Self-altering injury: The hidden harms of hedonic adaptation

Cornell Law Review

Volumn 96, Issue 3, 2011, Pages 535-582

  Williams, Sean Hannon ^a  

^a UNIVERSITY OF TEXAS   (United States)

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EID: 79955456179     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (368)

1. SUSAN J. BRISON, AFTERMATH: VIOLENCE AND THE REMAKING OF THE SELF xi, 21 (2002) (describing the aftermath of experiencing rape and attempted murder).
2. Cass R. Sunstein, Illusory Losses, 37 J. LEGAL STUD. S157, S176, S178 (2008) (arguing that the legal system can award damages to one that loses a capability on the basis of something aside from hedonic loss);
3. Peter A. Ubel & George Loewenstein, Pain and Suffering Awards: They Shouldn't Be (Just) About Pain and Suffering, 37 J. LEGAL STUD. S195, S206 (2008) (noting that because "there are dimensions of richness of experience and complexity and sophistication of thought that have value over and above simple happiness," it cannot be the only measure of harm);
4. Rick Swedloff & Peter H. Huang, Tort Damages and the New Science of Happiness 37 (Mar. 2, 2009) (unpublished manuscript), available at http:/ /works.bepress.com/peter-huang/l (noting that "[i]n addition to, or quite possibly even completely besides, the presence of positive affect and the absence of negative affect, people want additional desiderata");
5. see Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 760 (2007) (arguing that the view that disability limits the ability to enjoy life does not reflect how most people with disabilities actually feel).
6. Sunstein, supra note 2, at S178.
7. Elizabeth Kendall & Nicholas Buys, An Integrated Model of Psychosocial Adjustment Following Acquired Disability, 64 J. REHABILITATION 16, 17 (1998) (discussing the psychological tension of navigating a change in self-identity that occurs post disability).
8. Übel & Loewenstein, supra note 2, at S198.
9. See infra Part I.A.
10. See, e.g., John Bronsteen, Christopher Buccafusco & Jonathan Masur, Happiness and Punishment, 76 U. CHI. L. REV. 1037, 1038 (2009)
11. [hereinafter Happiness and Punishment] (studying how adaptation to prison makes it difficult to fashion appropriate sentences);
12. John Bronsteen, Christopher Buccafusco & Jonathan S. Masur, Hedonic Adaptation and the Seulement of Civil Lawsuits, 108 COLUM. L. REV. 1516, 1516 (2008)
13. [hereinafter Bronsteen et al., Hedonic Adaptation and the Settlement of Civil Lawsuits] (noting the recent "emergence of an interdisciplinary group of psychologists, economists, and public policy analysts devoted to the study of happiness");
14. Sunstein, supra note 2, at S160 (noting the "emerging literature attempting to measure hedonic effects");
15. Ubel & Loewenstein, supra note 2;
16. see also Bagenstos &: Schlanger, supra note 2, at 746 (noting that the concept of adaptive preferences has played an important role in several fields over the past twenty-five years);
17. Thomas D. Griffith, Progressive Taxation and Happiness, 45 B.C. L. REV. 1363, 1365 (2004) (analyzing how research on happiness can inform income redistribution);
18. Swedloff & Huang, supra note 2, at 2 (noting the emergence of "legal hedonists" who argue new data on happiness requires changes to existing legal institutions).
19. For a basic summary of the literature, see Bronsteen et al., Hedonic Adaptation and the Settlement of Civil Lawsuits, supra note 7, at 1522-26, and
20. Shane Frederick & George Loewenstein, Hedonic Adaptation, in WELL-BEING: THE FOUNDATIONS OF HEDONIC PSYCHOLOGY 302, 311-14 (Daniel Kahneman et al. eds., 1999).
21. These events will almost certainly have immediate, if fleeting, emotional effects. Colette Hillebrand Duggan & Marcel Dijkers, Quality of Life After Spinal Cord Injury: A Qualitative Study, 46 REHABILITATION PSYCHOL. 3, 23 (2001) (reporting that the suicide rate for those with spinal cord injuries is three to five times higher than the general population, with most suicides occurring within a few years of the initial injury);
22. Brett Smith & Andrew C. Sparkes, Men, Sport, and Spinal Cord Injury: An Analysis of Metaphors and Narrative Types, 19 DISABILITY & SOC'Y 613, 619-20 (2004) ("Before the accident I was happy and life was good. The injury and everything that has happened since has choked any life and happiness out of me. I have nothing now. . . . Am nothing. . . . My life is in darkness. . . . I'm shattered.")(emphasis removed).
23. See generally Daniel T. Gilbert et al., Immune Neglect: A Source of Durability Bias in Affective Forecasting, 75 J. PERSONALITY & Soc. PSYCHOL. 617 (1998) (noting that individuals neglect their psychological immune systems when making predictions about the duration of their affective reactions to negative events).
24. See Camille B. Wortman & Roxanne Cohen Silver, Coping with Irrevocable Loss, in CATACLYSMS, CRISES, AND CATASTROPHES: PSYCHOLOGY IN ACTION, 185, 197-99 (Gary R. VandenBos & Brenda K. Bryant eds., 1987) (analyzing the effect of time on the happiness of individuals who recently suffered spinal cord injuries).
25. See generally C. Lundqvist et al., Spinal Cord Injuries: Clinical, Functional, and Emotional Status, 16 SPINE 78 (1991) (analyzing the effect of time on the moods of persons with tetraplegia and paraplegia).
26. See Vida L. Tyc, Psychosocial Adaptation of Children and Adolescents with Limb Deficiencies: A Review, 12 CLINICAL PSYCHOL. REV. 275, 275 (1992) (noting that "the available literature suggests that pediatric amputees report minimal psychosocial distress, achieve good functional outcomes, and adapt well to their disability").
27. See David R. Patterson et al., Psychological Effects of Severe Burn Injuries, 113 PSYCHOL. BULL. 362, 364 (1993) (arguing that "most people seem to undergo emotional adjustment to burn injuries relatively well").
28. See Jason Riis et al., Ignorance of Hedonic Adaptation to Hemodialysis: A Study Using Ecological Momentary Assessment, 134 J. EXPERIMENTAL PSYCHOL. 3, 7 (2005) (finding that hemodialysis patients adapt to their condition).
29. Additionally, failing to obtain tenure appears to have no long-term hedonic impact Gilbert et al., supra note 10, at 623-24.
30. Philip Brickman et al., Lollery Winners and Accident Victims: Is Happiness Relative?, 36 J. PERSONALITY & Soc. PSYCHOL. 917, 926 (1978) (suggesting that individuals overestimate the duration of feeling generated by an event).
31. Id. at 920-22.
32. See, e.g., Fátima de N. Abrantes-Pais et al., Psychological or Physiological: Why Are Tetraplegic Patients Content?, 69 NEUROLOGY 261, 261 (2007) (finding that persons with spinal cord injuries report being overall content);
33. Olga Horgan & Malcolm MacLachlan, Psychosocial Adjustment to Lower-Limb Amputation: A Review, 26 DISABILITY & REHABILITATION 837, 839 (2004) (finding that while rates of depression in people with an amputation are high between the first and second years following amputation, rates decrease after this period to what is found in the general population);
34. Riis et al., supra note 15, at 7 (finding no difference in moods between dialysis patients and control patients).
35. Andrew J. Oswald & Nattavudh Powdthavee, Does Happiness Adapt? A Longitudinal Study of Disability with Implications for Economists and Judges, 92 J. PUB. ECON. 1061, 1066 (2008) (noting that level of happiness falls abruptly in the year of injury).
