Volume 28, Issue 1/4, 2009
Todd Furman, Bill Hartmann
Beguiling Would-Be Serpents
Gerald Dworkin, Bear Stearns, and the Sarbanes-Oxley Act
In his classic paper, The Serpent Beguiled Me And I Did Eat, Gerald Dworkin makes the case that, without probable cause, the use
of Proactive Law Enforcement Techniques (PALETs) is morally impermissible. Call this prohibition Dworkin’s Rule (DR). Here we argue that there are two reasonable exceptions to DR—the use of PALETs, without probable cause, is justifi ed when employed against High Level Government Officials (HLGOs) and High Level Business Officials (HLBOs). Moreover, these exceptions are consistent with Dworkin’s notion of Ideal Criminal Sanctioning. Finally, if society were to endorse the use of PALETs on HLBOs, we might be able to dispose of the current bane of American business, the Sarbanes-Oxley Act of 2002, and let business get back to the business of business.