The Boston Globe Ideas section has an essay by the staff writer Drake Bennett on the implications of happiness research for the law. It's not surprising that lawyers should have taken an interest in research on happiness. The profession has 3.6 times the rate of depression of the average occupation, and a male suicide rate twice the U.S. national average. Even the Positive Psychology movement, which promotes happiness as a goal of psychotherapy, finds the legal profession a special challenge. Optimism improves success in nearly all professions, but pessimists excel in law, beginning with their studies.
According to the Harvard Law School professor Cass Sunstein and other legal academics and psychologists, personal injury damage awards underestimate the consequences for happiness of chronic conditions like back pain while exaggerating the lasting effect on our subjective well-being of blindness and the loss of limbs. Sunstein has suggested guidelines for damages that reflect studies of self-reported satisfaction after such casualties.
Some of the conclusions of Sunstein and others on happiness and the law make sense. Who would oppose increasing damages for constant misery from chronic pain or emotional distress, even if proving them is not as easy as establishing physical trauma? But Sunstein's proposal for awards guidelines suggests that damages for other major injuries might be reduced significantly on the grounds of psychological studies. A new category of expert witness could arise, defending negligent corporations by showing how the effects of dangerous products and environmental havoc really don't affect people's long-term life satisfaction, or at least creating doubt. Their doctrine might even be called the Dostoevsky Defense, from the famous passage on convict life in The House of the Dead: "Man is a creature that can get accustomed to anything, and I think that is the best definition of him."
Other legal and behavioral scholars cited in the piece point out that there is more to life satisfaction than most surveys capture. One prime example is cultural contrast in reporting happiness to researchers. As one of Sunstein's collaborators, the psychologist and economics Nobel Laureate Daniel Kahneman, expressed it elsewhere, "it is hard to believe that the experienced well-being of the average employed Frenchman really matches that of the average unemployed American."
The new book I'm finishing on positive unintended consequences deals in part with human resilience. And our capacity to recover is impressive; think of all the refugees who became stars of their adopted nations. But should victims of wrongdoing or negligence be penalized for the often grueling work of recovery? And can any guidelines take account of how some people spring back from disaster and others never get over it?
Cass Sunstein, who is President Obama's nominee for the new position of regulatory czar, might have a new forum for his brand of hedonic jurisprudence. Some legal scholars are already concerned about his possible overuse of cost-benefit analysis.I asked my colleague Stan Katz about the chances for adoption of Sunstein's ideas on happiness and law, and was reassured to hear "not in our lifetimes." That's something to be happy about.
(I've also written on happiness for the Hastings Center site Bioethics Forum.)
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