36. This Article adopts the social model of disability. Under this model, the bare physical alteration of the body that accompanies an injury is called an impairment When the victim's surrounding environment does not accommodate the impairment, the interaction of the impairment and the environment creates a disability. For further discussions on these concepts, see MICHAEL OLIVER, THE POLITICS OF DISABLEMENT: A SOCIOLOGICAL APPROACH 11 (1990).
37. Oswald & Powddiavee, supra note 20, at 1072.
38. But see 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, 722 (2007) (finding no evidence of hedonic adaption based on the same underlying data).
39. See Ubel & Loewenstein, supra note 2, at S200.
40. See, e.g., Paul Ekman et al., The Duchenne Smile: Emotional Expression and Brain Physiology II, 58 J. PERSONALITY & Soc. PSYCHOL. 342, 342 (1990).
41. For a concise defense of happiness research, see Ubel & Loewenstein, supra note 2, at S199-S202.
42. For several concerns about the importance of happiness research, see generally Martha C. Nussbaum, Who Is the Happy Warrior? Philosophy Poses Questions to Psychology, 37 J. LEGAL STUD. S81 (2008).
43. See Richard F. Antonak & Hanoch Livneh, Psychosocial Adaption to Disability and Its Investigation Among Persons with Multiple Sclerosis, 40 Soc. Sci. MED. 1099, 1105 (1995) (noting that reactions of anxiety, depression, and irritability are common during the period when symptoms of multiple sclerosis become apparent, followed by a period of acceptance, followed by a period of "pronounced and prolonged disintegration");
44. Craig A Smith & Kenneth A Wallston, Adaptation in Patients with Chronic Rheumatoid Arthritis: Application of a General Model, 11 HEALTH PSYCHOL. 151, 151 (1992) (noting that rheumatoid arthritis has been "linked to poor adjustment").
45. See Dylan M. Smith et al., Heath, Weatlh, and Happiness: Financial Resources Buffer Subjective Well-Being After the Onset of a Disability, 16 PSYCHOL. SCI. 663, 665 (2005) (finding that wealth buffers against the detrimental effects of disability, but that the gap narrows over time).
46. See Elizabeth Kendall & Deborah J. Terry, Psychosocial Adjustment Following Closed Head Injury: A Model for Understanding Individual Differences and Predicting Outcome, 6 NEUROPSYCHOL. REHABILITATION 101, 115-16 (1996) (noting that "self-esteem and control expectancies may play a role in the facilitation of adjustment after CHI").
47. See Nancy Weinberg, Physically Disabled People Assess the Quality of Their Lives, 45 REHABILITATION LITERATURE 12, 14 (1984) (finding that, out of thiirty patients who were interviewed, two would refuse a free riskless cure, and three were "hesitant").
48. See Dylan M. Smith et al., Misremembering Colostomies? Former Patients Give Lower Utility Ratings Than Do Current Patients, 25 HEALTH PSYCHOL. 688, 691 (2006) (finding that current colostomy patients were willing to give up, on average, 15% of their remaining life years to reverse the colostomy).
49. Daniel T. Gilbert & Timothy D. Wilson, Prospection: Experiencing the Future, 317 SCIENCE 1351, 1353 (2007) ("The tendency to underestimate how quickly we will adapt to a wide range of pleasurable and painful events is probably the most commonly observed error in research on hedonic prediction." (citation omitted)).
50. Gilbert et al., supra note 10, at 623-24.
51. See David A Schkade & Daniel Kahneman, Does Living in California Make People Happy? A Focusing Illusion in Judgments of Life Satisfaction, 9 PSYCHOL. SCI. 340, 345 (1998).
52. Although victims of spinal cord injuries have persistently lower quality of life ratings than the general population, James Middleton et al., Relationship Between Quality of Life and Self-Efficacy in Persons with Spinal Cord Injuries, 88 ARCHIVES PHYSICAL MED. & REHABILITATION 1643, 1643 (2007), people appear to exaggerate the negative effect of spinal cord injuries on quality of life.
53. See Peter A. Ubel et al., Disability and Sunshine: Can Hedonic Predictions Be Improved by Drawing Attention to Focusing Illusions or Emotional Adaptation?, 11 J. EXPERIMENTAL PSYCHOL.: APPLIED 111, 117-18 (2005) (finding that subjects predicted low quality of life after paraplegia, but that these rating increased when subjects were explicitly asked to consider how they might adapt to the disability).
54. See David L. Sackett & George W. Torrance, The Utility of Different Health States as Perceived by the General Public, 31 J. CHRONIC DISEASES 697, 702 (1978) (finding that individuals already on a home dialysis program rated their daily health state utility higher than individuals predicted their daily health state utility would be if on dialysis).
55. See Norman F. Boyd et al., Whose Utilities for Decision Analysis?, 10 MED. DECISION MAKING 58, 65 (1990).
56. See Kerry A. Wilson et al., Perception of Quality of Life by Patients, Partners and Treating Physicians, 9 QUALITY LIFE RES. 1041, 1045 (2000) (noting that physicians underestimate patient quality of life for patients with metastatic breast cancer).
57. See generally Sackett & Torrance, supra note 34, at 702;
58. Ubel et al., supra note 33, at 120 (noting that "people predict that their quality of life with various disabilities would be lower than the quality of life actually reported by people who have those disabilities");
59. Peter A. Ubel et al., Misimagining the Unimaginable: The Disability Paradox and Health Care Decision Making, 24 HEALTH PSYCHOL. S57, S57 (2005) (noting that people "mispredict the impact that circumstances will have on their well-being and quality of life").
60. Ubel & Loewenstein, supra note 2, at S203 (citation omitted).
61. Wilson et al., supra note 36, at 1045.
62. Bagenstos & Schlanger, supra note 2, at 752-53.
63. Schindler Elevator Corp. v. Anderson, 78 S.W.3d 392, 412 (Tex. App. 2001), review granted, judgment vacated, (May 22, 2003);
64. Bagenstos & Schlanger, supra note 2, at 755 ("In many cases upholding hedonic damages awards, judges seem to have concluded explicitly that the mere fact of disability, without more, necessarily limits life's enjoyment").
65. See, e.g. Knight v. Lord, 648 N.E.2d 617, 623 (Ill. App. Ct 1995);
66. Canfield v. Sandock, 563 N.E.2d 1279, 1281-83 (Ind. 1990);
67. Estate of Pearson v. Interstate Power & Light Co., 700 N.W.2d 333, 347 (Iowa 2005);
68. Gregory v. Carey, 791 P.2d 1329, 1336 (Kan. 1990);
69. Giuliani v. Guiler, 951 S.W.2d 318, 320 (Ky. 1997) (noting that it "is the purpose of all tort law to compensate one for the harm caused by another and to deter future wrongdoing");
70. Anderson v. Neb. Dep't of Soc. Servs., 538 N.W.2d 732, 740 (Neb. 1995);
71. Swiler v. Baker's Super Mkt., Inc., 277 N.W.2d 697, 700 (Neb. 1979) (noting that a majority of the courts have approved inclusion of "loss of enjoyment of life as a consideration" that may be instructed upon in the proper tort case);
72. Banks v. Sunrise Hosp., 102 P.3d 52, 64 (Nev. 2004);
73. McDougald v. Garber, 536 N.E.2d 372, 375-77 (N.Y. 1989);
74. Fantozzi v. Sandusky Cement Prods. Co., 597 N.E.2d 474, 486 (Ohio 1992);
75. Boan v. Blackwell, 541 S.E.2d 242, 245 (S.C. 2001).
76. A growing minority separate lost enjoyment of life from other categories of damages. Victor E. Schwartz & Cary Silverman, Hedonic Damages: The Rapidly Bubbling Cauldron, 69 BROOK. L. REV. 1037, 1046 (2004).
