Tort damages and the new science of happiness

Indiana Law Journal

Volumn 85, Issue 2, 2010, Pages 553-595

  Swedloff, Rick ^a   Huang, Peter H ^b,c  

^a and law in the military   (United States)

^b TEMPLE UNIVERSITY   (United States)

^c YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77951809842     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (392)

1. It does not seem a stretch to refer to the scholarship and press related to the new science of happiness as a "revolution." In the past five years, there have been scores of books, dozens of academic articles, and a fair smattering of popular press devoted to questions about happiness. As to the books, see generally ED DIENER & ROBERT BISWAS-DIENER, HAPPINESS: UNLOCKING THE MYSTERIES OF PSYCHOLOGICAL WEALTH (2008);
2. BARBARA FREDRICKSON, POSITIVITY: GROUNDBREAKING RESEARCH REVEALS HOW TO EMBRACE THE HIDDEN STRENGTH OF POSITIVE EMOTIONS, OVERCOME NEGATIVITY, AND THRIVE (2009);
3. BRUNO S. FREY, HAPPINESS: A REVOLUTION IN ECONOMICS (2008);
4. HANDBOOK ON THE ECONOMICS OF HAPPINESS (Luigino Bruni & Pier Luigi Porta eds, 2007);
5. DANIEL M. HAYBRON, THE PURSUIT OF UNHAPPINESS: The ELUSIVE PSYCHOLOGY OF WELL-BEING (2008);
6. DACHER KELTNER, BORN TO BE GOOD: The SCIENCE OF A MEANINGFUL LIFE (2009);
7. BERNARD M. S. VAN PRAAG & ADA FERRER-ICARBONELL, HAPPINESS QUANTIFIED: A SATISFACTION CALCULUS APPROACH (Rev. ed. 2008).
8. For a review of the academic literature, see generally Peter H. Huang, Authentic Happiness, Self Knowledge, and Legal Policy, 9 MINN. J.L. Sci. & TECH. 755 (2008).
9. For a sample of the popular press devoted to happiness, see Alice Park, The Happiness Effect: How Emotions and Even Behaviors can Spread like an Epidemic, TIME, Dec. 22, 2008, at 40;
10. -20/20: Happiness: How to Find It, Understand It and Achieve It, (ABC television broadcast Jan. 11, 2008);
11. -60 Minutes: The Pursuit of Happiness (CBS television broadcast Feb. 18, 2008);
12. Laura Blue, Is Our Happiness Preordained, TIME.COM, Mar. 12, 2008, http://www.time.com/time/health/article/0,8599,1721954,00.html;
13. Tiffany Sharples, Can You Predict Happiness, TIME.COM, Feb. 12, 2008, http://www.time.com/time/health/article/ 0,8599, 1714473,00.html.
14. See, e.g., Mirko Bagaric & James McConvill, Stop Taxing Happiness: A New Perspective on Progressive Taxation, 2 PITTSBURGH TAX REV. 65 (2005) (arguing that empirical happiness research data supports progressive taxes);
15. Robert H. Frank, Progressive Consumption Taxation as a Remedy for the U.S. Savings Shortfall, 2 ECONOMIST'S VOICE 1 (2005), http://www.bepress.com/ cgi/viewcontent.cgi?article=1022&context=ev (arguing that imposing a progressive consumption tax remedies a primary reason that Americans save so little, namely the pressure to keep up with community spending standards, that have been exacerbated recently by rising income and wealth inequality);
16. Thomas D. Griffith, Progressive Taxation and Happiness, 45 B.C. L. REV. 1363 (2004) (arguing that happiness research provides additional support for progressive taxation);
17. Marione E. Komhauser, Educating Ourselves Towards a Progressive (and Happier) Tax: A Commentary on Griffith's Progressive Taxation and Happiness, 45 B.C. L. REV. 1399 (2004) (proposing a national tax literacy campaign to increase public knowledge about and acceptance of progressive taxation).
18. But see Diane M. Ring, Why Happiness?: A Commentary on Griffth 's Progressive Taxation and Happiness, 45 B.C. L. REV. 1413 (2004) (examining issues raised by proposals to use happiness research in determining tax policy);
19. David A. Weisbach, What Does Happiness Research Tell Us About Taxation?, 37 J. LEGAL STUD. S293 (2008) (examining arguments for progressive taxation and concluding they are not supported by existing data or models about happiness).
20. See, e.g., JAMES MCCONVILL, THE FALSE PROMISE OF PAY FOR PERFORMANCE: EMBRACING A POSITIVE MODEL OF THE COMPANY EXECUTIVE (2005) (arguing that happiness research explains why existing CEO compensation practices are misguided);
21. JAMES MCCONVILL, SHAREHOLDER PARTICIPATION AND THE CORPORATION: A FRESH INTER-DISCIPLINARY APPROACH IN HAPPINESS (2006);
22. James McConvill, Executive Compensation and Corporate Governance: Rising Above the "Pay-for-Performance" Principle, 43 AM. BUS. L.J. 413, 416-17, 421-30 (2006) (arguing that happiness research explains why existing CEO compensation practices are misguided);
23. James A. McConvill, Positive Corporate Governance, 6 J. Bus. & SEC. L. 51, 5762 (2006) (arguing that corporate law should recognize and foster potential and strengths of company executives, rather than simply trying to control them by imposing corporate governance requirements);
24. James McConvill, Shareholder Empowerment as an End in Itself: A New Perspective on Allocation of Power in the Modern Corporation, 33 OHIO N.U. L. REV. 1013 (2007) (arguing that shareholder participation can be a vehicle for realizing happiness); (same).
25. But see Harry G. Hutchison & R. Sean Alley, Against Shareholder Participation: A Treatment for McConvill's Psychonomicosb, 2 BROOK. J. CORP. FIN. & COM. L. 41 (2007) (arguing critically against McConvill's Panglossian proposals for enhanced shareholder participation);
26. Harry G. Hutchison & R. Sean Alley, The High Costs of Shareholder Participation, 11 U. PA. J. BUS. L. (forthcoming 2009) (same).
27. See Mirko Bagaric & James McConvill, Giving Content to the Principle of Proportionality: Happiness and Pain as the Universal Currency for Matching Offence Seriousness and Penalty Severity, 69 J. CRIM. L. 50 (2005) (arguing that pain and unhappiness data can ensure punishments imposed match the severity of crimes);
28. John Bronsteen, Christopher Buccafusco & Jonathan Masur, Happiness and Punishment, 76 U. CHI. L. REV. (forthcoming 2009), available at http://ssm.com/abstract=1241008 (arguing that happiness research implies that retributivists and utilitarians must seek novel ways to calibrate traditional punitive sanctions).
29. See, e.g., Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745 (2007);
30. John Bronsteen, Christopher Buccafusco & Jonathan S. Masur, Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 COLUM. L. REV. 1516 (2008);
31. Cass R. Sunstein, Illusory Losses, 37 J. LEGAL STUD. S157 (2008);
32. Peter A. Ubel & George Loewenstein, Pain and Suffering Awards: They Shouldn't Be (Just) About Pain and Suffering, 37 J. LEGAL STUD. S195 (2008).
33. Richard E. Lucas, Andrew E. Clark, Yannis Georgellis & Ed Diener, Unemployment Alters the Set Point for Life Satbfaction, 15 PSYCHOL. Sci. 8, 8 (2004) (finding that life circumstances like income, education, and physical attractiveness "often account for a very small percentage of variance in [subjective well-being]");
34. Eunkook Suh, Ed Diener & Frank Fujita, Events and Subjective Well-Being: Only Recent Events Matter, 70 J. PERSONALITY & Soc. PSYCHOL. 1091, 1091 ( 1996) (citing other studies suggesting that life circumstances do not affect happiness).
35. See, e.g., Richard E. Lucas, Time Does Not Heal All Wounds: A Longitudinal Study of Reaction and Adaptation to Divorce, 16 PSYCHOL. SCI. 945, 945 (2005) ("Although people dread the prospect of becoming disabled, losing their job, or ending a relationship, much existing research suggests that they will not suffer long-term emotional consequences from these events.");
36. see also Shane Frederick & George Loewenstein, Hedonic Adaptation, in WELLBEING: The FOUNDATIONS OF HEDONIC PSYCHOLOGY 302 (Daniel Kahneman et al. eds, 1999);
37. Philip Brickman, Dan Coates & Ronnie Janoff-Bulman, Lottery Winners and Accident Victims: Is Happiness Relative?, 36 J. PERSONALITY & Soc. PSYCHOL. 917 (1978).
