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Wrong Turns on the Road to Alternative Sanctions: Reflections on the Future of Shaming Punishments and Restorative Justice.

Markel, Dan
June 4, 2015

Source: (2007) Texas Law Review. 85.

This Article unfolds in four Parts. Part I provides an overview of the alternative sanctions movement, which can be skimmed or ignored by those already familiar with the state of play in this area. The rest of the paper outlines Kahan’s views in his recent piece and identifies three problems. First, Kahan’s rejection of shaming is ultimately best
understood as an empirical claim, not a theoretical one. Kahan, however, adduces little support to sustain the empirical claim that shaming cannot garner widespread support. Moreover, even if such support existed,
Kahan fails to explain why any “partisan” wrangling over shaming cannot be handled by the institutions of liberal democracy. Second, Kahan inaccurately addresses his critics on two important grounds. To begin with, he mistakenly accuses his critics of status quo bias, and second, he attributes to them truth-insensitive motivations for which no
evidence exists. Finally, and most importantly, Kahan’s enthusiasm for restorative justice will likely wane as he realizes that restorative justice, once scrutinized carefully, is vulnerable to the same social meaning
handicaps that accompany shaming. Consequently, Kahan may have to “recant”—again. (excerpt)


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