77. Boan, 541 S.E.2d at 244.
78. Other descriptions of these damages include: "disabilities that include the basic mechanical body functions of walking, climbing, feeding oneself and so on," McGarry v. Horlacher, 775 N.E.2d 865, 877-78 (Ohio Ct App. 2002), "the ability to enjoy the occupation of your choice, activities of daily living, social leisure activities and internal well-being,"
79. Smith v. Ingersoll-Rand Co., 214 F.3d 1235,1245-46 (10th Cir. 2000) (quotations omitted), and the joy from "going on a first date, reading, debating politics, the sense of taste, recreational activities, and family activities."
80. Kansas City S. Ry. Co. v. Johnson, 798 So. 2d 374, 381 (Miss. 2001).
81. Bagenstos & Schlanger, supra note 2, at 748-50.
82. In an early New Jersey case, the court stated that "[a] shriveled hand and wrist.... [D]eprives one of much of the enjoyment of life." Haeussler v. Consol. Stone & Sand Co., 127 A. 602, 604 (N.J. 1925).
83. See, e.g., Bagenstos & Schlanger, supra note 2, at 748;
84. Schwartz & Silverman, supra note 42, at 1039.
85. See Bagenstos & Schlanger, supra note 2, at 797.
86. Id.
87. Id. at 751.
88. Id.
89. Id. at 757 n.49 (collecting cases).
90. Sunstein, supra note 2, at S180 ("A key question, which a reading of the cases cannot answer, is whether the decisions are animated by some kind of hedonic judgment error or instead an intuitive but sensible judgment about capabilities.").
91. See Ubel & Loewenstein, supra note 2, at S205.
92. See id. at S205-07.
93. Matthew D. Adler, Risk, Death And Harm: The Normative Foundations of Risk Regulation, 87 MINN. L. REV. 1293, 1322-40 (2003).
94. See id. at 1295;
95. see also MATTHEW D. ADLER & ERIC A POSNER, NEW FOUNDATIONS OF COST-BENEFIT ANALYSIS 29 (2006) (discussing major accounts of welfare).
96. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in JOHN STUART MILL, UTILITARIANISM, ON LIBERTY, ESSAY ON BENTHAM 33, 34 (Mary Warnock ed. 1962) ("By utility is meant that property in any object, whereby it tends to produce benefit, advantage, pleasure, good, or happiness . . . [or] to prevent the happening of mischief, pain, evil, or unhappiness . . . .").
97. See BRUNO S. FREY & ALOIS STUTZER, HAPPINESS AND ECONOMICS: HOW THE ECONOMY AND INSTITUTIONS AFFECT WELL-BEING 3 (2002) (describing happiness as synonymous with well-being);
98. Nussbaum, supra note 24, at S82;
99. see also Daniel Kahneman et al., Toward National Well-Being Accounts, 94 AM. ECON. REV. 429, 429-31 (2004) (measuring happiness through time budgets and affective ratings of experiences in order to gauge well-being).
100. See Mark C. Murphy, The Simpple Desire-Fulfillment Theory, 33 NOûS 247, 247 (1999) (noting that "[a]ccording to the desire-fulfillment, or DF, theory, an agent's well-being is constituted by the obtaining of states of affairs that are desired by that agent").
101. See Ubel & Loewenstein, supra note 2, at S205.
102. See Smith et al., supra note 29, at 690, 691.
103. For a broader discussion of these studies, see Ubel & Loewenstein, supra note 2, at S202-04.
104. Smith et al., supra note 29, at 692 (finding that: current patients, community members, and former patients who had their colostomies reversed, all exhibited similar levels of life satisfaction; that patients and former patients reported similar moods and quality of life; and that patients only exhibited slightly lower quality of life scores than community members);
105. see also Riis et al., supra note 15, at 7 (finding that hemodialysis patients "do not appear to be much, if at all, less happy than people who do not have kidney disease").
106. See Adler, supra note 54, at 1305 ("Indeed, many preferentialists now stipulate that the preferences which ground welfare must be fully informed.") (quotations omitted);
107. Dan Brock, Quality of Life Measures in Health Care and Medical Ethics, in THE QUALITY OF LIFE 95, 97 n.5 (Martha Nussbaum & Amartya Sen eds., 1993) ("Virtually all discussions of desire or preference satisfaction theories of the good contain some provision for correcting preferences.").
108. See Adler, supra note 54, at 1305.
109. See, e.g., Riis et al., supra note 15, at 7, 8 ("Both patients and controls ... predicted that the difference in mood experienced under healdi versus illness would be large.");
110. Smith et al., supra note, 29 at 691 (finding that both patients and nonpatients were willing to give up remaining life-years to avoid living with a colostomy).
111. Riis et al., supra note 15, at 7.
112. Id. at 7-8 (noting that "patients are themselves not aware of the extent to which they have adapted to their condition").
113. See Ubel & Loewenstein supra note 2, at S203-04 (noting that patients and healthy persons made similar errors in predicting the impact of disability on happiness).
114. Similar heuristics influence a wide array of predicted and remembered pain and pleasure. These schemas dominate predictions, and play a large role in memory as well. The reality of an experience is not irrelevant to the memory of it, but there is a large literature showing pervasive effects of these heuristics on memories of pain and pleasure. See, e.g., Timodly D. Wilson et al., "How Happy Was I, Anyway?" A Retrospective Impact Bias, 21 Soc. COGNITION 421, 431-33 (2003).
115. Ubel & Loewenstein, supra note 2, at S204-05.
116. MARTHA C. NUSSBAUM, WOMEN AND HUMAN DEVELOPMENT: THE CAPABILITIES APPROACH 152-61 (2000) (arguing that philosophers should use common preferences as a heuristic to determine what is good and noting preferences for a state of world are especially diagnostic when the holder of these preferences has experienced all relevant states of the world).
117. Ubel & Loewenstein, supra note 2, at S195.
118. Id. at S205.
119. Id. at S206.
120. See NUSSBAUM, supra note 70, at 8, 114 (noting that an approach based on capabilities rejects an approach based on preferences because it conducts a critique of "die many ways in which habit, fear, low expectations, and unjust background conditions deform people's choices and even their wishes for their own lives").
121. AMARTYA SEN, COMMODITIES AND CAPABILITIES 21 (1985) ("A person who is ill-fed, undernourished, unsheltered and ill can still be high up in the scale of happiness or desire-fulfilment [sic] if he or she has learned to have 'realistic' desires and to take pleasure in small mercies.").
122. Amartya Sen, The Standard of Living: Lecture I, Concepts and Critiques, in THE STANDARD OF LIVING 1, 8 (Geoffrey Hawthorn ed., 1987).
123. See MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALITY, SPECIES MEMBERSHIP 73 (2006) (noting that "[p]eople adjust their preferences to what they think they can achieve, and also to what their society tells them a suitable achievement is for someone like them").
124. See NUSSBAUM, supra note 70, at 72-74 (noting that "we may judge that the absence of capability for a central function is so acute that the person is not really a human being at all, or any longer").
125. See Martha Nussbaum & Amartya Sen, Introduction to THE QUALITY OF LIFE, supra note 62, at 1, 3, 10.
126. AMARTYA SEN, INEQUALITY REEXAMINED 39 (1992).
127. NUSSBAUM, supra note 77, at 79, 304-05 (noting that there is likely to be an "overlapping consensus" on these capabilities);
128. Robert Erikson, Descriptions of Inequality: The Swedish Approach to Welfare Research, in THE QUALITY OF LIFE, supra note 62, at 67, 74 ("The . . . components [of well-being] do not constitute a self-evident choice, but similar lists of the essential areas relevant to . . . living look very much the same the world over.").