38. In response to these findings, researchers hypothesized that people adapt psychologically like they adapt physiologically. Just as people initially react strongly to certain scents but soon learn to ignore the smell or initially react negatively to cold water but soon learn to tolerate it, the emotional system adjusts to current life circumstances and events to return to baseline levels. See generally Philip Brickman & Donald T. Campbell, Hedonic Relativism and Planning the Good Society, in ADAPTATION-LEVEL THEORY: A SYMPOSIUM 287, 289 (M. H. Appley ed, 1971 ) (suggesting that individuals cannot sustain happiness over time because they live on a "hedonic treadmill").
39. For overviews of affective forecasting, see Jeremy A. Blumenthal, Law and the Emotions: The Problems of Affective Forecasting, 80 IND. L.J. 155, 165-81 (2005);
40. George Loewenstein & David Schkade, Wouldn 't It be Nice? Predicting Future Feelings, in WELLBEING: The FOUNDATIONS OF HEDONIC PSYCHOLOGY, supra note 7, at 85;
41. Timothy D. Wilson & Daniel T. Gilbert, Affective Forecasting, 35 ADVANCES IN EXPERIMENTAL SOC. PSYCHOL. 345 (2003).
42. See generally DANIEL GILBERT, STUMBLING ON HAPPINESS (2006);
43. TIMOTHY WILSON, STRANGERS TO OURSELVES: DISCOVERING THE ADAPTIVE UNCONSCIOUS 137-58 (2002).
44. Compensatory tort damages (as distinguished from punitive or nominal tort damages) are meant to restore an injured party to his or her preinjury position. Compensatory damages restore both economic (or pecuniary) losses and noneconomic (or nonpecuniary) losses. Economic losses include lost wages, loss of earning potential, and costs associated with medical care and rehabilitation. Noneconomic losses compensate when there is no obvious external objective measure for the loss. Noneconomic damage awards include compensation for pain, suffering, mental distress, and loss of enjoyment of life. While there is little dispute about the calculation of economic damages, noneconomic damages have engendered deep debate. See infra Part III for a more fulsome definition of noneconomic damages, a deeper discussion of the debate, and the legal hedonists' role in that debate. Of course, tort victims may also receive punitive or nominal damages. Punitive damage awards are granted as a means of punishing the defendant for outrageous conduct and deterring future conduct, not as a means to return a plaintiff to an ex ante position. In contrast, nominal damages are given as a symbolic award, and are designed to vindicate a right even if there is no compensatory loss.
45. EDIE GREENE & BRIAN H. BORNSTEIN, DETERMINING DAMAGES: The PSYCHOLOGY OF JURY AWARDS 23 (2003).
46. See Drake Bennett, Perfectly Happy, BOSTON GLOBE.COM, May 10, 2009, http://www.boston.com/bostonglobe/ideas/articles/2009/05/10/perfectly-happy/.
47. See Sunstein, supra note 5, at S168 (stating "many apparently serious losses inflict relatively little in the way of long-term hedonic harm");
48. Ubel & Loewenstein, supra note 5, at S205-07 (arguing that courts should not include as an element of damage awards any amount that compensates for loss of happiness, because adaptation makes emotional changes as a result of adverse events or life circumstances fleeting).
49. See Sunstein, supra note 5, at S174.
50. See id. at S158. This claim, of course, is simply the observation that people make affective forecasting errors as a result of adaptation neglect and the focusing illusion of the litigation system.
51. Id.
52. Bagenstos & Schlanger, supra note 5, at 773. They do not, however, believe that nonpecuniary damage awards are too high. Rather they argue that certain types of damages, those for loss of enjoyment of life, are unnecessary in light of hedonic adaptation.
53. Id. at 773-774
54. Sunstein, supra note 5, at S158, S184-86.
55. Id.
56. See infra Part III.
57. See infra Part II.
58. See infra Part IV.
59. See, e.g., Jeremy A. Blumenthal & Peter H. Huang, Positive Parentalism, NAT'LL.J., Jan. 26, 2009, at 27, available at http://www.law.com/ jsp/nlj/PubArticleNLJ.jsp7id= 1202427700551 (advocating doing so).
60. See Randy J. Larsen & Barbara L. Fredrickson, Measurement Issues in Emotion Research, in WELL-BEING: The FOUNDATIONS OF HEDONIC PSYCHOLOGY, supra note 7, at 40, 44.
61. Ed Diener, Robert A. Emmons, Randy J. Larsen & Sharon Griffin, The Satisfaction with Life Scale, 49 J. PERSONALITY ASSESSMENT 71, 72 tbl. 1 ( 1985).
62. See Alan B. Krueger & David A. Schkade, The Reliability of Subjective Well-Being Measures, 92 J. PUB. ECON. 1833, 1835-36 (2008) [hereinafter Krueger & Schkade, Reliability] (providing an overview of the literature). A related line of research measures how much time people report experiencing various positive and negative feelings.
63. Nancy Folbre, Time Use and Living Standards, 93 Soc. INDICATORS RES. 77 (2009);
64. Daniel S. Hamermesh, It's Time to "Do Economics" with TimeUse Data, 93 Soc. INDICATORS RES. 65 (2009);
65. Daniel Kahneman & Alan B. Krueger, Developments in the Measurement of Subjective Well-Being, J. ECON. PERSP, Winter 2006, at 3, 18-22 [hereinafter Kahneman & Krueger, Developments];
66. Alan B. Krueger, Daniel Kahneman, Claude Fischler, David Schkade, Norbert Schwarz & Arthur A. Stone, Time Use and Subjective Well-Being in France and the U.S., 93 Soc. INDICATORS RES. 7 (2009);
67. Alan B. Krueger, Are We Having More Fun Yet? Categorizing and Evaluating Changes in Time Allocation, 2 BROOKINGS PAPERS ON ECON. ACTIVITY 193 (2007) [hereinafter Krueger, More Fun];
68. Alan B. Krueger et al. National Time Accounting: The Currency of Life, in NATIONAL TIME ACCOUNTING & SUBJECTIVE WELL-BEING (Alan B. Krueger ed, forthcoming 2009);
69. George Loewenstein, That Which Makes Life Worthwhile, in NATIONAL TIME ACCOUNTING & SUBJECTIVE WELL-BEING (Alan B. Krueger ed, forthcoming 2009);
70. William Michelson, On Adding Affect to Time-Diary Accounts, 93 SOC. INDICATORS RES. 31 (2009).
71. Kruger & Schkade, Reliability, supra note 25, at 1834.
72. See Larsen & Frederickson, supra note 23, at 50.
73. Richard J. Davidson, Well-Being and Affective Style: Neural Substrates and Biobehavioral Correlates, 359 PHIL. TRANSACTIONS ROYAL SOC'Y B 1395 (2004).
74. See Richard M. Ryan & Edward L. Deci, On Happiness and Human Potentials: A Review of Research on Hedonic and Eudaimonic Well-Being, 52 ANN. REV. PSYCHOL. 141, 143-144 (2001) ("[Thomas] Hobbes argued that happiness lies in the successful pursuit of our human appetites, and [the Marquis] DeSade believed that pursuit of sensation and pleasure is the ultimate goal of life. Utilitarian philosophers such as Bentham argued that it is through individuals' attempting to maximize pleasure and self-interest that the good society is built.").
75. Id. at 145;
76. see Valerie Tiberius, Well-Being: Psychological Research for Philosophers, 5 PHIL. COMPASS 493, 494 (2006).
77. Tiberius, supra note 30, at 494.
78. Id.
79. See id. ("The research programs in social and personality psychology correspond roughly to the divisions among philosophical theories."). Psychologists Martin Seligman and Edward B. Royzman, for instance, classified traditional theories of happiness into three categories: (1) hedonism, which views happiness as experiencing positive subjective feelings; (2) desire theory, which views happiness as fulfilling subjective desires; and (3) objective list theory, which views happiness as achieving items from some objective list of worthwhile pursuits or things.
80. See Martin E. P. Seligman & Ed Royzman, Happiness: The Three Traditional Theories, AUTHENTIC HAPPINESS, July 2003, http://www. authentichappiness.sas.upenn.edu/ newsletter.aspx?id=49. Seligman introduced the concept of authentic happiness to try to combine all three traditional theories of happiness. "Authentic happiness comes from identifying and cultivating your most fundamental strengths and using them every day in work, love, play, and parenting."
81. MARTIN E. P. SEUGMAN, AUTHENTIC HAPPINESS: USING THE NEW POSITIVE PSYCHOLOGY TO REALIZE YOUR POTENTIAL FOR LASTING FULFILLMENT, at xiii (2002). What is authentic about authentic happiness is that "[w]hen well-being comes from engaging our strengths and virtues, our lives are imbued with authenticity."
