts: "With regard to the offenses that can adequately be
handled by civil liability, the proper solution may be absaining from any
efforts at criminal enforcement at all."
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About
the Author John Hasnas is an
associate professor of business at the McDonough School of Business at
Georgetown University in Washington, D.C.
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What
Others Have Said "Did you know that in many ways
the terrorists detained at Guantanamo Bay have more rights than corporate
CEOs and their employees? If you want to know more, get John Hasnas's
book!"
--Mark Levin, author, Men in Black: How the Supreme
Court Is Destroying America
"Ethical behavior is critical in
business. John Hasnas shows that new laws and regulations too often force
CEOs to choose between acting legally and acting ethically. This is a book
for business people, policymakers, and everyone who has a stake in
successful and ethical business enterprises."
--John Mackey,
Co-founder and CEO, Whole Foods Market
"Most Americans thank that
they receive ample protections against unwise or excessive criminal
prosecution. But they had better think again. John Hasnas's quiet
dissection of the manifold laws dealing with such arcane subjects as money
laundering, mail fraud, racketeering, and obstruction of justice shows how
people who are innocent of any primary offense are all too often caught in
a complex web of federal law dealing with white-collar crime as they go
about their ordinary business. Granted, argues Hasnas, white-collar crime
is harder to prosecute than street crime. But he convincingly shows that
an aggressive Congress and compliant courts have tilted the balance too
much in favor of criminal prosecution. We should all be troubled by the
prosecutorial histories of Arthur Andersen and Martha Stewart, among
others."
--Richard A. Epstein, James Parker Hall Distinguished
Service Professor of Law, University of Chicago
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