129. NUSSBAUM, supra note 70, at 78-80;
130. Martha C. Nussbaum, Capabilities as Fundamental Entitlements: Sen and Social Justice, 9 FEMINIST ECON. 33, 41 (2003).
131. T. M. Wilkinson, Dworkin on Palernalism and Well-Being, 16 OXFORD J. LEGAL STUD., 433, 439 (1996)
132. (citing RONALD DWORKIN, FOUNDATIONS OF LIBERAL EQUALITY 77 (1989 Tanner Foundation Lectures) (1999)).
133. See Nussbaum & Sen, supra note 79, at 3, 10.
134. Nussbaum believes that this consensus is rooted in common intuitions about human dignity and human flourishing. See NUSSBAUM, supra note 70, at 76, 83, 101 ("The account of the central capabilities is based on an intuitively powerful idea of truly human functioning that has roots in many different traditions and is independent of any particular metaphysical or religious view.").
135. For some exceptions to this rule, see generally BARRY SCHWARTZ, THE PARADOX OF CHOICE: WHY MORE IS LESS 117-200 (2004) (questioning whether increased opportunities for choice actually makes people happier).
136. NUSSBAUM, supra note 70, at 74.
137. Id. at 80.
138. See id. at 80 n.85.
139. See id. at 105 (acknowledging the need to concretize her list in order for it to be relevant to policy decisions);
140. Sunstein, supra note 2, at S176 n.7 (discussing disability as a loss in capabilities and noting that the more concrete and ordinary sense of capabilities "belongs in the same general family" as Nussbaum's more abstract definition of capabilities).
141. Sunstein, supra note 2, at S178.
142. See NUSSBAUM, supra note 70, at 74.
143. Nussbaum is well aware of this, and notes items on her list will be construed differently in different societies. See id. at 77. Therefore, the contested issues of value that appear when we try to concretize her list problematize the use of the capabilities approach in the context of tortious loss of physical capabilities, but do not problematize the capabilities approach generally.
144. See infra Part III.B.1.
145. This determination requires a conceptual baseline, which will most often be the capabilities of the average person. See Ani B. Satz, A Jurisprudence of Dysfunction: On the Role of "Normal Species Functioning" in Disability Analysis, 6 YALE J. HEALTH POL'Y L. & ETHICS 221, 224 (2006) (advocating that the Supreme Court should consider "normal species functioning" when deciding eligibility for protection under the Americans with Disabilities Act).
146. OLIVER SACKS, THE MAN WHO MISTOOK HIS WIFE FOR A HAT 98 (Harper Perennial 1990) (1970).
147. Matthis Synofzik & Thomas E. Schlaepfer, Stimulating Personality: Ethical Criteria for Deep Brain Stimulation in Psychiatric Patients and for Enhancement Purposes, 3 BIOTECHNOLOGY J. 1511, 1514 (2008) ("[T]he ethically decisive question is not whether [brain surgery] alters personality or not, but whether it does so in a good or bad way from the patient's very own perspective." (emphasis omitted)).
148. Consider one patient who received deep brain stimulation (DBS)-a process that involves the implantation of a pacemaker into the brain to help control electrical storms that cause tremors associated with Parkinson's disease. Prior to the procedure, this patient hid her condition from workmates and reported being very committed to work: "As long as I have my work, I still exist; the day I can no longer go to work, it will be as if the curtain came down on my life." M. Schüpbach et al., Neurosurgery in Parkinson Disease: A Distressed Mind in a Repaired Body?, 66 NEUROLOGY 1811, 1812 (2006). After the surgery, her symptoms disappeared. Yet she now wanted to tell others about her condition and did not go back to work. When asked why she did not return to work, she simply said: "I... prefer to spend my time doing other things." Id. It is not clear whether these changes resulted from DBS itself, or instead from the radical lifestyle changes that she underwent when her symptoms disappeared entirely.
149. However, given how little we know about DBS, Synofzik & Schlaepfer, supra, at 1516 (noting that the "longterm cognitive, emotional and behavioral effects of psychiatric DBS are still largely unknown"), and given its invasiveness, it is certainly plausible that DBS itself had a role in altering what this patient valued. A recent conference on bioethics and personal identity further supports the contention that DBS might plausibly alter values. This conference was organized around four fictional case studies, one of which included a mild-mannered republican patient who underwent DBS and later became a gregarious democrat.
150. See David M. Blass, Case Studies, in PERSONAL IDENTITY AND FRACTURED SELVES 50, 59 (Debra J.H. Mathews et al. eds., 2009).
151. SACKS, supra note 96, at 98.
152. Below, this Article will briefly lay out the argument that the concept of self-altering injury can be integrated into the capabilities approach, as an element of Practical Reason. If this is correct, then the limitations described above are not attributable to the capabilities approach itself, but rather to applications of the capabilities approach that focus too narrowly on the physical consequences of impairment The main thrust of this Article, however, is to develop the concept of self-altering injury independently from the capabilities approach.
153. See DAVID DEGRAZIA, HUMAN IDENTITY AND BIOETHICS 1-10 (2005).
154. JOEL FEINBERG, 3 THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO SELF 27-28, 33-34 (1986).
155. See id. at 33-34.
156. Harry G. Frankfurt, Freedom of the Will and the Concept of a Person, 68 J. PHIL. 5, 6-7 (1971) ("Besides wanting and choosing and being moved to do this or that, men may also want to have (or not to have) certain desires and motives." (emphasis omitted));
157. see also GERALD DWORKIN, THE THEORY AND PRACTICE OF AUTONOMY 16-20 (1988) (discussing second-order desires and the process of deciding what kind of person to become).
158. DWORKIN, supra note 103, at 20.
159. Frankfurt, supra note 103, at 11 (discussing second-order volitions as a specific type of what I refer to above as a second-order desire).
160. BERNARD WILLIAMS, MORAL LUCK 12-14 (1981).
161. MARYA SCHECHTMAN, THE CONSTITUTION OF SELVES 77 (1996) ("[A]ll of the characteristics that are part of a person's history are presumed to contribute to making up her identity. Some, however, play a more central role than others and are more truly expressive of who she is.").
162. CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF THE MODERN IDENTITY 3, 34 (1989).
163. See id. at 30, 32.
164. Id. at 19.
165. See id. at 21.
166. See id. at 28.
167. Id. at 27.
168. Id. at 18-19 (noting that without a framework "nothing is worth doing, the fear is of a terrifying emptiness, a kind of vertigo, or even a fracturing of our world").
169. See id. at 31.
170. Id. ("[T]he portrait of an agent free from all frameworks . . . spells for us a person in the grip of an appalling identity crisis. ... [A] person without a framework altogether would be outside our space of interlocution; he wouldn't have a stand in the space where the rest of us are. We would see this as pathological.").
171. See Gilbert et al., supra note 10, at 619.
172. See generally TIMOTHY D. WILSON, STRANGERS TO OURSELVES: DISCOVERING THE ADAPTIVE UNCONSCIOUS 17-42 (2002) (describing the adaptive unconscious).
173. N. Brooks etal., The Five Year Outcome of Severe Blunt Head Injury: A Relative's View, 49 J. NEUROLOGY, NEUROSURGERY, & PSYCHIATRY 764, 764 (1986).