82. Id. at 9.
83. Authentic happiness is thus about more than just experiencing a string of moments that feel good. An example of authentic happiness is being engaged in some activity that is valued, regardless of the presence or absence of positive subjective feelings. Christopher Peterson, Nansook Park & Martin E. P. Seligman, Orientations to Happiness and Life Satifaction: The Full Life Versus the Empty Life, 6 J. HAPPINESS STUD. 25, 27 (2005). Authentic happiness conceives of three kinds of happy lives: a pleasant life, pursuing pleasurable feelings; a good life, utilizing one's character strengths to achieve gratification and engagement; and a meaningful life, utilizing one's character strengths in the service of something larger than oneself. SEUGMAN, supra, at 262-63;
84. Seligman & Royzman, supra. A full life is a life that is at once pleasant, good, and meaningful. So, authentic happiness combines all three theories in the sense that a pleasant life conceives of happiness in a hedonic sense, a good life conceives of happiness in a desire sense, and a meaningful life conceives of happiness in an objective list sense.
85. See generally Peter H. Huang & Rick Swedloff, Authentic Happiness & Meaning at Law Firms, 58 SYRACUSE L. REV. 335, 345-46 (2008).
86. James A. Russell, A Circumplex Model of Affect, 39 J. PERSONALITY & Sec. PSYCHOL. 1161, 1163-64 (1980) (describing the circumplex model of affect, which graphically depicts affect living inside a two dimensional plane with the horizontal axis depicting the valence dimension and the vertical axis indicating the arousal dimension). For example, happiness can refer to such "yippy skippy" notions as excitement and exuberance and such contemplative and meditative conceptions as contentment and serenity. Excitement and meditation might both produce positive valence to affect, but would be in opposite quadrants of an arousal scale.
87. See id. at 1165-1167
88. ROBERT E. THAYER, THE BIOPSYCHOLOGY OF MOOD AND AROUSAL 14 (1989).
89. Mathew P. White & Paul Dolan, Accounting for the Richness of Daily Activities, 20 PSYCHOL. SCI. 1000, 1001, 1003 fig.1, 1004 fig.2, 1005 tb1.2 (2009) (providing data finding that that while survey respondents rated time with children as being relatively low in pleasure, they nonetheless thought of time with children as being rewarding and hence contributing to overall subjective well-being).
90. See Ed Diener, Subjective Well-Being: The Science of Happiness and a Proposal for a National Index, 55 AM. PSYCHOL. 34, 35-36 (2000);
91. see also Jan Cornelius Ott, Happiness, Economics and Public Policy: A Critique, J. HAPPINESS STUD. (2008), http://www.springerlink.com/content/ f4088110pl3649k5/fulltext.pdf?page=1.
92. Diener, supra note 37, at 34;
93. see also Jacolyn M. Norrish & Dianne A. Vella-Brodrick, Is the Study of Happiness a Worthy Scientific Pursuit?, 87 SOC. INDICATORS RES. 393, 400 (2007).
94. Norbert Schwarz & Fritz Strack, Evaluating One's Life: A Judgment Model of Subjective Well-Being, in SUBJECTIVE WELL-BEING: AN INTERDISCIPLINARY PERSPECTIVE 27 (Fritz Strack, Michael Argyle & Norbert Schwarz eds, 1991).
95. Daniel Kahneman & Dale T. Miller, Norm Theory: Comparing Reality to Its Alternatives, 93 PSYCHOL. REV. 136 (1986).
96. See generally Betsey Stevenson & Justin Wolfers, Happiness Inequality in the United States, 37 J. LEGAL STUD. S33 (2008).
97. Christopher K. Hsee & Judy Ningyu Tang, Sun and Water: On a Modulus-Based Measurement of Happiness, 7 EMOTION 213 (2007). Two psychologists proposed a simple paper-and-pencil-friendly modulus-based scale of happiness to minimize such bias.
98. Id.
99. Paul Ekman, Richard J. Davidson & Wallace V. Friesen, The Duchenne Smile: Emotional Expression and Brain Physiology II, 58 J. PERSONALITY & SOC. PSYCHOL. 342 (1990) (demonstrating that self-reports of happiness are correlated with Duchene smiles, which are smiles that involve orbicularis oculi muscles near our eyes);
100. Paul Ekman, Wallace V. Friesen & Maureen O'Sullivan, Smiles When Lying, 54 J. PERSONALITY & SOC. PSYCHOL. 414 (1988) (finding that subtle differences in aspects of facial expression differentiated types of smiling);
101. Kahneman & Krueger, Developments, supra note 25, at 9, tbl. 1.
102. But see Eva G. Krumhuber & Anthony S.R. Mansted, Can Duchenne Smiles be Feigned? New Evidence on Felt and Fasle Smiles, 9 EMOTION 807 (2009) (raising doubts concerning the reliability and validity of Duchenne smiles and questioning their use to identify genuine feelings of happiness).
103. Nathan A. Fox & Richard J. Davidson, Patterns of Brain Electrical Activity During Facial Signs of Emotion in 10-Month-Old Infants, 24 DEVELOPMENTAL PSYCHOL. 230 (1988) (finding that ten-month-old infants display greater activation of their left rather than right frontal area of their brains upon seeing videotapes of actresses exhibiting happy facial expressions);
104. Heather L. Urry, Jack B. Nitschke, Isa Dolski, Daren C. Jackson, Kim M. Dalton, Corrina J. Mueller, Melissa A. Rosenkranz, Carol D. Ryff, Burton H. Singer & Richard J. Davidson, Making a Life Worth Living: Neural Correlates of Well-Being, 15 PSYCHOL. SCI. 367 (2004) (finding that for a sample of eighty-four adults ranging in age from fifty-seven to sixty higher self-reported happiness was correlated with greater left than right superior frontal activation).
105. Angus Deaton, Income, Health, and Well-Being A round the World: Evidence from the Gallup World Poll, J. ECON. PERSP, Spring 2008, at 53 (finding based upon data from 132 countries that a strong relationship between average life satisfaction and per capita national income, and high-income countries report greater life-satisfaction than low-income countries).
106. David G. Blanchflower & Andrew J. Oswald, Hypertension and Happiness Across Nations, 27 J. HEALTH ECON. 218 (2008) (finding that happier nations report systematically lower levels of hypertension based upon data from sixteen countries).
107. John F. Helliwell, How's Life? Combining Individual and National Variables to Explain Subjective Well-Being, 20 ECON. MODELING 331 (2003) (finding, based upon data from fifty countries, that happiness and social capital are related).
108. See, e.g., Lucas et al, supra note 6.
109. Krueger & Schkade, Reliability, supra note 25, at 1843.
110. Id. at 1833.
111. Id.
112. Dylan M. Smith, Norbert Schwarz, Todd R. Roberts & Peter A. Ubel, Why Are You Calling Me? How Study Introductions Change Response Patterns, 15 QUALITY LIFE RES. 621 (2006).
113. Jason Riis, George Loewenstein, Jonathon Baron, Christopher Jepson, Angela Fagerlin, & Peter A. Ubel, Ignorance of Hedonic Adaptation to Hemodialysb: A Study Using Ecological Momentary Assessment, 134 J. EXPERIMENTAL PSYCHOL.: GEN. 3 (2005).
114. Peter A. Ubel, Aleksandra Jankovic, Dylan Smith, Kenneth M. Langa & Angela Fagerlin, What b Perfect Health to an 85-Year-Old? : Evidence for Scale Recalibration in Subjective Health Ratings, 43 MED. CARE 1054 (2005).
115. Heather P. Lacey, George Loewenstein, Jason Riis, Angela Fagerlin, Dylan M. Smith & Peter A. Ubel, Are They Really Happy? Exploring Scale Recalibration in Estimates of WellBeing, 27 HEALTH PSYCHOL. 669, 673-674 (2008).
116. George Loewenstein & Peter A. Ubel, Hedonic Adaptation and the Role of Decision and Experience Utility in Public Policy, 92 J. PUB. ECON. 1795, 1801 (2008).
117. Frederick & Loewenstein, supra note 7, at 302.
118. See id.
119. See id.
120. See id.
121. See id. at 303.
122. Richard E. Lucas, Long-Term Disability Is Associated with Lasting Changes in Subjective Well-Being: Evidence from Two Nationally Representative Longitudinal Studies, 92 J. PERSONALITY & SOC. PSYCHOL. 717, 718 (2007).
123. See Frederick & Loewenstein, supra note 7, at 303.
124. Id.
125. As 1978 economics Nobel laureate Herbert Simon pointed out, emotions focus our attention upon a specific item from a vast sea of sensory inputs and help direct and prioritize our scarce decision-making resources to address particular tasks requiring completion. Herbert A. Simon, Motivational and Emotional Controls of Cognition, 74 PSYCHOL. REV. 29 (1967).
