Hedonic damages, hedonic adaptation, and disability

Vanderbilt Law Review

Volumn 60, Issue 3, 2007, Pages 745-797

  Bagenstos, Samuel R ^a   Schlanger, Margo ^a  

^a WASHINGTON UNIVERSITY   (United States)

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EID: 36248991788     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (304)

1. JON ELSTER, SOUR GRAPES: STUDIES IN THE SUBVERSION OF RATIONALITY 109 (3d ed. 1987).
2. Cass R. Sunstein, Valuing Life: A Plea for Disaggregation, 54 DUKE L.J. 385, 426 (2004).
3. For examples of scholars making similar points, see ELSTER, supra note 1, at 137; MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 111-66 (2000);
4. AMARTYA SEN, COMMODITIES AND CAPABILITIES 14-15 (Oxford 1999) (1985);
5. David Dolinko, The Perils of Welfare Economics, 97 NW. U. L. REV. 351, 375-77 (2002);
6. Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. CHI. L. REV. 1129, 1150 (1986).
7. AMARTYA SEN, RESOURCES, VALUES, AND DEVELOPMENT 309 (1984).
8. This general notion clearly is related to the Marxian notion of "false consciousness," but it also draws on a more liberal tradition. NUSSBAUM, supra note 2, at 114-15; see also JOHN STUART MILL, UTILITARIANISM 10 (George Sher ed., Hackett Publishing 1979) (1861) ("It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, are of a different opinion, it is because they only know their own side of the question.").
9. See, e.g., NUSSBAUM, supra note 2, at 144 ("Even if the welfarist can show that people desire liberty and justice, and even if some modification of the welfarist procedure could be devised that reliably generated those goods . . . it would not be clear that this is the right way to justify our social interest in these goods."); SEN, supra note 2, at 14-15; SEN, supra note 3, at 309. Elster distinguishes adaptive preferences (which result from "habituation and resignation") from preferences developed through learning or conscious character planning. ELSTER, supra note 1, at 112-14, 117-19. But other exponents of the adaptive preference theory use the term more broadly. See, e.g., NUSSBAUM, supra note 2, at 136-38.
10. See, e.g., NUSSBAUM, supra note 2, at 137 (arguing that "it is not at all clear that [Jon Elster] should in such a sweeping way condemn adaptive preferences" because sometimes it makes sense to encourage adaptation).
11. For a rare instance of a law review article (albeit not one by scholars associated with the adaptive preference theory) arguing that it might be inappropriate to disregard adaptive preferences, see Eric A. Posner & Adrian Vermeide, Accommodating Emergencies, 56 STAN. L. REV. 605, 619-20 (2003) (arguing that if preferences adapt to a "postcrisis baseline" that restricts liberty to protect against terror threats, that adaptation will be a good thing "if the precrisis baseline represented a society underprepared for emergencies, in which law and institutions were supplying too much liberty and not enough order").
12. RICHARD A. EPSTEIN, SKEPTICISM AND FREEDOM: A MODERN CASE FOR CLASSICAL LIBERALISM 146 (2003).
13. Richard A. Posner, Pragmatic Liberalism Versus Classical Liberalism, 71 U. CHI. L. REV. 659, 672 (2004).
14. LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE 422 n.50 (2002).
15. Victor E. Schwartz & Cary Silverman, Hedonic Damages: The Rapidly Bubbling Cauldron, 69 BROOK. L. REV. 1037, 1037-38 (2004).
16. See generally Brendan I. Koerner, What's Your Happiness Worth?, LEGAL AFF., Jan.-Feb. 2004, at 56 (discussing recent controversy over hedonic damages).
17. Boan v. Blackwell, 541 S.E.2d 242, 244 (S.C. 2001).
18. Id.
19. See, e.g., Giuliani v. Guiler, 951 S.W.2d 318, 320 (Ky. 1997); Swiler v. Baker's Super Mkt., Inc., 277 N.W.2d 697, 700 (Neb. 1979); McDougald v. Garber, 536 N.E.2d 372, 375-77 (N.Y. 1989); Fantozzi v. Sandusky Cement Prod. Co., 597 N.E.2d 474, 486 (Ohio 1992); Boan, 541 S.E.2d at 245.
20. See, e.g., Knight v. Lord, 648 N.E.2d 617, 623 (111. App. Ct. 1995) (noting that loss of enjoyment of life is an aspect of disability damages, or damages for "loss of a normal life"); Anderson v. Neb. Dep't of Soc. Servs., 538 N.W. 2d 732, 740 (Neb. 1995) ("[L]oss of enjoyment of life is not a separate category of damages but is an element or component of pain and suffering and of disability."); Swiler, 277 N.W.2d at 700 ("Loss of enjoyment of life may, in a particular case, flow from a disability and be simply a part thereof, and where the evidence supports it, may be argued to the jury."); see Pamela J. Hermes, Loss of Enjoyment of Life - Duplication of Damages Versus Full Compensation, 63 N.D. L. REV. 561, 577-80 (1987).
21. See, e.g., Canfield v. Sandock, 563 N.E.2d 1279, 1281-83 (Ind. 1990); Estate of Pearson v. Interstate Power & Light Co., 700 N.W.2d 333, 347 (Iowa 2005); Gregory v. Carey, 791 P.2d 1329, 1336 (Kan. 1990); Banks v. Sunrise Hosp., 102 P.3d 52, 64 (Nev. 2004) (noting the court's agreement with "those jurisdictions permitting plaintiffs to seek compensation for hedonic loss as an element of the general award for pain and suffering").
22. Canfield, 563 N.E.2d at 1282 (holding loss of enjoyment of life a proper part of general compensation for personal injury).
23. On the division of jurisdictions into these or similar groupings, see Ronald J. Mishkin, Comment, Loss of Enjoyment of Life as an Element of Damages, 73 DICK. L. REV. 639, 639 (1969);
24. Hermes, supra note 14, at 565; Carleton Robert Cramer, Note, Loss of Enjoyment of Life as a Separate Element of Damages, 12 PAC. L.J. 965, 965-66 (1981);
25. Gretchen L. Valentine, Comment, Hedonic Damages: Emerging Issue in Personal Injury and Wrongful Death Claims, 10 N. ILL. U. L. REV. 543, 577 (1990);
26. Annotation, Loss of Enjoyment of Life as a Distinct Element or Factor in Awarding Damages for Bodily Injury, 34 A.L.R. 4th 293 (1984).
27. For a general discussion of the case law both in states that allow a separate recovery for hedonic damages and in states that allow recovery for hedonic damages as part of a broader noneconomic damages category, see Susan Poser, Brian H. Bornstein, & E. Kiernan McGorty, Measuring Damages for Lost Enjoyment of Life: The View From the Bench and the Jury Box, 27 LAW & HUM. BEHAV. 53, 54-57 (2003).
28. E.g., Flannery v. United States, 297 S.E.2d 433, 436 (W. Va. 1982).
29. DANIEL GILBERT, STUMBLING ON HAPPINESS 17 (2006).
30. For a recent comprehensive effort to assess the implications of the affective forecasting literature for the law, see Jeremy A. Blumenthal, Law and the Emotions: The Problem of Affective Forecasting, 80 IND. L.J. 155, 184-85 (2005) (noting, though not developing the point, that the affective forecasting literature might have implications for hedonic damages).
31. For other recent examples of legal applications of the affective forecasting literature, see Chris Guthrie, Risk Realization, Emotion, and Policy Making, 69 MO. L. REV. 1039, 1040-44 (2004);
32. Jon Hanson & David Yosifon, The Situational Character: A Critical Realist Perspective on the Human Animal, 93 GEO. L.J. 1, 116-19 (2004).
33. The recent proposals for "asymmetric" or " libertarian" paternalism also respond to a significant extent to problems of affective forecasting. See generally Colin Camerer, Samuel Issacharoff, George Loewenstein, Ted O'Donoghue & Matthew Rabin, Regulation for Conservatives: Behavioral Economics and the Case for "Asymmetric Paternalism", 151 U. PA. L. REV. 1211, 1211-12 (2003) ("Recent research in behavioral economics has identified a variety of decision-making errors that may expand the scope of paternalistic regulation.");
34. Cass R. Sunstein & Richard H. Thaler, Libertarian Paternalism Is Not an Oxymoron, 70 U. CHI. L. REV. 1159, 1168 (2003) ("[R]esearch by psychologists and economists over the past three decades has raised questions about the rationality of many judgments and decision that individuals make."). Edward McCaffery, Daniel Kahneman, and Matthew Spitzer discuss some of the possible implications of adaptive preferences theory for tort law in a more general way.
35. See Edward J. McCaffery, Daniel J. Kahneman & Matthew L. Spitzer, Framing the Jury: Cognitive Perspectives on Pain and Suffering Awards, 81 VA. L. REV. 1341, 1388-1403 (1995).
36. For ease of expression, we speak here in generalities about the basic tendencies of the two groups; the views of individuals within each group are obviously heterogeneous. We discuss that point below. See infra Part III.D.-E.
