Revisiting Regulatory Shaming

Regulation by shaming companies through public ratings and rankings, press ‎releases, social media posts, product labels, and online databases has become ‎widespread across diverse regulatory fields. Regulators increasingly rely on ‎shaming practices to denounce employers responsible for occupational safety ‎incidents on X (formerly Twitter), highlight firms’ environmental and climate ‎infringements through press releases, and condemn unethical conduct by ‎pharmaceutical companies through public blacklists.‎ Generally, regulatory shaming involves regulators publicizing instances of illegal, ‎inappropriate, or morally contested corporate behavior, as well as negative ‎corporate characteristics, in ways that draw on firms’ reliance on social license. It ‎refers to the intentional publication of corporate misdeeds in a manner designed to ‎convey a negative evaluative message to the public, thereby encouraging ‎compliance with mandatory legal norms and, in some cases, the voluntary ‎adoption of “above-compliance” standards. By mobilizing reputational ‎sensitivities, regulatory shaming invites relevant audiences to alter their behavior, ‎discourse, or attitudes toward the targeted entity and to engage in disapproval, ‎criticism, condemnation, protest, boycott, or other forms of social, legal, and ‎political action.‎ A growing body of empirical and theoretical research has emphasized shaming’s ‎potential advantages as a regulatory tool, including its effectiveness in inducing ‎corporate compliance and in promoting adherence to norms beyond formal legal ‎requirements. For instance, the “shock-and-shame cycle” theory suggests that the ‎greater the shock created by information-based schemes, the higher the likelihood ‎that the policy will motivate people to act. It has also been argued that ‎corporations suffer substantial reputational losses from naming-and-shaming, ‎especially when they are exposed for defrauding and deceiving stakeholders. ‎Shaming has also been described as a comparatively low-cost and rapid alternative ‎to command-and-control regulation, as it relies primarily on communicative ‎mechanisms—conveying information, beliefs, and ideas—often through digital ‎media channels. Discussion of regulatory shaming’s downsides, however, has ‎remained relatively limited, focusing mainly on concerns related to procedural ‎fairness toward firms and the risk of over-deterrence.‎ This theoretical project takes stock of existing empirical, conceptual, and ‎normative research on regulatory shaming across the social sciences, law, and the ‎humanities, and across multiple domains and jurisdictions, in order to reevaluate ‎its desirability, effectiveness, and justification. It argues that shifts in the use of, ‎and attitudes toward, shaming across social, governance, and corporate ‎governance contexts—together with changing perceptions of regulators ‎themselves—have substantially weakened shaming’s appeal as a regulatory ‎instrument. The paper explains why prevailing theoretical accounts have been ‎overly optimistic and demonstrates, through illustrative examples, how they fail to ‎capture key dynamics and mechanisms that constrain shaming’s effectiveness as a ‎norm-setting and enforcement tool.‎ Against this backdrop, the paper calls for a deeper and more critical engagement ‎with regulation by shaming in both theory and policy. It delineates the conditions ‎under which shaming may plausibly function as an appropriate regulatory tool, as ‎well as those in which regulators should exercise particular caution.‎ This paper would fit well with P10 (Affect in Regulatory Governance and ‎Policymaking) and also relates to P7 (Stakeholder Involvement in Regulatory ‎Governance) and P8 (New Tools in Regulatory Governance).‎