126. Lucas, supra note 62, at 718.
127. Brickman et al, supra note 7.
128. Id. at 920, 921 tbl.1.
129. Id. at 917.
130. Id. at 920, 921 tbl.1.
131. Id.
132. Id. at 921.
133. Id. at 921. They also noted that because: 10 paraplegics refused to answer the question of future happiness (versus 3 winners and 1 control), the results for this question must be viewed most cautiously. If refusal to answer represents apprehension, inclusion of these respondents would have lowered the victim mean and perhaps the winner mean relative to the control group.
134. Id.
135. Id. at 924.
136. Lucas, supra note 62, at 718-719 (reviewing the primary studies claiming to support adaptation).
137. Camille B. Wortman & Roxane Cohen Silver, Coping with Irrevocable Loss, in 6 CATACLYSMS, CRISES AND CATASTROPHES: PSYCHOLOGY IN ACTION 189 (Gary R. VandenBos & Brenda K. Bryant eds, 1987).
138. Vida L. Tyc, Psychological Adaptation of Children and Adolescents with Limb Deficiencies: A Review, 12 CLINICAL PSYCHOL. REV. 275 (1992).
139. Riis et al., supra note 53.
140. See Frederick & Loewenstein, supra note 7, at 312-313 (reviewing literature).
141. Researchers describe this adaptive ability alternatively as the hedonic treadmill, see Brickman & Campbell, supra note 8, at 289;
142. the happiness set point, see DIENER & BISWASDIENER, supra note 1, at 145-46; a psychological immune system,
143. see 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. 617,621 -33 ( 1998);
144. or simply as hedonic adaptation, see Frederick & Loewenstein, supra note 7. But each of these theories contains the same core set of beliefs, namely, that individuals have a level of happiness that has little correlation to their life circumstances and that individuals may deviate from that level based on exogenous events, but return after some period of adaptation.
145. Ed Diener, Richard E. Lucas & Christine Napa Scollon, Beyond the Hedonic Treadmill: Revbing the Adaptation Theory of Well-Being, 61 AM. PSYCHOLOGIST 305,308 (2006).
146. Frederick & Loewenstein, supra note 7, at 312;
147. Richard F. Antonak & Hanoch Livneh, Psychosocial Adaptation to Disability and Its Investigation Among Persons with Multiple Sclerosb, 40 SOC. SCI. & MED. 1099 ( 1995) (reviewing literature about psychosocial adaptation to disability among individuals with multiple sclerosis, identifying research problems, and suggesting future research);
148. Craig A. Smith & Kenneth A. Wallston, Adaptation in Patients with Chronic Rheumatoid Arthritb: Application of a General Model, 11 HEALTH PSYCHOL. 151 (1992) (suggesting existence of a vicious cycle of helplessness appraisals, passive coping with pain, and psychosocial impairment preventing adaptation to rheumatoid arthritis).
149. Frederick & Loewenstein, supra note 7, at 312.
150. See id.;
151. Ubel & Loewenstein, supra note 5, at S199, S199 n.2.
152. Richard E. Lucas, Adaptation and the Set-Point Model of Subjective Well-Being: Does Happiness Change After Major Life Events?, 16 CURRENT DIRECTIONS PSYCHOL. SCI. 75 (2007).
153. Lucas, supra note 7. Here, Lucas tracked data from a longitudinal eighteen-year panel study of more than 30,000 Germans and found that satisfaction drops as one approaches divorce and then gradually rebounds over time.
154. Id.
155. But the return to happiness baselines is not complete. Furthermore, the association between divorce and life satisfaction results from both preexisting differences in people and lasting changes following divorce.
156. Id.
157. See, e.g., FREY, supra note 1, at 45-53 (summarizing how unemployment affects happiness). An early study of British people offered econometric regression evidence that is consistent with the common-sense notion that being unemployed is a major economic source of human distress and psychiatric stress. See Andrew E. Clark & Andrew J. Oswald, Unhappiness and Unemployment, 104 ECON. J. 648 (1994). The authors of this groundbreaking study concluded that "joblessness depresse[d] well-being more than any other single characteristic (including important negative ones such as divorce and separation)."
158. Id. at 655.
159. Another longitudinal study found that not only current unemployment, but also past unemployment, reduces the current well-being of individuals, whether those individuals are presently employed or not. See Andrew E. Clark, Yannis Georgellis & Peter Sanfey, Scarring: The Psychological Impact of Past Unemployment, 68 ECONOMICA 221 (2001)[hereinafter Clark et al. Scarring]. In other words, past unemployment has a psychologically scarring effect on people, regardless of whether or when they regain employment. A fifteen-year longitudinal study also found that, on average, the people studied never completely returned to their preunemployment levels of satisfaction, even after they were reemployed; moreover, in contrast with expectations from adaptation theories, individuals who had been unemployed in the past did not react any less negatively to a new bout of unemployment. See Lucas et al, supra note 6. Three large-scale European longitudinal studies also found little evidence of habituation to unemployment in Europe in the 1990s.
160. See Andrew E. Clark, A Note on Unhappiness and Unemployment Duration, 52 APPLIED ECON. Q. 291 (2006). Finally, two studies based upon data for over a quarter of a million people across twelve European countries and the United States found that average self-reported happiness is negatively correlated across time with just the rates of unemployment and inflation, and that unemployment is more harmful than inflation in terms of reducing subjective well-being.
161. See Rafael Di Telia, Robert J. MacCulloch & Andrew J. Oswald, Preferences over Inflation and Unemployment: Evidence from Surveys of Happiness, 91 AM. ECON. REV. 335 (2001);
162. Rafael Di Telia, Robert J. MacCulloch & Andrew J. Oswald, The Macroeconomics of Happiness, 85 REV. ECON. & STAT. 809 (2003);
163. see also Clark et al. Scarring, supra.
164. See Andrew J. Oswald & Nattavudh Powdthavee, Death, Happiness, and the Calculation of Compensatory Damages, 38 J. LEGAL STUD. 217S (2008) (examining the amounts of mental distress that bereavement causes and finding that the death of a spouse causes the most distress, followed by the death of a child, then the death of a parent).
165. See Jonathan Gardner & Andrew J. Oswald, Money and Mental Well-Being: A Longitudinal Study of Medium-Sized Lottery Wins, 26 J. HEALTH ECON. 49 (2007). Gardner and Oswald tracked a random sample of 137 British individuals longitudinally and compared those who had won medium-sized lottery amounts of between £1,000 and £120,000 (up to approximately $200,000) with two control groups, those who had won nothing and those who had won small amounts. The study concluded that those who had won medium-sized lottery amounts exhibited statistically significant better psychological health and mental well-being improvements two years after winning.
166. Betsey Stevenson & Justin Wolfers, Economic Growth and Subjective Well-Being: Reassessing the Easterlin Paradox, 1 BROOKINGS PAPERS ON ECON. ACTIVITY 1 (2008). Stevenson's and Wolfers's studies are a reaction to the research of Richard Easterlin, who initially raised and investigated the related question of whether raising the incomes of all increases the happiness of all.
167. See Richard A. Easterlin, Does Economic Growth Improve the Human Lot? Some Empirical Evidence, in NATIONS AND HOUSEHOLDS IN ECONOMIC GROWTH: ESSAYS IN HONOR OF MOSES ABRAMOVITZ 89 (Paul A. David & Melvin W. Reder eds, 1974);
168. Richard A. Easterlin, Will Raising the Incomes of All Increase the Happiness of All?, 27 J. ECON. BEHAV. & ORG. 35(1995). His answer became famously known as the Easterlin paradox, the claim that no link exists between a society's level of economic development and the average level of happiness in that society. Moreover, Easterlin found a satiation level of national income beyond which a nation experienced no further increase in average subjective well-being. Lastly, Easterlin declared that he found no evidence that, for any fixed point in time, higher levels of national income are correlated with higher levels of average subjective well-being. These assertions become even more surprising upon realizing that for any fixed moment in time and in any particular country, richer individuals are happier than poorer ones. Easterlin's "paradox quickly became a social science classic, cited in academic journals and the popular media. It tapped into a near-spiritual human instinct to believe that money can't buy happiness. As a 2006 headline in The Financial Times said, 'The Hippies Were Right All Along About Happiness.'"
169. David Leonhardt, Money Doesn't Buy Happiness. Well, on Second Thought..., N.Y. TIMES, Apr. 16, 2008, at Cl. A veritable cottage industry of literature sprouted up attempting to explain Easterlin's paradox.