37. See JOHN MCKIE, PETER SINGER, HELGA KUHSE & JEFF RICHARDSON, THE ALLOCATION OF HEALTH CARE RESOURCES: AN ETHICAL EVALUATION OF THE 'QALY' APPROACH 34 (1998) (arguing that hedonic adaptation by people with disabilities should not be used in assessing their quality of life).
38. Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1591-92 (2005).
39. As we have noted, disability damages are sometimes awarded for hedonic harm. See cases cited supra note 14. Our argument applies in full to that class of disability damages.
40. On hedonic damages in cases arising out of deadly accidents, see, e.g., Andrew Jay McClurg, It's a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 NOTRE DAME L. REV. 57, 60 (1990);
41. Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. CHI. L. REV. 537, 545 (2005) (noting that five states permit recovery for hedonic loss in wrongful death actions). On hedonic damages when the plaintiff has been rendered unable to experience anything, see, e.g., Eyoma v. Falco, 589 A.2d 653, 662 (N.J. Super. Ct. App. Div. 1991) (allowing recovery for lost enjoyment of life by plaintiff in a vegetative state); McDougald v. Garber, 536 N.E.2d 372, 373 (N.Y. 1989) (holding some degree of cognitive awareness as prerequisite to recovery of damages for loss of enjoyment of life).
42. It is possible that hedonic damages in such cases are compensatory to the victim's families. But that has been neither the doctrinal justification nor the measure of damages.
43. We have no quarrel with that function of hedonic damages, although their deterrent effect should not be overstated. See Margo Schlanger, Second Best Damage Action Deterrence, 55 DEPAUL L. REV. 517, 530-31 (2006).
44. On the disability rights movement's rejection of this portrayal, and its implications for hedonic damages, see infra text accompanying notes 148-160.
45. Thomas Duffy, A Plaintiffs' Attorney's Perspective, in MEDICAL-LEGAL ASPECTS OF PAIN AND SUFFERING 483, 485-96 (Patricia Iyer ed., 2003).
46. Philip H. Corboy & Susan J. Schwartz, Pain and Suffering and Non-Economic Damages, in ATLA'S LITIGATING TORT CLAIMS § 24:13 (Roxanne Barton Conlin & Gregory S. Cusimano eds., 2003).
47. Id. § 24.17.
48. Duffy, supra note 28, at 487.
49. Corboy & Schwartz, supra note 29, § 24.10.
50. WILLIAM A. BARTON, RECOVERING FOR PSYCHOLOGICAL INJURIES 176 (2d ed. 1990).
51. Henninger v. S. Pac. Co., 59 Cal. Rptr. 76, 84 (Cal. Ct. App. 1967).
52. Haynes v. Waterville & Oakland St. Ry., 64 A. 614, 615 (Me. 1906).
53. Id.
54. Cf. King v. Britt, 148 S.E.2d 594, 598 (N.C. 1966) (ruling that the jury could "infer and find that the permanent scar on appellant's forehead caused her to suffer mental pain" even though the appellant "did not testify that she suffered any mental pain or anguish or embarrassment or humiliation").
55. Haeussler v. Consol. Stone & Sand Co., 127 A. 602, 604 (N.J. 1925).
56. Bennett v. Lembo, 761 A.2d 494, 498 (N.H. 2000).
57. Id. (citation omitted).
58. E.g., Canfield v. Sandock, 563 N.E.2d 1279, 1282 (Ind. 1990); Flannery v. United States, 297 S.E.2d 433, 436, 438 (W. Va. 1982).
59. The language is characteristic not only of opinions, but also of lawyers' arguments. See Gary Gober, Closing Argument: The Lawyer's Crowning Achievement, TRIAL, Apr. 1998, at 70, 75 (quoting the closing argument in a case about neck injury: "A year and a half ago, this man was a whole person. He was 100 percent of a man, and he's lost that."); supra notes 39, 41.
60. Smith v. City of Evanston, 631 N.E.2d 1269, 1278 (Ill. App. Ct. 1994); see Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 766-67 (Tex. 2003) (treating lost enjoyment of life as equivalent to "the inability to have a normal life"); see also Paul E. Marth, Comment, Loss of Enjoyment of Life - Should It Be a Compensable Element of Personal Injury Damages?, 11 WAKE FOREST L. REV. 459, 459 (1975) ("[T]he right to recover for the diminished capacity to enjoy life ... encompass[es] such ideas as inconvenience, embarrassment, loss of pleasure and enjoyment of life, and inability to engage in normal activities.").
61. Mariner v. Marsden, 610 P.2d 6, 12 (Wyo. 1980) (citing Fox v. Fox, 296 P.2d 252, 262 (Wyo. 1956)).
62. Gowdy v. United States, 271 F. Supp. 733, 750 (W.D. Mich. 1967), rev'd on other grounds, 412 F.2d 525, 535 (6th Cir. 1969) (holding that the defendant was not in fact negligent).
63. Gowdy, 271 F. Supp. at 750 (citation omitted).
64. Harnesk v. Carnival Cruise Lines, Inc., No. 87-2328-Civ-DAVIS, 1991 WL 329584, at *2 (S.D. Fla. Dec. 27, 1991).
65. Ford v. State ex rel. Dep't of Transp. & Dev., 760 So. 2d 478, 488 (La. Ct. App. 2000).
66. See, e.g., Nemmers v. United States, 681 F. Supp. 567, 575-76 (CD. Ill. 1988) (awarding hedonic damages to a child who, because of the defendant's negligence in prenatal medical treatment, was born with mental retardation and cerebral palsy, and reasoning that the plaintiff "will never be able to do most of the normal things of life: the first date, parenting children, reading, debating the politics of the day, etc."; that the plaintiff "can see but not substantially comprehend, and he can hear but not substantially understand"; and that "[t]here may be love and affection in his life, but almost all of the developments to which a normal person is exposed during his or her childhood and adulthood will pass him by"); Yosuf v. United States, 642 F. Supp. 432, 439 (M.D. Pa. 1986) (awarding damages for lost enjoyment of life to plaintiff who, because of an injury to his hand, was "unlikely" to "be able to pursue such things as tennis, weightlifting, basketball, or heavy household chores" in the future); Hendrix v. Stepanek, 771 N.E.2d 559, 568 (Ill. App. Ct. 2002) ("[P]laintiff testified that before the accident she was very active and enjoyed gardening, housework, camping, canoeing, and motorcycle riding but that after the accident either she could not enjoy these activities at all or she was only able to enjoy them much less frequently."); Payton v. City of New Orleans, 679 So. 2d 446, 452 (La. Ct. App. 1996) (upholding a general damages award to a plaintiff with severe leg and back pain as a result of a knee injury: "After the injury, she was unable to pursue her hobbies, to play actively with her children or to continue to work. She testified that emotional and sexual aspects of her marriage likewise deteriorated. She continues to have pain and swelling, and the medical experts testified that her condition is not expected to improve with time or further surgery."); Kenton v. Hyatt Hotels Corp., 693 S.W.2d 83, 97 (Mo. 1985) (inability to "enjoy a normal sexual life or have children normally" and "destruction of her athletic lifestyle which will prevent her from ever again playing tennis, skiing, running, jogging, playing Softball, raquetball [sic], hiking, backpacking and riding horses" relevant to lost enjoyment of life component of pain and suffering); Lowe v. State, 599 N.Y.S.2d 639, 639 (N.Y. App. Div. 1993) (upholding damages award to compensate individual whose left hand and forearm were severed for "inability to perform certain day-to-day activities at all or to perform them as quickly as before, and inability to participate in sports such as basketball, which claimant previously enjoyed"); Young v. Warr, 165 S.E.2d 797, 901 (S.C. 1969) (upholding an award of general damages, which included a component for lost enjoyment of life, based on testimony that the plaintiff had lost control of his bladder and bowel functions and "lost all ability for sexual function"); Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 717 (Tenn. Ct. App. 1999) ("While wearing her eye shield, Ms. Overstreet could not swim or wash her own hair, and she was forced to avoid heavy lifting and driving."); Lawrence v. Town of Brighton, No. 02A01-9801-CV-00020, 1998 WL 749418, at *5-6 (Tenn. Ct. App. Oct. 28, 1998) (upholding award of hedonic damages where plaintiff "could no longer raise or care for his dogs," "was not able to cook or help his mother with normal household chores," "could not play with children as he had in the past," "could no longer engage in exercises such as lifting weights, running, and jumping," "could not help his brother with yard work or drive a car to Memphis when he and his brother went shopping together," and "was forced to sleep in a recliner").
67. Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392 (Tex. App. 2001), vacated on settlement, Docket No. 02-0426 (May 22, 2003).
68. See id. at 399.
69. See id. at 410-15.
70. See id. at 412-13.
71. Id. at 411.
72. Id.
73. Id.
74. Id.
75. Id. at 411 n.7.
76. Id. at 412.
77. Id. at 413.
78. Id.
79. Id.
80. For a good general overview of the hedonic adaptation literature, see Shane Frederick & George Loewenstein, Hedonic Adaptation, in WELL-BEING: THE FOUNDATIONS OF HEDONIC PSYCHOLOGY 302 (Daniel Kahneman, Ed Diener & Norbert Schwarz eds., 1999).
