Dan Kahan

Last updated
Dan M. Kahan
CSICON 2012-179-Science & Public Policy 4-Daniel Kahan.JPG
On the Science and Public Policy Panel at CSICon Nashville, October 27, 2012
Nationality American
Known for Cultural cognition
Scientific career
FieldsProfessor of Law
InstitutionsElizabeth K. Dollard Professor at Yale Law School

Dan M. Kahan is the Elizabeth K. Dollard Professor of Law at Yale Law School. His professional expertise is in the fields of criminal law and evidence, and he is known for his theory of cultural cognition.

Contents

Education

After attending a boarding school in Vermont, Kahan received a BA summa cum laude from Middlebury College in 1986, where he studied under Murray Dry. [1] While at Middlebury, he spent his junior year at Lincoln College, Oxford. He then received a JD magna cum laude from Harvard Law School in 1989, where he learned Tort Law from Lewis Sargentich and Criminal Law from Charles Ogletree. While at Harvard Law School, he served as president of the Harvard Law Review for volume 102.

Career

After law school, Kahan served as a law clerk to Judge Harry T. Edwards of the United States Court of Appeals for the D.C. Circuit (1989–90) and then to Justice Thurgood Marshall of the U.S. Supreme Court (1990–91). After clerking, he worked as an attorney for Mayer, Brown & Platt in Washington D.C. (1991–93). In 1993, Kahan joined the faculty of the University of Chicago Law School where he worked with Elena Kagan. He joined the Yale Law School faculty in 1999. At Yale, he is one of the instructors in the Law School's Supreme Court Advocacy Clinic and a professor of Criminal Law and Administration. He is a recurring visiting professor at Harvard Law School [ citation needed ].

He accepts the central tenets of legal realism.[ citation needed ] As developed at Yale Law School in the 1920s and 1930s, legal realism was less interested in demonstrating that legal rules are formally indeterminate than to explain how lawyers nonetheless form such uniform and predictable understandings of what those rules entail. Karl Llewellyn attributed this ability to what he called "situation sense", an intuitive perceptive faculty borne of immersion in professional and cultural norms.

Kahan argues that when lawyers exercise professional judgment, and perform their professional responsibilities, they affirm the authority and extend the vitality of the norms that construct society's professional situation sense. However, law is not merely a set of rigid rules robotically applied. There is a complex, additional element of moral agency. The content of the lawyers' situation sense is inevitably contingent and dynamic: professional norms – and in turn the law itself – evolve in response to the evaluations lawyers make of the decisions and actions of each other. The only test of whether some lawyer has reliable situation sense is to see whether other lawyers (including decisionmakers) agree with that lawyer's perceptions of how society's rules should be applied. [2]

The Cultural Cognition Project

Kahan is best known for his work on the cultural theory of risk. This research delves into cultural cognition, which is the study of how individuals form beliefs about the amount of risk in certain situations based on their preconceived cultural group identities. Most of this work is supported by empirical and statistical analyses of group responses to pre-created hypotheticals.

Project members use the methods of various disciplines—including social psychology, anthropology, communications, and political science—to chart the impact of this phenomenon and to identify the mechanisms through which it operates. The Project also has an explicit normative objective: to identify processes of democratic decisionmaking by which society can resolve culturally grounded differences in belief in a manner that is both congenial to persons of diverse cultural outlooks and consistent with sound public policymaking. [3]

Selected works

Shaming Sanctions

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, Kahan 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 Kahan 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]

Gentle Nudges vs. Hard Shoves

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]

The Secret Ambition of Deterrence

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

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)

Miscellaneous Works

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)

See also

Related Research Articles

In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term crime does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes. The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law. One proposed definition is that a crime or offence is an act harmful not only to some individual but also to a community, society, or the state. Such acts are forbidden and punishable by law.

<span class="mw-page-title-main">Jurisprudence</span> Theoretical study of law

Jurisprudence is the philosophy and theory of law. It is concerned primarily with both what law is and what it ought to be. That includes questions of how persons and social relations are understood in legal terms, and of the values in and of law. Work that is counted as jurisprudence is mostly philosophical, but it includes work that also belongs to other disciplines, such as sociology, history, politics and economics.