170. See, e.g., Daniel Kahneman, Alan B. Krueger, David Schkade, Norbert Schwarz & Arthur A. Stone, Would You Be Happier If You Were Richer? A Focusing Illusion, 312 SCI. 1908 (2006). Three of the leading explanations for Easterlin's paradox appeal to: (1) hedonic adaptation due to being on a hedonic treadmill, (2) happiness depends on relative as opposed to absolute income levels, or (3) happiness depends upon omitted variables that represent nonincome factors.
171. See Robert H. Frank, Should Public Policy Respond to Positional Externalities?, 92 J. PUB. ECON. 1777 (2008).
172. Compare Stephen Wu, Adapting to Heart Conditions: A Test of the Hedonic Treadmill, 20 J. HEALTH ECON. 495 (2001),
173. with Andrew E. Clark, Paul Frijters & Michael A. Shields, Relative Income, Happiness and Utility: An Explanation for the Easterlin Paradox and Other Puzzles, 46 J. ECON. LITERATURE 95 (2008),
174. and Rafael Di Telia & Robert MacCulloch, Gross National Happiness as an Answer to the Easterlin Paradox?, 86 J. DEV. ECON. 22 (2008). The widespread acceptance of Easterlin's empirical conclusions had led many to question policies fostering economic growth.
175. See, e.g., Carol Graham, Insights on Development from the Econf Happiness, 20 WORLD BANK RES. OBSERVER 201 (2005);
176. Christopher K. Hsee, Reid Hastie & Jingqiu Chen, Hedonomics: Bridging Decbion Research with Happiness Research, 3 PERSP. PSYCHOL. SCI. 224 (2008).
177. Stevenson & Wolfers, supra note 89;
178. see also Angus Deaton, Income, Health, and Well-Being Around the World: Evidence from the Gallup World Poll, J. ECON. PERSP, Spring 2008, at 53, 55 (providing related findings);
179. Betsey Stevenson & Justin Wolfers, The Paradox of Declining Female Happiness, 1 AM. ECON. J. 190 (2009).
180. See Justin Wolfers, Op-Ed., The Economics of Happiness, Part 6: Delving into Subjective Well-Being, Freakonomics, N.Y. TIMES.COM, Apr. 25, 2008, http://freakonomics.blogs.nytimes.com/2008/04/25/the-economics-of-happiness- part-6-delving-into-subjective-well-being/.
181. See generally Scott A. Moss & Peter H. Huang, How the New Economics Can Improve Employment Discrimination Law, and How Economics Can Survive the Dembe of the "Rational Actor ", 51 WM. & MARY L. REV. 183 (2009) (developing implications of happiness research about how courts should adjudicate in employment discrimination cases).
182. Lucas, supra note 62, at 719. In a cross-sectional study, researchers collect data at a single point in time and compare control and experimental groups.
183. For instance, researchers compared the happiness levels of those with a specific injury (or those who had been divorced, widowed, won the lottery, etc.) to people who had not experienced whatever event was the focus of the study. In these studies, researchers did not know the participants' pre-event level of subjective well-being.
184. See id. As a result, the researchers could not compare pre-event happiness to postevent happiness in the same population. Moreover, even where researchers tracked population groups over time, the researchers for these studies often recruited "individuals because they have experienced or are likely to experience the specific life event in question. Thus, participants are usually aware of the purpose of the study and may over- or under[-]report adaptation because of demand characteristics."
185. Id. That is, participants may alter their answers due to the nature of the studies themselves. In contrast, in the recent longitudinal studies, researchers looked at the same panel of individuals over time. Specifically, researchers looked at adaptation in longitudinal studies by using large-scale national panel data from Germany and Great Britain. These surveys track large numbers of individuals over multiple years and ask the same (or similar) set of questions each year. Among other questions, respondents to these national surveys were asked to rank their happiness on a numerical scale (one to ten in Great Britain and one to seven in Germany).
186. Id.
187. See id.;
188. Andrew J. Oswald & Nattavudh Powdthavee, Does Happiness Adapt? A Longitudinal Study of Disability with Implications for Economats and Judges, 92 J. PUB. ECON. 1061 (2008).
189. Lucas, supra note 62.
190. Id. at 719-20 (internal quotation marks omitted).
191. Id.
192. Id. at 726.
193. Oswald & Powdthavee, supra note 94.
194. Id.
195. Id.
196. Id. at 1072.
197. Dylan M. Smith, Ryan L. Sherriff, Laura Damschroder, George Loewenstein & Peter A. Ubel, Misremembering Colostomies? Former Patients Give Lower Utility Ratings than Do Current Patients, 25 HEALTH PSYCHOL. 688, 691 (2006).
198. Loewenstein & Ubel, supra note 56, at 1799.
199. Ubel & Loewenstein, supra note 5, at S205.
200. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: The CAPABILITIES APPROACH (2000);
201. AMARTYA SEN, COMMODITIES AND CAPABILITIES (1999).
202. This was first captured by John Stuart Mill, see JOHN STUART MILL, UTILITARIANISM (1863),
203. and later endorsed by James Griffin, see JAMES GRIFFIN, WELL-BEING: ITS MEANING, MEASUREMENT, AND MORAL IMPORTANCE (1989);
204. SHELLY KAGAN, NORMATIVE ETHICS 32 (1998);
205. JOSEPH RAZ, ETHICS IN THE PUBUC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS (1994).
206. Ubel & Loewenstein, supra note 5, at S207.
207. Niklas Karlsson, George Loewenstein & Jane McCafferty, The Economics of Meaning, 30 NORDIC J. POL. ECON. 61 (2004).
208. Lucas, supra note 62, at 726.
209. Id.
210. See, e.g., Diener et al., supra note 80. Ed Diener and his coauthors proposed five changes to the theory of the hedonic treadmill. First, an individual's set point is not hedonically neutral. Second, individuals differ in their set points, partly based upon their temperaments. Third, one individual can have several happiness set points, meaning that such different components of subjective well-being as pleasant emotions, unpleasant emotions, and life satisfaction can move in different directions. Fourth, and perhaps most importantly, subjective well-being set points can change under certain conditions. Fifth, individuals also differ in their adaptation to events, so that some people change their hedonic set point and others do not change their hedonic set point in response to a particular external event.
211. Id.
212. Daniel Kahneman, What Comtitutes Life Satisfaction?, in WHAT HAVE YOU CHANGED YOUR MIND ABOUT?: TODAY'S LEADING MINDS RETHINK EVERYTHING 197, 199-200 (John Brockman ed, 2009).
213. See supra text accompanying notes 110-11.
214. Further complicating the notion of the hedonic treadmill are recent studies suggesting that individuals can increase their happiness with seemingly minor events. "[W]hile major events may not provide lasting increases in well-being, certain seemingly minor events-such as attending religious services or exercising-may do so by providing small but frequent boosts: if people engage in such behaviors with sufficient frequency, they may cumulatively experience enough boosts to attain higher well-being." Daniel Mochon, Michael I. Norton & Dan Ariely, Getting Off the Hedonic Treadmill, One Step at a Time: The Impact of Regular Religious Practice and Exercise on Well-Being, 29 J. ECON. PSYCHOL. 632, 632 (2008).
215. While there is not yet one canonical theoretical model of hedonic adaptation, there are several recent models which provide alternative theories of the processes underlying the general phenomenon of hedonic adaptation. A pair of economists developed an axiomatic mathematical model of individual well-being incorporating cognitive factors. Itzhak Gilboa & David Schmeidler, A Cognitive Model of Individual Well-Being, 18 SOC. CHOICE & INDIVIDUAL WELFARE 269 (2001). They assumed that people compare their payoffs to aspiration levels determined by adaptation, past experiences, interpersonal comparisons, others' performances, and reasoning excuses and justifications. Another pair of economists view happiness to be a biological measurement device and tool for decision making which helps people to rank alternative choices.
216. Luis Rayo & Gary S. Becker, Evolutionary Efficiency and Happiness, 115 J. POL. ECON 302 (2007). They mathematically demonstrated that hedonic adaptation is evolutionarily advantageous, meaning that hedonic adaptation improves an individual's ability to propagate her genes. A third pair of economists provided a related evolutionary theory of hedonic adaptation and resilience.
217. Liam Graham & Andrew J. Oswald, Hedonic Capital, Adaptation, and Resilience, (Feb. 26, 2008) (unpublished manuscript), http://www.iza.org/ conference-files/BLE2008/oswald-a262.pdf. Their model is based upon a new concept of hedonic capital they defined to be the stock of psychological coping resources that an individual has available. Finally, a pair of psychologists recently provided another theory of hedonic adaptation they named the AREA model in which people Attend, React, Explain, and Adapt.
218. Timothy D. Wilson & Daniel T. Gilbert, Explaining Away: A Model of Affective Adaptation, 3 PERSP. PSYCHOL. SCI. 370 (2008). In their model, hedonic adaptation results from a basic human need to explain and make sense of external stimuli. These alternative models of why hedonic adaptation occurs involve different processes and conceptual understandings about happiness.