81. For good general overviews of the affective forecasting literature, see George Loewenstein & David Schkade, Wouldn't It Be Nice? Predicting Future Feelings, in WELL-BEING, supra note 63, at 85;
82. Timothy D. Wilson & Daniel T. Gilbert, Affective Forecasting, 35 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 345 (2003);
83. see also Blumenthal, supra note 19, at 165-81. See generally Daniel T. Gilbert & Timothy D. Wilson, Miswanting: Some Problems in the Forecasting of Future Affective States, in FEELING AND THINKING: THE ROLE OF AFFECT IN SOCIAL COGNITION 178 (Joseph P. Forgas ed., 2000).
84. See generally Philip Brickman, Dan Coates & Ronnie Janoff-Bulman, Lottery Winners and Accident Victims: Is Happiness Relative?, 36 J. PERSONALITY & SOC. PSYCHOL. 917 (1978).
85. Id. at 918-19.
86. Id. at 920.
87. Id. at 920-21.
88. See id. at 921. For another classic study in the genre, though one that has not become as famous, see Paul Cameron, Donna Gnadinger Titus, John Kostin & Marilyn Kostin, The Life Satisfaction of Nonnormal Persons, 41 J. CONSULTING & CLINICAL PSYCHOL. 207, 212 (1973) (finding "no evidence of a difference between the handicapped and normals in self-reported life satisfaction or its linguistic relatives").
89. David A. Schkade & Daniel Kahneman, Does Living in California Make People Happy? A Focusing Illusion in Judgments of Life Satisfaction, 9 PSYCHOL. SCI. 340, 340 (1998).
90. See Frederick & Loewenstein, supra note 63, at 322 n.25 ("[E]vidence of hedonic adaptation in the [Brickman] paper is not overwhelming.").
91. Wilson & Gilbert, Affective Forecasting, supra note 64, at 380 (citation omitted);
92. accord Daniel T. Gilbert, Elizabeth C. Pinel, Timothy D. Wilson, Stephen J. Blumberg & Thalia P. Wheatley, Immune Neglect: A Source of Durability Bias in Affective Forecasting, 75 J. PERSONALITY & SOC. PSYCHOL. 617, 619 (1998).
93. See Gilbert, Pinel, Wilson, Blumberg & Wheatley, supra note 72, at 619 ("Ego, defense, rationalization, dissonance reduction, motivated reasoning, positive illusions, self-serving attribution, self-deception, self-enhancement, self-affirmation, and self-justification are just some of the terms that psychologists have used to describe the various strategies, mechanisms, tactics, and maneuvers of the psychological immune system."); Wilson & Gilbert, Affective Forecasting, supra note 64, at 371-74 (describing process by which we make sense of unexpected events and then "ordinize" them "in a way that robs them of their emotional power");
94. see also Rebecca L. Collins, Shelley E. Taylor & Laurie A. Skokan, A Better World or a Shattered Vision? Changes in Life Perspectives Following Victimization, 8 SOC. COGNITION 263, 279-84 (1990) (discussing coping strategies people employ following adverse life events);
95. Shelley E. Taylor & David A. Armor, Positive Illusions and Coping with Adversity, 64 J. PERSONALITY 873 passim (1996) (discussing role of positive illusions in coping with adverse life events).
96. For a general discussion of psychological sense-making processes and "emotional evanescence," see Timothy D. Wilson, Daniel T. Gilbert & David B. Centerbar, Making Sense: The Causes of Emotional Evanescence, in 1 THE PSYCHOLOGY OF ECONOMIC DECISIONS 209 (Isabelle Brocas & Juan D. Carrillo eds., 2003).
97. Wilson and Gilbert have highlighted hindsight bias - "whereby people transform an event psychologically after it occurs to make it seem more predictable than it really was" - as one of the psychological tools that leads to the "evanescence" of negative emotions. Wilson & Gilbert, Affective Forecasting, supra note 64, at 374.
98. On hindsight bias generally, see Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. CHI. L. REV. 571, 576-86 (1998).
99. Frederick & Loewenstein, supra note 63, at 302-03; see also Shelley E. Taylor, Adjustment to Threatening Events: A Theory of Cognitive Adaptation, 38 AM. PSYCHOLOGIST 1161, 1161 (1983) ("[T]he readjustment process focuses around three themes: a search for meaning in the experience, an attempt to regain mastery over the event in particular and over one's life more generally, and an effort to enhance one's self-esteem - to feel good about oneself again despite the personal setback.").
100. Glenn Affleck & Howard Tennen, Construing Benefits From Adversity: Adaptational Significance and Dispositional Underpinnings, 64 J. PERSONALITY 899, 902 (1996).
101. See Ed Diener & Carol Diener, Most People Are Happy, 7 PSYCHOL. SCI. 181, 181 (1996).
102. For a general discussion of this research, some of which is discussed in more detail in the remainder of this section, see Carol J. Gill, Health Professionals, Disability, and Assisted Suicide: An Examination of Relevant Empirical Evidence and Reply to Batavia, 6 PSYCHOL. PUB. POL'Y & L. 526, 528-29 (2000);
103. see also M.G. Eisenberg & C.C. Saltz, Quality of Life Among Aging Spinal Cord Injured Persons: Long Term Rehabilitation Outcomes, 29 PARAPLEGIA 514, 517 (1991) (collecting studies finding that "quality of life among those with even severely disabling conditions may be as high as those with no disability");
104. Thomas Mehnert, Herbert H. Krauss, Rosemary Nadler & Mary Boyd, Correlates of Life Satisfaction in Those with Disabling Conditions, 35 REHABILITATION PSYCHOL. 3, 5 (1990) (collecting studies finding that people with a variety of disabilities experience at least as much life satisfaction as nondisabling controls).
105. Carol J. Gill, Depression in the Context of Disability and the "Right to Die", 25 THEORETICAL MED. & BIOETHICS 171, 185 (2004).
106. See Ellen Smith Pryor, The Tort Law Debate, Efficiency, and the Kingdom of the Ill: A Critique of the Insurance Theory of Compensation, 79 VA. L. REV. 91, 111-12 (1993) (suggesting the importance of the disability-related information deficit suffered by people without disabilities).
107. Id. at 114.
108. See Marilynn J. Phillips, Disability and Ethnicity in Conflict: A Study in Transformation, in WOMEN WITH DISABILITIES: ESSAYS IN PSYCHOLOGY, CULTURE, AND POLITICS 195, 196-200 (Michelle Fine & Adrienne Asch eds., 1988) (discussing various theories of transformation offered by researchers).
109. Carolyn L. Vash, The Psychology of Disability, 22 REHABILITATION PSYCHOL. 145, 152-53 (1975),
110. excerpted in CAROLYN L. VASH & NANCY M. CREWE, PSYCHOLOGY OF DISABILITY 160 (2d ed. 2004). This quotation came to our attention because it is featured in Pryor, supra note 79, at 115.
111. Diener & Diener, supra note 76, at 181.
112. Id.; see Camille B. Wortman & Roxane Cohen Silver, Coping with Irrevocable Loss, in CATACLYSMS, CRISES, AND CATASTROPHES: PSYCHOLOGY IN ACTION 189, 198 (Gary R. VandenBos & Brenda K. Bryant eds., 1987);
113. see also C. Lundqvist, A. Siosteen, C. Blomstrand, B. Lind & M. Sullivan, Spinal Cord Injuries: Clinical, Functional, and Emotional Status, 16 SPINE 78, 82 (1991) (finding that after four years, subjects with spinal cord injuries reported levels of subjective well-being and quality of life that were similar to those of a non-disabled reference group);
114. G.G. Whiteneck, S.W. Charlifue, H.L. Frankel, M.H. Fraser, B.P. Gardner, K.A. Gerhart, K.R. Krishnan, R.R. Menter, I. Nuseibeh & D.J. Short, Mortality, Morbidity, and Psychosocial Outcomes of Persons Spinal Cord Injured More Than 20 Years Ago, 30 PARAPLEGIA 617, 626 (1992) ("Approximately three quarters of the subjects rated their current quality of life as either good or excellent on a 5-point scale.").
115. Diener & Diener, supra note 76, at 184 (citation omitted).
116. Id. at 181; see also Richard Stensman, Severely Mobility-Disabled People Assess the Quality of Their Lives, 17 SCANDINAVIAN J. REHABILITATION MED. 87, 89-91 (1985) (finding no statistically significant difference in self-reported quality of life between subjects with severe mobility impairments and non-disabled controls). Liz Emens argues that psychiatric disabilities, at least, are "defined by . . . hedonic costs."
117. Elizabeth F. Emens, The Sympathetic Discriminator: Mental Illness, Hedonic Costs, and the ADA, 94 GEO. L.J. 399, 423-28 (2006). Our discussion focuses on injuries that cause physical or intellectual disabilities.