<span class="mw-page-title-main">Philosophy of law</span> Branch of philosophy examining the nature of law

Philosophy of law is a branch of philosophy that examines the nature of law and law's relationship to other systems of norms, especially ethics and political philosophy. It asks questions like "What is law?", "What are the criteria for legal validity?", and "What is the relationship between law and morality?" Philosophy of law and jurisprudence are often used interchangeably, though jurisprudence sometimes encompasses forms of reasoning that fit into economics or sociology.

<span class="mw-page-title-main">Chinese law</span>

Chinese law is one of the oldest legal traditions in the world. The core of modern Chinese law is based on Germanic-style civil law, socialist law, and traditional Chinese approaches.

Social norms are shared standards of acceptable behavior by groups. Social norms can both be informal understandings that govern the behavior of members of a society, as well as be codified into rules and laws. Social normative influences or social norms, are deemed to be powerful drivers of human behavioural changes and well organized and incorporated by major theories which explain human behaviour. Institutions are composed of multiple norms. Norms are shared social beliefs about behavior; thus, they are distinct from "ideas", "attitudes", and "values", which can be held privately, and which do not necessarily concern behavior. Norms are contingent on context, social group, and historical circumstances.

<span class="mw-page-title-main">Punishment</span> Imposition of an undesirable or unpleasant outcome

Punishment, commonly, is the imposition of an undesirable or unpleasant outcome upon a group or individual, meted out by an authority—in contexts ranging from child discipline to criminal law—as a response and deterrent to a particular action or behavior that is deemed undesirable or unacceptable. It is, however, possible to distinguish between various different understandings of what punishment is.

<span class="mw-page-title-main">Retributive justice</span> Type of punishment

Retributive justice is a legal concept whereby the criminal offender receives punishment proportional or similar to the crime.

An obligation is a course of action that someone is required to take, whether legal or moral. Obligations are constraints; they limit freedom. People who are under obligations may choose to freely act under obligations. Obligation exists when there is a choice to do what is morally good and what is morally unacceptable. There are also obligations in other normative contexts, such as obligations of etiquette, social obligations, religious, and possibly in terms of politics, where obligations are requirements which must be fulfilled. These are generally legal obligations, which can incur a penalty for non-fulfilment, although certain people are obliged to carry out certain actions for other reasons as well, whether as a tradition or for social reasons.

Legal positivism is a modern intellectual tradition in the philosophy of law and jurisprudence that holds that law is a set of rules created by human beings who prescribe certain procedures for its enactment. This contrasts with natural law theory, which has ancient roots and holds that inherent moral principles provide a basis for the law, and that an immoral law is not a true law. Legal positivists oppose this view, maintaining that the validity of a law is determined by social facts such as enactment by a recognized authority following accepted procedures, rather than from any moral criterion.

Normative generally means relating to an evaluative standard. Normativity is the phenomenon in human societies of designating some actions or outcomes as good, desirable, or permissible, and others as bad, undesirable, or impermissible. A norm in this sense means a standard for evaluating or making judgments about behavior or outcomes. "Normative" is sometimes also used, somewhat confusingly, to mean relating to a descriptive standard: doing what is normally done or what most others are expected to do in practice. In this sense a norm is not evaluative, a basis for judging behavior or outcomes; it is simply a fact or observation about behavior or outcomes, without judgment. Many researchers in science, law, and philosophy try to restrict the use of the term "normative" to the evaluative sense and refer to the description of behavior and outcomes as positive, descriptive, predictive, or empirical.

Norms are concepts (sentences) of practical import, oriented to affecting an action, rather than conceptual abstractions that describe, explain, and express. Normative sentences imply "ought-to" types of statements and assertions, in distinction to sentences that provide "is" types of statements and assertions. Common normative sentences include commands, permissions, and prohibitions; common normative abstract concepts include sincerity, justification, and honesty. A popular account of norms describes them as reasons to take action, to believe, and to feel.

The cultural theory of risk, often referred to simply as Cultural Theory, consists of a conceptual framework and an associated body of empirical studies that seek to explain societal conflict over risk. Whereas other theories of risk perception stress economic and cognitive influences, Cultural Theory asserts that structures of social organization endow individuals with perceptions that reinforce those structures in competition against alternative ones. This theory was first elaborated in the book Natural Symbols, written by anthropologist Mary Douglas in 1970. Douglas later worked closely with the political scientist Aaron Wildavsky, to clarify the theory. Cultural Theory has given rise to a diverse set of research programs that span multiple social science disciplines and that have in recent years been used to analyze policymaking conflicts generally.