219. See Wilson & Gilbert, supra note 9, at 348.
220. See Blumenthal, supra note 9, at 166-67;
221. Wilson & Gilbert, supra note 9, at 347-51.
222. A large body of research documents people's tendencies to underestimate their own and others' abilities to hedonically recover. See, e.g., GILBERT, supra note 9;
223. WILSON, supra note 9.
224. Blumenthal, supra note 9, at 174.
225. Timothy D. Wilson, Jay Meyers & Daniel T. Gilbert, "How Happy Was I Anyway? "A Retrospective Impact Bias, 21 SOC. COGNITION 421 (2003).
226. Id.
227. Christopher K. Hsee & Reid Hastie, Decbion and Experience: Why Don't We Choose What Makes Us Happy?, 10 TRENDS COGNITIVE SCI. 31 (2006) (analyzing potentially surprising findings that people systematically fail to predict or choose what maximizes their happiness);
228. Sharpies, supra note 1 (reporting on related experimental research).
229. See generally LEE EISENBERG, SHOPTIMISM : WHY THE AMERICAN CONSUMER WILL KEEP ON BUYING NO MATTER WHAT (2009).
230. Park, supra note 1, at 40-42 (reporting on research finding infectiousness of happiness).
231. See generally ELAINE HATFIELD, JOHN T. CACIOPPO & RICHARD L. RAPSON, EMOTIONAL CONTAGION (1994) (providing evidence that people tend to "catch" others' emotions).
232. Dan M. Kahan & Paul Slovic, Cultural Evaluations of Risk "Values" or "Blunders"?, 119 HARV. L. REV. 166 (2006).
233. Peter H. Huang, Response, Diverse Conceptions of Emotions in Risk Regulation, 156 U. PA. L. REV. PENNUMBRA 435, 436 (2008), http://www.pennumbra. com/responses/03-2008/Huang.pdf.
234. GREENE & BORNSTEIN, supra note 11, at 23.
235. Id. at 23, 24-26 (summarizing the arguments).
236. In response to these criticisms by scholars and practitioners, a number of states have placed legislative caps on the amount that jurors can award for noneconomic damages. And, the Supreme Court declared that there must be a logical relationship between the amount of compensatory damages awarded and the amount of punitive damages awarded. See BMW of N. Am. v. Gore, 517 U.S. 559 (1996).
237. For example, Bronsteen, Buccafusco, and Masur clearly view noneconomic damages in affective terms, claiming that the plaintiffs will adapt to "the losses for which these... types of damages are meant to compensate." Bronsteen et al., supra note 5, at 1538 n.115.
238. Sunstein uses the term "hedonic damages" to mean all noneconomic damages. Sunstein, supra note 5, at S160.
239. One suspects that Sunstein's motive is, in part, to paint these losses as connected solely to emotions. Likewise, in discussing damages for loss of enjoyment of life, Bagenstos and Schlanger focus solely on loss of "enjoyment" of life and diminished happiness, despite quoting a more fulsome definition of the damage claim. Bagenstos & Schlanger, supra note 5, at 748 (
240. quoting Boan v. Blackwell, 541 S.E.2d 242, 244 (S.C. 2001)).
241. Even if these categories are treated as unitary for purposes of awarding damages, the harm each category describes is distinct.
242. The American Law Institute divides noneconomic torts into four broad categories: (1) tangible physiological pain at the time of the injury and during recuperation; (2) mental anguish and suffering felt both before and after a physical injury; (3) emotional distress and long-term loss of love and companionship from the injury or death of a close family member; and (4) loss of enjoyment of life by victim of a tort. See 2 AMERICAN LAW INSTITUTE, REPORTER'S STUDY, ENTERPRISE RESPONSIBILITY FOR PERSONAL INJURY, 199-200 (1991).
243. The Western tradition of compensating an injured party for economic and noneconomic losses traces its roots to Roman times. At least by 286 BC, Roman law compensated free men and slaves for economic losses caused by negligence; and compensated free men for pain and suffering when injuries were inflicted intentionally. See Jeffrey O'Connell & Theodore M. Bailey, The History of Payment for Pain & Suffering, 1 U. ILL. L. F. 83,85 (1972).
244. In Medieval England, injurers made restitution to an injured party and the crown according to a schedule of bots - a sum the offender paid the injured party to buy back the peace - and wites - a penal fine "paid to the king for breaking the peace... [and] to make amends for injuring another." Id. at 87 nn.38-39.
245. These payments were made according to the severity of the injury. For instance, the bot for exposure of bone was three shillings, loss of an ear was twelve shillings, and loss of a thumb was twenty shillings. See id. at 88.
246. This system included payment for noneconomic losses, like shame and injured feelings. See id. By the end of the twelfth century, tribunals supplemented the bot system;
247. and juries granted damages in addition to the scheduled bot payment. Although noneconomic damages were not explicitly discussed, they were likely included as a general element of damage awards. See id. at 90.
248. As under the bot system, individuals were compensated for slander and loss of honor. See id. at 90 n.57 (citing cases).
249. Linsley v. Bushnell, 15 Conn. 225, 235 (1842).
250. Although English courts of the seventeenth and eighteenth centuries seemed to decry awarding noneconomic damages, they regularly awarded damages that could not be justified by strict economic loss. See, e.g., Ash v. Lady Ash, 90 Eng. Rep. 526 (K.B. 1696).
251. But at least by 1773, English courts explicitly allowed noneconomic damages where a plaintiff experienced "great and excruciating pain and torture." Scott v. Shepperd, 95 Eng. Rep. 1124, 1125 (K.B. 1773).
252. And by 1798, following the award in Scott v. Shepperd, pleading books included claims for "excruciating pains and tortures both of body and mind."
253. O'Connell & Bailey, supra note 134, at 92
254. -(citing 8 J. WENTWORTH, A COMPLETE SYSTEM OF PLEADING 437 (1798);
255. J. CHITTY, A TREATISE ON PLEADING (1809)).
256. By the 1820s and 30s, courts in this country regularly allowed juries to grant damages for pain and suffering. See id. at 93.
257. For instance, in rejecting a challenge to a tort verdict as allegedly excessive, the Massachusetts Supreme Court stated: "the plaintiff was exposed to the imminent peril of his life, to great bodily and mental suffering... we cannot say that the sum assessed by the jury exceeds a reasonable compensation." Worster v. Proprietors of the Canal Bridge, 33 Mass. (16 Pick.) 541, 547 (1835).
258. Today injured parties can universally recover for pain and mental suffering that results from physical injuries; however a party's ability to recover for mental distress varies from jurisdiction to jurisdiction. See generally JEROME H. NATES, CLARK D. KIMBALL, DIANA T. AXELROD, RICHARD P. GOLDSTEIN & ROBERT L. CONASON, DAMAGES IN TORT ACTIONS § 4.01[2] (2007).
259. That is, these awards are granted for changes in emotional states, but are not necessarily tied directly to some notion of happiness.
260. RONALD W. EADES, JURY INSTRUCTIONS ON DAMAGES IN TORT DAMAGES § 6-21 (4th ed. 1998) (emphasis added).
261. Id. (emphasis added).
262. EDWARD J. DEVITT, CHARLES B. BLACKMAR & MICHAEL A. WOLFF, 3A FEDERAL JURY PRACTICE AND INSTRUCTIONS, CIVIL § 85.02 (1987) (emphasis added).
263. Id.
264. Id.
265. See infra Part IV.
266. Ubel and Loewenstein, of course, focus more explicitly on pain and suffering, but include a footnote related to damages for loss of enjoyment of life. Ubel & Loewenstein, supra note 5, at S197 n.1.
267. See Foster v. Trafalgar House Oil & Gas, 603 So. 2d 284, 285 (La. Ct. App. 1992) ("The term 'hedonic damages'... is new to our jurisprudence, the concept is not");
268. Victor E. Schwartz & Cary Silverman, Hedonic Damages: The Rapidly Bubbling Cauldron, 69 BROOK. L. REV. 1037, 1040 (2004) ("Prior to the mid- to late- 1980s, courts did not refer to hedonic damages, but instead awarded damages for 'loss of enjoyment of life.'").
269. In the majority of jurisdictions, courts may instruct a jury that they can award damages for loss of enjoyment of life. The dividing issue is whether these damages are part of pain and suffering or can be awarded as a separate category of damages.
270. -25 N.E. 65 (Ind. 1890).
271. Id. at 67.
272. See id.
273. Id.
274. -18 SW. 944 (Ky. 1909).