118. David R. Patterson, John J. Everett, Charles H. Bombardier, Kent A. Questad, Victoria K. Lee & Janet A. Marvin, Psychological Effects of Severe Burn Injuries, 113 PSYCHOL. BULL. 362, 362, 370 (1993).
119. Vida L. Tyc, Psychosocial Adaptation of Children and Adolescents with Limb Deficiencies: A Review, 12 CLINICAL PSYCHOL. REV. 275, 286 (1992).
120. See Jason Riis, George Loewenstein, Jonathan Baron, Christopher Jepson, Angela Fagerlin & Peter A. Ubel, Ignorance of Hedonic Adaptation to Hemodialysis: A Study Using Ecological Momentary Assessment, 134 J. EXPERIMENTAL PSYCHOL. 3 (2005). As the authors describe the EMA method: In EMA, subjects are given personal digital assistants (PDAs; e.g., Palm Pilots) to carry with them wherever they go for a period of several days or more. The method is designed to minimize the influence of biased recall. The PDA prompts the subject to answer questions at random times throughout the day. In studies of well-being, subjects are asked how they feel at that very moment. Id. at 4.
121. See generally Arthur A. Stone, Saul S. Shiffman & Marten W. DeVries, Ecological Momentary Assessment, in WELL-BEING, supra note 63, at 26-28 (discussing the EMA technique).
122. Riis, Loewenstein, Baron, Jepson, Fagerlin & Ubel, supra note 89, at 5-6.
123. Id. at 6.
124. Id. at 7.
125. Andrew J. Oswald & Nattavudh Powdthavee, Does Happiness Adapt? A Longitudinal Study of Disability with Implications for Economists and Judges 14 (Nov. 1, 2005) (unpublished manuscript, on file with authors).
126. Id. at 21.
127. Id. at 21; see also Adrienne Asch, Distracted by Disability, 7 CAMBRIDGE Q. HEALTHCARE ETHICS 77, 80-81 (1998) (noting that "[n]ot everyone who has a disability is satisfied with life" but that "overall disabled people believe that they can achieve enough of their goals to make life worthwhile");
128. M. Kannisto & H. Sintonen, Later Health-Related Quality of Life in Adults Who Have Sustained Spinal Cord Injury in Childhood, 35 SPINAL CORD 747, 750 (1997) (finding that adults who experienced spinal cord injuries in childhood reported a slightly, but only slightly, lower health-related quality of life than did non-disabled controls);
129. R. Stensman, Adjustment to Traumatic Spinal Cord Injury: A Longitudinal Study of Self-Reported Quality of Life, 32 PARAPLEGIA 416 (1994) (evaluating similar findings with individuals who experienced their injuries in adulthood).
130. See Oswald & Powdthavee, supra note 93, at 10.
131. See Marcel Dijkers, Quality of Life After Spinal Cord Injury: A Meta Analysis of the Effects of Disablement Components, 35 SPINAL CORD 829, 835 (1997);
132. see also Marcus J. Fuhrer, Diana H. Rintala & Karen A. Hart, Relationship of Life Satisfaction to Impairment, Disability, and Handicap Among Persons with Spinal Cord Injury Living in the Community, 73 ARCHIVES PHYSICAL MED. & REHABILATION 552, 554 (1992) ("[O]n average, people with SCI who are living in the community report a lower level of satisfaction with life than do people in the general population."); Mehnert, Krauss, Nadler & Boyd, supra note 77, at 12 (finding that people with a range of disabilities experience less life satisfaction than people without them, but that "[e]ven among those who consider themselves severely disabled, and those who report themselves unable to work or keep house, the majority indicate that they are at least somewhat satisfied with their lives.");
133. Richard Schulz & Susan Decker, Long-Term Adjustment to Physical Disability: The Role of Social Support, Perceived Control, and Self-Blame, 48 J. PERSONALITY & SOC. PSYCHOL. 1162, 1170 (1985) (reporting, in study of individuals with spinal cord injuries, that "the subjects in this study reported a mean degree of well-being that was only slightly lower than that of other non-disabled adult populations.").
134. But see Kathleen Chwalisz, Ed Diener & Dennis Gallagher, Autonomic Arousal Feedback and Emotional Experience: Evidence From the Spinal Cord Injured, 54 J. PERSONALITY & SOC. PSYCHOL. 820, 823 (1988) (finding no statistically significant differences between subjects with spinal cord injuries and non-disabled controls on most measures of subjective well-being);
135. L.A. Cushman & J. Hassett, Spinal Cord Injury: 10 and 15 Years After, 30 PARAPLEGIA 690, 694 (1992) (reporting that subjects with spinal cord injuries "who were surveyed 10 and 15 years post injury rated their perceived quality of life as equal to or somewhat better than that of their peers, on average"). Professors Ville and Ravaud note that the studies finding a lower quality of life for people with spinal cord injuries often use measures that beg the question by assuming that functional limitations necessarily limit well-being.
136. See I. Ville & J.F. Ravaud, Subjective Weil-Being and Severe Motor Impairments: The Tetrafigap Survey on the Long-Term Outcome of Tetraplegic Spinal Cord Injured Persons, 52 SOC. SCI. & MED. 369, 370 (2001).
137. See generally Tracey C. Lintern, J. Graham Beaumont, Pamela M. Kenealy & Rachel C. Murrell, Quality of Life (QoL) in Severely Disabled Multiple Sclerosis Patients: Comparison of Three QoL Measures Using Multidimensional Scaling, 10 QUALITY LIFE RES. 371, 372 (2001) ("Most currently available forms of QoL assessment employ external value systems; thus specific goals or activities important to the individual patient may not be included in the measurement scale.")
138. Dijkers, supra note 97, at 833. But cf. Mehnert, Krause, Nadler & Boyd, supra note 77, at 10-12 (finding that degree of functional limitation was directly associated with reduced life satisfaction, but that "social interactional variables" were important as well).
139. See Dijkers, supra note 97, at 835; see also Brent W. Chase, Thomas A. Cornille & R. William English, Life Satisfaction Among Persons with Spinal Cord Injuries, J. REHABILITATION, July-Sept. 2000, at 14, 18-19 (finding that marital status and "perceived control" - the ability to make decisions about one's life - were the most significant predictors of positive life satisfaction among people with spinal cord injuries, and that the opportunity to direct personal assistants and the availability of at least part-time work were highly correlated with positive perceptions of control);
140. Ashley R. Craig, Karen M. Hancock & Hugh G. Dickson, Spinal Cord Injury: A Search for Determinants of Depression Two Years After the Event, 33 BRIT. J. CLINICAL PSYCHOL. 221, 227 (1994) (finding that physical pain and perceived loss of control of one's life were the major determinants of depression in people with spinal cord injuries, and that "medical characteristics such as level of lesion and completeness of lesion" were not associated with depression); Fuhrer, Rintala & Hart, supra note 97, at 555-56 (finding that the social factors of disablement, and not the degree of medical impairment, were the determinants of lower life satisfaction among people with spinal cord injuries); Schulz & Decker, supra note 97, at 1170 ("Persons [with spinal cord injuries] who had high levels of social support, were satisfied with their social contacts, and felt that they had high levels of control reported high levels of well-being.");
141. Vappu Viemero & Christina Krause, Quality of Life in Individuals with Physical Disabilities, 67 PSYCHOTHERAPY & PSYCHOSOMATICS 317, 321 (1998) (finding that social factors, and not the degree of medical impairment, were key determinants of life satisfaction in individuals with disabilities); Ville & Ravaud, supra note 97, at 370, 377-79 (noting that self-reported well-being measures in individuals with spinal cord injuries "increase with increased quality and richness of social contacts" and with "indicators of social status such as income and level of education" as well as occupational level, and reporting results of study showing that similar "sociological variables" play a major role in perceived well-being).
142. See infra notes 145-147.
143. Asch, supra note 95, at 80; see also Nancy Weinberg, Physically Disabled People Assess the Quality of Their Lives, 45 REHABILITATION LITERATURE 12, 14 (1984) (finding that "adjustment to societal attitudes was the most difficult" for interview subjects with disabilities). See infra text accompanying notes 148-160 (providing analysis development on this point).
144. See supra text accompanying notes 34-62.
145. See infra note 155 and accompanying text.
146. See supra notes 47-62 and accompanying text.
147. See, e.g., Colette Ray & Julia West, Social, Sexual, and Personal Implications of Paraplegia, 22 PARAPLEGIA 75, 75-76, 81-83 (1984) (describing ability of people with spinal cord injuries to have sex, despite obstacles).
148. For extensive discussions of sex and disability, from very different perspectives, see TOM SHAKESPEARE, KATH GILLESPIE-SELLS & DOMINIC DAVIES, THE SEXUAL POLITICS OF DISABILITY: UNTOLD DESIRES (1996);
149. THE PSYCHOLOGICAL AND SOCIAL IMPACT OF PHYSICAL DISABILITY 207-55 (Robert P. Marinelli & Arthur E. Dell Orto eds., 1977).
150. The employment rate for people with disabilities does lag well behind that of people without disabilities, but that is to a large extent the result of discrimination and the lack of social services for which courts could compensate directly. See Samuel R. Bagenstos, The Future of Disability Law, 114 YALE L.J. 1, 19-54 (2004).