<span class="mw-page-title-main">Classical school (criminology)</span> School of thought in criminology

In criminology, the classical school usually refers to the 18th-century work during the Enlightenment by the utilitarian and social-contract philosophers Jeremy Bentham and Cesare Beccaria. Their interests lay in the system of criminal justice and penology and indirectly through the proposition that "man is a calculating animal," in the causes of criminal behavior. The classical school of thought was premised on the idea that people have free will in making decisions, and that punishment can be a deterrent for crime, so long as the punishment is proportional, fits the crime, and is carried out promptly.

The cultural cognition of risk, sometimes called simply cultural cognition, is the hypothesized tendency to perceive risks and related facts in relation to personal values. Research examining this phenomenon draws on a variety of social science disciplines including psychology, anthropology, political science, sociology, and communications. The stated objectives of this research are both to understand how values shape political conflict over facts and to promote effective deliberative strategies for resolving such conflicts consistent with sound empirical data.

<span class="mw-page-title-main">Denunciation (penology)</span>

Denunciation in the context of sentencing philosophy demonstrates the disapproval of an act by society expressed by the imposition of a punishment. The purpose of denunciation is not so much to punish the offender but to demonstrate to law-abiding citizens that the particular behaviour which is being punished, or denounced, is not acceptable. In this respect, it has been argued that "punishment is not like a private letter; it is like a billboard put up on a busy street… it is also meant for the victim of crime and for the public at large”. Denunciation is one of five different objectives that punishment is thought to achieve; the other four objectives are deterrence, incapacitation, retribution and rehabilitation.

<span class="mw-page-title-main">Deviance (sociology)</span> Action or behavior that violates social norms

Deviance or the sociology of deviance explores the actions and/or behaviors that violate social norms across formally enacted rules as well as informal violations of social norms. Although deviance may have a negative connotation, the violation of social norms is not always a negative action; positive deviation exists in some situations. Although a norm is violated, a behavior can still be classified as positive or acceptable.

Science of morality may refer to various forms of ethical naturalism grounding morality in rational, empirical consideration of the natural world. It is sometimes framed as using the scientific approach to determine what is right and wrong, in contrast to the widespread belief that "science has nothing to say on the subject of human values".

The gateway belief model (GBM) suggests that public perception of the degree of expert or scientific consensus on an issue functions as a so-called "gateway" cognition. Perception of scientific agreement is suggested to be a key step towards acceptance of related beliefs. Increasing the perception that there is normative agreement within the scientific community can increase individual support for an issue. A perception of disagreement may decrease support for an issue.

In cultural anthropology, the distinction between a guilt society or guilt culture, shame society or shame culture, and a fear society or culture of fear, has been used to categorize different cultures. The differences can apply to how behavior is governed with respect to government laws, business rules, or social etiquette. This classification has been applied especially to what anthropologist Ruth Benedict called "apollonian" societies, sorting them according to the emotions they use to control individuals and maintaining social order, swaying them into norm obedience and conformity.

A legal norm is a binding rule or principle, or norm, that organisations of sovereign power promulgate and enforce in order to regulate social relations. Legal norms determine the rights and duties of individuals who are the subjects of legal relations within the governing jurisdiction at a given point in time. Competent state authorities issue and publish basic aspects of legal norms through a collection of laws that individuals under that government must abide by, which is further guaranteed by state coercion. There are two categories of legal norms: normativity, which regulates the conduct of people, and generality, which is binding on an indefinite number of people and cases. Diplomatic and legislative immunity refers to instances where legal norms are constructed to be targeted towards a minority and are specifically only binding on them, such as soldiers and public officials.

References

  1. "Abstracts". Political Philosophy and the Constitution: A Conference in Honor of Professor Murray Dry. Archived from the original on 2011-07-26.
  2. Yale 2006 Commencement Address. Accessed May 15, 2008.
  3. Empirical Legal Studies. Accessed May 15, 2008.
  4. What's Really Wrong with Shaming Sanctions
  5. What do Alternative Sanctions Mean?. Accessed May 15, 2008.
  6. The Chicago Chronicle Profile on Dan Kahan. Accessed May 15, 2008.
  7. Gentle Nudges vs. Hard Shoves: Solving the Sticky Norms Problem. Accessed May 15, 2008.
  8. Secret Ambition of Deterrence. Accessed May 15, 2008.