275. Id. at 995.
276. Id.
277. Am. Strawboard Co. v. Foust, 39 N.E. 891, 894 (Ind. App. 1895),
278. overruled by South Bend Brick Co. v. Goller, 93 N.E. 37 (Ind. App. 1910);
279. accord Pittsburgh, C., C. & St. Louis R.R. Co. v. Cozatt, 79 N.E. 534, 539 (Ind. App. 1906)
280. overruled by South Bend Brick Co., 93 N.E. 37. Although these opinions were expressly overruled in South Bend Brick Company v. Goller, 93 N.E. at 40, they were the harbinger of courts commonly instructing juries on loss of enjoyment of life.
281. -279 Ill. App. 410 (App. Ct 1935).
282. Id. at 429.
283. Id.
284. -169 A.2d 549, 550 (Pa. 1961).
285. Id. at 552.
286. Id.
287. Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 774 (3d Cir. 1987).
288. Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1245 (10th Cir. 2000) (applying New Mexico law).
289. See, e.g., Yako v. United States, 891 F.2d 738, 746 (9th Cir. 1989) (loss of hearing);
290. Early v. United States, 474 F.2d 756, 758 (9th Cir. 1973) (loss of taste and smell);
291. Dyer v. United States, 551 F. Supp. 1266, 1281 (W.D. Mich. 1982) (loss of taste);
292. Carter v. Phillips, 365 So. 2d 48, 50 (La. Ct App. 1978) (loss of touch);
293. Air Shields, Inc. v. Spears, 590 S.W.2d 574, 579 (Tex. Civ. App. 1979) (loss of sight).
294. See, e.g., Winter v. Pa. R.R., 68 A.2d 513, 514 (Del. 1949) (compensating a musician because of an inability to play privately and publicly even without pay);
295. Fleischmann v. Hanover Ins. Co., 470 So. 2d 216, 218 (La. Ct App. 1985) (compensating for inability to enter profession for which plaintiff had trained).
296. See, e.g., Varnell v. La. Tech. Univ., 709 So. 2d 890, 896 (La. Ct. App. 1998) (compensating for plaintiffs inability to engage in outdoor activities, participate in school functions, play with her youngest child, or engage in sexual activities with her husband).
297. See, e.g., McDonald v. United States, 555 F. Supp. 935, 971 (M.D. Pa. 1983) (awarding damages for diminishment of capacity to conceive).
298. NATES ET AL., supra note 136, §8.04[5].
299. The term hedonic damages first appeared in 1985. See Sherrod v. Berry, 629 F. Supp. 159, 163 (N.D. Ill. 1985).
300. In a wrongful death lawsuit, the victim's father called Stanley Smith, a University of Chicago-trained economist, to testify about the damages suffered as a result of the death of the son. Id. at 162.
301. In his expert report and his trial testimony, Smith did not opine on the economic loss that resulted from the son's death, but rather, what he called "the hedonic value of life, separate from economic productive value of an individual." Id. In defining the term "hedonic" as used in the phrase "hedonic value of life,"
302. Smith testified: It derives from the word pleasing or pleasure. I believe it is a Greek word. It is distinct from the word economic. So it refers to the larger value of life, the life at the pleasure of society, if you will, the life - the value including economic, including moral, including philosophical, including all the value with which you might hold life, is the meaning of the expression "hedonic value." Id. at 163.
303. The trial court allowed this testimony over defendants' objection, reasoning first that the deceased's estate could sue for the loss of life and second that "the loss of life means more than being deprived of the right to exist, or of the ability to earn a living; it includes deprivation of the pleasures of life." Id. (emphasis added).
304. See supra notes 104-105 and accompanying text.
305. See supra Part II.B.
306. Lucas, supra note 62, at 726;
307. see supra Part II.B.2.
308. If one were to take seriously the argument that injury should be judged postadaptation, then this argument suggests three corollaries. First, tortfeasors will have to introduce testimony about a victim's preinjury baseline happiness, against which her postinjury happiness can be judged. Second, injured parties should have a duty to mitigate their losses by taking all possible steps to improve the rate or completeness of adaptation. Third, we should consider having tortfeasors provide more than monetary compensation to victims of torts. Tortfeasors could provide or subsidize activities that foster adaptation, such as courses about new skills or hobbies (unrelated to work), meditation, therapeutic counseling, or vocational retraining. But these corollaries are thus far unexplored by the legal hedonists.
309. This time series will include any lingering memories of pain or mental anguish. That is, adaptation is not complete as long as tort victims still suffer negatively from memories of the pain and suffering.
310. Neoclassical economics views a person's decision utility as information that can be inferred from or revealed by that person's choices if that person's behavior satisfies certain assumptions, notably the so-called weak axiom of revealed preference. Paul A. Samuelson, A Note on the Pure Theory of Consumer's Behaviour, 5 ECONOMICA 61, 62-71 (1938) (introducing the weak axiom of revealed preference).
311. For Bagenstos and Schlanger, this argument is grounded in a belief that compensation for disability causes its own dignitary harm, not purely in a notion that the losses themselves are illusory. Bagenstos & Schlanger, supra, note 5.
312. See supra notes 104-105 and accompanying text.
313. See Barbara A. Mellers & A. Peter McGraw, Anticipated Emotions as Guides to Choice, 10 CURRENT DIRECTIONS PSYCHOL. SCI. 210 (2001);
314. Dylan M. Smith, Stephanie L. Brown & Peter A. Ubel, Are Subjective Well-Being Measures Any Better Than Decision Utility Measures?, 3 HEALTH ECON, POL'Y & L. 85 (2008).
315. Daniel Kahneman & Richard Thaler, Utility Maximization and Experienced Utility, J. ECON. PERSP., Winter 2006, at 221.
316. See, e.g., Terence R. Mitchell, Leigh Thompson, Erika Peterson & Randy Cronk, Temporal Adjustments in the Evaluation of Events: The "Rosy" View, 33 J. EXPERIMENTAL SOC. PSYCHOL. 421, 422-27 (1997);
317. Robert I. Sutton, Feelings about a Disneyland Visit: Photography and the Reconstruction of Bygone Emotions, 1 J. MGMT. INQUIRY 278, 280-81 (1992);
318. Leaf Van Boven & Laurence Ashworth, Looking Forward, Looking Back: Anticipation is More Evocative than Retrospection, 136 J. EXPERIMENTAL PSYCHOL.: GEN. 289, 289-91 (2007).
319. Such a perspective is related to 1972 economics Nobel Laureate Kenneth Arrow's proposal about one way to incorporate freedom into a formal economic theory of choice. Kenneth J. Arrow, A Note on Freedom and Flexibility, in CHOICE, WELFARE, AND DEVELOPMENT 7 (Kaushik Basu, P. Pattanaik & K. Suzumura, eds., 1995).
320. Arrow's notion of people being free to enjoy preference flexibility is motivated by and similar to "the concept of flexibility, where there is a sequence of decisions in the face of uncertainties." Kenneth J. Arrow, Freedom and Social Choice: Notes in the Margin, 18 UTILITAS 52, 57 n.18 (2006).
321. See, e.g., MARTHA AMRAM & NALIN KULATILAKA, REAL OPTIONS: MANAGING STRATEGIC INVESTMENT IN AN UNCERTAIN WORLD 3-6 (1999);
322. JONATHAN MUN, REAL OPTIONS ANALYSIS: TOOLS AND TECHNIQUES FOR VALUING STRATEGIC INVESTMENT AND DECISIONS 459-68 (2d ed. 2005). "Real options" are so named as to differentiate them from "financial options," which are defined to be rights, but not obligations, to either buy or sell a particular underlying financial asset Familiar examples of financial options are stock options that many corporations provide their executives, directors, and officers as part of their incentive compensation packages.
323. Scholars have applied real options analysis to value lawsuits.
324. See, e.g., Joseph A. Grundfest & Peter H. Huang, The Unexpected Value of Litigation: A Real Options Perspective, 58 STAN. L. REV. 1267, 1270 (2006);
325. Peter H. Huang, A New Options Theory for Risk Multipliers of Attorneys 'Fees in Federal Civil Rights Litigation, 73 N.Y.U.L. REV. 1943, 1946 (1998);
326. Peter H. Huang, Lawsuit Abandonment Options in Possibly Frivolous Litigation Games, 23 REV. LITIG. 47, 49-50 (2004).
327. Robert C. Merton, Theory of Rational Option Pricing, 4 BELL J. ECON. & MGMT. SCI. 141, 149 (1973).
328. Loewenstein & Ubel, supra note 56, at 1802.
329. Id.
330. Ubel & Loewenstein, supra note 5, at S206.
331. This answer in turn only begs other questions, such as whether such compensation should include how court procedures affect peoples happiness. Jose Mulder, How Do We Compensate A Victim's Loss? An Economic Perspective, (Tilburg Law and Economics Center Discussion Paper No. 2008-12 Mar. 2008).