151. See, e.g., Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997) (requiring sports arena to provide wheelchair users seating areas with a line of sight over standing spectators); Disabled Sports USA, http://www.dsusa.org.
152. See, e.g., Oregon Paralyzed Veterans of Am. v. Regal Cinemas, Inc., 339 F.3d 1126, 1132-33 (9th Cir. 2003) (requiring movie theaters to be accessible to people who use wheelchairs).
153. Kannisto & Sintonen, supra note 95, at 747; see also Schulz & Decker, supra note 97, at 1171 (noting that individuals with spinal cord injuries "saw themselves as better off than most non-disabled persons," and that they did so "partly by selectively focusing on attributes that made them appear advantaged (e.g., brain is more important than brawn)"); Weinberg, supra note 101, at 14 (making similar observations, but noting that the process of adjustment "was not always easy").
154. Asch, supra note 95, at 79; see also id. ("The father or mother who accompanies a child to a sporting event supervises the child even if they are both driven by an assistant because the child is too young to drive and the parent's seizure disorder makes driving unsafe. The woman with a mobility impairment whose personal assistant shops for food she selects is no less in charge of her life than the woman who trades shopping for babysitting so that she and her friend can both maintain homes and work lives.").
155. PAUL K. LONGMORE, Medical Decision Making and People with Disabilities: A Clash of Cultures, in WHY I BURNED MY BOOK AND OTHER ESSAYS ON DISABILITY 204, 209 (2003).
156. Weinberg, supra note 101, at 13.
157. See NATIONAL COUNCIL ON DISABILITY, ASSISTED SUICIDE: A POSITION PAPER 22-25 (1997), available at http://www.ncd.gov/newsroom/publications/1997/ suicide.htm (last visited Feb. 15, 2007).
158. See Loewenstein & Schkade, supra note 64, at 92 (discussing "very substantial evidence" that healthy people underestimate the quality of life of sick people"); George Loewenstein, Ted O'Donoghue & Matthew Rabin, Projection Bias in Predicting Future Utility, 118 Q.J. ECON. 1209, 1212 (2003) ("[C]ross-sectional studies have consistently found that nonpatients' predictions of the quality of life associated with serious medical conditions are lower than actual patients' self-reported quality of life.");
159. see also Asch, supra note 95, at 82 (discussing how the Oregon health rationing plan incorporated biases toward disability through the use of a public quality-of-life survey); Samuel R. Bagenstos, The Americans with Disabilities Act as Risk Regulation, 101 COLUM. L. REV. 1479, 1508 & n.12 (2001) (same).
160. Gill, supra note 77, at 530; see also John R. Bach & Denise I. Campagnolo, Psychosocial Adjustment of Post-poliomyelitis Ventilator Assisted Individuals, 73 ARCHIVES PHYSICAL MED. & REHABILITATION 934, 934 (1992) ("Muscular Dystrophy Association clinic directors significantly underestimated life satisfaction reported by Duchenne muscular dystrophy ventilator users.");
161. John R. Bach & Margaret C. Tilton, Life Satisfaction and Weil-Being Measures in Ventilator Assisted Individuals with Traumatic Tetraplegia, 75 ARCHIVES PHYSICAL MED. & REHABILITATION 626, 630 (1994) (finding that non-disabled health care professionals significantly underestimated the life satisfaction expressed by individuals with spinal cord injuries);
162. Eugenia Bodenhamer, Jeanne Achterberg-Lawlis, George Kevorkia, Anne Belanus & Jeanne Cofer, Staff and Patient Perceptions of the Psychosocial Concerns of Spinal Cord Injured Persons, 62 AM. J. PHYSICAL MED. 182, 182 (1983) (citing studies that "revealed significant discrepancies between the way professional staff view spinal cord injured patients' psychological reactions and the responses the patients actually report");
163. Laura A. Cushman & Marcel P. Dijkers, Depressed Mood in Spinal Cord Injured Patients: Staff Perceptions and Patient Realities, 71 ARCHIVES PHYSICAL MED. & REHABILITATION 191, 195 (1990) (finding "a consistent bias on the part of [rehabilitation facility] staff to overestimate depressed mood, relative to the report of patients themselves");
164. Frederick A. Ernst, Contrasting Perceptions of Distress by Research Personnel and Their Spinal Cord Injured Subjects, 66 AM. J. PHYSICAL MED. 12, 13-14 (1987) (reporting results similar to the Bodenhamer study).
165. See Leaf Van Boven & George Loewenstein, Social Projection of Transient Drive States, 29 PERSONALITY & SOC. PSYCHOL. BULL. 1159, 1162, 1165 (2003).
166. See Blumenthal, supra note 19, at 162 ("[S]ubstantial empirical evidence demonstrates that people are in fact unable to accurately predict their own or others' emotional states."). See generally Loewenstein & Schkade, supra note 64, at 88-94 (reviewing the literature).
167. Wilson & Gilbert, Affective Forecasting, supra note 64, at 351.
168. See Gilbert, Pinel, Wilson, Blumberg & Wheatley, supra note 72, at 633 (reporting results of studies in which subjects "overestimated the duration of their affective reactions to romantic disappointments, career difficulties, political defeats, distressing news, clinical devaluations, and personal rejections"); Loewenstein, O'Donoghue & Rabin, supra note 114, at 1213 (discussing research suggesting "underappreciation of adaptation"); George Loewenstein & Shane Frederick, Predicting Reactions to Environmental Change, in ENVIRONMENT, ETHICS, AND BEHAVIOR: THE PSYCHOLOGY OF ENVIRONMENTAL VALUATION AND DEGRADATION 52, 66 (Max H. Bazerman, David M. Messick, Ann E. Tenbrunsel & Kimberly A. Wade-Benzoni eds., 1997) (reporting results of a study of predicted reactions to environmental change in which the subjects "seem[ed] to expect changes in their circumstances to affect their quality of life in the future more than equivalent things have affected their quality of life in the past"); Riis, Loewenstein, Baron, Jepson, Fagerlin & Ubel, supra note 89, at 3 ("Research in diverse domains has documented a general tendency for people to underestimate their own and others' speed of adaptation to negative as well as positive outcomes.");
169. Timothy D. Wilson, Thalia Wheatley, Jonathan M. Meyers, Daniel T. Gilbert & Danny Axsom, Focalism: A Source of Durability Bias in Affective Forecasting, 78 J. PERSONALITY & SOC. PSYCHOL. 821, 829 (2000) (finding that "[c]ollege football fans overestimated the extent to which the outcome of a football game would influence their overall happiness");
170. Wilson & Gilbert, Affective Forecasting, supra note 64, at 353 ("The impact bias has been found in a variety of populations (e.g., college students, professors, sports fans, dieters, vacationers, snake phobies, people taking medical tests), with a wide range of emotional events (e.g., romantic breakups, personal insults, sports victories, electoral defeats, parachute jumps, failures to lose weight, reading tragic stories, and learning the results of pregnancy and HIV tests.").
171. See infra note 155 and accompanying text; see also Beatrice A. Wright, Attitudes and the Fundamental Negative Bias: Conditions and Corrections, in ATTITUDES TOWARD PERSONS WITH DISABILITIES 3, 8 (Harold E. Yuker ed., 1988) (collecting studies showing "the ease with which devalued groups are regarded as unfortunate, despite the fact that members of those groups do not view themselves as unfortunate").
172. See Samuel R. Bagenstos, Subordination, Stigma, and "Disability", 86 VA. L. REV. 397, 436-45 (2000).
173. Paul Steven Miller, The Impact of Assisted Suicide on Persons with Disabilities - Is It a Right Without Freedom?, 9 ISSUES L. & MED. 47, 49 (1993).
174. See Bagenstos, supra note 121, at 423-24.
175. Harlan Hahn, Accommodations and the ADA: Unreasonable Bias or Biased Reasoning?, in BACKLASH AGAINST THE ADA: REINTERPRETING DISABILITY RIGHTS 26, 34 (Linda Hamilton Krieger ed., 2003);
176. Harlan Hahn, The Politics of Physical Differences: Disability and Discrimination, 44 J. SOC. ISS. 39, 42-45 (1988);
177. see also Miller, supra note 122, at 53 ("The root of prejudice against people with disabilities comes from several sources. Foremost is that of fear: fear of the loss of autonomy and the 'there but for the grace of God go I' realization that disability can 'afflict' any person. Such fears are, of course, based on the prejudicial assumptions about life with a disability that society itself creates. Able-bodied people see 'confinement' to a wheelchair, or reliance upon attendant care, or a lack of hearing or vision, as losses of independence, which, in this society, is often regarded as worse than death itself. Furthermore, nothing in our society is despised like difference. Because our society assumes difference is the equivalent of inferiority and treats people with visible differences accordingly, people have grave fears about being viewed as deviating from accepted societal norms."). See generally R. William English, Correlates of Stigma Toward Physically Disabled Persons, in THE PSYCHOLOGICAL AND SOCIAL IMPACT OF PHYSICAL DISABILITY, supra note 105, at 162.