174. Id. at 765;
175. Kendall & Terry, supra note 27, at 103, 104.
176. Kendall & Terry, supra note 27, at 102-03.
177. Id. at 105
178. (citing Nils R. Varney & Lynette Menefee, Psychosocial and Executive Deficits FoUowing Closed Head Injury: Implications for Orbital Frontal Cortex, 8 J. HEAD TRAUMA REHABILITATION 32, 35 (1993)).
179. Although not all head-injury victims will undergo these personality changes, many will. Id. at 105, 115 (suggesting that this heterogeneity is due to differing personality traits and levels of social support).
180. Brooks et al., supra note 118, at 765 (emphasis omitted).
181. Id. at 767.
182. Id. at 765 tbl.2.
183. Id.
184. Id.
185. See Nussbaum, supra note 82, at 41-42.
186. See SACKS, supra note 96, at 141 (reporting on a patient who enjoyed the elevated moods that her neurosyphilis created, and wished to live within this phase of the disease rather than seek a cure that would return her to her original state).
187. This critique of the capabilities approach mirrors John Christman's critique of subjective welfare. He argues that happiness and preference satisfaction are inadequate measures of well-being because people can be made better off by forcibly altering their preferences. This "leave[s] totally out... the special relation that obtains between a person and that person's set of (autonomous) preferences." John Christman, Introduction to THE INNER CITADEL: ESSAYS ON INDIVIDUAL AUTONOMY 3, 17 (John Christman ed., 1989) (emphasis in original).
188. See Ubel & Loewenstein, supra note 2, at S207-08.
189. Id. at S206.
190. Sunstein, supra note 2, at S179.
191. JOHN STUART MILL, UTILITARIANISM 10 (George Sher ed., Hackett Publ'g 1979) (1861). Compare Mill's view to Bentham's: "Prejudice apart, the game of push-pin [a simple child's game] is of equal value with the arts and sciences of music and poetry. If the game of push-pin furnish more pleasure, it is more valuable than either."
192. JEREMY BENTHAM, The Rationale of Reward, in 2 The WORKS OF JEREMY BENTHAM 189, 253 (John Bowring ed., London, Simpkin, Marshall & Co. 1843).
193. See NORMAN E. BOWIE & ROBERT L. SIMON, THE INDIVIDUAL AND THE POLITICAL ORDER: AN INTRODUCTION TO SOCIAL AND POLITICAL PHILOSOPHY 30-31 (3d ed. 1998) (noting that "many objected to the elitism of Mill's panel of experts.");
194. Yossi Yonah, Well-Being, Categorical Deprivation and Pleasure, 28 PHILOSOPHIA 233, 243 (2001).
195. Richard Abel, General Damages Are Incoherent, Incalculable, Incommensurable, and Inegalitarian (but Otherwise a Great Idea), 55 DEPAUL L. REV. 253, 277 (2006).
196. BRISON, supra note 1, at 46.
197. See supra Part I.A.
198. Kendall & Buys, supra note 4, at 17 (citation omitted).
199. Hanoch Livneh & Randall M. Parker, Psychological Adaptation to Disability: Perspectives from Chaos and Complexity Theory, 49 REHABILITATION COUNSELING BULL. 17, 18 (2005) (describing such "pendular models");
200. see also Kathy Charmaz, The Body, Identity, and Self: Adapting to Impairment, 36 Soc. Q. 657, 670 (1995) (discussing identity trade-offs);
201. Judith A. Howard, Social Psychology of Identities, 26 ANN. REV. SOC. 367, 368 (2000) (discussing the alteration of "self-schemas," that is, "characteristics, preferences, goals, and behavior patterns we [correctly or not] associate with ourselves");
202. Karen K. Yoshida, Reshaping of Self: A Pendular Reconstruction of Self and Identity Among Adults with Traumatic Spinal Cord Injury, 15 Soc. HEALTH & ILLNESS 217, 217, 223 (1993) (discussing the pendular nature of self-identity oscillating between preinjury and postinjury self concepts, and settling on a "middle self).
203. Nick Watson, Well, I Know This is Going to Sound Very Strange to You, but I Don't See Myself as a Disabled Person: Identity and Disability, 17 DISABILITY & SOC'Y 509, 512-13 (2002) ("People who have an impairment or chronic condition . . . suffer a loss of self and go through a process during which they negotiate their lives in such a way as to be as ordinary as possible and so retain some contact with desired life-worlds.").
204. Consistent with the predictions of hedonic adaptation, these changes are often evaluated positively: "[H] ad it not been for my heart attack-I'm grateful it happened now, cause it changed my life considerably and so [I] have a lack of words [to describe it]. Yeah, I thank my heart attack for that. In one way I'm grateful." Kathy Charmaz, Identity Dilemmas of Chronically Ill Men, 35 Soc. Q. 269, 275 (1994) (conducting qualitative interviews with twenty men and eighty women, all with chronic illnesses).
205. See Simon J. Williams, Chronic Illness as Biographical Disruption or Biographical Disruption as Chronic Illness? Reflections on a Core Concept, 22 SOC. HEALTH & ILLNESS 40, 40 (2000).
206. 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, 2153 (2002).
207. K. Whalley Hammell, Quality of Life After Spinal Cord Injury: A Meta-Synthesis of Qualitative Findings, 45 SPINAL CORD 124, 135 (2007).
208. S. Kay Toombs, Disability and the Self, in CHANGING THE SELF: PHILOSOPHIES, TECHNIQUES, AND EXPERIENCES 337, 351 (Thomas M. Brinthaupt & Richard P. Lipka eds., 1994).
209. Charmaz, supra note 140, at 276 (emphasis omitted).
210. S. Kay Toombs, Reflections on Bodily Change: The Lived Experience of Disability, in HANDBOOK OF PHENOMENOLOGY AND MEDICINE 247, 254 (S. Kay Toombs ed., 2001) (emphasis in original).
211. Patricia J. Manns & Karen E. Chad, Components of Quality of Life for Persons with a Quadriplegic and Paraplegic Spinal Cord Injury, 11 QUALITATIVE HEALTH RES. 795, 802 (2001);
212. see also ERNEST A HIRSCH, STARTING OVER 164-65 (1977) ("Whatever changes have occurred in me do not touch the core of my 'self,' which has remained pretty much the same. As far as other people are concerned, I think I've remained much as always. Although I realize some changes have occurred, I feel a continuity with the past and have no difficulty recognizing myself as myself, and neither does anyone else.");
213. K. Whalley Hammell, Quality of Life Among People with High Spinal Cord Injury Living in the Community, 42 SPINAL CORD 607, 612 (2004) ("The person you were pre-injury is the person you are going to be post-injury-with different values....");
214. id. at 613 ("I don't really look at myself any different.").
215. See Kendall & Buys, supra note 4, at 18 ("Research has also indicated that there is significant variation both within and across individuals in the speed and quality with which individuals move through the adjustment process." (citation omitted));
216. Hanoch Livneh, Sheri M. Lott & Richard F. Antonak, Paltterns of Psychosocial Adaptation to Chronic Illness and Disability: A Cluster Analytic Approach, 9 PSYCHOL. HEALTH & MED. 411, 423 (2004) (describing heterogeneity in coping and adaptation to spinal cord injury).
217. Some may instead find that a disability does not substantially affect their ideals and goals.
218. Much disability research focuses on the effects that disabilities have on general mood (e.g., causing depression, anxiety, or aggressiveness), as opposed to cataloging the specific changes in commitments that may have occurred. See, e.g., Kendall & Terry, supra note 27, at 102-05 (noting that studies have demonstrated that closed head injury can "have devastating consequences across a range of psychosocial domains"). Because selfalteration is arguably more harmful when one's ideals change, future research should focus on the types of commitments that are altered by disability, and thereby more rigorously test the assertion above that disability can lead to altered ideals and goals.