332. See Krueger, More Fun, supra note 25, at 194-195
333. Id., at 194.
334. Id.
335. Kahneman & Krueger, Developments, supra note 25, at 19.
336. Id.
337. See, e.g., Oswald & Powdthavee, supra note 87.
338. Ubel & Loewenstein, supra note 5, at S212.
339. Sunstein, supra note 5, at S184-86.
340. Ubel & Loewenstein, supra note 5, at S208-09.
341. Id. at S210-11.
342. NEIL VIDMAR & VALERIE P. HANS, AMERICAN JURIES: The VERDICT 284 (2007) ("There is no way to place an exact figure on what such injuries are worth. The jury has to consider the individual circumstances and local community norms. At trial, plaintiffs or spouses testify about what the injury has done to their lives, providing the jury with insight about the consequences of the injury.").
343. Id. at 295.
344. A unique aspect of jury awards is that they result from a deliberative process. As Vidmar and Hans observed: A representative, diverse jury promotes vigorous debate. One of the most dramatic and important changes over the last half century is the increasing diversity of the American jury. Diverse juries have an edge in fact-finding, especially when the matters at issue incorporate social norms and judgments, as jury trials often do. Deliberation improves comprehension. Jurors with expertise on a topic often take a lead role when the jury discusses that topic, and errors made by one juror are frequently corrected by another juror. Deliberations encourage the sharing of knowledge and also the testing of narrative accounts. The representative jury and its verdicts are also seen as more legitimate by the public, an important strength of the jury as an institution.
345. Id. at 340.
346. Id. at 299.
347. Vidmar and Hans observe: Instructions on pain and suffering implicitly acknowledge the vagueness of the jury's task. For instance, a North Carolina jury instruction says: "Damages should include such amount as you find, by the greater weight of the evidence, is fair compensation for the actual physical pain and mental suffering which were the immediate and necessary consequences of the injury. There is no fixed formula for evaluating pain and suffering. You will determine what is fair compensation by applying logic and common sense to the evidence.
348. Id. at 295.
349. Research demonstrates that "straightforward revisions to complicated legal instructions produce better understanding and better application of the law."
350. Id. at 342;
351. PETER M. TIERSMA, COMMUNICATION WITH JURIES: HOW TO DRAFT MORE UNDERSTANDABLE JURY INSTRUCTIONS (2006), available at http://www.ncsconline.org/ Juries/communicating.pdf.
352. VIDMAR & HANS, supra note 198, at 163.
353. For example, reforms that are designed to make jury trials better approximate ideal educational practices, such as permitting jurors more active roles during trials, can produce benefits without introducing any feared countervailing harmful side effects.
354. Id. at 343-344, 396.
355. See VIDMAR & HANS, supra note 198, at 299-302.
356. See generally GREENE & BORNSTEIN, supra note 11.
357. VIDMAR & HANS, supra note 198, at 339-340
358. There is recent evidence that hedonic adaptation is a nonlinear dynamic process because the speeds at which formerly fully employed people hedonically adapted to unemployment decreased with the length of unemployment with the majority of hedonic adaptation taking place in the first year of unemployment.
359. See Yannis Georgellis, Andros Gregoriou, Jerome Healy &
360. Nikolaos Tsitsianis, Unemployment and Life Satisfaction: A Non-Linear Adaptation Process, 29 INT'L J. MANPOWER 668, 676-77 (2008);
361. see also Yannis Georgellis, Andros Gregoriou & Nikolaos Tsitsianis, Adaptation Towards Reference Values: A Non-Linear Perspective, 67 J. ECON. BEHAV. & ORG. 768, 769 (2008) (finding non-linearity of adjustment dynamics towards reference points in job satisfaction).
362. See Lucas, supra note 62, at 728.
363. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Judging by Heuristic: Cognitive Illusions in Judicial Decision Making, 86 JUDICATURE 44, 50 (2002);
364. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 CORNELL L. REV. 777, 821 (2001).
365. VIDMAR & HANS, supra note 198, at 342.
366. Sunstein, supra note 5, at S184-86.
367. Ubel & Loewenstein, supra note 5, at S210-11.
368. TOM BAKER, THE MEDICAL MALPRACTICE MYTH (2005).
369. CAL. CIV. CODE § 3333.2 (2009).
370. See Ronen Avraham, Database of State Tort Law Reforms (Northwestern Law & Econ. Research Paper No. 06-08, 2006), http://papers.ssrn.com/sol3/papers. cfm?abstract-id=902711.
371. Frank A. Sloan, Penny B. Githens, Gerald B. Hickson & Stephen S. van Wert, Compensation, in SUING FOR MEDICAL MALPRACTICE 187, 195 (1993).
372. Ferdon v. Wis. Patients' Comp. Fund, 701 N.W.2d 440, 485 (Wis. 2005).
373. Lucinda Finley, The Hidden Victims of Tort Reform: Women, Children, and the Elderly, 53 EMORY L.J. 1263, 1284-1312 (2004).
374. Id. at 1313.
375. See generally Rebecca Korzec, Maryland Tort Damages: A Form of Sex-Based Discrimination, 37 U. BALT. L.F. 97, 97-98 (2007).
376. David M. Studdert, Y. Tony Yang & Michelle M. Mello, Are Damage Caps Regressive? A Study of Malpractice Jury Verdicts in California, HEALTH AFF., July/August 2004, at 54, 63.
377. See generally SONJA LYUBOMIRSKY, THE HOW OF HAPPINESS: A SCIENTIFIC APPROACH TO GETTING THE LIFE YOU WANT 13-26 (2007).
378. See, e.g., Mark A. Cohen & Michael P. Vandenbergh, Consumption, Happiness, and Climate Change, 38 ENVTL. L. REP. 10834, 10834-35 (2008);
379. Paul Dolan & Mathew P. White, How Can Measures of Subjective Well-Being Be Used to Inform Public Policy?, 2 PERSP. PSYCHOL. SCI. 71, 72-73 (2007).
380. See, e.g., Blumenthal & Huang, supra note 22;
381. Huang & Swedloff, supra note 33, 339-342
382. See generally THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1996).
383. Peter H. Huang, Emotional Adaptation and Lawsuit Settlements 108 COLUM. L. REV. SIDEBAR 50, 52-55 (2008), http://www.columbialawreview.org/Sidebar/ volume/108/50-Huang.pdf;
384. Rick Swedloff, Accounting for Happiness in Civil Settlements, 108 COLUM. L. REV. SIDEBAR 39, 40-46 (2008), http://www.columbialawreview.org/Sidebar/ volume/108/39-Swedloff.pdf.
385. For example, two economists recently utilized happiness regression equations to determine compensatory damages for emotional harm and pain and suffering in tort cases involving death of a loved one. Oswald & Powdthavee, supra note 87. One of these economists has estimated monetary values for how much increased life satisfaction individuals experience due to more frequent interaction with their friends, relatives, and neighbors based upon the British Household Panel Survey.
386. Nattavudh Powdthavee, Putting A Price Tag on Friends, Relatives, and Neighbours: Using Surveys of Life Satisfaction to Value Social Relationships, 37 J. SOCIO-ECON. 1459, 1474-1475 (2008).
387. Ron Kupers & Henrik Kehlet, Brain Imaging of Clinical Pain States: A Critical Review and Strategies for Future Studies, 5 LANCET NEUROLOGY 1033, 1038-39 (2006);
388. Noel Shafi, Neuroscience and Law: The Evidentiary Value of Brain Imaging, 11 GRADUATE STUDENT J. PSYCHOL. 27, 37 (2009), available at http://www.tc.columbia.edu/i/a/document/11330-V11Article4.pdf;
389. David Yokum, Neuroimaging the Brain in Pain: Medical Disability, Tort Law, and an Ethical Evaluation, 9 J. PAIN SUPP., Apr. 2008, at 79 (abstract describing poster presentation);
390. Betsy Grey, Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims, (Nov. 4, 2009), (unpublished manuscript available at http://papers.ssrn.com/sol3/papers.cfm? abstract-id-1499989).
391. See, e.g., Jon-Kar Zubieta, Mary M. Heitzeg, Yolanda R. Smith, Joshua A. Bueller, Ke Xu, Yanjun Xu, Robert A. Koeppe, Christian S. Stohler & David Goldman, COMT val158met Genotype Affects μ-Opioid Neurotransmitter Responses to a Pain Stressor, 299 SCI. 1240, 1240 (2003);
392. Jennifer Thomas, A Single Gene May Hold Clue to Pain Management, http://www.maimonidesmed.org/111082.cfm.