178. Nilanjana Dasgupta, Implicit Ingroup Favoritism, Outgroup Favoritism, and Their Behavioral Manifestations, 17 SOC. JUST. RES. 143, 146 (2004).
179. For discussions in the legal literature of this general phenomenon, see Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CAL. L. REV. 1, 6-7 (2006);
180. Clark Freshman, Whatever Happened to Anti-Semitism? How Social Science Theories Identify Discrimination and Promote Coalitions Between "Different" Minorities, 85 CORNELL L. REV. 313, 383-409 (2000).
181. For a good overview of theories and research on the attitudes of people without disabilities toward people with disabilities, see generally ATTITUDES TOWARD PERSONS WITH DISABILITIES, supra note 120.
182. See McCaffery, Kahneman & Spitzer, supra note 19, at 1383-87 (discussing this "golden rule" and lawyers' ways around it). See generally L.R. James, Annotation, Instructions in a Personal Injury Action Which, in Effect, Tell Jurors That in Assessing Damages They Should Put Themselves in Injured Person's Place, 96 A.L.R.2d 760 (1964).
183. See Brown Will Present at ABA Conference, THIRD BRANCH, Spring 2006, at 12, available at http://www.wicourts. gov/news/thirdbranch/docs/spring06.pdf (last visited Feb. 15, 2007) ("While statistics on lawyers and judges with disabilities nationwide have not been reliably gathered, [Wisconsin Court of Appeals Judge Richard] Brown said he knows of two blind judges and that he currently is the nation's only deaf judge.") Given the age of the members of the judiciary, it stands to reason that there are some with mobility impairments, and others presumably have less visible disabilities.
184. In the past, that exclusion took the form of categorical statutory prohibitions, some of which remain on the statute books. See Tennessee v. Lane, 541 U.S. 509, 524 n.9 (2004) (citing statutes from Tennessee and Michigan). Today, it more often occurs through the use of peremptory challenges. See generally Andrew Weis, Peremptory Challenges: The Last Barrier to Jury Service for People with Disabilities, 33 WILLAMETTE L. REV. 1 (1997).
185. Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 HARV. C.R.-C.L. L. REV. 141, 185 (2005).
186. See supra text accompanying notes 50-62.
187. Gilbert, Pinel, Wilson, Blumberg & Wheatley, supra note 72, at 619, 633; see also Wilson & Gilbert, Affective Forecasting, supra note 64, at 369 ("A major source of the impact bias, we suggest, is that people fail to anticipate the extent to which they will transform events psychologically in ways that ameliorate their impact.").
188. Wilson, Wheatley, Meyers, Gilbert & Axsom, supra note 119, at 822; see also Wilson & Gilbert, Affective Forecasting, supra note 64, at 366 ("By neglecting to consider how much these other events will capture their attention and influence their emotions, people overestimate the impact of the focal event.").
189. See Schkade & Kahneman, supra note 70, at 340 ("[A] judge who tries to imagine the life of a paraplegic or of a lottery winner will naturally focus attention on the special circumstances of these cases.").
190. Id.
191. LONGMORE, supra note 111, at 209.
192. See JOSEPH P. SHAPIRO, NO PITY: PEOPLE WITH DISABILITIES FORGING A NEW CIVIL RIGHTS MOVEMENT 24 (1993); Bagenstos, supra note 121, at 427-28. 775
193. MCKIE, SINGER, KUHSE & RICHARDSON, supra note 21, at 34.
194. Cf. Martha C. Nussbaum, Human Capabilities, Female Human Beings, in WOMEN, CULTURE AND DEVELOPMENT: A STUDY OF HUMAN CAPABILITIES 61, 91 (Martha C. Nussbaum & Jonathan Glover eds., 1995) (describing men's preferences to remain in a privileged position as being just as conditioned as women's preferences for their subordinated position). Richard Abel comes close to arguing that there is simply no way to compare and assess the views of people with disabilities against the views of people without them about disabled persons' quality of life.
195. See Richard Abel, General Damages are Incoherent, Incalculable, Incommensurable, and Inegalitarian (But Otherwise a Great Idea), 55 DEPAUL L. REV. 253, 277 (2006) ("Profound injury, like serious illness, transforms lives. But though no one would choose to suffer the transformation, those different lives are just that - different, neither better nor worse - incommensurable with each other and incapable of being given a financial equivalent.").
196. Cf. McCaffery, Kahneman & Spitzer, supra note 19, at 1389 (arguing, for similar reasons, that neither an ex ante nor an ex post perspective on non-pecuniary damages "is more 'accurate' than the other"). This issue has some parallels in the debate regarding whether public or expert assessments of risk are correct. Those who favor the experts' assessments believe that the general public's risk perceptions are biased in a variety of ways; those who favor the public's assessment believe that nonexperts are not biased but simply have a richer theory of risk than do the experts. For a discussion of this debate, see Bagenstos, supra note 114, at 1485-86; see also Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 YALE L. & POL'Y REV. 149, 150 (2006) (arguing that disputes like these are not empirical but instead reflect "cultural commitments [that] are prior to factual beliefs on highly charged political issues").
197. SEN, supra note 3, at 318.
198. Id. (emphasis added); see also Nussbaum, supra note 138, at 91 (arguing we should not "rely on utility [measured by preference-satisfaction] as our measure of life quality," because of the phenomenon of adaptive preferences).
199. In marathons, for example, wheelchair racers routinely beat runners by over a half hour. See, e.g., Frank Litsky, Boston, Again, Belongs to Kenyans, But This Time Americans Serve Notice, N.Y. TIMES, Apr. 18, 2006, at D5 (describing men's running victor with course record time of 2 hours 7 minutes, and wheelchair victor with time of 1 hour 25 minutes).
200. See infra text accompanying notes 148-160.
201. See, e.g., Christine Jolls, Cass R. Sunstein & Richard Thaler, A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1542 (1998) (stating that whether "a person's measure of welfare after (for example) becoming ill [is] the appropriate measure of value" raises "a complex normative question");
202. Paul Menzel, Paul Dolan, Jeff Richardson & Jan Abel Olsen, The Role of Adaptation to Disability and Disease in Health State Valuation: A Preliminary Normative Analysis, 55 SOC. SCI. & MED. 2149, 2150 (2002) (stating that the question whether policy should incorporate the adaptive views of people with disabilities and diseases regarding their quality of life "is fundamentally normative"). This is a major point of Mark Kelman's recent work on the implications of hedonic psychology for welfarism.
203. See Mark Kelman, Hedonic Psychology and the Ambiguities of "Welfare", 33 PHIL. & PUB. AFF. 391, 410 (2005). Kelman's work elaborates on themes he has been exploring since 1979.
204. See generally Mark Kelman, Choice and Utility, 1979 WIS. L. REV. 769;
205. cf. Duncan Kennedy, Cost-Benefit Analysis of Entitlement Problems: A Critique, 33 STAN. L. REV. 387, 401-21 (1981) (arguing that the notion of efficiency itself provides no basis to decide whether to use offer or asking prices in cost-benefit analysis and that therefore "the analyst will have to make a choice" based on some extrinsic principle). The idea underlies Ellen Smith Pryor's work, as well. In an argument against what she terms the "insurance theory" of tort damages, Pryor has argued that even if people with disabilities believe that the marginal utility of money is higher pre-injury than post-injury (for example, if a "disabled person . . . conclude[s] that money has been less valuable after injury, at least in part because she has faced social and attitudinal barriers that have diminished the uses of her money and the satisfaction she can garner from those uses), those views cannot be a proper foundation for reduced compensation." Pryor, supra note 79, at 119. Normatively, Pryor argues, beliefs that are "the product of a social order that is unjustifiably hostile and nonaccommodating to the disabled" should not be instantiated by the legal system to diminish opportunities for people with disabilities further. Id. at 120, 145.
206. See Pryor, supra note 79, at 117 (discussing "the centrality of money to a disabled lifestyle"); see also Bagenstos, supra note 106, at 25-26 (discussing the importance of, inter alia, assistive technology and personal assistance to people with disabilities).
207. For a good discussion of pain, see Ellen Smith Pryor, Compensation and the Ineradicable Problems of Pain, 59 GEO. WASH. L. REV. 239, 245-57 (1991).
208. See Bagenstos, supra note 121, at 419-25.
209. MICHAEL OLIVER, UNDERSTANDING DISABILITY: FROM THEORY TO PRACTICE 27 (1996).
210. Bagenstos, supra note 121, at 427.
211. For elaboration of this and some of the other ideas in this section, see id. at 427-32.
212. Id. at 427.
213. Adrian Furnham & Rebecca Thompson, Actual and Perceived Attitudes of Wheelchair Users, 7 COUNSELING PSYCHOL. Q. 35 (1994);
214. William Drew Gouvier, Robert C. Coon, Mark E. Todd & Kristi Hulce Fuller, Verbal Interactions with Individuals Presenting With and Without Physical Disability, 39 REHABILITATION PSYCHOL. 263 (1994);
215. Michael J. Millington, Douglas C. Strohmer, Chris A. Reid & Paul M. Spengler, A Preliminary Investigation of the Role of Differential Complexity and Response Style in Measuring Attitudes Towards People with Disabilities, 41 REHABILITATION PSYCHOL. 243, 250 (1996);
216. Sam B. Morgan & Dale W. Wisely, Children's Attitudes and Behavioral Intentions Toward a Peer Presented as Physically Handicapped: A More Positive View, 8 J. DEVELOPMENTAL & PHYSICAL DISABILITIES 29 (1996) ("The general conclusion to be drawn from most of the literature on children's attitudes towards persons with physically [sic] handicaps is that these attitudes are negative.").