219. Christine Carpenter, The Experience of Spinal Cord Injury: The Individual's Perspective - Implications for Rehabilitation Practice, 74 PHYSICAL THERAPY 614, 622 (1994);
220. see also Hammell, supra note 143, at 133 ("By letting go of some 'I ams' (such as 'I am an athlete') and developing others (such as 'I am a father'), a sense of self-worth was enhanced.");
221. Hammell, supra note 147, at 612 ("The person you were pre-injury is the person you are going to be post-injury-with different values ....").
222. Hammell, supra note 143, at 135.
223. See Olga Horgan & Malcolm MacLachlan, Psychosocial Adjustment to Lower-Limb Amputation: A Review, 26 DISABILITY & REHABILITATION 837, 840 (2004) (collecting studies and concluding that "many people without disabilities ignore those with disabilities for fear of saying the wrong thiing or because of experiencing general anxiety and unease in their presence");
224. id. ("[A]lmost half of the participants visited friends and relatives less frequently since their amputation and that approximately two-thirds were less likely to go to the cinema, theatre, sport events, library, dances, and shows."
225. (citing H. Burger & C. Marincek, The Life Style of Young Persons After Lower Limb Amputation Caused by Injury, 21 PROSTHETICS & ORTHOTICS INT'L 35, 36 (1997));
226. Michael Kelly, Self, Identity and Radical Surgery, 14 Soc. HEALTH & ILLNESS 390, 404-06 (1992) (reporting interviews with people needing colostomy bags that showed that many believed their disability made sexual relationships more difficult);
227. see also Duggan & Dijkers, supra note 9, at 15 (reporting on cascade effects of injury, which include fears of sexual rejection);
228. Livneh et al., supra note 148, at 415 (reporting that patients who suffer spinal cord injuries have high subjective wellbeing in a number of areas, but low subjective well-being in employment, sex, and financial situations).
229. See Daniel M. Bartels & Lance J. Rips, Psychological Connectedness and Intertemporal Choice, 139 J. EXPERIMENTAL PSYCHOL.: GEN. 49, 51 (2010).
230. See id. at 50 (describing the concept of psychological connectedness).
231. See DEREK PARFIT, REASONS AND PERSONS 206 (1984).
232. See id. at 239-43.
233. id. at 206, 277, 313.
234. A clarifications is in order. Parfit uses the term Relation R to discuss the ways in which people persist through time only as a matter of degree. Id. at 262.
235. Parfit identifies two constituitive parts of Relation R: connectedness and continuity. Id.
236. Continuity consists in "overlapping chains" of connectedness. Id. at 206. This article focuses on connectedness rather than continuity because continuity is a function of connectedness, and because Parfit's most relevant discussions involve connectedness.
237. See also David W. Shoemaker, Disintegrated Persons and Distributive Principles, 15 RATIO 58, 75 (2002) ("[O]f the two relations in Relation R we may plausibly believe that psychological connectedness is by far the more important.").
238. PARFIT, supra note 156, at 237.
239. id. at 323-30.
240. Id.
241. For a useful collection of essays illustrating this debate, see generally PERSONAL IDENTITY (Raymond Martin & John Baressi eds., 2003).
242. Bartels & Rips, supra note 154, at 52.
243. id. at 57-58.
244. Id. at 68.
245. Id.
246. see also id. at 61.
247. Id. at 58.
248. See id. at 59-60.
249. Id.
250. Id. at 58.
251. Id.
252. Id. at 64 ("When people anticipate an important change that might weaken the psychological bonds between their present and future selves, they want upcoming desirable events to happen before the change occurs.").
253. Id.
254. In addition to studying traumatic events, this study also asked subjects to consider a fictional student who would undergo a "religious conversion-will be introduced into a new faith and will find spiritual fulfillment in [his or her] God,"
255. id. at 68, and would "find out that he was adopted."
256. Id. at 61. Subjects treated these conditions much like they did the other large life events: kidnapping, witnessing war, avalanches, and erroneous cancer diagnoses. Subjects reported low levels of connectedness between the fictional student now and the student after he converted or learned he was adopted. Subjects were also hesitant to shift money from the preconversion student to the postconversion student and from the pre-adoption-revelation self to the post-adoption-revelation-self.
257. Id at 59, 61
258. Id. at 60-61.
259. Id. at 62-63.
260. Id. at 63.
261. Id.
262. Id.
263. id. at 52.
264. This Article focuses solely on people who have ideals and goals that constitute an ongoing life project I refer to these people simply as "adults." The concept of self-alteration would have to be altered to accommodate injuries to children, who probably do not have set ideals or goals. It is also possible that the phenomenon of hedonic adaptation works differently in children than in adults.
265. See Menzel et al., supra note 142, at 2151 ("Realizing that a disease or disability is likely to be chronic, people may adjust their activities. . . . People may adjust not only the activities they select to pursue their goals, but the content and direction of the goals themselves. Their basic interests can change. A paraplegic, for example, may develop an interest in music to replace a previous interest in physical activity.").
266. See supra notes 25-36 and accompanying text.
267. Bagenstos & Schlanger supra note 2, at 764
268. (citing Carolyn L. Vash, The Psychology of Disability, 22 REHABILITATION PSYCHOL. 145, 153 (1975),
269. as reprinted in CAROLYN L. VASH & NANCY M. CREWE, PSYCHOLOGY OF DISABILITY 160 (2d ed. 2004)).
270. id. at 768.
271. Menzel et al., supra note 142, at 2151 ("The primary meaning of 'adapt' appropriate for the present context of disability and chronic illness is 'to adjust oneself to new or changed circumstances.' This can be articulated even more specifically as changing 'oneself so that one's behavior, attitudes, etc. will conform to new . . . circumstances.' . . . [T]he primary focus of adaptation is on a change in the adapting agent . . . ." (citations omitted)).
272. See Ubel and Loewenstein, supra note 2, at S205. Even after being convinced that major injuries will not affect their long-term happiness, Ubel and Loewenstein remain convinced that many tort victims sustain substantial harm. They seek to resolve this puzzle by arguing that harm should not be defined solely by happiness and should instead account for lost capabilities.
273. See VALERIE GRAY HARDCASTLE, CONSTRUCTING THE SELF 18 (2008);
274. Dan P. McAdams, The Problem Of Narrative Coherence, 19 J. CONSTRUCTIVIST
275. See ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 191-92 (1981).
276. See id. at 194-96.
277. See id.
278. Id. at 192.
279. See id. at 192, 194-95.
280. See id. at 192-93.
281. See id. at 193 ("[B]ehaviour is only characterised adequately when we know what the longer and longest-term intentions invoked are ....").
282. See id. at 200-01 ("There is no present which is not informed by some image of some future and an image of the future which always presents itself in the form of a telos . . . towards which we are either moving or failing to move in the present").
283. See id. at 199 ("The notion of a history is as fundamental a notion as the notion of an action. Each requires the other.").
284. See id. at 203-04.
285. Id.
286. See supra notes 108-11 and accompanying text
287. See TAYLOR, supra note 108, at 31.
288. id. at 31.
