Dan M. Kahan
Encyclopedia
Dan M. Kahan is the Elizabeth K. Dollard Professor of law at Yale Law School
. He is a leading scholar in the fields of criminal law
and evidence
and is known for his theory of Cultural cognition
.
, Professor Kahan received a B.A.
summa cum laude from Middlebury College
in 1986, where he studied under Professor Murray Dry
. While at Middlebury, he spent his Junior year at Lincoln College, Oxford
. He then received a J.D.
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 [HLS], he served as President of the Harvard Law Review
for volume 102.
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, Professor 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
.
. As developed at Yale Law School in the 1920s and 1930s, legal realism was less interested to demonstrate 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 born of immersion in professional and cultural norms – the slide show of law.
Professor 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 her perceptions of how society's rules should be applied.
which is the study of how individuals form beliefs about the amount of risk in certain situations based on their preconceived cultural notions of good behavior. 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.
. To explain the effects of the consequentialist theorem in Criminal Law, he often asks "What Would Bentham Do?" (WWBD!?).
He enjoys running marathons and playing card games that involve experimentation with live subjects.
He would like to see someone invent a telekineticphototransponder.
Brian Leiter's law school ratings rank Dan Kahan as the most-cited professor in criminal law and procedure.
However, 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.
Professor 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.
Cultural Cognition and Public Policy, 24 Yale L. & Pol'y Rev. 149 (2006) (with Donald Braman)
Modeling Facts, Culture and Cognition in the Gun Debate, 18 Social Justice Res.203 (2005) (with Donald Braman & James Grimmelman)
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
. He is a leading scholar in the fields of criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
and evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
and is known for his theory of Cultural cognition
Cultural cognition
The Cultural cognition of risk, sometimes called simply cultural cognition, refers to the hypothesized tendency of persons to form perceptions of risk and related facts that cohere with their self-defining values. Research examining this phenomenon draws on a variety of social science disciplines...
.
Education
After attending a boarding school in VermontVermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
, Professor Kahan received a B.A.
Bachelor of Arts
A Bachelor of Arts , from the Latin artium baccalaureus, is a bachelor's degree awarded for an undergraduate course or program in either the liberal arts, the sciences, or both...
summa cum laude from Middlebury College
Middlebury College
Middlebury College is a private liberal arts college located in Middlebury, Vermont, USA. Founded in 1800, it is one of the oldest liberal arts colleges in the United States. Drawing 2,400 undergraduates from all 50 United States and over 70 countries, Middlebury offers 44 majors in the arts,...
in 1986, where he studied under Professor Murray Dry
Murray Dry
Murray Dry is an American political scientist specializing in American constitutional law, American political thought, political philosophy, freedom of speech, freedom of religion, federalism, separation of powers, and the American founding. He is perhaps most noted for having helped to compile The...
. While at Middlebury, he spent his Junior year at Lincoln College, Oxford
Lincoln College, Oxford
Lincoln College is one of the constituent colleges of the University of Oxford in the United Kingdom. It is situated on Turl Street in central Oxford, backing onto Brasenose College and adjacent to Exeter College...
. He then received a J.D.
Juris Doctor
Juris Doctor is a professional doctorate and first professional graduate degree in law.The degree was first awarded by Harvard University in the United States in the late 19th century and was created as a modern version of the old European doctor of law degree Juris Doctor (see etymology and...
magna cum laude from Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
in 1989 , where he learned Tort Law from Lewis Sargentich
Lewis Sargentich
Lewis Daniel "Lew" Sargentich , frequently referred to simply as "Sarge," has been a professor at Harvard Law School since 1973 where he teaches courses tort law and jurisprudence. Sargentich is well known for his remarkable tenure as a student at Harvard Law School, where he both named and first...
and Criminal Law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
from Charles Ogletree
Charles Ogletree
Charles J. Ogletree is Jesse Climenko Professor at Harvard Law School, the founder of the school's Charles Hamilton Houston Institute for Race and Justice, and the author of numerous books on legal topics....
. While at [HLS], he served as President of the Harvard Law Review
Harvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...
for volume 102.
