The Case Against Naming and Shaming

What does Dan Kahan's rejection of naming and shaming as a sanction in the criminal law tell us about its role in corporate law?

In my prior post, I discussed the use of naming and shaming in corporate law. The debate over whether naming and shaming is an appropriate sanction in that context was a subset of a much larger debate over the use of naming and shaming in the law generally. A particular focus of that larger debate was the use of naming and shaming in the criminal law.

An important early contribution to the debate was Dan Kahan’s article, What Do Alternative Sanctions Mean, 63 U. Chi. L. Rev. 591 (1996), in which he “argued that shaming penalties would likely be a politically viable substitute for imprisonment for a range of nonviolent (or relatively nonviolent) offenses because unlike fines, community service, and other alternative sanctions that have encountered decisive resistance, shaming unambiguously expresses moral denunciation of criminal wrongdoers.”

Ten years later, however, Kahan “sort of” renounced that argument, acknowledging “that the premise of [that] analysis was flawed.” See Dan M. Kahan, What's Really Wrong with Shaming Sanctions, 84 Tex. L. Rev. 2075 (2006).

In the interests of providing my readers with a balanced perspective, I offer up this assessment of Kahan’s recantation and inquire whether his more nuanced view justifies rethinking the role of naming and shaming in corporate law.