289. See id. at 47.
290. Id. at 46-47.
291. See id. at 47.
292. HARDCASTLE, supra note 188, at 30 ("[We are] driven to tell narratives .... This is something we cannot help but do, for it is the only way we have of understanding ourselves.");
293. see also DANIEL C. DENNETT, CONSCIOUSNESS EXPLAINED 418 (1991);
294. TAYLOR, supra note 108, at 48;
295. John Barresi, On Becoming a Person, 12 PHIL. PSYCHOL. 79,91 (1999) ("From a phenomenological perspective, it does not matter whether this self that we attribute identity to through time is metaphysically real or mere psychological fiction, what matters is that it is essential to our phenomenology of self ....").
296. Arguably, evolutionary pressures have hardwired these tendencies into all humans. See Shaun Gallagher, Philosophical Conceptions of the Self: Implications for Cognitive Science, 4 TRENDS COGNITIVE SCI 14,19 (2000) ("[W]e cannot prevent ourselves from 'inventing' our selves. We are hardwired to become language users, and once we are caught up in the web of language and begin spinning our own stories, we are not totally in control of the product");
297. see also DENNETT, supra note 206, at 10-11.
298. SCHECHTMAN, supra note 107, at 98;
299. Catriona Mackenzie, Personal Identity, Narrative Integration, and Embodiment, in EMBODIMENT AND AGENCY 100, 107 (Sue Campbell et al. eds., 2009).
300. One scholar uses the example of a woman who thinks of herself as ugly, but then begins to evaluate the evidence in the mirror. See ROY SCHAFER, RETELLING A LIFE 10 (1992).
301. Daniel C. Dennett, The Self as a Center of Narrative Gravity, in SELF AND CONSCIOUSNESS: MULTIPLE PERSPECTIVES 103, 106-07 (Frank S. Kessel et al. eds., 1992) (noting that the concept of a self that is created through narrative is similar to abstract concepts in physics like centers of gravity-both are fictions, but both are extremely useful in trying to understand the object of study).
302. For discussions of the constraints that culture puts on an individual's self-narrative, see DEGRAZIA, supra note 100, at 84-86,
303. SCHAFER, supra note 209, at 53-55, and
304. SCHECHTMAN, supra note 107, at 95.
305. See supra notes 157-59 and accompanying text
306. DEGRAZIA, supra note 100, at 80.
307. MACINTYRE, supra note 189, at 202.
308. See DEGRAZIA, supra note 100, at 80-82, 89, 107.
309. See supra note 146 and accompanying text.
310. SCHECHTMAN, supra note 107, at 88 (emphasis in original).
311. Mackenzie, supra note 208, at 114 ("[A] condition of possibility of this narrative is that we have an integrated . . . conception of ourselves as embodied agents.").
312. See id. at 116.
313. Id. at 118.
314. HOWARD BRODY, STORIES OF SICKNESS 2 (2003) ("[T]he appearance of the sickness marks a radical redirection of the trajectory of the life story.").
315. See DWORKIN, supra note 103, at 6 ("'[A]utonomy' is used in an exceedingly broad fashion. . . . About the only features held constant from one author to another are that autonomy is a feature of persons and that it is a desirable quality to have.");
316. JOEL FEINBERG, supra note 101, at 27-51 (1986) (describing four common meanings of "autonomy" and listing twelve sub-aspects of one of them). For another comprehensive account of autonomy,
317. see generally THE INNER CITADEL: ESSAYS ON INDIVIDUAL AUTONOMY, supra note 129, passim.
318. For a discussion of the closely related concept of freedom, see generally TIM GRAY, FREEDOM (1991) (attempting to define freedom and the core meaning attendant to all of its different usages).
319. FEINBERG, supra note 101, at 28.
320. See Christman, supra note 129, at 3, 5-6 (suggesting that self-governance is th conceptual core of Feinberg's list, and that self-determination is at the core of self-governance);
321. see also Robert Young, Autonomy and the "Inner Self, " in THE INNER CITADEL: ESSAYS ON INDIVIDUAL AUTONOMY, supra note 129, at 77, 78 ("[T] o exercise one's freedom in such a way as to order one's life according to a plan or conception which fully expresses one's own choices ... is the heart of our notion of autonomy.").
322. See FEINBERG, supra note 101, at 33-35;
323. see also GRAY, supra note 221, at 52. In Richard Fallon's terminology, self-determination is a descriptive rather than ascriptive sense of autonomy.
324. See Richard H. Fallon, Jr., Two Senses of Autonomy, 46 STAN. L. REV. 875, 877-78 (1994) (defining descriptive autonomy as "the extent to which they are meaningfully 'selfgoverned' in a universe shaped by causal forces"). "Descriptive autonomy gives us a warranted sense that our lives are at least pardy of our own making, not the mere product of external forces. It also provides the foundation for pride and satisfaction in a life welllived."
325. Id. at 899.
326. See FEINBERG, supra note 101, at 33;
327. JOSEPH RAZ, THE MORALITY OF FREEDOM 369 (1986).
328. RAZ, supra note 225, at 372; Fallon, supra note 224, at 877 (arguing that descriptive autonomy is a matter of degree and depends in part on the number of options available). This Article sets aside the question of whether determinism undermines the possibility of free will and hence undermines self-determination. For a discussion of these issues and a defense of the possibility of self-determination, see DEGRAZIA, supra note 100, at 89-106.
329. FEINBERG, supra note 101, at 33 ("A person is authentic to the extent that....[H]e can and does alter his convictions for reasons of his own ...."); GRAY, supra note 221, at 53.
330. For a brief overview of the potential differences between some of these formulations see Christman, supra note 129, at 6-7.
331. RAZ, supra note 225, at 369 ("The autonomous person is a (part) author of his own life. The ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives.");
332. Gerald Dworkin, The Concept of Autonomy, in THE INNER CITADEL: ESSAYS ON INDIVIDUAL AUTONOMY, supra note 129, at 54, 60 ("It is only when a person identifies with the influences that motivate him, assimilates them to himself. . . that these influences are to be identified as 'his.'").
333. FEINBERG, supra note 101, at 34.
334. See id. at 34-37.
335. Daniel R. Williams, Mitigation and the Capital Defendant Who Wants to Die: A Study in the Rhetoric of Autonomy and the Hidden Discourse of Collective Responsibility, 57 HASTINGS L.J. 693, 709 (2006) ("The healthy individual's acquisition of greater and greater responsibility as he or she moves through adolescence into adulthood cultivates the capacity and the freedom to navigate through life, through the various institutional, social, political, circumstantial forces that are often beyond the individual's immediate control. The sacredness of the navigation resides in the importance it bears in bringing thematic unity, coherence, and integrity to living.").
336. Cf. GRAY, supra note 221, at 35 (noting that if a person were completely free to choose her own language, she would be unable to express herself) ;
337. H. J. McCloskey, A Critique of the Ideals of Liberty, 74 MIND 483, 486-87 (1965) (describing liberty as noninterfer-ence and noting that limits to noninterference with certain aspects of life may be important to maximize liberty generally).
338. See WILL KYMUCKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 126 (1995) ("[T]he context of individual choice is the range of options passed down to us by our culture. Deciding how to lead our lives is, in the first instance, a matter of exploring the possibilities made available by our culture.");
339. Diana T. Meyers, Personal Autonomy and the Paradox of Feminine Socialization, 84 J. PHIL. 619, 622-24 (1987) (highlighting the role of gender in constructing values).
340. See FEINBERG, supra note 101, at 38-39.
341. See Meyers, supra note 234, at 624.
342. FEINBERG, supra note 101, at 32 ("To the degree to which a person is autonomous he is not merely the mouthpeice of other persons or forces. Rather his tastes, opinions, ideals, goals, values, and preferences are all authentically his.").