Career
After law school, Professor Kahan served as a law clerk to Judge Harry T. EdwardsHarry T. Edwards
Harry Thomas Edwards is a United States federal judge.Born in New York, New York, Judge Edwards received a B.S. from Cornell University in 1962, where he was a member of the Quill and Dagger society. He received a J.D. from University of Michigan Law School in 1965 and practiced law in Chicago for...
of the United States Court of Appeals for the D.C. Circuit (1989–90) and then to Justice Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
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, Professor Kahan joined the faculty of the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
where he worked with Elena Kagan
Elena Kagan
Elena Kagan is an Associate Justice of the Supreme Court of the United States, serving since August 7, 2010. Kagan is the Court's 112th justice and fourth female justice....
. He joined the Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
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
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
.
Legal Theory
He accepts the central tenets of Legal RealismLegal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
. As developed at Yale Law School in the 1920s and 1930s, legal realism was less interested to demonstrate 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 born of immersion in professional and cultural norms – the slide show of law.
Professor 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
Moral agency
Moral agency is a person's ability to make moral judgments and take action that comport with morality.A Moral agent is "a being who is capable of acting with reference to right and wrong"-Development and analysis:...
. The content of the lawyers' situation sense is inevitably contingent and dynamic: professional norms
Norm (sociology)
Social norms are the accepted behaviors within a society or group. This sociological and social psychological term has been defined as "the rules that a group uses for appropriate and inappropriate values, beliefs, attitudes and behaviors. These rules may be explicit or implicit...
– 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 her perceptions of how society's rules should be applied.
Teaching Style
Professor Kahan receives great attention from his students. He is considered a lively and popular teacher at all the law schools he has taught at. In class, he dashes up one side of the class and then the other, enthusiastically challenging students about issues surrounding the death penalty. His voice booms off the walls as he asks questions, most of which come with a laugh and a smile. He talks about the politics surrounding the law as well as the "expressiveness" of the law—how the public's views on various issues convey feelings about murderers and about mercy. He claims there's no real separation between teaching and research work. He enjoys researching issues that interest him, and also really enjoys teaching students about those same issues. In fact, he likes to help people look at issues differently and see that these issues—especially controversial ones—are more complicated than they usually may believe. He says he prepares for class for almost two and a half hours before, thinking about nothing else but what he will talk about in that class. He imagines the class and what points he wants to get across and the kinds of interesting and surprising ways he can communicate those points.The Cultural Cognition Project
Dan Kahan is best known for his work on social norms. This research delves into cultural cognitionCultural cognition
The Cultural cognition of risk, sometimes called simply cultural cognition, refers to the hypothesized tendency of persons to form perceptions of risk and related facts that cohere with their self-defining values. Research examining this phenomenon draws on a variety of social science disciplines...
which is the study of how individuals form beliefs about the amount of risk in certain situations based on their preconceived cultural notions of good behavior. Most of this work is supported by empirical
Empirical
The word empirical denotes information gained by means of observation or experimentation. Empirical data are data produced by an experiment or observation....
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.
Facts
He greatly respects the teachings of Jeremy BenthamJeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
. To explain the effects of the consequentialist theorem in Criminal Law, he often asks "What Would Bentham Do?" (WWBD!?).
He enjoys running marathons and playing card games that involve experimentation with live subjects.
He would like to see someone invent a telekineticphototransponder.
Brian Leiter's law school ratings rank Dan Kahan as the most-cited professor in criminal law and procedure.
Shaming Sanctions
Dan Kahan believes shaming penalties are on the rise in American law, and are an effective alternative to traditional punishments. This is especially feasible and valuable for federal white collar offenders. He develops 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 believes the efficiency of such penalties is affected by their power to express publicly valued social meanings.However, 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.
Professor 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.
Gentle Nudges vs. Hard Shoves
The resistance of law enforcers sometimes confounds the efforts of law makers 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 law makers intended to change. Can this "sticky norms" pathology be effectively treated? It can be, if law makers 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. Dan Kahan presents a formal model of this strategy for norm reform, illustrates it with real world examples, and identifies its normative and prescriptive implications.The Secret Ambition of Deterrence
Professor 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.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)