Dan Kahan

Kahan’s attitude towards shaming sanctions has changed from positive to negative over time. (According to his own article “ What's Really Wrong with Shaming Sanctions.”) At first, Khan believed shaming penalties are on the rise in American law, and are an effective alternative to traditional punishments. This was especially feasible and valuable for federal white collar offenders. He developed a theoretical model that connects the deterrent efficacy of such penalties to their power to signal the undesirable propensities of wrongdoers and the desirable propensities of citizens who shun wrongdoers. He once believed the efficiency of such penalties is affected by their power to express publicly valued social meanings. However, he has renounced his previous defense made in article "What Do Alternative Sanctions Mean" for the shaming sanctions in his newer article "What's Really Wrong with Shaming Sanctions" since he considers the premise of his analysis flawed.("I renounce my previous defense of shaming penalties. Sort of. In What Do Alternative Sanctions Mean, 63 U. Chi. L. Rev. 591") In this article, he also says that "Drawing on work that I’ve done since then, I now acknowledge that the premise of this analysis was flawed. Ordinary citizens expect punishments not merely to condemn but to do so in ways that affirm rather than denigrate their core values. By ritualistically stigmatizing wrongdoers as transgressors of shared moral norms, shaming penalties grate against the sensibilities of persons who subscribe to egalitarian and individualistic worldviews."[4]

Other points Khan once made in "What Do Alternative Sanctions Mean" (which he has sort of renounced later): He also argues American jurisdictions have traditionally resisted fines and community service as alternatives to imprisonment, notwithstanding strong support for these sanctions among academics and reformers. Why? The answer is that these forms of punishment are expressively inferior to incarceration. The public expects punishment not only to deter crime and to impose deserved suffering, but also to make accurate statements about what the community values. Imprisonment has been and continues to be Americans' punishment of choice for serious offenses because of the resonance of liberty deprivation as a symbol of condemnation in our culture. Fines and community service either don't express condemnation as unambiguously as imprisonment, or express other valuations that Americans reject as false. He uses expressive theory to explain why the American public has consistently rejected proposals to restore corporal punishment, a form of discipline that offends egalitarian moral sensibilities; and why the public is now growing increasingly receptive to shaming punishments, which unlike conventional alternative sanctions signal condemnation unambiguously.[5]

Kahan garnered national attention for his research. He has been cited on NBC News' Today Show and in such publications as the New York Times and the Wall Street Journal for his views on alternative sanctions.[6]

The resistance of law enforcers sometimes confounds the efforts of lawmakers to change social norms. Thus, as legislators expand liability for date rape, domestic violence, and drunk driving, police become less likely to arrest, prosecutors to charge, jurors to convict, and judges to sentence severely. The conspicuous resistance of these decisionmakers in turn reinforces the norms that lawmakers intended to change. Can this "sticky norms" pathology be effectively treated? It can be, if lawmakers apply "gentle nudges" rather than "hard shoves". When the law embodies a relatively mild degree of condemnation, the desire of most decisionmakers to discharge their civic duties will override their reluctance to enforce a law that attacks a widespread social norm. The willingness of most decisionmakers to enforce can initiate a self-reinforcing wave of condemnation, thereby allowing lawmakers to increase the severity of the law in the future without prompting resistance from most decisionmakers. Kahan presents a formal model of this strategy for norm reform, illustrates it with real-world examples, and identifies its normative and prescriptive implications.[7]

Kahan identifies the political and moral economies of deterrence theory in legal discourse. Drawing on an extensive social science literature, he shows that deterrence arguments in fact have little impact on citizens' views on controversial policies such as capital punishment, gun control, and hate crime laws. Citizens conventionally defend their positions in deterrence terms nonetheless only because the alternative is a highly contentious expressive idiom, which social norms, strategic calculation, and liberal morality all condemn. But not all citizens respond to these forces. Expressive zealots have an incentive to frame controversial issues in culturally partisan terms, thereby forcing moderate citizens to defect from the deterrence détente and declare their cultural allegiances as well. Accordingly, deliberations permanently cycle between the disengaged, face-saving idiom of deterrence and the partisan, face-breaking idiom of expressive condemnation. These dynamics complicate the normative assessment of deterrence. By abstracting from contentious expressive judgments, deterrence arguments serve the ends of liberal public reason, which enjoins citizens to advance arguments accessible to individuals of diverse moral persuasions. But precisely because deterrence arguments denude the law of social meaning, the prominence of the deterrence idiom impedes progressives from harnessing the expressive power of the law to challenge unjust social norms. There is no stable discourse equilibrium between the deterrence and expressive idioms, either as a positive matter or a normative one.[8]

Cultural Cognition: "Blunders" or "Values"?, 119 Harv. L. Rev. F. 166 (2006)(with Paul Slovic)

Cultural Cognition and Public Policy, 24 Yale L. & Pol'y Rev. 149 (2006) (with Donald Braman)

Fear of Democracy: A Cultural Evaluation of Sunstein on Risk, 119 Harv. L. Rev. 1071 (2006) (with Paul Slovic, Donald Braman & John Gastil)

Modeling Facts, Culture and Cognition in the Gun Debate, 18 Social Justice Res.203 (2005) (with Donald Braman & James Grimmelman)