217. Bagenstos, supra note 121, at 429.
218. See U.S. COMM'N ON CIVIL RIGHTS, ACCOMMODATING THE SPECTRUM OF INDIVIDUAL ABILITIES 87-91 (1983).
219. On the spread effect, see, e.g., BEATRICE A. WRIGHT, PHYSICAL DISABILITY - A PSYCHOSOCIAL APPROACH 32-39 (2d ed. 1983); Bagenstos, supra note 121, at 423-24.
220. See OLIVER, supra note 148, at 31-37.
221. See Bagenstos, supra note 106, at 16-17.
222. Id. at 13-14; Bagenstos, supra note 121, at 427.
223. Bagenstos, supra note 121, at 430 (quoting MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW 119 (1990)).
224. See id. at 433-36. This is not to say that the ADA entirely reflects the social model; in its definition of disability in particular, it retains substantial aspects of the individualized medical model. See Samuel R. Bagenstos, Comparative Disability Employment Law from an American Perspective, 24 COMP. LAB. L. & POL'Y J. 649, 657-59 (2003).
225. See supra text accompanying notes 98-101.
226. Nemmers v. United States, 612 F. Supp. 928 (C.D. Ill. 1985) (hereinafter Nemmers I), vacated, 795 F.2d 628 (7th Cir. 1986) (hereinafter Nemmers II), on remand, 681 F. Supp. 567 (CD. Ill. 1988) (hereinafter Nemmers III), aff'd, 870 F.2d 426 (7th Cir. 1989).
227. Nemmers I, 612 F. Supp. at 932.
228. See id. at 935.
229. See Nemmers II, 795 F.2d at 634.
230. Id.
231. Id. Judge Easterbrook's use of the phrase "live greatly" is a reference to a famous speech by Justice Holmes, in which Holmes suggested that lawyers could live a life of the mind: The law is the calling of thinkers. But to those who believe with me that not the least godlike of man's activities is the large survey of causes, that to know is no less than to feel, I say - and I say no longer with any doubt - that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear out his heart after the unattainable. OLIVER WENDELL HOLMES, The Profession of the Law (1886), in COLLECTED LEGAL PAPERS 29-30 (1921).
232. See generally Francis A. Allen, Mr. Justice Holmes and "The Life of the Mind", 52 B.U. L. REV. 229 (1972). Of course, Judge Easterbrook's statement also echoes Mill's comparison of a satisfied pig and an unsatisfied person. See MILL, supra note 3, at 10.
233. Nemmers III, 681 F. Supp. at 575.
234. Id. at 572-73.
235. Id. at 573.
236. Id.
237. Id. at 576.
238. Id. at 575 (internal quotation marks omitted).
239. Id. at 576.
240. Id. (citation omitted).
241. Id.
242. The underestimation of the potential of individuals with mental retardation is widespread. Consider Nicholas Romeo, the plaintiff in Youngberg v. Romeo, 457 U.S. 307 (1982). Romeo had what the Court characterized as "profound[]" mental retardation, "with an I.Q. between 8 and 10." Id. at 309. His own counsel had conceded, "in light of the severe character of his retardation," that Romeo could never live outside of an institution. Id. at 317-18. Yet "ten months after the Court's decision, Nicholas Romeo moved to a community residence in Philadelphia." Timothy M. Cook, The Americans with Disabilities Act: The Move to Integration, 64 TEMP. L. REV. 393, 443 (1991). Eight years later, Cook observed that "[s]ince April 1983, Romeo has been living, receiving services, and working part-time in his neighborhood." Id. Nicholas Romeo's experience was typical of those released from Pennhurst, the institution where he had been confined.
243. See JAMES W. CONROY & VALERIE J. BRADLEY, THE PENNHURST LONGITUDINAL STUDY: COMBINED REPORT OF FIVE YEARS OF RESEARCH AND ANALYSIS 84, 118, 142 (1985) (discussing three separate case studies of Pennhurst residents and their improvements in quality of life and ability after moving into community living arrangements after Pennhurst's closing).
244. See MARTHA A. FIELD & VALERIE A. SANCHEZ, EQUAL TREATMENT FOR PEOPLE WITH MENTAL RETARDATION: HAVING AND RAISING CHILDREN 32-33 (1999).
245. Id. at 32 (quoting ARC, PREVALENCE OF MENTAL RETARDATION (1982)).
246. See, e.g., Amy Dockser Marcus, Next Chapter: A Young Woman with Disabilities Plans Her Wedding, WALL ST. J., Oct. 11, 2005, at A1 (discussing the story of Ms. Bergeron and her engagement to another individual with Down syndrome).
247. See SHAPIRO, supra note 136, at 184-210.
248. See generally FIELD & SANCHEZ, supra note 178. Field and Sanchez cite numerous studies on the subject, many of which included people in the same I.Q. range as Eric Nemmers. Id. at 248-58.
249. Another example is Kansas City S. Ry. Co. v. Johnson, 798 So.2d 374 (Miss. 2001). There, the court stated that the plaintiffs closed-head injury "left him little more than a child," id. at 377, and upheld an award for hedonic damages in a discussion that was dripping with pity: Perhaps most telling about the effects of the accident on Johnson's life is this testimony from Johnson's daughter, Angela: "I watched an active man sit in a wheelchair all day. I watched an articulate man who took pride in his vocabulary struggle to get one word out. And I have watched a person that was always happy look sullen and sad, stare out into space." It is apparent that Johnson is no longer the person he was prior to the accident. We hold today that these restrictions are significant enough to warrant compensation as a separate and distinct element of damages. Id. at 381 (paragraph numbering omitted).
250. Hensel, supra note 129, at 181.
251. Plaintiffs' counsel may seek to minimize the importance of the plaintiff's testimony, see BARTON, supra note 33 and accompanying text, but the cases cited in Part I.B. show that that testimony remains important in practice.
252. Ellen S. Pryor, Noneconomic Damages, Suffering, and the Role of the Plaintiff's Lawyer, 55 DEPAUL L. REV. 563, 596 (2006) (citing studies showing that writing or talking about a traumatic event may sometimes reduce experienced suffering and grief, but that other times it will exacerbate the problem - particularly "when 'the rehearsals about an emotional experience extend over a long period of time"'
253. (quoting Bernard Rimé, Mental Rumination, Social Sharing, and the Recovery from Emotional Exposure, in EMOTION, DISCLOSURE & HEALTH 280-81 (James W. Pennebaker ed., 1995)));
254. cf. Roger K. Pitman, Landy F. Sparr, Linda S. Saunders & Alexander C. McFarlane, Legal Issues in Posttraumatic Stress Disorder, in TRAUMATIC STRESS: THE EFFECTS OF OVERWHELMING EXPERIENCE ON MIND, BODY, AND SOCIETY 378, 382 (Bessell A. van der Kolk, Alexander C. McFarlane & Lars Weisaeth eds., 1996) ("Requiring the PTSD patient to confront his or her traumatic history during interviews with attorneys and consultants, depositions, and courtroom testimony thwarts characteristic efforts at avoidance and predictably results in the resurgence of intrusive ideation and increased arousal."). 187.
255. See Laura L. Rovner, Perpetuating Stigma: Client Identity in Disability Rights Litigation, 2001 UTAH L. REV. 247, 302-04 ("Repeatedly describing oneself as a victim may cause one to come to believe that she is a victim.");
256. see also Martha Minow, Surviving Victim Talk, 40 UCLA L. REV. 1411, 1429 (1993) ("Victim talk can have a kind of self-fulfilling quality, discouraging people who are victimized from developing their own strengths or working to resist the limitations they encounter.").
257. Some of the testimony these plaintiffs have offered about their expectations of life seems strikingly bleak given the limited extent of their disabilities. See, e.g., Varnell v. La. Tech. Univ., 709 So. 2d 890, 896 (La. Ct. App. 1998) (discussing a plaintiff who had knee injury that required two surgeries and who "testified that with her physical limitations and poor prognosis, she does not see that she has 'much of a future' "); Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 717 (Tenn. Ct. App. 1999) (discussing a plaintiff whose left eye was injured, resulting in disfigurement and loss of vision; she testified that "she will not risk going rafting, canoeing, or playing tennis," and her husband testified that she "no longer wants to go out," that, "she bumps into people because she doesn't see them coming on her left side," and that "she hates going to work because she cannot tolerate the stress").