343. See WILL KYMLICKA, LIBERALISM, COMMUNITY, AND CULTURE 50 (1989).
344. See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 48-51 (1974) (arguing that people give meaning to their lives by carrying out a life plan); RAZ, supra note 225, at 370, 400-29;
345. Kenneth J. Arrow, A Note on Freedom and Flexibility, in CHOICE, WELFARE AND DEVELOPMENT 7, 7-16 (K. Basu et al. eds., 1995). The capabilities approach, too, recognizes the value of self-determination. One of the fundamental capabilities on Nussbaum's objective list is Practical Reason. NUSSBAUM, supra note 70, at 82. This includes the freedom and opportunity to develop one's own sense of the good. Id. Practical reason is, for Nussbaum, one of the two most fundamental capabilities.
346. Id.
347. See JOHN GRAY, LIBERALISM 60 (1986);
348. David AJ. Richards, Autonomy in Law, in THE INNER CITADEL: ESSAYS ON INDIVIDUAL AUTONOMY, supra note 129, at 246, 246;
349. Gidon Sapir, Religion and State-A Fresh Theoretical Start, 75 NOTRE DAME L. REV. 579, 609 (1999). Autonomy can also provide a reason to give preference-satisfaction moral weight; if preferences are not somehow your own, then it is less clear why it would be wrong or harmful to prevent you from satisfying them.
350. See Christman, supra note 129, at 19.
351. FEINBERG, supra note 101, at 35-37.
352. 242 This Article does not take a position on whether constraints that only remove morally repugnant options can constitute harms. Raz qualified his valorization of autonomy by arguing that autonomy only contributes to well-being if it is used to pursue the good. RAZ, supra note 225, at 381. Similarly, Nussbaum and Sen argue that capabilities to do evil are not valuable. See NUSSBAUM, supra note 70, at 83 ("Not all actual human abilities exert a moral claim [to be given the opportunity to develop], only the ones that have been evaluated as valuable from an ethical viewpoint (The capacity for cruelty, for example, does not figure on the list [of fundamental capabilities].)"); id. at 81 (noting that capabilities are valuable when they are used to choose lives that people "have reason to value"); SEN, supra note 80, at 65 (noting that freedom is reduced by eliminating options that a people have "reasonably defendable" preferences for). This Article presumes that the vast majority of commitments that tort victims hold are not morally repugnant or evil. RAZ, supra note 225, at 381 ("A moral theory which recognizes the value of autonomy inevitably upholds a pluralistic view. It admits the value of a large number of greatly differing pursuits among which individuals are free to choose."). Therefore, constraints on maintaining these commitments can count as harms regardless of whether all or only some constraints on autonomy cause harm.
353. RAZ, supra note 225, at 413 ("Depriving a person of opportunities or of the ability to use them is a way of causing him harm."). Stephen Perry asks us to consider a Miss America contestant who is kidnapped and prevented from competing. See Stephen Perry, Harm, History, and Counterfactuals, 40 SAN DIEGO L. REV. 1283, 1292-93 (2003). According to Perry, she is harmed because her kidnappers have robbed her of an opportunity to compete.
354. Id. In Joel Feinberg's terminology, she has been harmed because her interest in competing has been thwarted. JOEL FEINBERG, 1 THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 92-93 (1984). As an aside, this Article does not take a position on whether constraints caused by cultural or economic forces-as opposed to individual tortious conduct-should be labeled "harms." But using the term harm in these cases is certainly comprehensible, and is not obviously misplaced. For discussions of similar debates about the proper scope of the term "freedom,"
355. see Felix Oppenheim, 'Constraints on Freedom' as a Descriptive Concept, 95 ETHICS 305, 305-06 (1985). A further clarification may be in order here. This Article does provide an account of which human actions trigger tort liability. It relies on existing tort doctrine to make this determination, and focuses on the harms that result from these actions.
356. Seana Valentine Shiffrin, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 LEGAL THEORY 117, 123-24 (1999).
357. See S. I. Benn & W. L. Weinstein, Being Free to Act, and Being a Free Man, 80 MIND 194, 208-09 (1971) (arguing that the cost of acting is relevant to determining whether someone is "free" to do so); Oppenheim, supra note 243, at 305, 307-08 (discussing "practical impossibility" in the context of defining freedom);
358. Eric A Posner & Cass R. Sunstein, Dollars and Death, 72 U. CHI. L. REV. 537, 565 (2005) ("[W]hen people have few or bad options, their choices might not count as voluntary.").
359. Andreas Hartkopp et al., Suicide in a Spinal Cord Injured Population: Its Relation to Functional Status, 79 ARCHIVES PHYSICAL MED. REHABILITATION 1356, 1356 (1998).
360. See id. at 1356, 1358 (summarizing previous studies finding that victims of spinal cord injury have suicide rates 3.3-4.9 times greater than the general population, and reporting a suicide rate from a Danish sample that was 4.6 times higher than the general population, controlling for gender, age, and year);
361. RJ Soden et al., Causes of Death After Spinal Cord Injury, 38 SPINAL CORD 604, 605 (2000) (reporting suicide rates for an Australian sample that were 4.4 times those of the general population, controlling for age and sex).
362. Smith & Sparkes, supra note 9, at 619-20.
363. Gilbert et al., supra note 10, at 619. See generally WILSON, supra note 117, at 38-40 (explaining the "psychological immune system").
364. 250 The preceding discussion should begin to show how the harms of self-altering injury could be integrated into the capabilities approach: the freedom or opportunity to maintain one's commitments is arguably a fundamental capability. Nussbaum lists Practical Reason as one of the two most important capabilities. NUSSBAUM, supra note 70, at 82. Practical Reason includes "[b]eing able to form a conception of the good and to engage in critical reflection about the planning of one's life." Id. at 79. The pressures of severe physical disability do not reduce one's capacity or ability to form a conception of the good, or reduce one's ability to critically reason. But Nussbaum uses her list to defend a minimal threshold of freedom that all people deserve. Id. at 86. Given her focus on threshold levels, it is not surprising that she phrases her explication of Practical Reason in terms of being "able" to form a conception of the good. It seems fair to suggest that scholars should interpret Practical Reason more broadly to encompass matters of degree. Thus one's free-dom and opportunity to exercise practical reason (and choose a good life) is reduced when some ideals, goals, and preferences are placed out of reach. Expanding the scope of Practical Reason to include the freedom and opportunity to maintain one's conception of the good would seem to be another appropriate interpretation. Taken together, this would suggest that the freedom and opportunity to maintain one's commitments would be a fundamental capability. Given the importance of self-determination, and the links between self-determination and the maintenance of commitments, it seems likely that an "overlapping consensus" about the fundamental nature of this freedom could form. See NUSSBAUM, supra note 77, at 79, 304-05.
365. One need not accept Nussbaum's list of fundamental capabilities, or accept the proposed interpretation of Practical Reason above, to accept the viability of self-altering injury. This explains why this Article has focused on developing the notion of self-altering injury separately from the capabilities approach. All that is required is the (hopefully unobjectionable) assertion that forced changes in one's commitments are harms.
366. This Article does not explore the implications of self-altering injuries for compensatory, corrective justice, and civil recourse theories of tort law. These issues are left for future work.
367. See STEVEN SHAVELL, ECONOMIC ANALYSIS OF ACCIDENT LAW 232-33, 298 (1987).
368. For a general discussion of decoupling compensatory recoveries from deterrence payments, see A Mitchell Polinsky & Yeon-Koo Che, Decoupling Liability: Optimal Incentives for Care and Litigation, 22 RAND J. ECON. 562, 566 (1991).