258. Abel, supra note 138, at 259.
259. Pryor, supra note 186, at 564.
260. 42 U.S.C. § 423(d)(1)(A) (2007).
261. See Richard V. Burkhauser, Lessons from the West German Approach to Disability Policy, in DISABILITY AND WORK: INCENTIVES, RIGHTS, AND OPPORTUNITIES 85, 85 (Carolyn L. Weaver ed., 1991).
262. Cheryl Rogers, The Employment Dilemma for Disabled Persons, in IMAGES OF THE DISABLED, DISABLING IMAGES 117, 122 (Alan Gartner & Tom Joe eds., 1987);
263. see also Lucie E. White, Mobilization on the Margins of the Lawsuit: Making Space for Clients to Speak, 16 N.Y.U. REV. L. & SOC. CHANGE 535, 555 (1987-1988) ("The [Social Security Act's] definition of disability is in many ways a negation of self-empowerment.").
264. See Bagenstos, supra note 106, at 32, 64.
265. Hensel, supra note 129, at 171-72.
266. See id. at 174 ("Wrongful birth and life actions transmit a potentially powerful message to all people with disabilities: as a matter of law, your impairment, standing alone, is a sufficient basis upon which to evaluate the quality of your life."); see also Lori B. Andrews & Michelle Hibbert, Courts and Wrongful Birth: Can Disability Itself Be Viewed as a Legal Wrong?, in AMERICANS WITH DISABILITIES: EXPLORING IMPLICATIONS OF THE LAW FOR INDIVIDUALS AND INSTITUTIONS 318, 325 (Leslie Pickering Francis & Anita Silvers eds., 2000);
267. Adrienne Asch, Reproductive Technology and Disability, in REPRODUCTIVE LAWS FOR THE 1990S 69, 94 (Sherrill Cohen & Nadine Taub eds., 1989) ("There is reason for us to fear wrongful birth suits and to oppose suits for wrongful life: it is the message they send to the children themselves, disabled people, and society about the worth of lives with impairments.").
268. See Adam A. Milani, Better off Dead Than Disabled? Should Courts Recognize a "Wrongful Living" Cause of Action When Doctors Fail to Honor Patients' Advance Directives?, 54 WASH. & LEE L. REV. 149, 217-20 (1997) (arguing that "wrongful living" actions have this impact for similar reasons).
269. Cf. Bagenstos, supra note 121, at 472-73 (advocating, for similar reasons, an approach to reading the ADA's "disability" definition that focuses on society's perceptions of disability rather than anything "inherent[]" in disability itself).
270. See supra notes 65-111 and accompanying text.
271. See Vash, supra note 82, at 152-53.
272. See supra notes 99-101 and accompanying text.
273. Cf. Mary Anne Case, Developing a Taste for Not Being Discriminated Against, 55 STAN. L. REV. 2273, 2273-80 (2003) (stating individuals with "a strong taste for not being discriminated against" will alter their behavior, sometimes to their detriment).
274. McCaffrey, Kahneman & Spitzer, supra note 19, at 1397 ("Even if we believed that the lower, ex post making whole value adequately compensated an injured plaintiff once an injury had occurred, it does not follow that the damages faced by putative defendants, for purposes of calibrating their ex ante incentives and expressing society's values, should also be set at this making whole level.").
275. See, e.g., Frank H. Easterbrook, Method, Result, and Authority: A Reply, 98 HARV. L. REV. 622, 622 (1985) ("[J]udges should be aware that their decisions create incentives influencing conduct ex ante, and that attempts to divide the stakes fairly ex post will alter or reverse the signals that are desirable from an ex ante perspective.").
276. See, e.g., STEVEN SHAVELL, FOUNDATIONS OF ECONOMIC ANALYSIS OF LAW 236-37 (2004).
277. Id. at 236.
278. McCaffery, Kahneman & Spitzer, supra note 19, at 1397-1403.
279. In any event, it is doubtful that tort liability could meaningfully reduce non-disabled people's dread of becoming disabled. So long as a few salient examples of disabling injuries remain, the fears will remain as well. See Timur Kuran & Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 STAN. L. REV. 683, 711-15 (1998) (discussing the importance of the availability heuristic in public perceptions of risk).
280. Beyond examples like this, a person whose hands are cut off may simply be restricted in her choice of pleasure-creating activities, even if she ultimately enjoys life to the same extent that she did before. That type of loss might be dealt with under the rubric of disability or permanent impairment damages rather than hedonic damages. To the extent that our argument applies to those damages, see supra note 23 and accompanying text, one might make a similar undercompensation challenge to it.
281. See supra text accompanying notes 98-101.
282. See, e.g., Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1208 (1995) (explaining, in the context of stereotyping, that individuals group others into categories that fit their pre-defined expectancies, and "once a target individual has been perceived as a member of a particular category, people are more likely to remember the target as exhibiting attributes and behaviors commonly associated with that category.").
283. See supra text accompanying notes 50-62.
284. Should a "debiasing" approach, which would seek to eliminate the biases we discuss here, emerge in this context, it would certainly warrant consideration as a way of avoiding the bluntness of our proposal. See Christine Jolls & Cass R. Sunstein, Debiasing Through Law, 35 J. LEGAL STUD. 199, 200-01 (2006).
285. For a list of wrongful death statutes for all fifty states, see Andrew J. McClurg, Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages, 85 B.U. L. REV. 1, 23-26 nn.129-31 (2005). The statutes allow only limited liability; at common law, the rule was against any liability at all. Id. at 18-20;
286. see also Wex S. Malone, The Genesis of Wrongful Death, 17 STAN. L. REV. 1043, 1067-76 (1965).
287. See, e.g., CAL. CIV. PROC. CODE § 377.34 (West 2007) ("In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.").
288. See Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 931 n.6 (Miss. 2000) (en banc) (Cobb, J., dissenting) (citing cases from twenty states); MISS. CODE ANN. § 11-1-69 (West 2003) (overruling Choctaw Maid Farm).
289. Abel, supra note 138, at 270.
290. Robert L. Rabin, Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss, 55 DEPAUL L. REV. 359, 375 (2006);
291. see also John C.P. Goldberg, Two Conceptions of Tort Damages: Fair v. Full Compensation, 55 DEPAUL L. REV. 435, 466-67 (2006) (arguing for a theory of "fair" rather than "full" compensation, under which "a fact-finder might be entitled to award less-than-fully compensatory damages, even to a not-at-fault tort plaintiff").
292. Palsgraf v. Long Island R.R., 162 N.E. 99, 100 (N.Y. 1928).
293. See, e.g., Bryant v. Glastetter, 38 Cal. Rptr. 2d 291, 292 (Cal. Ct. App. 1995) (denying recovery to plaintiff tow truck operator killed after being summoned by police to haul away defendant drunk driver's car, notwithstanding the defendant's negligence with respect to earlier users of the road).
294. See Amaya v. Home Ice, Fuel & Supply Co., 379 P.2d 513 (Cal. 1963) (applying the "zone of danger" rule). Compare Dillon v. Legg, 441 P.2d 912, 924-25 (Cal. 1968) (overruling Amaya and allowing recovery for emotional trauma caused when mother witnessed the death of her child as a result of defendant motorist's negligence) with Tobin v. Grossman, 249 N.E.2d 419, 423 (N.Y. 1969) (refusing to allow recovery in similar circumstances).
295. See, e.g., Stewart v. Price, 718 So. 2d 205, 209-10 (Fla. Dist. Ct. App. 1998) (discussing evolution of Florida statutory law on this point); Weimer v. Wolf, 641 So. 2d 480, 480-81 (Fla. Dist. Ct. App. 1994) (same).
296. Cf. John C.P. Goldberg & Benjamin C. Zipursky, Unrealized Torts, 88 VA. L. REV. 1625, 1679-82 (2002) (stating that courts may limit emotional distress liability to force a plaintiff to get on with his or her life).
297. See supra note 158 and accompanying text.
298. For a discussion of the role of paternalism in disability oppression, see JAMES I. CHARLTON, NOTHING ABOUT US WITHOUT US: DISABILITY OPPRESSION AND EMPOWERMENT 52-55 (1998).
299. For an example, see Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73, 76-77 (2002). For criticism of the Court's decision in Echazabal, see Samuel R. Bagenstos, The Supreme Court, The Americans with Disabilities Act, and Rational Discrimination, 55 ALA. L. REV. 923, 930-34 (2004).
300. Samuel R. Bagenstos, The Americans with Disabilities Act as Welfare Reform, 44 WM. & MARY L. REV. 921, 997 (2003).
301. See id. at 1010-12 (discussing how individuals with disabilities were moved to action by their desire to "escape the control of professionals who thought they knew what was best [for the disabled individuals]"); Bagenstos, supra note 226, at 932 n.70.
302. See supra text accompanying notes 185-98.
303. See Sunstein & Thaler, supra note 19, at 1171-90 (discussing the inevitability of paternalism and noting that "the anti-paternalist position is incoherent, simply because there is no way to avoid effects on behavior and choices.").
304. See, e.g., SHAPIRO, supra note 136, at 12-40.